[Cites 3, Cited by 0]
Bombay High Court
Mr. Clifford Anthony Falcon, Through ... vs Mr. P. S. Pillai And Ors on 15 April, 2026
2026:BHC-AS:17675
WP.10522.2011 (J) C2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10522 OF 2011
Mr. Clifford Anthony Falcon
(at present residing at ; Dubai U.A.E.)
Through his Constituted Attorney
Mr. Prashant Bhagwan Saudagar,
Residing at: Room no.14,
SNEHA
NITIN Bori Chawl, Brahman Wadi, Opp. Novelty Cinema,
CHAVAN Grant Road, Mumbai-400 007 .. Petitioner
Digitally signed
by SNEHA
VERSUS
NITIN CHAVAN
Date: 2026.04.15
Mr. Parthasarathy Srinivasan Pillai
19:48:18 +0530
(Since deceased through his legal heirs and
Representatives)
1A. Anish P. Pillai (son)
Age: 48 yrs, Occ: unknown
Residing at : Flat No. 502, Evershine Nagar
Malad (West), Mumbai 400 064
1B. Anitra Pillai Patel (daughter)
Age:45 yrs. Occ: unknown
Residing at : Flat No. 81, 8th Floor,
B- Wing, Rustamjee Rivera, Marve Road,
Near Orlem Church, Orlem, Malad (West)
Mumbai -400 064.
2. M/s Pillai & Peter Associates,
Pvt. Ld., a Company incorporated
under Companies Act, 1956 having its
address at Flat No.302, 3rd Floor,
Germaine Apartment, Gautam Buddha Road,
Opposite Orlem Church Orlem Malad (West),
Mumbai - 400 064.
Now Residing at Flat No 81, 8th floor
B-wing, Rustomjee Rivera, Marve Road,
Near Orlen Church, Orlem Malad (West),
Mumbai-400 064. ..Respondents
Sneha Chavan 1/14
::: Uploaded on - 15/04/2026 ::: Downloaded on - 15/04/2026 20:34:10 :::
WP.10522.2011 (J) C2.doc
****
Appearance as on 10/12/2025
Mr. Nachiket V. Khaladkar for the Petitioner.
None for the Respondents.
Appearance as on 15/04/2026
Mr. Nachiket V. Khaladkar for the Petitioner.
None for the Respondents.
****
CORAM : M. M. SATHAYE, J.
RESERVED ON : 10th DECEMBER 2025
PRONOUNCED ON : 15th APRIL 2026
JUDGMENT :
1. Petitioner is taking exception to judgment and order dated
29/10/2011 passed by Additional Commissioner, Konkan Division, Mumbai
in Revision Application No. 477 of 2010, by this petition under Article 227 of
the Constitution of India. Petitioner is licensor and Respondents are
licensees. By the said impugned order, revision filed under section 44 of
Maharashtra Rent Control Act, 1999 ('MRC Act' for short) is allowed,
thereby setting aside judgment and order dated 18/06/2010 passed by
Competent Authority (Rent Act), Konkan Division Mumbai in Case No. 84 of
2008. Under impugned order, possession of suit premises is directed to be
restored to licensee - Respondent No. 1 (Mr. P. S. Pillai).
2. Flat No. 302, 3rd floor, Germaine Apartments, Gautam Buddha Road
Orlem Church, Orlem Road, Malad (West), Mumbai is the subject matter
WP.10522.2011 (J) C2.doc
property, hereinafter referred to as 'the suit-flat' for short.
3. The Petitioner filed application under section 24 of MRC Act,
contending inter alia as under. That he is a licensor and Respondents are
licensees. That the Petitioner is sole and absolute owner of the suit-flat. That
on 18/03/1997, the Respondent No. 2 through Respondent No. 1 was
inducted as licensee for 11 months in the suit flat. That amount of
Rs.1,00,000/- was paid as interest free security deposit and Rs.5,250/- was
agreed as monthly compensation. That after expiry of license, the
Respondents failed to vacate the suit flat. That since the Petitioner was
residing out of India due to his employment, he was contacting Respondent
No. 1 on telephone informing that Petitioner intends to return to India
permanently and requires the suit flat for personal occupation. That on
13/03/2008, the Petitioner issued a letter requesting Respondents to vacate
the suit flat. That on 05/04/2008, Respondents sent a reply raising false and
frivolous grounds. That the Petitioner sent letter dated 17/06/2008 dealing
with the reply. That on 04/05/2008, the Petitioner visited the suit flat
alongwith his family and requested Respondent No. 1 to vacate; however
Respondent No. 1 and his family members abused and threatened the
Petitioner. So a complaint was lodged with police. That therefore, the
Petitioner filed Case No. 84 of 2008, seeking eviction of Respondents
WP.10522.2011 (J) C2.doc
alongwith damages from February, 1998.
