[Cites 3, Cited by 0]
Bombay High Court
Kausar Buddan Khan vs Victoria Timber Supplying Co. ... on 10 March, 2026
2026:BHC-AS:11668
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.189 OF 2021
WITH
INTERIM APPLICATION NO.2840 OF 2021
IN
CIVIL REVISION APPLICATION NO.189 OF 2021
Mr. Kausar Buddan Khan ...Applicant
V/s.
Victoria Timber Supplying Co. and ...Respondents
Anr.
________________
Dr. Abhinav Chandrachud i/b. Mr. Javed Akhtar Khan for the Applicant.
Mr. Asif Memon for Respondent No.1.
Mr. G.B. Bhatt for Respondent No.2.
________________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: FEBRUARY 18, 2026.
PRONOUNCED ON: MARCH 10, 2026.
JUDGMENT:
1) The Applicant has invoked revisionary jurisdiction of this Court
under Section 115 of the Code of Civil Procedure, 1908 (the Code) for
setting up a challenge to the judgment and order dated December 16,
2020 passed by the City Civil Court, Mumbai in Short Cause Suit No.2094
of 2012. By the impugned judgment and decree, the Suit filed by the
Plaintiff under Section 6 of the Specific Relief Act, 1963 has been allowed
and the Defendants are directed to restore possession of the suit
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premises to the Plaintiff. The Applicant, who is Defendant No.2 in the
Suit, is aggrieved by the impugned decree for restoration of possession
and has accordingly filed the present Revision Application.
2) The premises situated at 116, Reay Road, 2nd Ghorupdeo Cross
Lane bearing Survey No.11/671 and 12/671 of Mazgaon Division
admeasuring 27'5'' x 23' 5" having height of 10'6" are the 'suit premises'.
M/s. Kothari Saw Mill was the original landlord of structure wherein the
suit premises are situated. M/s. Kothari Saw Mill was a Lessee of the land
belonging to Bombay Port Trust (BPT) and had erected various structures
on the land. According to the Plaintiff, in 1966 M/s. Kothari Saw Mill
inducted it into the suit property. Plaintiff claims to have paid rent in
respect of the suit premises. Defendant No.1 claims that the lease in
respect of the land was transferred in the name of Defendant No.1 in the
year 1970 on account of inability of Kothari Saw Mills to pay lease rent to
the BPT. Plaintiff claims ignorance of these developments and contends
that his status as protected tenant remained unaffected even after
alleged transfer of lease in favour of Defendant No.1. According to the
Plaintiff on March 9, 1971 there was a fire, causing damage to Plaintiff's
goods and the suit property were also partly damaged. The Plaintiff seeks
to blame Defendant No.1 for such fire. Defendant No.1 filed Suit No.3893
of 1971 against the Plaintiff inter-alia for injunction. Thereafter
Defendant No.1 filed S.C.Suit No.6405 of 1975 on the ground that the
Plaintiff had no right to use or occupy the suit premises. Consent terms
were filed in S.C. Suit No.6405 of 1975 under which the Plaintiff was
directed to deposit amount of Rs.200 per month for use of the premises
during pendency of the Suit. The Suit was dismissed on October 7, 1985.
Defendant No.1 filed First Appeal No.266 of 1987 in this Court
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challenging the decree dismissing the Special Civil Suit No.6405 of 1975.
The First Appeal was dismissed on September 11, 2009.
3) It is Plaintiff's pleaded case that on January 28, 2012 the
Defendant No.1 attempted to dispossess the Plaintiff from the suit
property, which led to lodging of complaint with the police. Plaintiff filed
Short Cause Suit No.317 of 2012 in the City Civil Court, in which the
officer of the Court was appointed as Court Commissioner to visit the
suit property. However, before the Court Commissioner could visit the
site, on February 7, 2012 Defendant No.1, in collusion and connivance
with Defendant No.2, changed Plaintiff's lock and put their own lock on
the suit premises. According to the Plaintiff, this is how Defendants took
forcible possession of the suit premises. Plaintiff has pleaded that
Defendant No.1 has represented to it that Defendant No.2 is given oral
permission to use and occupy the premises. Defendant No.2 thereafter
took out Chamber Summons for being joined as party Defendant in Short
Cause Suit No.317 of 2012 filed by the Plaintiff.
