Gujarat High Court
Parshottambhai Rupchand Bharvani vs Chandraprakash Mulchand Nenvani on 27 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2408 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2408 of 2024
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PARSHOTTAMBHAI RUPCHAND BHARVANI
Versus
CHANDRAPRAKASH MULCHAND NENVANI
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Appellant(s) No. 1
MR AADITYA P DAVE(11461) for the Defendant(s) No. 1
MR DM DEVNANI(5880) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 27/06/2024
ORAL ORDER
1. Heard learned advocate Mr.K.M.Ghavariya for
the appellant - original plaintiff and learned advocate
Mr.Aaditya Dave for the respondent - original defendant.
2. Upon joint request of learned advocates of both
the sides, the present First Appeal is taken up for final
hearing.
3. By way of the present First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 the
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original plaintiff - appellant has challenged the judgment
and decree dated 30.03.2024 passed by the learned City
Civil & Sessions Court, Ahmedabad in Civil Suit No.1064
of 2000, whereby the suit of the appellant - plaintiff came
to be rejected.
4. The brief facts leading to the present appeal, are
as under:-
4.1 The appellant - original plaintiff had filed the
suit against the defendant for a relief of permanent
injunction only seeking a prayer restraining defendant from
evicting the plaintiff without due process of law. The suit
property is a residential property situated at house No.2/A,
Shri Ghanshyam Co-operative Housing Society Ltd, Behind
Old Dhor Bazar, Opposite Telephone Exchange Kankariya
Road, Ahmedabad - 380022 bearing survey No.00158/2/A/
1, T.P.No.158, Municipal Ward No.0309, Municipal Board
Azad Dairy, Municipal Tenament No.0309-33-0011-0001-B,
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Ahmedabad admeasuring 47.80 sq. mtrs. Defendant is the
owner of suit property.
4.2 The case of the plaintiff is that, the plaintiff -
appellant is a tenant of the suit property and since
01.12.2016, the plaintiff is occupying the suit property as
a tenant. The rent was agreed at Rs.4,000/- per month
and thereafter it was increased to Rs.5,000/- per month in
the year 2021. Defendant gave threat of increasing rent
and failing which threatened to dispossess plaintiff from
suit property.
4.3 The plaintiff has stated that the talks of selling
and purchasing the suit property was going on after
plaintiff occupied the suit properties as tenant in the year
2016. The agreed sale consideration was Rs.25,00,000/-
However, thereafter, defendant demanded more price.
Since the plaintiffs were not having sufficient funds at the
relevant point of time refused to purchase suit property
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and hence, a rent agreement dated 18.09.2020 came to be
executed between the parties. The plaintiff gave a cheque
of Rs.5,00,000/- to the defendant on 07.02.2021, and also
executed an agreement dated 31.01.2021. The said cheque
was returned back to the plaintiff by the defendant.
Thereafter, defendant refused to sale the suit property and
threatened plaintiff to dispossess from the suit property.
Hence, the suit.
4.4 The defendant was served with the summons
and contested the suit by filing a Written Statement at
Ex.13. Issues were framed at Ex.31.
4.5 Following issues were framed:-
1. Whether plaintiff proves that he is the tenant in
the suit property as detailed in para 1 of the plaint
from 01.12.2016?(OPP)
2. Whether the plaintiff is entitled for relief of
permanent injunction against the defendants
regarding the suit property as prayed for in para
10(a) of the plaint?(OPP)
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3.Whether plaintiff has no locus standi to file the
present suit?(OPP)
4. Whether the suit of the plaintiff is not
maintainable and is liable to be dismissed?(OPP)
5. Whether plaintiff has suppressed true and
material facts and has no come to the Court with
clean hand?
6. What order and decree?
4.6 The plaintiff has examined himself at Ex.49 and
also produced the various documentary evidence which
contains the agreement of Leave and Licnese Agreement
and notice correspondence. The defendant has examined
himself at Ex.56 and also examined a witness Nareshbhai
Chandumal at Ex.69 and also produced the documentary
evidence. After considering the evidence, the suit of the
plaintiff came to be dismissed. Against which, the
appellant is before this Court.
