Bombay High Court
Ambavi Raghu Patel, Proprietor Of Jai ... vs M/S. Ish Homes Private Limited And Anr on 9 September, 2024
2024:BHC-AS:36355
Gayatri Shimpi 10-CRA-65-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 65 OF 2023
WITH
INTERIM APPLICATION NO. 1097 OF 2023
IN
CIVIL REVISION APPLICATION NO. 65 OF 2023
WITH
INTERIM APPLICATION NO. 1096 OF 2023
IN
CIVIL REVISION APPLICATION NO. 65 OF 2023
Ambavi Raghu Patel,
Proprietor of Jai Jalaram
Stationary Mart and Anr. ....Applicants
V/s.
M/s. Isha Homes Pvt. Ltd. and Anr. ....Respondents
__________________________________________________________
Mr. Atul Damle, Senior Advocate i/b Mr. Tanvir Shaikh, for
Applicants.
Mr. Ashish Kamat, Senior Advocate i/b Mr. Vishal Kanade
a/w Javed A. Khan, for the Respondent No.1.
___________________________________________________________
CORAM : SANDEEP V. MARNE, J.
Date : 9 SEPTEMBER 2024.
ORAL JUDGMENT :
1) This Revision Application is filed invoking revisionary
Jurisdiction of this Court under Section 115 of the code of Civil
Procedure 1908 to set up a challenge to the decree dated 11
January 2023 passed by Appellate Bench of Small Causes
___Page No.1 of 5___
9 September 2024
Gayatri Shimpi 10-CRA-65-2023.docx
Court dismissing the Appeal No. 303 of 2015 filed by the
Applicants and confirming the decree dated 20/23/24 February
2015 passed by the learned Judge of the Small Causes Court in
RAE and R Suit No. 584 / 934 of 2007. The Trial Court has
decreed RAE and R Suit No. 584 / 934 of 2007 on the ground of
unauthorized subletting.
2) I have heard Mr. Damle, the learned senior advocate
appearing for Applicants and Mr. Kamat the learned senior
advocate appearing for Respondent No.1-landlord.
3) After having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that the
Plaintiff initially filed suit for recovery of suit premises being
Room No. S/8, House No. 411, Ground Floor, Kadri Mansion,
Prabhadevi, Mumbai on the ground of unauthorized subletting
thereof by Defendant No.1 in favour of the Defendant No.2.
Defendant No. 1 - Shri S. N. Mehta is undoubtedly the tenant
in respect of the suit premises. Plaintiff alleged in the
unamended plaint that the first Defendant sublet the suit
premises in favour of the Defendant No.2 - M/s. Jai Jalaram
Stationary Mart. Written statement was filed resisting the suit
on behalf of both the Defendants. The written statement was
however signed and verified by one Mr. Ambvi Raghu Patel. In
the written statement following contentions were raised :-
"Therefore, the Plaintiff's suit is bad for want of cause of action.
In this connection the true fact is that from 1995 Defendant no.2
is the partner in the business of stationary and cutlery run by
the Defendant no.1 in the Suit Shop. The Defendants crave leave
to refer to and rely upon the partnership document as and when
produced. The Defendant no.1 has been running the business of
___Page No.2 of 5___
9 September 2024
Gayatri Shimpi 10-CRA-65-2023.docx
stationary and cutlery from the Suit Shop under various
Licenses and Certificates issued by the Municipal Corporation of
the Greater Mubmai. The Defendants crave leave to refer to and
rely upon the Licenses and Certificates of the Plaintiff's business
in the Suit Shop. The Defendant no.1 was earlier carrying out
his proprietary business in the name of M/s. Jalaram Stationary
Mart / Jalaram Stationary and later on in the name of M/s. Jai
Jalaram Stationary Mart".