4) In the above backdrop, Plaintiff filed Short Cause Suit No.2094 of
2012 on July 23, 2012 under Section 6 of the Specific Relief Act, seeking
restoration of possession of the suit premises. Defendants appeared in
the Suit and filed their respective written statements. Defendant No.1
pleaded in the written statement inter-alia that City Civil Court did not
have jurisdiction to decide the Suit in the light of pendency of R.A.E Suit
No.1444 of 2012 filed by Defendant No.1 in the Small Causes Court
seeking eviction of the Plaintiff. It is claimed that Defendant No.2 is in
use of suit premises. Defendant No.2 in his written statement pleaded
that he has been in possession of the suit property and doing business of
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timber woods for about 10 months before filing of S.C. Suit No.317 of
2012. That suit premises are granted to Defendant No.2 on Leave and
License basis for five years on monthly compensation of Rs.3,000/- per
month and deposit of Rs.50,000/-. This is how both Defendant Nos.1 and
2 denied the Plaintiff's theory of forcible possession. Based on the
pleadings, the Trial Court framed issues. The parties led evidence in
support of their respective claims. After consideration of pleadings,
documentary and oral evidence, the City Civil Court proceeded to decree
Plaintiff's Suit by judgment and order dated December 16, 2020 directing
the Defendants to restore possession of the suit premises to the Plaintiff.
5) Both the Defendants got aggrieved by the judgment and decree
dated December 16, 2020. Defendant No.1 filed Civil Revision
Application No.178 of 2021 challenging the restoration decree dated
December 16, 2020. Taking note of pendency of R.A.E. Suit No.1444 of
2012 pending before the Small Causes Court, this Court disposed of Civil
Revision Application No.178 of 2021 filed by Defendant No.1 directing
decision of R.A.E. Suit No.1444 of 2012 without being influenced by
findings recorded by the decree dated December 16, 2020. This is how the
challenge raised by Defendant No. 1 to the restoration order no longer
survives. Defendant No.2 is also aggrieved by decree dated December 16,
2020 of restoration of possession of the suit premises and has filed the
present Revision Application.
6) I have heard Dr. Chandrachud, the learned counsel appearing for
the Applicant. He submits that the Trial Court has erred in decreeing the
Suit filed under Section 6 of the Specific Relief Act. That the Suit has
been decreed in ignorance of vital evidence available on record. That
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Applicant/Defendant No.2 was put in possession of the suit premises by
Defendant No.1 under oral Leave and License Agreement. That
Defendant No.2 led evidence of constituted attorney, who deposed that
oral Leave and License Agreement was struck in his presence. That the
constituted attorney has deposed on the basis of his personal knowledge
about existence of oral Leave and License Agreement. That no cross-
examination has been conducted by the Plaintiff of DW1 on this point.
That vital pieces of evidence are not considered by the Trial Court. That
the Trial Court has merely found that DW1 has denied the suggestion of
the Plaintiff's Advocate that there was no oral Leave and License
Agreement. Dr. Chandrachud further submits that in his cross-
examination, PW1 deposed that Court Commissioner appointed in Suit
No.317 of 2012 did not find Defendant No.2 in possession of the
premises during his visit. That this statement went into the teeth of
averment made in paragraph 18 of the Plaint wherein Plaintiff averred
that Defendant No.2 was found in possession of the suit premises by the
Court Commissioner. That the said deposition is also contrary to Court
Commissioner's report dated 7 February 2012. That this aspect is also
totally ignored by the Trial Court. Dr. Chandrachud relies on judgment of
the Apex Court in OPG Power Generation Private Limited V/s. Enexio
Power Cooling Solutions India Private Limited and Another 1 in support
of his contention that ignorance of vital evidence results in perversity in
the decision. Dr. Chandrachud would accordingly pray for setting aside
the impugned decree of restoration of possession.
7) Mr. Bhatt, the learned counsel appearing for Respondent
No.2/Defendant No.1 submits that the Plaintiff is an illegal occupant of
1 (2025) 2 SCC 417
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suit premises, who has never approached Respondent No.2 to become
tenant nor filed any proceedings seeking declaration of his tenancy. That
Plaintiff has inducted the Applicant as a licensee in the suit premises
without creating any documents to store the goods and has been earning
license fees without paying any rent to the landlord/Respondent No.2.
