Bombay High Court
Chandrashekharan S/O Pandian vs The Bombay Diocean Trust Association ... on 1 October, 2024
2024:BHC-AS:39731
Megha 903_cra_317_2023_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.317 OF 2023
Chandrashekharan S/o. Pandian ... Applicant
V/s.
The Bombay Diocean Trust
Association Pvt., A Company
incorporated under the Companies
Act as well as a Public Charity
Trust registered under the Bombay
Public Trust Act, having its office
at 19, Hazarimal Somani Marg,
Fort Mumbai-400 008. ... Respondent
__________________________________________________________________
Mr. Pradeep Thorat i/b. Ms Aditi Naikare for the Applicant.
Mr. Jaydeep Deo for the Respondent.
__________________________________________________________________
CORAM : SANDEEP V. MARNE, J.
Dated : 1 October 2024.
ORAL JUDGMENT:
1) Revisionary jurisdiction of this Court is invoked for setting up
a challenge to the decree dated 6 May 2023 passed by the Appellate
Bench of the Small Causes Court dismissing (P) Appeal No.6 of 2013
and decree passed by the Trial Court in L.E. & C. Suit No.105/134 of
2000. The Trial Court has decreed L.E. & C. Suit No.105/134 of 2000
directing Applicant-Defendant to vacate the suit premises with further
Digitally
signed by
directions for conduct of enquiry into mesne profit under Order XX
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2024.10.08
Rule 12 of the Code of Civil Procedure, 1908.
16:57:25
+0530
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2) The Plaintiff is a Public Charitable Trust registered under the
provisions of Maharashtra Public Trust Act, 1950 and owns the
property known as Bird Wood Hostel, Colaba, Mumbai. According to
Plaintiff, Applicant-Defendant was inducted as a gratuitous licensee by
its Manager/Secretary -Rev. Fr. A. Rangnadhan, who was appointed as
a priest to lead prayers in the church and to carry out ecclesiastical
activities under church. As Defendant did not vacate the suit premises
in his occupation on first floor of the building-Bird Wood Hostel, Colaba,
Mumbai, Plaintiff filed L.E. & C. Suit No.105/134 of 2000 by branding
him as gratuitous licensee. The suit was resisted by Defendant by filing
written statement contending that Rev. Fr. A. Rangnadhan had
inducted him in the year 1984 by issuance of letter in his name. He
denied that his induction was as a gratuitous licensee.
3) Based on pleadings of parties, the Trial Court framed issues
about Defendant's employment, his gratuitous license, Defendant being
source of nuisance and entitlement of Plaintiff for recovery of
possession of suit premises and for mesne profits. Both the parties led
evidence in support of their respective claims. Plaintiff led evidence of
Rev. Fr. Prabhakar Balwant Amolik and Shri Anil D. Takade.
Defendant examined himself in addition to William Joseph Saldanha
(DW-2). After considering the pleadings, oral and documentary
evidence on record, Trial Court proceeded to decree the Suit holding
Applicant-Defendant as gratuitous licensee and directing him to vacate
the suit premises in addition to enquiry into mesne profits. Applicant-
Defendant filed Appeal No.6 of 2013 before the Appellate Bench, which
has been dismissed vide decree dated 6 May 2023, which is the subject
matter of challenge in the present Petition.
4) Mr. Thorat, the learned counsel appearing for Petitioner would
submit that the Small Causes Court has erroneously exercised
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jurisdiction in entertaining Plaintiff's L.E. & C. Suit No.105/134 of
2000. That the plaint itself proceed on an assumption that a service
tenancy was created in favour of Applicant-Defendant. That once
creation of service tenancy is accepted, suit under Section 41 of the
Presidency Small Causes Courts Act, 1882 (PSCC Act) was clearly not
maintainable. That in such circumstances, Plaintiff ought to have filed
a Suit for recovery of possession under Section 16(1)(f) of the
Maharashtra Rent Control Act, 1999 (the MRC Act). He would take
me through the employment certificate issued in favour of Defendant.
That in the Affidavit of Evidence also, there was specific admission
about creation of service tenancy. That Defendant also adduced specific
evidence that he was working as Church Peon since 1984. Mr. Thorat
would therefore submit that the Trial Court ought to have framed and
answered specific issue about existence of service tenancy and about its
jurisdiction to entertain the Suit. Though the burden was cast on
Plaintiff to prove absence of employment of Defendant in Issue No.1,
the Trial Court could have recast the issue and answered the same in
favour of Defendant after considering specific admissions in pleadings
and evidence by Plaintiff's witnesses about creation of service tenancy.
He would also take me through findings recorded by the City Civil
Court about Defendant being in employment of Plaintiff and his
occupation of suit premises as a service tenant. Mr. Thorat would
therefore pray for setting aside decrees passed by the Trial Court and
the Appellate Court since they suffer from jurisdictional error.
5) Revision Application is opposed by Mr. Deo, the learned
counsel appearing for Respondent-Plaintiff. He would submit that
Plaintiff never admitted Defendant as its employee. That the Plaint
proceeded on a specific pleading about the induction of Defendant as
gratuitous licensee by Rev. Fr. A. Rangnadhan, who was then
functioning as the priest in the church. That therefore L.E. & C. Suit
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No.105/134 of 2000 was rightly filed seeking eviction of gratuitous
licensee. He would submit that the Applicant-Defendant has been
unlawfully occupying the suit premises without any authority and that
therefore both the Courts below have rightly passed decrees for his
ejectment. He would submit that no interference is warranted in the
concurrent findings recorded by the Trial Court and the Appellate
Court in absence of any patent error. He would pray for dismissal of the
Revision Application.
