Bombay High Court
Asha Arun Varode vs Sulochana Dattatraya Patil (Since ... on 30 July, 2025
2025:BHC-AS:32248
5-WP-1894-2017.doc
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1894 OF 2017
Asha Arun Varode .. Petitioner
Versus
Sulochana Dattatraya Patil
Since deceased, through LR
Vijaya Raosaheb Sanap .. Respondent
Mr. S. S. Patwardhan a/w Mr. A. V. Hardas for petitioner.
Mr. Shashank Mangle and Mr. Saurabh Butala for respondent.
CORAM: ALOK ARADHE, CJ.
DATE: 30th JULY, 2025
Digitally signed
PRAVIN
by PRAVIN
DASHARATH
ORAL ORDER:
PANDIT
DASHARATH
Date:
PANDIT 2025.07.31
09:51:47
+0530
1. In this petition under Article 227 of the Constitution of
India, the petitioner has assailed the validity of the impugned
judgment and decree dated 15th November, 2016 passed by
the Lower Appellate Court in Civil Appeal No. 606 of 2011 by
which judgment and decree dated 17 th October, 2008 passed
by the trial Court dismissing the suit filed by the
respondent/plaintiff has been set aside and the suit filed by
the respondent/plaintiff has been decreed.
2. Facts giving rise to the filing of this writ petition, in
nutshell, are that the respondent/plaintiff filed a suit seeking
relief of possession of the suit premises bearing Municipal
House No. 1046, situate tat Raviwar Peth, Pune. The claim in
the suit was based on the ground that the leave and license
agreement was executed between the parties in respect of the
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premises in question which expired on 10 th June, 1996. The
respondent/plaintiff served a notice to the defendant asking
her to hand over the possession of the premises in question.
However, the defendant did not hand over the possession of
the suit premises in question. Accordingly, the suit was filed
by the respondent/plaintiff seeking relief of possession as well
as for damages/compensation as per the market rate. The
petitioner/defendant filed a Written Statement in which, inter
alia, plea was taken that no leave and license agreement was
executed between the parties and as per the oral agreement,
the petitioner/defendant is in possession of the premises in
question in the capacity of a tenant.
3. The trial court on the basis of pleadings of the parties
framed issues and recorded the evidence. The trial court vide
judgment and decree dated 17th October, 2008, inter alia, held
that the petitioner/defendant is a tenant in respect of the
premises in question and, therefore, cannot be evicted. The
respondent/plaintiff filed an appeal before the Lower Appellate
Court. The Lower Appellate Court by the impugned judgment
and decree dated 15th November, 2016, inter alia, held that
the petitioner/defendant was in possession of the premises in
question as a licensee of the respondent/plaintiff and after
expiry of the license and after service of notice to vacate the
premises, failed to do so. Accordingly, the suit was decreed.
Hence, this writ petition.
4. Learned counsel for the petitioner submitted that the
respondent had relied on photocopy of the leave and license
agreement which was marked as Exhibit-30. It is pointed out
that the respondent had produced the photocopy of the
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aforesaid agreement and no application under Section 65 of
the Evidence Act was filed seeking leave of the court to
adduce secondary evidence with regard to the leave and
license agreement. Therefore, the aforesaid document is
inadmissible in evidence and could not have been read in
evidence. It has also submitted that the finding recorded by
the trial court that the petitioner is a tenant in respect of the
premises in question is based on meticulous appreciation of
evidence on record which do not call for any interference in
the appeal. It is also urged that no decree of eviction could
be passed against the petitioner as no ground for eviction was
made out under Section 13 of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947. In support of the
aforesaid submissions, reliance has been placed on the
decisions of the Supreme Court in Nagindas Ramdas vs.
Dalpatram Ichharam alias Brijram & Ors., (1974) 1 SCC
242 and H. Siddiqui (Dead) by LRs. vs. A. Ramalingam,
(2011) 4 SCC 240.
5. On the other hand, learned counsel for the
respondent/plaintiff has submitted that the petitioner himself
tendered the document at Exhibit-30 to PW 1 during the
course of cross-examination and did not take any objection to
the admissibility of the said document at the time when it was
marked as exhibit. It is also submitted that respondent/
plaintiff has examined two attesting witnesses to the
documents, namely, PW 2 and PW 3. It is submitted that the
finding recorded by the Lower Appellate Court that there is a
relationship of licensor and licensee between the parties to
the suit is based on appreciation of evidence on record which
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cannot be termed as perverse in the facts and circumstances
of the case.
6. I have considered the submissions made both sides and
perused the record.
7. In paragraph 2 of the plaint, the plaintiff has pleaded
that he is not in possession of the original leave and license
agreement and the original agreement must be in possession
of the defendant. The respondent/plaintiff, therefore, filed a
photocopy of the leave and license agreement along with
plaint. During the cross-examination of the PW 1, the
petitioner/defendant tendered the aforesaid document to the
PW1 with a question whether he was present at the time of
execution of the said agreement. Thereupon, the document
was marked as Exhibit. It is pertinent to note that the
petitioner did not object to the document being marked as
Exhibit. In any case, there was a pleading to the effect on
record that the plaintiff is not in possession of the original
document and the original document must be in possession
of the defendant. Therefore, petitioner now cannot be
permitted to turn around and to raise the issue of admissibility
of the aforesaid document.
8. The finding recorded by the Lower Appellate Court that
there is a relationship of licensor and licensee between the
parties is a finding of fact which is based on appreciation of
evidence on record. The aforesaid finding is a finding of fact
which by no stretch of imagination can be said to be either
perverse or based on no evidence. This Court under power of
judicial superintendence cannot re-appreciate the evidence
and come to the different conclusion.
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9. For the aforementioned reasons, no case for interference
in supervisory jurisdiction under Article 227 of the
Constitution of India is made out.
10. In the result, the writ petition fails and is hereby
dismissed.
(CHIEF JUSTICE)
