CHOGALAL SANTOKHJI RAVAL Vs. SJAMKARPRASAD JAGNATH VERMA

JUDGEMENT

(1.) This Petition is filed challenging judgment and order dtd. 5/7/1996 passed by the Appellate Bench of the Small Causes Court dismissing Appeal No. 396 of 1990 filed by Petitioner and confirming the decree dtd. 17/8/1990 passed by the learned Judge of the Small causes Court decreeing L.E. & C. Suit No.320/431 of 1981 and directing Petitioner/Defendant to handover possession of the suit premises to Plaintiff.

(2.) Plaintiff instituted L.E. and C. Suit No.320/431 of 1981 against Petitioner/Defendant contending that Leave and License Agreement dtd. 1/3/1972 was executed, by virtue of which, Plaintiff put Defendant in possession of the suit premises being a Shop, more particularly described in paragraph 1 of the plaint (suit premises). Plaintiff himself claims to be a tenant in respect of the suit shop and granted the same to the Defendant by way of Leave and License Agreement dtd. 1/3/1972 for a tenure of 11 months. The tenure of the Leave and License Agreement expired on 31/1/1973, but Defendant failed to handover possession of the suit premises to Plaintiff. It was also alleged that Defendant had failed to pay the agreed compensation of Rs.115.00 per month from October 1972. Plaintiff accordingly served notice dtd. 16/8/1973 to him demanding possession of the suit premises. The notice was replied by Defendant on 25/8/1973. On this broad contentions, L.E. & C. Suit No.320/431 of 1981 was filed by Plaintiff seeking recovery of possession of the suit premises from Defendant. On receiving suit summons, Defendant appeared in the Suit and filed written statement contending the land in question is owned by Government of India, Ministry of Railways and Plaintiff did not have locus standi to file the Suit. It was further pleaded that one Aminabai Fatehmohamed Kazi, the original landlady, had already terminated Plaintiff's tenancy in respect of the suit premises and a suit for Plaintiff's ejectment was pending before the Small Causes Court. It was further pleaded that Defendant was put in exclusive possession of the suit premises by virtue of this agreement dtd. 1/3/1972 and Defendant had never agreed to vacate the suit premises on 31/1/1973 as alleged. It was further contended by the Defendant that as on 1/2/1973, he was in exclusive possession of the suit premises and accordingly attained the status of protected tenant under Sec. 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (The Bombay Rent Act). The Defendant prayed for dismissal of the Suit. Both parties led evidence in respect of their respective claims. After considering the pleadings, oral and documentary evidence, the Trial Court proceeded to decree the Suit on 17/8/1990 holding that the tenure of the license had expired and that Defendant was not occupying the suit premises as on 31/1/1973 through any valid and subsisting license. The Trial Court accordingly directed that the Plaintiff is entitled to recover possession from Defendant with further order for conduct of enquiry into the mesne profit under Order XX Rule 12 of the Code of Civil Procedure, 1908.

(3.) Defendant filed Appeal No. 396 of 1990 before the Appellate Bench of the Small Causes Court challenging the decree dtd. 17/8/1990. The Appeal however came to be dismissed by the Appellate Bench by judgment and order dtd. 5/7/1996, which is the subject matter of challenge in the present petition.