ALLIBHAI ABDULLA Vs. AKBARALI AMIJI NAGRI

JUDGEMENT

(1.) This is an appeal from order passed by the learned Judge of the City Civil Court, Bombay on 22-2-80 in Notice of Motion No. 4478 of 1979 in S.C. Suit No. 881 of 1962 dismissing the application by the present appellant that the execution of a decree be set aside and he be restored the possession of the suit premises.

(2.) The short facts giving rise to this appeal are that respondent Nos. 1 and 2 (hereinafter referred to as the plaintiffs) filed S.C. Suit No. 881 of 1962 in the City Civil Court, Bombay on 22-2-1962 against respondent No. 3 (hereinafter referred to as the Defendant) in respect of a shop bearing No. 18, House No. 147/151, Behind Bazar, Bombay -400 003 (hereinafter referred to as the suit premises) for declaration that the defendant was a trespasser on the suit premises and that by mandatory and permanent injunction he, his servants and agents be permanently restrained from entering upon the said premises and further that he be ordered to pay to the plaintiffs Rs. 5/- per day or such other amount as may be fixed by the Court as and by way of damages and /or compensation for wrongful occupation of the suit premises at Rs. 150/- from 24-1-62 till the date of the suit and further amount from the date of the suit till their removal. The suit was defended by the defendant. The learned Judge of the City Civil Court by a judgment and order dated 20-8-1969 dismissed the said suit with costs holding that the defendant was granted sub-lease of the premises by the plaintiffs in or about March 1957. Being aggrieved by the said judgment and decree the plaintiffs preferred First Appeal No. 36 of 1970 in this Court. The said appeal was dismissed for want of prosecution on 31-8-1970. After about six years the plaintiffs and the defendant, who acted through his power of attorney holder, made an application to this Court for restoration of the said appeal, by consent. The restoration application was granted. They then filed consent terms dated 5-8-76 in this Court and the plaintiffs obtained a decree as per consent terms and prayers made in the original suit and further the defendant through his power of attorney holder gave an undertaking to hand over the possession of the suit premises to the plaintiffs on or before 10-8-1976. It appears that on 19-8-76 the plaintiffs forcibly dispossessed the appellant from the suit premises. He, therefore took out proceedings under section 145 of the Criminal Procedure Code which were decided in his favour on 7-11-1977 and restoration of the possession of the suit premises was granted to him. The plaintiffs felt aggrieved by the said judgment and order and, therefore, preferred Criminal Revision Application No. 514 of 1977 in the Court of Session, Bombay. The Sessions Court also dismissed the said Revision Application on 6-4-1978 and ordered that the suit premises be unsealed and its possession be given to the appellant on 18-4-1978. Accordingly on 19-4-1978 the possession of the premises was restored to the appellant. It may be stated here that the case of the appellant was that ever since the year 1965 he had been carrying on business of watch repairing in the suit premises under an oral licence granted to him by the defendant and he had a certificate under Shops and Establishments Act in his name as also electricity bills and postal evidence. According to him he was given a power of attorney by the defendant in the year 1961 in order to protect himself from the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Act") and the said power of attorney was terminated on 15-3-1976. And as the oral licence granted to him in 1965 was subsisting he had filed a Rent Act Declaratory Suit No. 4958 of 1975 in the Small Causes Court, Bombay against the defendant for a relief that he be declared as the tenant of the suit premises and/or be declared as a deemed tenant under the provisions of Bombay Rent Act as amended by the Maharashtra Act No. XVII of 1973 (hereinafter referred to as the 1973 amended Bombay Rent Act). The said suit was decreed ex parte against the defendant on 31-7-1978. It also appears that on behalf of the defendant a standard rent application was filed by the appellant as his Constituted Attorney for fixation of standard rent but as his power of attorney was revoked the said standard rent application was not proceeded with and stood dismissed. Reverting back to the facts it may be stated here that after the consent decree was passed in the First Appeal No. 36 of 1970 by this Court and after the plaintiffs had to restore the possession of the suit premises back to the appellant under the provisions of section 145 of the Criminal Procedure Code the plaintiffs took out execution proceeding in the Bombay City Civil Court and on 25-10-79 the decree was executed and the appellant was evicted from the suit premises. He, therefore, took out a Notice of Motion No. 4478 of 1979 in S.C. Suit No. 881 of 1962 in the Court of the learned trial Judge for a relief that the execution of the decree be set aside. The learned trial Judge by his impugned order dismissed the said notice of motion. Being aggrieved by the said order the appellant filed the present appeal.

