R H BHUTANI Vs. MAN J DESAI

JUDGEMENT

(1.) At all material times respondent 1 had her office premises in Nawab Building, Fort, Bombay, which consisted of two cabins. On July 10, 1964; she entered into an agreement with the appellant permitting him to occupy one of the cabins on leave and licence for a period of eleven months. On June 9, 1965, the agreement was extended for a period of eleven months. The appellant's case was that it was further extended for another eleven months as from May, 10, 1966 and respondent 1 accordingly accepted Rs. 450 as compensation for May 1966. Respondent 1 thereafter demanded higher compensation which he refused to pay and there upon respondent 1 refused to execute the renewal and threatened to eject him forcibly if he did not vacate. His case further was that in the morning of June 11, 1966 respondent 1 broke open the staple of the cabin, removed the door from its hinges, removed all his belongings lying in the cabin and dumped them in the passage outside. She then handed over possession of the cabin to respondents 2 and 3 purporting to do so under an agreement of licence dated June 1, 1966. When he went to the cabin he found the cabin occupied by respondent 2 and 3. On his asking them to place back his belongings and to restore possession to him, the respondents threatened him with dire consequences. He therefore, went to the police station but the police refused to take action and only recorded his N. C. complaint. From the police station he and his friend, Mahomed Salim returned to the cabin when on their demanding possession of the cabin, the respondents attacked them In the course of that attack, the said Salim received injuries. He and the said Salim once again went to the police station but the police again refused to take action, and recorded another N. C. complaint and sent Salim to the hospital for examination. Due to the persistent refusal by the police to help him to get back the cabin, the appellant approached higher authorities in consequence of which the police at last recorded a case of assault against respondent 1. They then arrested respondent 1 but released her on bail. Respondent 1, however, kept some persons near the cabin to prevent the appellant from recovering possession. There was, therefore, every likelihood of a breach of the peace had he gone to the cabin to regain possession. In these circumstances he filed an application before the Additional Chief Presidency Magistrate under Section 145 of the Code of Criminal Procedure.

(2.) The Magistrate, then directed the parties to file affidavits and to adduce such further evidence as they desired, Accordingly, the parties filed affidavits of various persons who had their offices in the same building. The appellant, besides other affidavits, also filed an affidavit of one Nathani, the Manager of his company at whose instance, it was the case of respondent 1, the appellant had agreed to hand over and actually did hand over possession of the cabin in the morning of June 11, 1966. That affidavit however, did not support respondent 1 but, on the contrary, denied that Nathani had agreed that the appellant would vacate or that the appellant at his instance had agreed to do so.

(3.) In her written statement, respondent 1 denied that the said licence was renewed a second time in May 1966. Her case was that at the request of the appellant she had permitted him to continue in possession till May 1966 on his promising to vacate by the end of that month, that on June 11, l966, the appellant vacated the cabin, kept his belongings in the passage and thereupon she permitted respondents 2 and 3 to occupy it as, relying on the appellant's promise that he would vacate by the end of May 1966, she had already entered into an agreement of licence on June 1, 1966 with respondent 3. She denied that any incident, as alleged by the appellant, had occurred on that day or that the appellant or the said Salim was assaulted by her or by respondent 2 or 3, She, therefore denied that any dispute existed on that day or that there was any likelihood of a breach of the peace. Respondents 2 and 3 also filed their written statements on the lines taken by respondent 1. But after filing them, they did not participate any more in the proceedings as they had since then vacated the said cabin. Possession, therefore, of the cabin since then remained with respondent 1. Respondent 1 in the meantime filed a suit in the City Civil Court and took out a notice of motion for restraining the appellant from interfering with her possession of the cabin. The Court dismissed the notice of motion refusing to rely on the said agreement.