SHIVKUMAR SHIVAPPA HATTI Vs. RAJENDRAKUMARI RAMESH SHEKHAVAT

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the judgment and order dated 18th September 1986 passed by the Division Bench of the Small Causes Court at Bombay in appeal No.682 of 1979. That appeal was filed by the respondent No.1 challenging the order dated 10th August 1979 passed by the Single Judge of the Small Causes Court at Bombay in R.A.D. Suit No.2418 of 1977. That suit was filed by the respondent No.1 Rajendrakumari claiming a declaration that she is lawful licensee since 1st January 1973 of the suit premises viz. a block of four rooms in Rajashree Building, Vile Parle (East), Bombay. The admitted position is that the suit premises are owned by the petitioner Shivkumar of which respondent No.2 Jagdish was a tenant. Further admitted position is that the suit for a decree of eviction was filed by the landlord against the original tenant Jagdish and a decree of eviction has been passed in that suit. The respondent No.1 Rajendrakumari therefore filed R.A.D. Suit No.2418 of 1977 claiming a declaration that she is a lawful licensee from 1st January 1973, the result of the declaration would be that she would be in the suit premises on 1st February 1973. By the reason of the provisions of section 15A of the Bombay Rent Act she will become deemed tenant of the suit premises. The Trial Court, after appreciating evidence on record, recorded finding against the plaintiff and dismissed the suit. In the appeal filed by the plaintiff Rajendrakumari, the Appellate Court reappreciated the evidence on record and reversed the finding recorded by the Trial Court, allowed the appeal, set aside the order of the Trial Court and decreed the suit filed by the plaintiff Rajendrakumari.

(2.) SHRI Dalvi, learned counsel appearing for the petitioner urged that the Trial Court which is the first court of fact, after appreciating the evidence on record, recorded a finding of fact that the plaintiff Rajendrakumari has failed to establish that a licence of the suit premises was created in her favour by the tenant Jagdish from 1st January 1973. In the submission of Shri Dalvi, the Appellate Court has reversed this finding of fact recorded by the Trial Court without there being any cogent reasons for reversing those findings. He submitted that the plaintiff Rajendrakumari had not produced on record any document which does not originate from the tenant Jagdish and plaintiff Rajendrakumari to show that a licence was created of the suit premises in her favour anytime before 1st February 1973. Shri Dalvi further submitted that the documents to which the tenant Jagdish and plaintiff Rajendrakumari were parties were suspect and could not have been relied upon without there being strong corroboration of those documents by other independent evidence. In the submission of Shri Dalal, it is an admitted position on record that tenant Jagdish is a friend of the husband of plaintiff Rajendrakumari and therefore in the submission of the learned counsel, documents were prepared and the claim was made to defeat the execution of the decree secured by the landlord against the tenant Jagdish.

(3.) NOW , if the record of the case is perused in the light of these rival submissions made by the learned counsel for the parties, it is revealed that in so far as the documentary evidence is concerned, the plaintiff Rajendrakumari had produced an agreement of leave and licence between herself and the tenant Jagdish dated 1st January 1973, rent receipts issued by Jagdish in favour of plaintiff Rajendrakumari, transport receipt which shows that the luggage of the plaintiff Rajendrakumari was transported to the suit premises in the month of January 1973, the ration card and birth certificate of her son. Now, so far as the last two documents viz. ration card and birth certificate are concerned, because they emanate not from the plaintiff and also not from the original tenant Jagdish, they might have some independent value. However, so far as the first three documents, viz. agreement, rent receipts and transport receipt are concerned, they could not have been relied on without there being a strong corroborative evidence on record. So far as the ration card is concerned perusal of the record reveals that an application for ration card was made in the month of September 1973, obviously after February 1973. So far as the birth certificate of the son is concerned, it is also subsequent to February 1973. Therefore, it can be safely said that there is no documentary evidence on record to substantiate the documents which are produced on record and which are between the plaintiff and the tenant Jagdish. Thus, in my opinion, in the absence of any strong independent evidence to indicate that the presence of the plaintiff Rajendrakumari on the suit premises in January 1973, no reliance could have been placed on those documents. It is further to be seen here that it appears that the plaintiff has not produced the electricity consumption bills of the suit premises for January 1973 and February 1973. It is the case of the plaintiff that she was in the suit premises from January 1973. The production of the electricity consumption bills for January 1973, if the bills show that the consumption of electricity in the suit premises were normal during the month of January 1973, would have definitely gone a long way in establishing use of the suit premises by the plaintiff Rajendrakumari during the months of January 1973 and February 1973. Because even according to the landlord, the original tenant Jagdish left the suit premises with his luggage and that he was not there since December 1972. In my opinion, an inference is liable to be drawn against the plaintiff for not producing the electricity consumption bills for January and February 1973. In my opinion, the explanation that is given by the husband of the plaintiff that the bills for the months of January 1973 and February 1973 were missing cannot be accepted because if the bills are missing, duplicates of the bills could have been produced.