GANPAT GOVIND SHIGVAN Vs. PREETI PARESH SHAH

JUDGEMENT

(1.) Miss Preeti P. Shah, the Respondent and her mother Jaylaxmi Amrutlal Mehta, instituted Suit No.2151 of 2010 against the Petitioner-Defendant, for possession of Garage No.7 admeasuring 140 sq.ft., Ground Floor, New Ajanta Co-operative Housing Society Ltd., situated at L.D. Ruparel Marg, Malabar Hill, Mumbai - 400 006 ("suit property-garage" for short). Pending suit, PetitionerDefendant, taken out Notice of Motion under Order 7 Rule 10 of the CPC for return of plaint with alternative prayer under the provisions of Order 7 Rule 11 of the CPC for rejection of the plaint. Later, prayer seeking rejection of the plaint was not pressed. The Learned Trial Court vide order dtd. 4/2/2021 declined to return the plaint and dismissed the Notice of Motion No. 3475/17. Feeling aggrieved by the said order, this Petition is preferred.

(2.) Facts essential for the decision of this Petition, are as under.

(3.) Mr. Amrutlal Mehta - father of the Respondent acquired right, title and interest in the suit property-garage. Mr. Amrutlal Mehta, hired Petitioner-Defendant, as a domestic servant for household work in or about 1969. It is stated that initially the Defendant used to sleep outside the flat No.7 in the lobby. Thereafter, the Defendant took training of driving motor vehicle and obtained driving licence in 1973. He got married in or about 1979, but continued to work with Amrutlal Mehta (now deceased). He allowed the Defendant and his family to shift in the garage in the year 1985-86. Plaintiffs' case is that, Defendant had assured Amrutlal, once he acquires suitable residential accommodation, he would shift from the garage premises. That, since 1986, Defendant was employed as a driver in M/s. Amrutlal Zinabhai Steel Pvt. Ltd., a Company, of which Mr.Amrutlal Mehta was one of the directors. The Petitioner's services as a driver was continued even after the death of Mr. Amrutlal Mehta, who passed away on 9/5/2005. Thereafter, as per last will and testament of deceased Amrutlal, all movable and immovable properties have been bequeathed to Plaintiff No.2 and accordingly probate was obtained. It is Plaintiffs' case that Amrutlal Mehta ('deceased' for short) had never appointed Petitioner, as a driver after 1986, but he continued his employment with M/s. Amrutlal Zinabhai Steel Pvt. Ltd. It appears, the Company did not require services of the Defendant as a driver. He was retrenched in or around May, 2006. Whereafter, Petitioner-Defendant, filed a complaint (ULP No. 251/2006) seeking reinstatement on the post of driver in M/s. Amrutlal Zinabhai Steel Pvt. Ltd. with full back-wages and continuity of services with effect from July, 2006. The Learned Presiding Officer, Labour Court, vide Judgment and Order dtd. 24/5/2010 dismissed the complaint, but directed M/s.Amrutlal Zinabhai Steel Pvt. Ltd. Company, (Respondent No.2 therein) to deposit retrenchment compensation within one month from the date of passing of the order. Learned Presiding Officer upon appreciating the evidence, was pleased to observe in judgment that "the Complainant (Petitioner) was working as a driver for one of the directors of the Respondent Company i.e. the chairman late Shri Amrutlal Mehta till his death. He was allowed to use one garage for his residential purpose, at that time as concession and free of cost. After death of Amrutlal Mehta, the company was not in need of any driver. He was properly retrenched and offered him his legal dues". Yet before filing the ULP Complaint, Petitioner instituted, Declaratory Suit in the Court of Small Causes, Mumbai being Suit No. 162/2009, to seek declaration that, he is a tenant in the suit premises. The suit was dismissed by Judgment and Order dtd. 16/8/2019, wherein it was, held that the Petitioner (Plaintiff therein) failed to prove that he had acquired any right, title or interest in the suit premises as tenant under the provisions of the Maharashtra Rent Control Act or a licensee or gratuitous licensee under Sec. 41 of the Presidency Small Causes Court Act. The Appeal against the said Judgment and Decree, is pending for consideration before the Bench of Small Causes Court at Bombay.