5. Learned advocate for the appellant has submitted
that the plaintiff is a tenant of the suit property occupying
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the suit propertiy since 01.12.2016. Initially, the intention
of the plaintiff and defendant was to purchase and sale the
suit property. However, subsequently the defendant turned
back from his commitment and executed the rent
agreement dated 18.09.2020 instead of sale deed.
5.1 It is further submitted that, initially the plaintiff
agreed rent was of Rs.4,000/- per month which was
subsequently increased to Rs.5,000/- per month. In the
year 2021, cheque was given to the defendant towards
part consideration, however, cheque dated 07.02.2021 was
returned back by the defendant. Agreement dated
31.01.2021 was also executed between the parties.
Pursuant to that Agreement, the property was supposed to
be sold by defendant to the plaintiff. However, defendant
refused to execute a registered sale deed in favour of the
plaintiff and threats were given to vacate the suit
property. On 26.08.2021, a police complaint was also
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lodged by the plaintiff against the defendant for such
threats.
5.2 It is further submitted that the plaintiff is in
settled possession of the suit property since 2016 and
pending the suit, suit for recovery of possession came to
be filed by the defendant against the plaintiff being Civil
Suit No.706 of 2023 for recovery of possession of the suit
property. The said suit is pending for its adjudication.
5.3 It is further submitted that the learned trial
Court has committed an error by holding that the
provisions of Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 (For short 'the Act') is not
applicable in the facts of the present case as the said Act
is not existence after 2001. It is further submitted that
though the Agreement is tilted as Leave and Licence,
virtually the said agreement was a rent agreement. It is
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submitted that though in the plaint, plaintiff has stated
regarding the Agreement of year 2017 which was executed
between the parties, the learned trial Court has committed
an error by holding that the plaintiff has suppressed the
fact of previous agreement. No other submissions are
made by the learned advocate for the appellant.
6. Per contra, learned advocate for the respondent
has vehemently submitted that the impugned judgment and
decree is in complete consonance with the evidence on
record and no interference is required to be called for in
the findings of the learned trial Court.
6.1 It is further submitted that in the year 2017, a
Leave and Licence Agreement was executed between the
parties and after expiry of period of said Agreement,
another Leave and Licence Agreement dated 28.09.2020 at
Exh.75 came to be executed between the parties for a
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period of 11 months and 29 days commencing from
18.09.2020. The said agreement has expired on
16.09.2021.
6.2 Learned advocate for the respondent has relied
upon condition Nos.3 and 6 of the Leave and Licence
Agreement and submitted that the intention of the parties
was not to create any tenancy right but the suit property
was given to the plaintiff on a licence basis for a
temporary period. It is further submitted that the said
agreement is terminable upon issuance of notice during the
licence period.
6.3 Learned advocate for the respondent has further
submitted that notice dated 07.09.2021 at Exh.59 came to
be issued calling upon the plaintiff to vacate the suit
property upon expiry of the period of licence. The reply to
the said notice came to be given by the plaintiff on
25.09.2021 which is after the institution of the present
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suit. The present suit came to be filed on 09.09.2021.
Since the Leave and Licence Agreement has come to an
end, the plaintiff has no right to retain the possession and
upon termination of the said Leave and Licence
Agreement, status of plaintiff is of trespasser and the suit
for simplicitor injunction is not maintainable. It is further
submitted that the plaintiff has no locus standi to file the
suit and retain the possession of the suit property in
absence of any specific written permission from the
defendant.
7. I have considered the submissions and the
materials placed on record. The suit filed by the plaintiff
is a suit of permanent injunction only. A Leave and
Licence Agreement dated 28.09.2020 was executed between
the parties for a period of 11 months and 29 days
commencing from 18.09.2020. The said agreement has
expired on 16.09.2021. Before expiry of the period of
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licence, the plaintiff filed a suit for permanent injunction
on 09.09.2021 which was a premature action on the part
of the plaintiff. The case put up by the plaintiff that the
relationship between the plaintiff and defendant was that
of the tenant and landlord. Though such contention sounds
attractive but has no force in the eye of law on two
grounds. Firstly, the provisions of the Bombay Rents Hotel
and Lodging House Rates Control Act, 1947 has been
suspended since 2001 and secondly, the plaintiff has filed
the suit in the Civil Court not before the rent Court.
