URVATH VARGESE PAUL Vs. SHAH KHIMJI PASSOO

JUDGEMENT

(1.) One Mr. Shah Khimji Passoo instituted a suit in the City Civil Court at Bombay being Short Cause Suit No. 4331 of 1973 against the present appellant and by the said suit said Shah Khimji i.e. the original plaintiff wanted an order of Injunction from the Court so as to restrain the present appellant from entering into or remaining in the space marked as "A" in the plaint at Exhibit A, save and except for using it to approach to the lavatory and to the bathroom. Said Shah also wanted an order of injunction restraining the present appellant from opening the door of Room No. 2 leading to the said space marked as Exhibit A. According to said Shah, said space was to be used by the present appellant for the limited purpose of approaching to the WC and bathroom and not for using it for any other purpose such as dumping the articles of the present appellant. According to said Shah the appellant started using the said space which really was a Veranda (For short the suit premises) for keeping his articles. Said conduct on the part of the appellant was not approved of by said Shah and hence he instituted the said suit for the relief as stated aforesaid. It is seen that during the pendency of said suit Shah Khimji Passoo, the plaintiff expired and hence Shamji K. Shah and Smt. Paubai K. Shah were brought on record. The said suit came to be decided by the learned Judge of the City Civil Court by giving opportunity to the parties to lead evidence and by judgment and decree dated 16.12.1989 the learned Judge of the City Civil Court (hereafter referred to as the learned trial Judge) decreed the suit in terms of prayer Clauses (a) and (d). Against this judgment and decree, the Original defendant has filed this appeal. It is seen that said Shamji K. Shah died during the pendency of appeal and sole respondent Smt. Paubai has contested this appeal.

(2.) Both the sides got full opportunity to place before the learned trial Judge their respective contentions. The appellant examined himself and examined four other witnesses to prove that suit premises were let out to him and therefore he was entitled to use the suit premises to the exclusion of the plaintiff.

(3.) This contention has been negatived by the learned trial Judge by the impugned judgment and decree. Said Shah Khimji happened to be the landlord in respect of House No. 105-C, situated at Hill Road, Bandra, Bombay. It is common ground that in the said house, there were in all four rooms i.e. Room Nos. 1, 2, 3 and 4. It is admitted by the present appellant that Room Nos. 3 and 4 were in the possession of said Shah. According to the appellant room Nos. 1 and 2 were given to the appellant on the basis of leave and license agreement executed in the year 1971, for the period 1971 to 1972. It was the case of the appellant before the learned trial Judge that in addition to room Nos. 1 and 2, the appellant was also given the suit premises as and by way of premises covered under the said Leave and License. With this proposition, the appellant approached the trial Court. It is also the case of the appellant that the leave and license agreement was extended again for the period 1972-73. It is also the case of the appellant that he had instituted the suit in the Court of Small Causes at Bombay for declaration that he is a tenant in respect of room Nos. 1 and 2, of course based on his claim that said premises were given to him on leave and license basis. It was pointed out by learned Advocate Mr. Nagarseth before this Court that exparte decree has been passed in favour of the appellant in regard to room Nos. 1 and 2 in the said suit. This Court is not required to go into that aspect of the matter because this Court is only required to determine whether the suit premises leading to WC and bath were either let out to the appellant on rent or put in the use of the appellant on the basis of the leave and license agreement which is said to be entered into from time to time. If the appellant is successful in showing that the suit premises were put in his control either as tenant or licensee then he would succeed, otherwise he would fail.