4) Thus, though it was sought to be suggested that since
1995 second Defendant was a partner in the business of
stationary and cutlery run by Defendant No.1, a contradictory
defence was raised that Defendant No.1 was carrying out his
proprietary business in the name of M/s. Jalaram Stationary
Mart / Jalaram Stationary and later the name of the
proprietary concern was changed to M/s. Jai Jalaram
Stationary Mart. This is how apparent contradictory defences
were taken in the written statement about partnership and
proprietorship. As observed above, Defendant No.1 shied away
from the suit and the same was initially Defended by Mr.
Ambavi Raghu Patel, who filed written statement on behalf of
the first Defendant as well.
5) Plaintiff subsequently amended the suit by impleading
Mr. Ambavi Raghu Patel as Defendant No.3 in his capacity as
proprietor of M/s. Jai Jalaram Stationary Mart. Defendant No.3
filed written statement after the amendment, in which he
contended that he is the partner in the business of stationary
and cutlery with Defendant No.1 in the name of Defendant No.2
since 1995. Thus, a third facet of contradictory defence was
introduced in the written statement in which it was claimed
that Defendant Nos.1 and 3 are the partners and the
___Page No.3 of 5___
9 September 2024
Gayatri Shimpi 10-CRA-65-2023.docx
partnership business was being carried out in the name of
Defendant No.2. In my view therefore, the pleadings filed by the
Defendants are self-contradictory and did not project any valid
defence.
6) To make the case for Defendants worse, the execution of
deed of partnership could not be proved during the course of
trial. It transpired that there is no registration in respect of the
alleged Deed of Partnership. Furthermore, it was proved in
evidence that VAT and GST Registration numbers in the name
of M/s. Jai Jalaram Stationary Mart were found in the name of
Defendant No.3 in his capacity as proprietor. Defendant No.3
also admitted during the course of evidence that he was paying
Rs.10,000/- per month to Defendant No.1. In my view
exclusivity of possession as well as payment of rent got
conclusively proved for the purpose of establishing the act of
subletting.
7) Mr. Damle strenuously relies upon the Conveyance Deed
executed in favour of the Plaintiff in the year 2006 to
demonstrate that in the list of tenants, name of M/s. Jai
Jalaram Stationary was specifically reflected. He would submit
that the Plaintiff thus accepted the position that M/s. Jai
Jalaram Stationary, in capacity as partnership firm, is the real
tenant in respect of the suit premises. However, it is an
admitted position that the rent receipt in respect of the suit
premises continues in the name of the first Defendant and not
in the name of M/s. Jai Jalaram Stationary.
___Page No.4 of 5___
9 September 2024
Gayatri Shimpi 10-CRA-65-2023.docx
8) Mr. Kamat has also clarified the situation by relying on
Clause 13 of the recitals in which it is stated that the list of
names in Annexure - C to the Conveyance Deed is not only in
respect of tenants but also covered occupants. It thus appears
that the name of M/s. Jai Jalaram Stationary in Annexure -
to the conveyance is in capacity as occupant and not tenant.
9) Considering the concurrent findings recorded by the Trial
Court and the Appellate Bench, the act of unauthorized
subletting is conclusively established. No interference is
warranted in the concurrent findings in exercise of revisionary
jurisdiction by this Court.
10) Civil Revision Application is accordingly rejected.
11) After the order is pronounced Mr. Damle would pray for
continuation of statement made on behalf of Respondent /
Plaintiff not to execute the decree for a period of eight weeks.
The request is opposed by Mr. Kamat. It is pointed out that the
Applicants have failed to deposit interim compensation @ Rs.
35,000/- per month since January 2023. Considering this
conduct of the Applicants as well as conclusive findings
recorded by both the Courts about unauthorized subletting, I
am not inclined to continue the statement for non-execution of
decree any further. Request for continuation of stay is
accordingly rejected.
[SANDEEP V. MARNE, J.]
GAYATRI RAJENDRA
RAJENDRA SHIMPI
SHIMPI Date:
2024.09.10
14:46:53 +0530
___Page No.5 of 5___
9 September 2024