(3.) Mr. Jha, the learned Counsel appearing on behalf of the appellant, firstly submitted that the appellant was not present in the High Court when the consent decree between the plaintiffs and defendant was passed and that the appellant was not a party to the said decree and, therefore, the said decree was not binding on the appellant. Mr. Jha then submitted that while dismissing the suit of the plaintiffs, the City Civil Court had held that the defendant was granted sub-lease by the plaintiffs and since the defendant who had thus become statutory tenant could grant licence to the appellant and had in fact granted such a licence in 1965 and he was protected under the 1973 amended Bombay Rent Act. Mr. Jha brought to my notice a judgment of this Court by a Single Judge (Rege. J.) in (Writ Petition No. 25 of 1982, decided on 25-3-1983) to press his point that a statutory tenant could grant licence to a person like the present appellant. There is no dispute on this law point but the moot question is whether the appellant was granted a licence by the defendant and whether he was on the suit premises as a licensee of the defendant or as his servant and/or agent. Thus even if the appellant was not a party to consent decree passed by this Court he cannot be dispossessed only if he was a licensee of the defendant and if he was servant and/or agent of the defendant, he does not get protection under the 1973 amended Bombay Rent Act under section 15-A and 14 and could be dispossessed Mr. Jha, very vehemently relied upon a decree passed in favour of the appellant by the Small Causes Court in R.A. Declaratory Suit No. 4958 of 1975 which the appellant had filed against the defendant. This was a decree passed under section 15-A read with section 14 of the 1973 amended Bombay Rent Act. The certified copy of the plaint filed in the said suit somewhere in October 1975 and ex parte decree passed on 31-7-1978 is produced before me by Mr. Parikh, the learned Counsel appearing on behalf of respondent Nos. 1 and 2. A perusal of this document shows that according to the appellant he was granted an oral licence by the defendant in the suit premises in or about the year 1965 and since then he has been in exclusive possession of the suit premises. However, the contention of the appellant in this regard does not seem to be true. First of all, the case of the appellant is that he was granted such a licence to occupy the suit premises in the year 1965 orally. It is not that oral licence cannot be given but grant of such a licence orally itself creates a doubt in ones mind. And the facts and circumstances which I shall presently state fortify ones doubt whether such an oral licence was at all granted by the defendant in favour of the appellant. Thus the declaratory suit was filed by the appellant in the Small Causes Court in the year 1975. On his own admission the case of the appellant is that his power of attorney was revoked on 15-3-1976. It means that when he filed the declaratory suit in the Small Causes Court the power of attorney which was granted in his favour by the defendant was still subsisting and if he was a power of attorney holder he could not have filed such a suit on the ground that in the year 1965 he was granted licence by the defendant. Again, the evidence of the defendant in original suit in the City Civil Court was to the effect that the appellant was working as his servant in the suit premises Mr. Parikh produced here the notes of evidence recorded in that suit and on going through the same I find that it was the case of the defendant that except himself none had any sort of control over his business which was being conducted in the suit premises. Further, the licence of the shop was in his name. The electricity meter was also in his name. He stated that he was in exclusive possession of the suit premises since March 1957. According to him he had been often going out of India and in his absence his servants conducted the shop. At the time when he gave evidence on 13-8-69, he stated that he was working in the shop at that time. His evidence further shows that no repairing work was going on in the suit premises. His evidence then shows that he had been often going to Jedha and would return to Bombay now and then and on some occasions his servant had carried on correspondence on his behalf. He thereafter stated that the salary of his servant (present appellant) was being deducted by him from the income of the shop and he did not check the accounts on return to Bombay because the