CLIVE EVERARD RYAN WILLIAMS Vs. RAJU B. KRIPLANI

JUDGEMENT

(1.) AT the very outset, it needs to be pointed out that this is an unfortunate litigation which has been forced upon a retired service officer, and the record indicates that prior to the approach to this Court in the year 1984 that he was dragged through certain unnecessary and, to my mind thoroughly unwarranted proceedings before the Court of Small Causes at Bombay. The mistake committed by the petitioner appears to have been to induct Respondent No. 1 into his residential flat No. A/4 situate on the 4th Floor, Dolphin Apartment, Sadashiv Park, Pilot Bunder Road, Bombay-400005. The petitioner has given his perfectly and plausible reason for the paying-guest arrangement which he entered into, namely, that he was effectively staying there alone at that time and, therefore, had some spare accommodation. The law certainly entitled him to utilise that accommodation by granting a transitory licence to people who were in need of temporary accommodation. It is under these circumstances that a simple paying guest agreement was entered into on 1.11.1977 with Respondent No. 1. I have seen the agreement, which is annexed in the compilation and, to my mind there is no ambiguity whatsoever with regard to the intention of the parties that emerges from this agreement that it was a simple paying guest agreement and, furthermore, that it was for a very limited duration. The facts are quite explicit and indicate that Respondent No. 1 himself construed the agreement as such because there were certain renewals of this agreement in the subsequent years. If the intention of the parties was to create a lease or tenancy, this latter situation would not have been there. Apart from this, it is necessary to take note of the fact that the petitioner himself was residing in the premises which consists of a residential flat. Respondent No. 1 was to occupy two bed rooms as per the arrangement in the agreement and he was permitted the use of certain other arrears of the flat, such as the kitchen, the drawing room, etc. This was perhaps understandable because a plan of the flat does indicate that if a person was permitted to reside there as a paying guest that certain use of the other areas with the permission of the petitioner was understandable. There is also a reference in the agreement to the permission granted to the Respondent No. 1 for the use of the garage on a temporary basis, but it is qualified by the statement that it was only because the petitioner at that time did not possess a car and, therefore, as a transitory arrangement, Respondent No. 1 was permitted to park his car there. Unfortunately, like the proverbial story of the camel and the tent, Respondent No. 1 proceeded to the Court of Small Causes at Bombay and filed a suit in the year 1982 contending that the agreement should be constructed as a tenancy in his favour and, furthermore, to set up an elaborate case to the effect that the premises had effectively been sub-divided. If one seems the plan of the flat, the reason for the latter contention is perfectly understandable. Respondent No. 1 and whosoever was advising him were obviously aware of the fact that the contention of tenancy would be regarded by the trial Court as an utter absurdity and, consequently, in order to bolster up the false case that was pleaded, a weak attempt was made to allege that the flat had, in fact, been sub-divided and that the petitioner, who is an old man and a retired service officer, is alleged to have brought 14 to 15 persons into the flat and torn down the elaborate wood work that was so put up. For purposes to trying to obtain interim relief, violence was attributed to the present petitioner and on the basis of the averments in the plaint an attempt was made to obtain an injunction against the petitioner effectively restraining him from using his own flat.

(2.) THE record before me annexes all the relevant material, including the pleadings which are rather elaborate. I have carefully gone through every page of this record for purposes of satisfying myself about the true nature of the proceedings and of the reliefs, if any, which the parties should be entitled to. It must be said to the credit of the learned Judge who presided over the trial Court that he very correctly decided that the material placed before him required to be carefully scrutinized before granting any interim relief. The learned Judge has gone through the plaint, the affidavits and the documentary evidence, which includes the report of a Commissioner appointed by the Court. This report, to my mind is quite eloquent because it completely falsifies every word of what was alleged against the present petitioner. The trial Court, therefore, came to the conclusion, and very correctly to my mind that no interim relief was warranted in this case. The trial Court took cognizance of one more important fact, namely, that the present petitioner was the owner of the premises and that he was residing there. The Court examined the documents and came to the conclusion that the plea put forward with regard to the alleged tenancy rights was totally unfounded. It needs to be mentioned here that merely because it has become customary to present a plaint to the Court of Small Causes containing statement, that the document executed should be disregarded that the intention of the parties should be ignored and that the Court should hold that a person to whom transitory rights were afforded and which rights have come to an end should be construed as having the protection of the Bombay Rent Act, that the Court is not obliged to accept any such pleas, particularly if they are unfounded and more so if the pleas appear to have a basis of dishonesty. In the present case, therefore, the interim relief was rightly refused. To my mind, on the material before the trial Court and on the basis of the enquiry conducted by that Court, the learned Judge would have been fully justified in having dismissed the suit at that stage itself. Unfortunately, however that course was not adopted and Respondent No. 1 thereafter carried the matter in appeal.

(3.) THE petitioner was, therefore, required to approach this Court once again and as is apparent from the order passed at the admission stage, Sawant, J. (as he then was), after hearing the parties and going through the record, came to the prima facie conclusion that the Appellate Order deserved interference with and, furthermore, that as an interim arrangement, the petitioner should not be debarred from the beneficial use of the requisite areas in his own flat. I need to further point out that after hearing the parties, it was quite obvious to Sawant, J. that the suit itself was devoid of substance and it is for this reason that even though the order was passed on 24.4.1984, the Court of Small Causes was directed to peremptorily dispose of the suit by 30th September, 1984. I am informed that the suit has been disposed of by trial Court and that the matter is now pending before the Appellate Bench and the Appeal is set down for hearing on 13.1.1992.