That the Plaintiff has taken disadvantage of dismissal of the Suit filed by
Respondent No.2/Defendant No.1 and has inducted the Applicant as
licensee. That S.C. Suit No.317 of 2012 was deliberately filed for the
purpose of carrying out unauthorised renovations in the suit premises in
collusion with the Applicant. That the Suit under Section 6 of the
Specific Relief Act is filed to abrogate illegal subletting and illegal
construction, which factor is totally ignored by the Trial Court. That the
Trial Court did not have any material to hold that the Plaintiff was in
possession of the suit premises either at the time of filing of the present
Suit or at the time of filing of the previous Suit. That the Court
Commissioner reported that the Applicant was in possession of the suit
premises on account of subletting by Respondent No.1. That Respondent
No.2 /Defendant No.1 has adopted due process of law against the
Plaintiff by accepting him as deemed tenant and has sought its eviction.
He submits that if the impugned decree is not set aside, all the legal
actions initiated against the Plaintiff for recovery of possession would
become infructuous and cause grave prejudice to Respondent No.2. He
would therefore pray for setting aside the impugned decree.
8) The Revision Application is opposed by Mr. Memon, the learned
counsel appearing for Respondent No.1-Plaintiff submitting that the Suit
has been rightly decreed by the Trial Court. That the Plaintiff has proved
his possession on the date of dispossession (February 7, 2012). That
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Plaintiff's possession of the suit property is established on account of
decree passed in Spl. Civil Suit No.6405 of 1975, which decree has
attained finality before this Court. That attempt of dispossession of the
Plaintiff on January 28, 2012 by Defendant Nos.1 and 2 is recorded by
way of NC complaint at Byculla Police Station.
9) Mr. Memon further submits that documents relied upon by the
Applicant/ Defendant No.2 to show his possession of the suit premises
are totally misleading as it is established that the Applicant has another
premises in the property /land which is a fact admitted by him in the
cross-examination. That the Defendant No.2 himself did not step into
the witness box and his constituted attorney cannot depose about
existence of oral Leave and License Agreement. That the Suit filed by
Respondent No.2 /Defendant No.1 in Small Causes Court being R.A.E.
Suit No.1444 of 2012 on August 9, 2012 clearly demonstrates collusion
between Defendant Nos.1 and 2. He would accordingly pray for dismissal
of the Revision Application.
10) Rival contentions of the parties, now fall for my consideration.
11) This is a peculiar case where Plaintiff alleges collusion between
Defendant Nos.1 and 2 whereas the landlord/Defendant No.1 claims
collusion between the Plaintiff and Defendant No.2/Applicant.
Defendant No.1/Respondent No.2 claims to be the landlord of the
structure constructed on land owned by BPT. Defendant No.1 claims that
he is a lessee in respect of the land. Plaintiff claims to be a tenant of the
earlier lessee- M/s. Kothari Saw Mills. According to Defendant No.1, the
lease has been transferred by the BPT in its favour. Defendant No.1 has
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earlier made an attempt to secure possession of the suit property from
the Plaintiff by filing Spl Civil Suit No.6405 of 1975, which came to be
dismissed on October 7, 1985. First Appeal No.266 of 1987 has been
dismissed by this Court confirming the decree dated October 7, 1985
passed in Spl. Civil Suit No.6405 of 1975.
12) Plaintiff came out with a theory that Defendant No.1 made an
attempt to dispossess the Plaintiff from suit premises on 28 January 2012
by damaging the wall of the suit premises near the window. This,
according to the Plaintiff, became the cause of action to institute S.C.
Suit No.317 of 2012 against Defendant No.1. In that Suit, a Court
Commissioner was appointed to visit the suit premises vide order dated
February 6, 2012. According to the Plaintiff, when the Court
Commissioner visited the suit premises on February 7, 2012, Defendant
Nos.1 and 2 changed the Plaintiff's lock and put their own lock on the
premises. This is how Plaintiff claims dispossession by Defendant Nos.1
and 2 on February 7, 2012. Accordingly, he instituted Suit under Section 6
of the Specific Relief Act on July 23, 2012.
