CHANDRAKANT C. PATEL Vs. SURYAKANT SHIVLAL PARMAR

JUDGEMENT

(1.) Petitioner-Defendant No.1 has filed this petition challenging the judgment and decree dtd. 23/7/1997 passed by the Appellate Bench of the Small Causes Court allowing Appeal No.491/1988 filed by Plaintiff No. 2 and setting aside the judgment and decree dtd. 30/6/1988 passed by the Small Causes Court in L. E. and C. Suit No. 41/50 of 1978. The suit was instituted seeking eviction of legal heirs of Chhaganlal Motilal Patel, who according to the Plaintiffs, was a mere licensee in respect of the suit premises. The Small Causes Court had dismissed the suit by decree dtd. 30/6/1988. The Appellate Bench has reversed the decision of the Small Causes Court and has decreed L. E. and C. Suit No.41/50 of 1978 directing the Defendants to vacate the suit premises with liberty to the Plaintiffs to apply for future mesne profits from the date of the suit by filing separate proceedings under Order 20 Rule 12 of the Civil Procedure Code (Code).

(2.) Brief facts of the case, as pleaded in the Plaint, are that Harjivan Sunderji Mistry (Plaintiff) was a monthly tenant in respect of Gala-5A admeasuring 23 ft. X 10 ft. (230 sq.ft.), 6th Kharva Cross Lane, Trimbak Parshuram Street, Bombay-400 004 (suit premises). Plaintiff was carrying on carpentry business in the suit premises and allowed Chhaganlal Motilal Patel and Suryakant Shivlal Parmar to occupy some undivided and undemarcated portion of the suit premises to carry on their respective business. Accordingly, Chhaganlal Patel installed two lathe machines in the southeast portion of the suit premises and operated the same with the help of his son. Shri. Suryakant Parmar worked on his own machines installed in other portion of the suit premises. Plaintiff used to open the suit premises at 8.30 a.m. and shut the same at 5.30 p.m. Plaintiff alleged that in August 1977, Chhaganlal Motilal Patel installed one more drilling machine besides the original lathes without the consent of the Original Plaintiff, which led to Plaintiff serving notice dtd. 6/9/1977 on Chhaganlal Motilal Patel and terminated his license/permission and called him upon to remove his machines. Chhaganlal Motilal Patel gave reply dtd. 21/9/1977 denying the contents of the notice. Original Plaintiff sent Rejoinder dtd. 13/10/1977.

(3.) Plaintiff accordingly instituted L. E. and C. Suit No.41/50 of 1978 on 20/4/1978 seeking recovery of southeast portion of the suit premises from the Defendant-Chhaganlal M. Patel. In the plaint, original Plaintiff pleaded that that the Defendant-Chhaganlal Patel had failed and neglected to pay monthly compensation at the rate of Rs.180.00 per month from 1/8/1977 to 31/1/1978. He further pleaded that the Defendant did not have right to remain in possession of the southeast portion of the suit premises after termination of the license/permission. This is how the suit was filed for eviction of the Defendant-Chhaganlal by branding him as a mere licensee.