4. Leave to defend was granted to Respondents and they filed written
statement contending inter alia that Respondents are tenants. Licensor -
licensee relationship is denied. Leave and license agreement dated
18/03/1997 is denied and the Respondents claimed no re-collection about
it. Payment of security deposit is also denied. It is contented that the leave
and license agreement is un-registered and not properly stamped. That since
there is no licensor-licensee relationship, the Court has no jurisdiction. That
inspection of original agreement is not given. That Respondent No. 2-
company has received show-cause notice as to why it should not be
dissolved and Respondent No. 2 stands dissolved as a defunct company. That
there is negligence on the part of Petitioner making claim of possession and
the claim is belated by more than 10 ½ years and therefore barred by law of
limitation. That Petitioner and his family is permanently residing at UAE.
That suit-flat was leased to Respondents in the year 1994 when Petitioner
was not on good terms with his wife Smt. Nirmala. That marriage of
Petitioner with Smt. Nirmala was dissolved. That Respondent No. 1 was not
having sufficient funds to purchase the suit-flat, however, the Petitioner
suggested Respondent No. 1 to take the suit flat on lease and agreed that
subsequently Respondent No. 1 would have the option of purchasing the
WP.10522.2011 (J) C2.doc
same for mutually agreed consideration. That therefore the Respondents
have paid huge premium and agreed to pay rent of Rs.5250/- per month.
That after occupying the suit flat, Respondent No. 1 has carried out
substantial repairs, renovation and improvement. That since Petitioner
stopped accepting rent though Respondent No. 1 was ready and willing to
pay. That Respondent No. 1 has approached Petitioner many times for
settlement; however, the Petitioner has not responded. On these grounds
Respondents prayed for dismissal of the case.
5. The learned Competent Authority (Rent Act), Konkan Division,
Mumbai who heard and tried the said case, allowed the same, by order
dated 18/06/2010, thereby directing Respondents to hand over vacant and
peaceful possession of suit-flat to the Petitioner. The Competent Authority
also directed Respondents to pay damages to the Petitioner @ Rs.10,500/-
per month from February, 1998 till hand-over of possession.
6. The Respondent No. 1 alone filed Revision Application No.
MRCA/REV/477 of 2010 challenging the eviction order.
7. The learned Additional Commissioner, Kokan Division Mumbai, by
impugned order dated 29/10/2011 allowed the said revision, setting aside
the order of the competent authority, thereby directing the Petitioner to
WP.10522.2011 (J) C2.doc
restore possession to Respondent No. 1, which was taken in execution in the
meantime.
8. In these circumstances present petition is filed. On 16/01/2012, the
Petition was admitted. Impugned order was stayed. As such, since eviction
order was already executed, presently Petitioner/licensor is in possession of
the suit-flat.
9. The Respondent No. 1 has filed affidavit-in-reply to this petition
affirmed on 19/12/2011. In paragraph 4, the Respondent No. 1 has
admitted that in the meantime, the Petitioner has obtained possession of the
suit premises.
SUBMISSIONS
10. Learned counsel for the Petitioner submitted that Respondents have
not filed any suit seeking declaration of tenancy and it is only by way of
defence that tenancy is pleaded. He submitted that learned Additional
Commissioner, Konkan Division, who is a revisional authority, has exceeded
his jurisdiction under Section 44 of the MRC Act. He submitted that the
revisional authority has re-appreciated the evidence on record to come to a
contrary conclusion about existence of leave and license agreement, which is
not permissible. He further submitted that the Competent Authority had
WP.10522.2011 (J) C2.doc
already considered the evidence under Section 24 of MRC Act, coming to
proper conclusion of existence of leave and license agreement, which had
come to an end being not renewed and by efflux of time. He submitted that
the alleged case of lease with option of purchase, is not at all proved and
there is no such documentary or oral agreement. That no suit for specific
performance is filed by the Respondents.
