PHEROZE FRAMROZE UNWALLA Vs. KAMLA RADHU KADAM

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 5.3.1985 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.5/1983. That appeal was filed by the respondent challenging the judgment and decree passed by the Judge, Small Causes Court at Bombay, dated 16.10.1982, in L.E. Suit No.316/454/1979. That Civil Suit was filed by the present petitioners claiming therein that they are owners of Flat No.1 on the ground floor of South West Wing in the building known as "Nest Co-operative Flat Owners' Association" situate at 21A Cuffe Parade, Colaba, Bombay. It was further stated that on the first floor of the building there are 3 kholis admeasuring 100 square feet each which are servants' quarters and they are inter-connected with the petitioners' flat by back door entrance. It was claimed that room No.3 is given to respondent Kamla as she was an employee of the petitioners in February 1970. It was claimed that in 1978 respondent Kamla ceased to be in the employment of the petitioners and therefore the petitioners sought a decree of eviction against the respondent as the accommodation was made available to her as she was in the service of the petitioners and on ceasing to be in the employment she ceased to have any right to continue to occupy the suit premises. The trial court, after appreciating the evidence on record, recorded a finding in favour of the petitioners and decreed the suit. The appellate court, however, on re-appreciation of the evidence, recorded a finding against the petitioners, allowed the appeal and dismissed the suit. It is this judgment of the appellate court which is impugned in this petition.

(2.) SHRI Abhyankar, learned counsel for the petitioners, urged before me that it is clear from the judgment of the appellate court that two aspects have weighed with the appellate court in reversing the finding recorded by the trial court : (1) that garage No.10 was occupied by the respondent and her husband before 1970; that garage was also under the control of the petitioners; but the petitioners stated in the plaint that they do not know as to where the respondent was residing before she was given the suit premises; and (2) that in 1975 the respondent refused to sign a writing which was produced by her before the court; still the suit was not filed till 1979. Shri Abhyankar submitted that merely from failure of the petitioners to disclose in the plaint that the respondent and her husband were residing as licensees in garage No.10 under the control of the petitioners, an inference cannot be drawn that the respondent was sub-tenant of garage No.10. He further urged that so far as the second aspect is concerned, though the respondent refused to sign the writing in the year 1975, because she continued in the employment till 1978, the suit was not filed against her. Shri Abhyankar further urged that the trial court had, after appreciating the evidence on record, recorded the finding that the suit premises were occupied by the respondent as a servant of the petitioners without payment of any rent and there was no justification for the appellate court to reverse that finding of fact.

(3.) NOW , in the light of the rival submissions made, it is clear that the witness for the petitioners, Smt.Rati Unwalla has stated in her deposition that previously the respondent was residing somewhere else in an accommodation made available to the husband of the respondent. However, after he left that job, he had no place to stay; therefore her mother-in-law allowed them to occupy garage No.10 where the furniture of the petitioners was already stored. She stated that their furniture continued to be stored in that garage. Therefore it is clear that before occupying the suit premises the respondent was occupying the garage No.10 for her residence as a licensee and at that time the furniture of the petitioners continued to be stored there. It is pertinent to note here that during that time also, right from the year 1956, the respondent was working as a part-time maid servant with the petitioners and in 1970 she started working as a full-time maid servant and when she started working as a full-time maid servant, she was given the suit premises. In my opinion, there was no justification for the appellate Court to draw an inference that the respondent was occupying garage No.10 as a sub-tenant. Admittedly, there is no evidence on record, except the bare statement of the respondent, that she was occupying garage No.10 as a sub-tenant.