6) I have considered the submissions canvassed by the learned
counsel appearing for the parties. I have gone through the findings
recorded by both the Courts as well as the evidence and documents
placed on record.
7) Plaintiff filed L.E. & C. Suit No 105/134 of 2000 seeking
eviction of Defendant by describing him as a gratuitous licensee.
Plaintiff pleaded that Rev. Fr. A. Rangnadhan had inducted Defendant
as a gratuitous licensee. So far as employment of Defendant is
concerned, Plaintiff raised contradictory pleadings to some extent. In
paragraph 3(c) of the plaint Plaintiff pleaded that 'the Defendant
however was never appointed as Church employee, as all appointments
in the Church are made by the Church Committee with proper
appointment letter.' After taking such emphatic stand about Defendant
not being employee of the Plaintiff-church, Plaintiff unnecessarily made
some contradictions in the Plaint while describing the nature of
Defendant's occupation of the suit premises. In paragraph 4 of the
plaint, Plaintiff pleaded that 'Defendant was liable to vacate servants
quarter which was given to the Defendant for rendering efficient services
to the Plaintiffs' Manager Rev. Ranganadha and/or to the Plaintiffs'
Trust i.e. Bird Wood Hostel and/or St. John's Church as and by way of
service occupancy.' It was further pleaded in paragraph 5 that
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Defendant had ceased to be in service of Plaintiff or of Rev. Fr. A.
Rangnadhan. Once a specific stand was taken that Defendant was
never appointed as church employee, the Plaintiff unnecessary sought
to explain the nature of Defendant's occupation of suit premises,
possibly on account of its Manager /Secretary Rev. Fr. A. Rangnadhan
inducting him in the premises and Defendant rendering services to
Rev. Fr. A. Rangnadhan which ultimately benefitted the Church also.
However, what is most striking factor in the present case is that
Defendant did not raise any plea in his written statement that he was
ever appointed by the Plaintiff-Church. The entire written statement
filed by Defendant is completely silent about his appointment by the
church. Thus, though there is some degree of contradiction in the
pleadings in the Plaint about nature of occupancy of suit premises by
Defendant (though Plaintiff was emphatic about absence of employer
employee relationship), Defendant did not assert in his written
statement that he was ever appointed by the Plaintiff-Church or that
he was serving as an employee of Plaintiff-Church. In absence of any
foundational pleadings asserting his employment with Plaintiff-
Church, no degree of evidence produced by Defendant could fill in the
said lacuna. Therefore, reliance by Defendant on certificate issued by
Rev. Fr. A. Rangnadhan on 12 August 1989 relating to his service at
church peon since 1984 becomes completely irrelevant. The evidence
about his employment with the Church could be considered only if
there was a pleading to that effect in the written statement. Even if,
some leeway was to be given to Defendant by considering his evidence
in absence of pleadings, in my view, mere issuance of a certificate by
Rev. Fr. A. Rangnadhan cannot make Defendant as employee of the
Church. Defendant did not produce any appointment order issued by
Plaintiff Church. Appointment in the service by Plaintiff-Trust could
not be effected in absence of any appointment order. The certificate
dated 12 August 1989 issued by Rev. Fr. A. Rangnadhan needs to be
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considered in the light of Plaintiff's pleadings that Defendant was
actually permitted to reside for the purpose of serving Rev. Fr. A.
Rangnadhan. The Certificate therefore cannot be construed as if there
was any employer-employee relationship between Plaintiff and
Defendant. Defendant did not produce any proof of payment of salary
to him by the Plaintiff-Trust. In my view, therefore, even if absence of
pleadings on the part of the Defendant relating to his employment with
Plaintiff was to be momentarily ignored, there is no sufficient evidence
on record to infer Defendant's employment with Plaintiff.
8) I am therefore unable to uphold Mr. Thorat's contention that
what was created between the parties was service tenancy and that
recovery of possession of the suit premises could have been sought by
filing Suit under Section 16(1)(f) or under Section 22 of the MRC Act
before the Competent Authority. In absence of existence of any
employer-employee relationship and proof of allotment of service
quarter to Defendant by Plaintiff-church, Defendant has rightly held to
be a gratuitous licensee and therefore suit filed under Section 41 of the
PSCC Act is perfectly maintainable. Even otherwise the argument of
jurisdiction is technical in nature and made out of desperation as
Defendant's eviction even as a service tenant is imminent since he has
crossed the age of retirement. He otherwise does not have any
authority to occupy the premises of Plaintiff-Trust.
9) In my view, therefore, no patent error can be traced in the
concurrent decrees passed by the Trial Court and the Appellate Court.
Civil Revision Application filed by Defendant is devoid of merits and
the same is deserves to be dismissed.
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10) At this stage, Mr. Thorat would request for time to vacate the
premises. He would submit that the Applicant is suffering from Cancer
and would require time of one year for vacating the possession of the
suit premises. The request is opposed by Mr. Deo.
11) Considering the fact that the Applicant suffers from serious
ailment, he can be permitted to occupy the suit premises upto 31 May
2025, subject to filing of usual Undertaking within four weeks in this
Court. The Applicant shall pay to the Respondent/Plaintiff the amount
of interim compensation fixed by the Appellate Bench till the date of
vacation of the suit premises.
12) Before parting, fair approach of Mr. Deo needs to be recorded.
He has submitted that if the Respondent-Plaintiff is permitted to
withdraw the entire amount of interim compensation, it will not press
the claim for payment of mesne profits, considering the ailment
suffered by Defendant. The statement is accepted.
13) Civil Revision Application is accordingly dismissed by
permitting Respondent/Defendant to occupy the premises till 31 May
2025 subject to conditions specified above.
[SANDEEP V. MARNE, J.]
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