Bombay High Court
Mr. Ronen Moses Gadkar And Anr vs Mrs. Ruth Menahim Gadkar And Ors on 3 May, 2024
2024:BHC-AS:20619
908-cra-109-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.109 OF 2024
Ronen Moses Gadkar and Anr. ... Applicants
V/s.
Ruth Menahim Gadkar and Ors. ... Respondents
____________________________________
Ms. Jennifer Michael, Som Sinha, Divya Vishwanath & Sadaf Abidi
i/by Som Sinha & Associate, Advocate for the Applicants.
Mr. Durgesh Kulkarni a/w Adv. Harsh Sukhramani, Adv. K.
Hindalekar and Adv. Mayank N. Mishra, Advocate for the
Respondent.
____________________________________
CORAM : RAJESH S. PATIL, J.
DATED : 3 May 2024
P.C.:
1. This Civil Revision Application is filed by a defendant
challenging the concurrent finding recorded by the Trial Court and
the Appellate Court.
2. The Respondent herein is the original plaintiff and the
Applicant herein is the original defendant. For the sake of
convenience parties are referred to as per their nomenclature
before the Trial Court.
3. The plaintiff had filed an L.E. suit for eviction before the
Court of Small Causes at Bombay against the defendant. The suit
premises is Shop No.5, Varsha Premises Co-operative Housing
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Society Limited Andheri-(W), Mumbai-400061. The original
defendant filed his written statement to the plaint, denying
contents of the plaint. After the death of the original defendant his
legal heirs were brought on record and they filed their additional
written statement.
4. After the issues were framed, the plaintiff in all examined
four witnesses. All the four witnesses of the plaintiff were cross-
examined by the advocate for the defendant. The defendant no.1
thereafter led her evidence. She was cross-examined by the
advocate appearing for the plaintiff.
5. By its judgment and decree dated 3 May 2018, the Court of
the Small Causes at Bombay, decreed the suit of the plaintiff and
passed an eviction decree against the defendant.
6. Being dissatisfied with the judgment and decree passed by
the Trial Court, the defendant filed an appeal before the Appellate
Bench Court of the Small Causes. The Appellate Bench of the Small
Causes after hearing the parties vide its judgment and decree
dated 2 November 2022 dismissed the appeal filed by the original
plaintiff.
7. Against the concurrent findings of the Trial Court and the
Appellate Court, the present Civil Revision Application is filed
under section 115 of the Civil Procedure Code.
8. Ms. Jennifer Michael, appeared on behalf of the Applicant /
original defendant, and made her submissions.
(i) She submitted that as per the pleadings in the plaint, is
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concerned the case of the plaintiff is that of conducting agreement,
therefore, according to her the Court of the Small Causes will have
no jurisdiction to try and entertain the suit.
(ii) She submitted that it is also stated in the plaint that licenses
of the business were in the name of plaintiff, and the plaintiff
desired to allow the defendant to run the business. Therefore, a
running business was handed over to the defendant and hence
being a conducting business the Court of the Small Causes would
have no jurisdiction.
(iii) The other line of her arguments is that the defendant infact
was a owner of the suit premises hence, the dispute as to the title
of the suit premises would not lie with the Court of Small Causes.
(iv) She further submitted that the definition of "licensee" under
the old Bombay Rent Act and under the new Maharashtra Control
Act, specifically exclude "a person conducting a running business
belonging to the licensor".
(v) Ms. Jennifer to buttress her submission relied upon two
judgments. Viz Mangala Waman Karadikar Vs. Prakash Damodar
Ranade reported in (2021) 6 Supreme Court Cases 139 and Sarup
Singh Vs. Union of India reported in (2011) 11 Supreme Court
Cases 198.
9. Mr. Kulkarni appearing for the Respondent made his
submission on behalf of the original plaintiff.
(i) He submitted that the defendant has tried to take advantage
of the fact that initials of the plaintiff and the defendant were the
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same i.e. "M. E. Gadkar ".
(ii) He submitted that even though the initials of both the
plaintiff and defendant were same but the document Exhibit-63
which is an application for registration of society, in which the
name of plaintiff, is clearly mention. He submits that the defendant
had no answer to the said documents when was produced on
record.
(iii) He submits that the suit was specifically filed as a L.E. suit
for eviction before the Court of the Small Causes. He further relied
upon Paragraph No.20 of the plaint where it is specifically stated
that the suit was between licensor and licensee.
(iv) He also referred to Paragraph Nos.6 and 7 of the plaint
where in the plaintiff it was specifically stated that defendant
allowed to occupy premises at the monthly compensation of
Rs.300/-, per month in the year 1982. It was also further stated
that the occupation of the defendant was that of licensee and the
defendant was not protected under the provisions of Bombay Rent
Act. He submitted that both the Courts have considered the
evidence of the parties and the documents on record.
(v) He submits that there is a concurrent finding by both the
Courts, and hence this Court under its jurisdiction under section
115 of the Civil Procedure Code, should not entertain this Civil
Revision Application.
10. I have heard counsel for both the sides and I have gone
through the documents on record.
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11. The averments in the plaint is specifically that the suit is filed
as L.E. suit before the Court of the Small Causes. It is also
specifically stated in the plaint that the suit between the licensor
and licensee, and the licensee is not protected under the Rent Act.
The compensation payable has been mentioned as Rs.300/- per
month. The premises is the shop premises. It is a matter on record
that document in the form of "application for registration of
society" clearly mentions the name of the plaintiff i.e. Menahim E.
Gadkar. Rest of the documents are mainly in the name of "M. E.
Gadkar". However, there was no argument on behalf of the
defendant, as regards the "application for registration of society".
According to me, taking into consideration the evidence led and
the documents on record case of eviction is made. So also the
Defendants alternate argument of ownership of suit premises, is
not proved. Therefore, this Court under jurisdiction under section
115 is not incline to entertain the present Civil Revision
Application.
12. As regards the judgment preferred by the Applicant of
Mangala Karadikar (supra) of the Supreme Court, in the fact of the
said judgment there was clearly an agreement which was on
record, the interpretation of said documents was held by the Court
as an document of conducting agreement. The terms and
conditions of the said agreement in the said proceedings have been
reproduced, which clearly state that the shop and the materials
situated in the premises, was taken for conducting by an
agreement for a period of two years. Hence, the fact in the
judgment of Mangala Karadikar (supra) were quite different then
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the present proceedings. Admittedly in the present proceedings
there is no written document called as 'conducting agreement'.
13. The second judgment referred by Applicant of the Supreme
Court of Sarup Singh (supra). The said judgment is under the Land
Acquisition Act and it is held if a decree is found to be nullity it can
be challenged and interfered with, at any subsequent stage. The
law as held by the Supreme Court in Sarup Singh is settled law
however, the ratio laid down in Supreme Court Sarup Singh
(supra). According to me, does not apply to the present
proceedings.
14. Hence, the Civil Revision Application is dismissed. No cost.
15. At this stage, Applicant is seeking a stay to the execution of
this Order. The Applicant is granted eight weeks time to vacate the
suit premises, subject to the Applicant and all adult members of
the family filing an usual undertaking within a period of one week
from today.
(RAJESH S. PATIL, J.)
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