13) The remit of enquiry in a Suit filed under Section 6 of the Specific
Relief Act is limited in view of the special remedy it seeks to create. The
remedy under Section 6 is provided for the purpose of ensuring that no
person in a settled possession is dispossessed without his consent and
without following due process of law. The remedy is special because a
shorter period of limitation of six months is provided, there is no right to
file appeal/review and the decree passed in Section 6 Suit does not
prevent parties from filing a fresh Suit based on title. Since the remedy is
special, the nature of enquiry is summary. The Court needs to only find
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out whether (i) Plaintiff was in possession of the suit premises on the
date of dispossession, (ii) whether the Plaintiff has been dispossessed
without his consent or without following due process of law (iii) whether
the act of dispossession has taken place within six months of filing the
Suit. Once all three ingredients are present, the Court can grant relief of
restoration of possession in favour of the Plaintiff.
14) In the present case, Defendant Nos.1 and 2 had altogether
different songs to sing. Defendant No.1 alleges collusion between
Plaintiff and Defendant No.2. On the other hand, Plaintiff claims
collusion between Defendant Nos. 1 and 2. Defendant No.2 pleaded that
he came in possession of the suit premises by virtue of license granted by
the Plaintiff for doing a business in timber. This is how Defendant No.2
claim possession on the strength of alleged oral Leave and License
granted by the Plaintiff. To prove his case, Defendant No.2/Applicant led
evidence of Mr. Ashish J. Pandya, constituted attorney, who deposed that
oral license was created by the Plaintiff in favour of Defendant No.2 in
his presence in September 2010 on monthly compensation of Rs.3,000/-
per month and security deposit of Rs.50,000/-. Though the case involves
alleged creation of oral Leave and License, Defendant No.2 shied away
from the witness box and instead his constituted attorney led evidence.
Defendant No.2 /Applicant relied on various invoices and documents to
prove his possession of the suit premises. However, it came out in
evidence that Defendant No.2 also had another gala near the suit
premises. After appreciating the evidence on record the Trial Court has
refused to believe the theory of oral Leave and License set up by
Defendant No.2. The Trial Court has also refused to believe that
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Defendant No.2 was put as a licensee in the premises and stored his
goods therein.
15) The Trial Court has further held that Plaintiff's possession of the
suit premises cannot be disputed in the light of decision of Suit No.6405
of 1975 and First Appeal No.266 of 1987 on September 11, 2009. The
theory of Defendant No.2 securing oral license from the Plaintiff is
disproved. Plaintiff has relied on NC complaint filed before Byculla Police
Station alleging dispossession on January 28, 2012. The Trial Court has
taken note of the fact that the landlord/ Defendant No.1 has filed R.A.E.
Suit No.1444 of 2012 seeking recovery of possession from Defendant
No.2/Applicant also. This has led the Trial Court to raise an inference of
collusion between Defendant Nos. 1 and 2 for dispossessing the Plaintiff.
Court Commissioner's report indicates presence of Defendant No.2 in
the suit premises. This is how the Trial Court has recorded finding of fact
in respect of the three aspects viz. (i) Plaintiff being in possession of suit
premises prior to January 28, 2012, (ii) his dispossession by Defendant
Nos.1 and 2 on January 28, 2012 and (iii) the act of dispossession taking
place six months prior to filing of the Suit under Specific Relief Act. Once
all the three ingredients are met, it is not necessary to deal with any
other issues sought to be raised by Defendant Nos.1 and 2 and passing of
decree for restoration of possession becomes imminent.
16) Defendant No.1/Respondent No. 2 has sought to raise the issue of
collusion between the Plaintiff and the Applicant for depriving the
landlord of the premises. In my view, this aspect cannot be dealt with
while deciding Suit under Section 6 of the Specific Relief Act.
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Independent Civil Revision Application filed by the landlord has already
been disposed of by order dated September 24, 2025, which reads thus:
1) Heard Mr. Bhatt, the learned counsel appearing for the
Applicant and Mr. Memon, the learned counsel appearing for
Respondent No.1.
2) By the impugned order 16 December 2020, the City Civil
Court, Greater Mumbai, has decreed the Suit filed by Respondents/
Plaintiff under Section 6 of the Specific Relief Act, 1963 by directing
the Revision Applicants to restore possession of the Respondent in
respect of the suit property.