11. During pendency of the petition, the Petitioner took steps to serve the
Respondents through newspaper publication under the order of this Court
and therefore this Court proceeded with hearing of the petition on merits.
12. Nobody appeared for the Respondents. Perhaps the reason for non
appearance of Respondents lies in the fact that the Respondents have lost
possession of the suit flat during pendency of the proceedings. It is clearly
seen from clause 3 of the operative part of the impugned order that during
pendency of the proceedings the warrant of possession was already executed
and the Petitioner had obtained possession.
REASONS AND CONCLUSIONS
13. I have considered the submissions and perused the impugned
judgment and order as well as the order by the Competent Authority
granting eviction.
WP.10522.2011 (J) C2.doc
14. It is clearly seen from the impugned judgment that till paragraph 8]
[a], the Additional commissioner has only reiterated the rival case and
contentions. It has weighed with the Additional Commissioner that the
Petitioner is residing out of India, who permitted his flat to be occupied by
the Respondent No.1 for a long period of time and therefore, the Additional
Commissioner has drawn a conclusion that 'it is unbelievable that the
Petitioner would not take action for a long period seeking eviction'. It is
further seen from paragraph 8][b] to 8][d] that the Additional
Commissioner has re-appreciated the evidence and has held that the
evidence on record creates suspicion about authenticity of the signatures
appearing on the document of leave and license. The Additional
commissioner has given importance to the fact that the suit-flat was in
possession of the Respondents from 1994 till 1997, when subject matter
leave and license agreement (18/03/1997) was executed. The Learned
Additional Commissioner has discarded the evidence of P.W.2 - Mr. Parab
(who is Committee Member of the Society in which suit-flat is situated) from
whose custody, copy of the leave and license agreement is produced. Though
it is a fact that the original document of leave and license agreement is not
on record, the secondary evidence produced on record was duly considered
by the Competent Authority and a conclusion was drawn about its
WP.10522.2011 (J) C2.doc
truthfulness. This has been overturned by the Additional Commissioner
under revisional jurisdiction, by comparing signatures, harboring suspicion
against the Petitioner about long possession of Respondent No. 1 and not
believing the independent witness i.e. Committe Member of the Society. In
my view, the Revisional Authority i.e. Additional Commissioner has exceeded
his jurisdiction in re-appreciating the evidence and coming to a contrary
conclusion.
15. The reasons for holding that Additional Commissioner has exceeded
the jurisdiction in re-appreciation of evidence, are as follows.
16. From paragraph Nos. 9 to 16 of the order of Competent Authority
(Trial Court) it is seen that Petitioner has relied on a xerox-copy of leave and
licence agreement dated 18/03/1997 coupled with Society's record and
evidence of P.W.2 - Mr. Parab. The case of Respondents that the Petitioner
was apprehending that he may be required to give suit-flat to his wife with
whom relations were strained and therefore the Petitioner had offered to
sell the suit flat to Respondents, has been found to be completely
unbelievable as there was no document or agreement in writing showing
such intention for agreement to sell. The the Respondents pleaded that there
was a letter sent to the Society mentioning that the suit flat was leased to
Respondent No. 1. However, copy of such letter is not produced on record.
WP.10522.2011 (J) C2.doc
P.W.2-Mr. Parab, the committee member of the Society appeared before
Competent Authority with all relevant records. The Competent Authority has
considered that assuming there are certain oral talks about lease with option
to purchase, when there are several agreements, the last agreement will
prevail, which in the present case is, leave and license dated 18/03/1997.
17. The Competent Authority has considered case of the Petitioner that
there was cordial relationship and the Petitioner has stated in cross-
examination that original agreement was with Respondent No. 1 who had
obtained it on the pretext of taking xerox copies. The Competent Authority
has then considered that since primary evidence is not on record, its
secondary evidence will have to be considered. The Competent Authority has
considered that at the relevant time (March 1997), leave and licence
document was not required to be compulsorily registered. The Competent
Authority has further considered that though Respondents pleaded a case of
paying huge premium of Rs.5,00,000/- in the year 1994, no evidence in
support thereof was given and in cross-examination, Respondent No. 1
stated that he has made a cash payment of Rs.5,00,000/-. The Competent
Authority has further considered that Respondent no. 1 has given evasive
replies to questions about cash payment and its disclosure in income tax
returns and balance sheet.
