PUSHPA CHUNAWALLA Vs. JAGJITSINGH CHAWLA

JUDGEMENT

(1.) THIS writ petition impugns an appellate order of the Court of Small Causes at Bombay, dated 22-6-1983, which is a common order passed in two appeals, the first of them filed by the present respondent and the second one filed by the present petitioners. A few facts that are relevant are set out below. The dispute concerns flat No. 12 in a building belonging to Prabhat Mahal Co-operative Housing Society Limited, situated at Andheri East, Bombay. An application for ejectment was filed before the Court of Small Causes at Bombay on 7-12-1973 by the present respondent under section 41 of the Presidency Small Cause Courts Act, 1882. The applicant therein claimed that the premises in question had been given to an employee of his in the year 1968 "without charging any compensation out of mercy as the original respondent was in the service of the applicant. " The case made out in the plaint is to the effect that the original occupant was then an employee of a firm by the name of "machinery and Spares" and that his employer had allowed him to use and occupy a godown belonging to the firm for sometime since the year 1963. It was contended that since the employee had no residential accommodation and since he desired to get married that the employer permitted him purely on sympathetic and humanitarian grounds to occupy the disputed premises since the employee desired to get married and that it was under these circumstances that the employee Vijay Chunawalla came to occupy the premises in the year 1968 free of charge. It needs to be emphasised here that this unusual case that the user of the premises was de hors any consideration was set up by the plaintiff. It was further pointed out that this arrangement continued until the year 1973, at which time the employee Vijay Chunawalla, his widow Pushpa Chunawalla and their children were residents in the disputed premises. Vijay Chunawalla ceased to be the employee in the year 1973 and, therefore, at the end of that year on 7-12-1973 to be precise, the present application was filed for recovery of possession of the premises, the specific case that was made out being that the respondent had no right, title or interest to continue in occupation of the premises in so far as they had not been charged any licence fee or compensation for the period of occupation and that the same was purely as a matter of grace. The simple case made out was that the plaintiff as owner contended that the permission to occupy the premises having been revoked, he was entitled to claim possession thereof. It needs to be mentioned that some time after the filing of the application, that is to say in the year 1973, Vijay Chunawalla died and the proceedings were contested by his widow and the minor children, who were his legal heirs and who had been brought on record.

(2.) EVIDENCE was led before the trial Court, and after hearing the parties the trial Court took the view that the application in question was liable to be granted. The principal ground for this was because the respondents had taken up the defence that they were entitled to protection under the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 on the ground that the deceased. Vijay Chunawalla was paying rent for the premises and that, consequently, the application was not maintainable. The trial Court held that this fact had not been established and, furthermore, that even assuming that there was a contention of service tenancy pleaded, that the same had not been proved nor could it be of any avail to the respondent and that, consequently, the applicant was entitled to recover the possession of the premises. This view was substantially confirmed by the Appeal Court. It is against the appellate order that the present writ petition has been preferred.

(3.) MR. Masand, learned Counsel appearing on behalf of the petitioners, has contended that interference from this Court is necessary in so far as, according to him, there is a gross error apparent on the record of this case because he submits that both the Courts, the Appeal Court in particular, have been totally misled by certain submissions and that they have erred in law by ignoring the evidence on record. Mr. Masand submits that in the points of defence a specific plea has been canvassed that rent was being paid for the premises and that, consequently, protection under the provisions of the Bombay Rent Act is available. He pointed out that in so far as the premises which undisputedly were in the occupation of the respondent in February, 1973 would be eligible for the protection conferred under section 15-A of the Bombay Rent Act and that, consequently, the short issue which the Court is required to determine was the question as to whether or not some compensation/licence fee/rent was at all being paid for the premises. It is Mr. Masands submission that Vijay Chunawallas widow in her evidence has specifically averred that a sum of Rs. 75/- per month was being paid as rent for the premises and it is her case that the amount was being deducted from the salary of her deceased husband. She admits that she was not aware as to whom the rent was being paid to. Mr. Masand contends that on the facts of this case it would be impossible for the respondent to submit or for that matter to get any Court to accept the contention that Vijay Chunawalla was permitted to live in the disputed premises absolutely free of cost and that there was no monetary consideration for the use and occupation of the premises. Apart from this submission, Mr. Masand contends that the specific evidence of the widow ought not to have been discarded by the two courts below. He submits that there are some references in the records of the firm that were produced before the trial Court, the first of them being to the recovery of an amount of Rs. 75/- from Vijay Chunawalla in the year 1969-70 and another entry in respect of the recovery of an amount of Rs. 900/- under the head of bonus paid. Mr. Masand contends that these entries are eloquent evidence of the fact that, in fact, the amount of Rs. 75/- per month was being deducted from the deceased Vijay Chunawallas salary. It is on the basis of this material that it is submitted that both the orders are grossly erroneous and that they have resulted in a miscarriage of justice and, consequently, that interference would be called for.