Further on scrutinizing the terms and conditions of the
Leave and Licence Agreement, intention of the parties was
not to create any landlord tenant relations. The intention
is clear from interpreting clause No.6 of the Exh.75. As
per the said clause, parties agreed that for a temporary
period, suit property is being given to the plaintiff for use
and occupation. It is specifically agreed between the
parties to the Leave and Licence Agreement that no rights
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are given under the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947. Meaning thereby, there
was no relationship of landlord and tenant between the
defendant and plaintiff respectively. Clause 3 also speaks
about duration of agreement, which is 11 months and 29
days from 18.09.2020.
8. In the case of Maria Margadia Sequeria Fernandes
& Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors reported
in AIR 2012 SCC 1727, in para 101, the Hon'ble Apex
Court has observed as under:-
"101. Principles of law which emerge in this case
are crystallized as under:-
1. No one acquires title to the property if
he or she was allowed to stay in the
premises gratuitously. Even by long
possession of years or decades such person
would not acquire any right or interest in
the said property.
2. Caretaker, watchman or servant can
never acquire interest in the property
irrespective of his long possession. The
caretaker or servant has to give possession
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forthwith on demand.
3. The Courts are not justified in protecting
the possession of a caretaker, servant or any
person who was allowed to live in the
premises for some time either as a friend,
relative, caretaker or as a servant.
4. The protection of the Court can only be
granted or extended to the person who has
valid, subsisting rent agreement, lease
agreement or license agreement in his
favour.
5. The caretaker or agent holds property of
the principal only on behalf of the
principal. He acquires no right or interest
whatsoever for himself in such property
irrespective of his long stay or possession.
9. Admittedly, as per the case of the plaintiff, the
tenancy was created in the year 2016 which is after the
suspension of the Bombay Rents Hotel and Lodging House
Rates Control Act, 1947 therefore, the provisions of the
said Act would not be applicable and the parties are not
governed by the provisions of the said Act. Since, Leave
and Licence Agreement was executed under the provisions
of Easement Act, 1882 the parties are governed by the
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Civil Law i.e. the provisions of Transfer of Property
Act,1882
10. A notice dated 07.09.2021 was issued to the
plaintiff terminating the Leave and Licence Agreement
upon the expiry of stipulated period. On receipt of the
notice, the plaintiff has filed a suit for the relief of
permanent injunction on 09.09.2021. After filing of the
suit, plaintiff replied to the Notice on 25.09.2021. Such
reply has no significance as it is given after filing of suit.
Even if for a moment, the theory pleaded in the plaint is
considered, such story has no worth. Testing the
contentions raised in the plaint, the story which has been
pleaded is that, the plaintiff has the intention of
purchasing the suit property from the defendant. The
plaintiff has not filed any suit for a relief of specific
performance of the alleged agreement dated 31.01.2021.
The said Agreement has not been produced on record in
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the trial Court. Thus, in my view, the story put up in the
plaint regarding the selling and purchasing of the suit
property is a concocted story after receiving notice from
defendant just to retain the possession of the suit property.
Even, in the cross-examination, the plaintiff has admitted
the execution of the Leave and Licence Agreement dated
28.09.2020 and considering such admission on the part of
the plaintiff, there is no other scope to interpret the
relationship of the plaintiff and defendant. Once the
execution of Leave and Licence Agreement is agreed by the
plaintiff, terms and conditions of such Agreement are
deemed to have admitted, unless any contrary evidence is
led by plaintiff.
11. Considering the oral evidence of the parties and
the documents available on record, the learned trial Court
has rightly come to the conclusion that the suit of the
plaintiff is not maintainable. Leave and Licence Agreement
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which was executed between the parties which has come
to an end. A Simplicitor suit for permanent injunction in
absence of any consequential relief is not maintainable.
The plaintiff has asked for a relief of permanent injunction
only without being asked for a relief of consequential
relief. Suit is not maintainable. Since the plaintiff has
failed to establish his case pleaded in the plaint and in
absence of any contrary evidence, I am of the view that
the learned trial Court has not committed any error in
interpreting the evidence both oral as well as
documentary.
12. In view of the totality of the facts and
circumstances of the case, there is no scope either to re-
appreciate or reassess the evidence placed on record.
Resultantly, present First Appeal fails and the same is
dismissed.
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13. In view of the dismissal of the First Appeal, the
present Civil Application, stands disposed of accordingly.
(D. M. DESAI,J)
MANOJ
