STANLEY PARKER JONES Vs. BANSRAJ LALTAPRASAD MISHRA

JUDGEMENT

(1.) THE learned Advocate for the respondent argued this matter on 1st February, 2001 for some time. Later he prayed for adjourning it on the next day as he desired that the Senior Counsel should argue the matter. We adjourned it to 2nd February, 2001 on condition that we shall give him 1? hours. On the next day, we gave more than two hours for the learned Senior Counsel to argue. However, he desired to continue. We declined. He objected to it. But we closed the appeal for orders. We may also point out that the learned Counsel for the appellant pointed out that the learned Single Judge heard the matter on 29-4-88 and the judgment was delivered by him on 15th September, 1990 i. e. nearly after 2. 2 years. She wanted to contend that on this ground alone, the judgment and decree of the learned Single Judge be set aside. However, we declined and expressed that we shall consider the merits of the matter.

(2.) THIS appeal arises out of S. C. Suit No. 6954 of 1972 on the file of City Civil Court, Mumbai filed against respondent for recovery of possession of the Plot No. 81 and 82 at Gandhi Nagar, Bharat Bazar, Dr. Mossess Road, Worli, Mumbai 400 018. The said suit was dismissed by the trial Court by the judgment dated 30-10-1987. Against that judgment, the plaintiff filed First Appeal No. 1980 of 1987 and the same has been allowed and decree of possession was granted against the appellant by judgment dated 15-9-1990 by the learned Single Judge of this Court. The plaintiffs case, after amending his plaint twice before the trial Court, was that the defendant is a licensee of the aforesaid plot who obtained licence as per agreement dated 1-5-1971 to run a workshop and defendant committed breach of provisions of the licence which resulted in revocation of licence. In other words, the plaintiffs case, giving up his alternative plea taken in the plaint, is that the defendant was put in possession of the plots as per licence agreement dated 1-5-1971 Exh. "a" and the defendant has committed breach of the provisions and licence was terminated.

(3.) THE defendants case is that the agreement dated 1-5-1971 came to be executed on the misrepresentation and fraud played by the plaintiff. It is the further case of the defendant that he had came into possession of the said plot together with the shed thereon on 27-12-1970 in arrangement with one Shamsher Khan. After the departure of the said Samsherkhan in a few months, he was alone occupying the premises. At that time the plaintiff had approached the defendant and represented to him that the plaintiff was legal tenant of the premises and he offered sub tenancy. Since the defendant was already in possession as he has already started business in the premises the defendant believed the representation made by the plaintiff and he entered into an agreement dated 1-5-1971. According to the defendant, he was anxious to retain his possession which was anterior to 1-5-1971. But later Bombay Municipal Corporation issued notice dt. 3-1-74 and he came to know that one Sayad Manzoor Hussain was the lessee of the said plot belonging to the Corporation and plaintiff was not lawful tenant of the said premises. Therefore, document Exh. "a" was un-enforceable as it was executed on the misrepresentation or fraud played by the plaintiff.