3) The learned counsel appearing for the Applicants submits that
a substantive suit bearing R.A.E. No.1444 of 2012 is filed in the Court
of Small Causes at Mumbai seeking eviction of Respondent No.1. In
my view, it would be appropriate that the Revision Applicant
prosecutes R.A.E. Suit No.1444 of 2012 rather than prosecuting the
present Revision Application. Findings recorded in the impugned
order dated 16 December 2020 shall not be binding on the Court
deciding R.A.E. No.1444 of 2012.
4) The learned counsel appearing for the Revision Applicant
would complain that Respondent No.1 is not cooperating in early
disposal of the R.A.E. Suit No.1444 of 2012. The learned counsel
appearing for Respondent No.1 disputes this position. He assures the
Court that full cooperation shall be extended for expeditious disposal
of R.A.E. Suit No.1444 of 2012.
5) Civil Revision Application is accordingly disposed of
requesting the Court of Small Causes to decide R.A.E. No.1444 of
2012 in an expeditious manner without being influenced by any of
the findings recorded in the impugned order dated 16 December
2020.
17) Thus, mere passing of restoration decree in the present Suit does
not come in the way of the landlord to seek possession of the suit
premises from the Plaintiff though the R.A.E. Suit No.1444 of 2012 is
pending before the Court of Small Causes. Restoration of Plaintiff's
possession from Defendant No.1 and Applicant cannot come in the way
of the landlord establishing the case before the Small Causes Court for
eviction of the Plaintiff in its capacity as statutory tenant. In my view,
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therefore, various submissions sought to be raised by Mr. Bhatt need not
be dealt with in the present case. The remit of enquiry in Suit instituted
by the Plaintiff under Section 6 of the Specific Relief Act was in a narrow
compass. The Trial Court has recorded findings on the issues of Plaintiff
being in possession on the date of dispossession and its dispossession
was without following due process of law on January 28, 2012.
18) Applicant has relied upon cross-examination of the Plaintiff, in
which a stray statement is made that 'It is not true that Defendant No.2
& his article were found in the suit premises by the commissioner during
his visit'. However, reliance by the Applicant on this admission does not
enure to his benefit in any manner. The Applicant/Defendant No.2
claimed possession of the suit premises on the basis of so-called oral
license. It was his own case that he possessed the suit premises.
Therefore, statement made in the cross-examination about Court
Commissioner not finding Defendant No.2 in the suit premises is
irrelevant. The Court Commissioner's report is very clear, which is culled
out in paragraph 26 of the impugned judgment and order, in which it is
indicated that Defendant No.2/Applicant met the Court Commissioner
and informed him that he had the key of that lock. Court Commissioner's
report indicates justification of Applicant for locking the premises
stating that he was tenant therein. The alleged admission in the cross-
examination could be about presence of articles of Applicant/Defendant
No.2 in the suit premises. This is because Court Commissioner's report
records claim of the Plaintiff in respect of articles found in the suit
premises.
19) The theory of oral license and storage of timber by Applicant/
Defendant No.2 in the suit premises is belied by admission given by the
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constituted attorney of Defendant No.2, in which he stated that it was
impossible to store 8 to 10 tones of timber in the suit premises and that
invoices produced by Defendant No.2 related to other premises of
Defendant No.2.
20) Considering the overall conspectus of the case I am of the view
that no case is made out for interference in the impugned judgment and
order passed by the Trial Court. It is difficult to hold that the Trial Court
has ignored any vital piece of evidence and in that sense reliance by Dr.
Chandrachud on judgment of the Apex Court in OPG Power Generation
Private Limited (supra) is inapposite. As of now, the Trial Court has only
ensured that possession of the Plaintiff is restored. Defendant No.1
/Respondent No.2 claims to be the landlord and has already filed R.A.E.
Suit No.1444 of 2012 in the Small Causes Court for eviction of the
Plaintiff. If the landlord proves breach of conditions of tenancy or its
entitlement to recover possession of the suit premises from the tenant,
the decree passed in Section 6 Suit would not come in the way of Small
Causes Court deciding R.A.E. Suit No.1444 of 2012. Therefore, the
Revision Application deserves to be dismissed.
21) Civil Revision Application is accordingly dismissed. It is however,
clarified that nothing observed in the judgment shall influence the Small
Causes Court while deciding R.A.E. Suit No.1444 of 2012.
22) Interim Application stands disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab Page No.13 of 13
Designation: PA To Honourable Judge March 10, 2026
Date: 10/03/2026 15:35:52