WP.10522.2011 (J) C2.doc
18. The Competent Authority has further considered that though it is the
case of the Respondent No. 1 that he does not recollect having executed the
leave and license agreement, a defence was taken that the said document is
un-registered. An attempt was made by Respondent no. 1 to show that the
document is in between the Petitioner and Respondent No. 2, which is a
defunct company no more in existence. The Competent Authority has
considered the tenor of the evidence led by Respondent no. 1 and held that
it is a futile attempt on the part of Respondent No. 1 to show that he has no
connection with Respondent No. 2 company.
19. The Competent Authority has further considered that both the
witnesses to the document of leave and license - Mr. Anish Pillai and Hitesh
Chheda are not examined by Respondent No. 1 by stating in cross-
examination that Mr. Anish Pillai is his son and he is not examining him and
Mr. Hitesh Chheda was his employee and he does not know his whereabouts.
This aspect of having both the witnesses from the side of Respondents, is
duly considered by Competent Authority to conclude that relationship
between the parties were cordial.
20. The Competent Authority has thereafter considered the evidence of
committee member Mr. Parab as P.W.2. This witness has stated that whenever
any member of the Society gives the flat on 'leave and license basis', a copy
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of leave and license agreement is submitted to society, which is maintained
in a separate file. Copy of leave and license agreement, copy of Appendix 28,
application form for nominal membership received by the Society are
produced on record. Pursuant to said application, the subject was discussed
in Society meeting dated 30/08/1997 and even copy of minute-book is
produced on record. The Competent Authority has further considered that
Respondent no. 1 was confronted with his signature when he admitted that
nominal membership application dated 27/08/1997 was signed by him. The
Competent Authority has then considered the said nominal membership
form, which also mentioned that the suit-flat was taken on leave and license.
21. The Competent Authority has further considered that if Respondent
No. 1 was inducted as 'tenant' in the year 1994, there was no reason for him
to sign the nominal membership form in August 1997 stating that suit-flat
was taken on 'leave and license'. The Competent Authority has further
considered that P.W.2 - Mr. Parab, a committee member has stated that
Respondent no. 1 was acting as a Secretary during the period from 2003 to
2006 and 2007 to 2008 and earlier members were not aware that he is a
licensee in respect of suit-flat and when members came to know about the
status of Respondent No. 1, objection was raised and Respondent No. 1 was
required to step down from the post of Secretary.
WP.10522.2011 (J) C2.doc
22. The Competent Authority has also considered the copy of minutes
dated 30/08/1997, which also records that application was made for
society's NOC for giving the suit flat on leave and licence and discussion took
place and thereafter, the application for NOC were approved.
23. After appreciation of all this evidence, the Competent Authority has
concluded that Respondent No. 1 is denying execution of leave and license
agreement by hook or crook and the case of Respondent no. 1 is not
believable and there existed leave and license agreement.
24. The Competent Authority has considered that Respondent no. 1 at the
relevant time was in dominant position as a secretary of the Society and
therefore, the statement in the reply of Society (Exh.D-5) has not been
believed. Though there is a mention in the reply about Petitioner's
application-letter dated 19/06/1994 stating that suit flat was 'leased' to
Respondent no. 1, copy of that letter dated 19/06/1994 is not on record.
25. In the aforesaid facts and circumstances, in my view, the Competent
Authority had considered the evidence on record in proper perspective and
had come to the most probable conclusion. The Additional Commissioner
(revisional authority) on the basis of suspicion, has come to a contrary
conclusion by re-appreciating the evidence, which was beyond the scope of
WP.10522.2011 (J) C2.doc
revisionary powers under Section 44 of MRC Act. Therefore, the reasons on
which the impugned order is passed, are found to be perverse.
26. Therefore, this is a fit case to interfere. Accordingly, the petition is
allowed. Impugned order dated 29/10/2011 passed by Additional
Commissioner, Konkan Division, Mumbai is quashed and set aside. Revision
application No. 477 of 2010 is dismissed. The order of eviction dated
18/06/2010 passed by the Competent Authority, Rent Act, Konkan Division,
Mumbai in Case No. 84 of 2008 is confirmed.
27. No order as to costs.
28. All concerned to act on duly authenticated or digitally signed copy of
this order
(M. M. SATHAYE, J.)