appellants father had taught him the work of watch repairs and appellant was like his son and he was faithful. Further clinching evidence which he gave was that he had paid income-tax for the income derived from the business in the shop premises and produced income-tax receipts for the year 1960-61, 1961-62, 1962-63, 1963-64, 1964-65, 1965-66 and 1966-67. In view of this evidence of the defendant which the appellant knew very well, it does not appear to me that the defendant would grant oral licence to the appellant in the year 1965. It is also pertinent to note here that when the appellant filed the declaratory suit in the Small Causes Court in October 1975 he was already a power of attorney holder of the defendant which power was revoked or withdrawn only on 15-3-1976. In other words the appellant had filed the declaratory suit when he was the constituted attorney of the defendant which would mean that he had filed a suit against himself. Again, admittedly a standard rent Application No. 575/SR/73 was filed in the Small Causes Court by the appellant on behalf of the defendant and a certified copy of the said application dated 2-5-1973 shown to me by Mr. Parikh shows that the appellant had signed the said application as constituted attorney of the defendant. Thus on his own admission even in the year 1973 he was the constituted attorney of the defendant and, therefore, it does not lie in his mouth to say that in the year 1965 he was granted licence by defendant in respect of the suit premises. Mr. Jha tried to explain this inconvenient situation by submitting that on account of amendment to the Bombay Rent Act in the year 1959, sub-tenancy could not be created and, therefore, a device was in vogue in Bombay at that time according to which possession of the premises was given to sub-tenants by appointing them constituted attorney of the tenants in respect of such premises so that it could be argued that no subtenancy was created in respect of such premises. I am not able to persuade myself to agree with Mr. Jha because it is common knowledge that when sub-tenancy was prohibited as per amendment to the Bombay Rent Act in 1959, those who were interested in giving their premises to sub-tenants they were doing so as and by way of entering into leave and licence agreements for 11 months and it was with a view to protect such licensees that the Bombay Rent Act was further amended in the year 1973 and such licensees were considered deemed tenants under section 15-A read with section 14 of the said 1973 amended Bombay Rent Act. It is pertinent to note that power of attorney holder can be considered only an agent of the person who gives him a power of attorney and he can never be considered a licensee. Therefore, the submission of Mr. Jha does not appeal to me at all. At the end of his argument Mr. Parikh submitted, and very rightly, that the appellant knew it perfectly well when the consent decree was passed by the High Court or soon thereafter when the proceedings under section 145 of the Criminal Procedure Code were taken by him against the plaintiffs that the plaintiffs were very much interested in the suit premises. He should have therefore, made them parties in the Small Causes Court when he obtained an ex parte decree against the defendant in the declaratory suit. Therefore, Mr. Parikh urged that the ex parte decree passed by Small Causes Court in the declaratory suit of the appellant is not binding on the plaintiffs because although they were necessary parties they were not impleaded so. In reply Mr. Jha submitted that a copy of the plaint filed by the appellant in the Small Causes Court was produced in the proceedings under section 145 of the Criminal Procedure Code and, therefore, the plaintiffs had the knowledge of the fact that such declaratory suit was filed by the appellants against the defendant and they themselves should have taken steps to have been impleaded as parties in the Small Causes Court. It is true that if the plaintiffs so desired they should have got themselves impleaded as parties in the said suit but the fact remains that the appellant who filed such a suit did not join the plaintiffs as necessary parties although he knew that they were interested in the suit premises. In my opinion he did so with ulterior motives. That shows the conduct of the appellant as to how he wanted to snatch a decree from the Small Causes Court which decree would not at all affect the defendant because he was hardly to be found in Bombay as he was often remaining out of India.