TILAK RAJ BHALLA Vs. ULHAS NARAYAN SANVORDEKAR

JUDGEMENT

(1.) The above two appeals are preferred by the plaintiff and the defendant against judgment and decree dated 19th January, 1999 passed in Special Civil Suit No. 25/1993/a by the Civil Judge, Sr. Division, Panaji. The appellant in First Appeal No. 48/99 is the plaintiff in the Special Civil suit No. 25/93/a and the respondent is the defendant in the said suit. Since both the appeals are preferred against the same judgment and decree, they are being disposed of by this common judgment. The parties will be, hereinafter, referred to as "the plaintiff and "the defendant". The plaintiff filed the above mentioned suit against the defendant for declaration, recovery of possession, damages, permanent injunction and consequential reliefs.

(2.) Briefly, the case of the plaintiff is as follows : the plaintiff was carrying on business under the name and style "novelty house and Wine Stores" situated at Old Bus Stand, Panaji, Goa and had licence for the same. On 1-4-1983, he entered into an agreement with the defendant for the purpose of management of the business of bar and restau rant on the terms and conditions mentioned in the said agreement. In terms of the said agreement, the defendant had to pay Rs. 2500/- per month on or before 5th of every succeeding month and in the event, the defendant failed to pay the said sum for three consecutive months, the agreement was to come to an end and the defendant was to hand over peaceful possession of the suit premises to him along with articles which were handed over to him by the plaintiff. According to the plaintiff, the defendant had failed to pay the monthly compensation for a consecutive period of 28 months from October, 1990 to january, 1993 and on that ground the plaintiff claimed the defendant to be a trespasser and claimed mesne profits.

(3.) Briefly, the case of the original defendant is as follows : the agreement dated 1 -4-1983 was though styled as management agree ment, the plaintiff in fact had permanently inducted him in the suit premises. According to the plaintiff, the said agreement was still in force and, as such, the suit was not maintainable. Although the agreement dated 1-4-1983 was styled as agreement for management, it was executed on bona fide plea that the defendant was carrying out activities in the suit premises permanently on payment of agreed compensation and the agreement was reduced in writing in such a way so as not to get trapped by the provisions of the Rent Control act. On 13-10-1990, there was a fire in the premises causing loss on account of destruction of fixtures and furniture and other articles in the suit premises and it was agreed between the plaintiff and the defendant that whatever amount the plaintiff gets from the insurance company, would be adjusted in the monthly compensation payable to the plaintiff and since the plaintiff had claimed an amount of Rs. 83,000/- from the insurance company, no amount was due to the plaintiff towards the monthly compensation. The defendant also contended that the excise licence was cancelled from 1-4-1989 and the plaintiff without informing him about the cancellation of licence, managed a raid at the instance of Excise Inspector to make a ground for eviction. The defendant claimed damages in the sum of Rs. 2,00,000/- and also claimed compensation by raising a counter claim against the plaintiff. The plaintiff filed written statement to counter claim opposing the claim made in the written statement.