Judgment:
V.H. Bhairavia, J.
1. This appeal is directed against the judgment and decree dated 11th August, 1987 passed by the City Civil Court, Bombay, in S.C. Suit No. 4012 of 1971.
2. The respondent-plaintiff filed the suit for a declaration that the appellant-defendant is a trespasser in respect of the suit premises and for a mandatory injunction, directing the defendant to remove himself, his servants and agents from the suit premises and for a decree directing the defendant to hand over possession of the suit premises to the plaintiff and also for recovery of arrears of licence fee or compensation from the defendant at the rate of Rs. 375/- per month. It is the case of the plaintiff that he was carrying on business in charcoal in the suit premises for a number of years. He is the tenant of the suit premises, paying a monthly rent of Rs. 27.30. It is the case of the plaintiff that the defendant approached him for grant of leave and licence to use the suit premises for a period of eleven months on monthly compensation of Rs. 375/- and accordingly a leave and licence agreement was entered into on 1st July, 1970 between the plaintiff and the defendant. Accordingly, a portion of the suit premises was given to the defendant as per the terms and conditions of the said agreement. The plaintiff kept the other portion of the premises for his charcoal business. Under the agreement, the defendant was allowed to use the suit premises for his business. Further, the defendant was to hand over the suit premises on expiry of the said licence i.e. on 31st May, 1971. On 29th April, 1971 the plaintiff sent a notice through his Advocate to the defendant, calling upon him to hand over the suit premises to him, the plaintiff, on or before 1st June, 1971. The defendant did not give any reply to the said notice nor he paid the licence fee for the month of May 1971. According to the plaintiff, the defendant committed breach of the terms and conditions of the agreement by allowing third party viz., one F. Pareira to use the suit premises. It reveals from the record that instead of giving possession of the suit premises, the defendant filed a false criminal complaint against the plaintiff on 31st May, 1971 and the defendant changed the lock of the premises, thereby preventing the plaintiff from entering into the suit premises. A counter criminal complaint was filed by the plaintiff against the defendant. In the said circumstances, the plaintiff filed the instant suit against the defendant.
3. The defendant filed his written statement denying that the suit premises was given on leave and licence basis. The intention of the parties was to create sub-tenancy and to have exclusive use and occupation of the suit premises. It was contended that as the defendant is a sub-tenant of the suit premises, the Civil Court has no jurisdiction to hear this suit.
4. The necessary issues were framed by the trial Court. After recording the evidence and hearing the arguments of the learned Counsel for both sides, the learned trial Judge by his impugned order decreed the suit directing the defendant to hand over possession of the suit premises to the plaintiff and to pay arrears at the rate of Rs. 375/- per month till delivery of possession. Hence this first appeal by the appellant-defendant and the cross-objection by the respondent-plaintiff.
5. Heard Mr. S.S. Pandit, learned Counsel for the appellant-defendant, and Mr. Madhukar Soochak, learned Counsel for the respondent-plaintiff.
6. Mr. Pandit, learned Counsel for the appellant-defendant, has vehemently submitted that the suit is barred by section 28 of the Bombay Rent Act, as the Civil Court has no jurisdiction to decide the suit. In support of his argument, the learned Counsel has relied on a ruling in C.J. Ghadiali and others v. Z.B. Wadiwalla, reported in 1981 Mh lj 876 : 1981 Bom. C.R. 956 wherein it has been held thus :---
'Court sitting in appeal from a decree passed in a suit filed in the City Civil Court wherein the question was whether plaintiff was a tenant under section 5(11)(c) cannot grant relief regarding tenancy inasmuch as the claim includes a right to enter and enjoy the premises which is not within the competence of the City Civil Court and consequently will not be available to the Appellate Court in an appeal therefrom.'
7. The facts of that case is entirely different from the facts of the present case. In that case, the question was whether the plaintiff was tenant under section 5(11)(c) of the Rent Act. In the instant case, the appellant-defendant claims to be a sub-tenant of the respondent-plaintiff. At the time of hearing of the suit, there was no right of sub-tenancy available to the sub-tenant and there was a statutory bar for creating sub-tenancy under section 15 of the Rent Act.
8. The learned Counsel for the appellant-defendant has further relied on a ruling in Prabhulal Chhogalal Mandore v. Bastiram Himatram Bhutada and another, reported in : AIR1990Bom367 , wherein the head note reads thus :---
'Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 13(1)(e) Bombay Rent, Hotel and Lodging House Rates Control Act, 1986 (Act XVII of 1987). Section 25-Eviction-Protection under Amending Act- Word 'proceeding' as used in section 25 of Act 18 of 1987 is of wide amplitude. It will include in its import even proceeding instituted under Article 227 of the Constitution and actually pending when Amending Act came into force. Decree for eviction on ground of sub-letting passed against tenant-Such decree confirmed in appeal but writ petition was pending. Held, such tenant would be entitled to protection of Amending Act.'
The facts of this case are entirely different from the facts of the instant case. In that case the suit was for eviction against the tenant under section 13(1)(e) of the Rent Act on the ground of sub-letting of the suit premises. Here, again, as observed above, the appellant-defendant claims to be a sub-tenant of the respondent-plaintiff.
Both the aforesaid decisions do not support the case of the appellant-defendant herein.
9. So far as the contention regarding possession of the suit premises is concerned, according to the respondent-plaintiff, some portion of the suit premises was given to the appellant-defendant on leave and licence basis for a period of eleven months. As against this, the appellant-defendant claims that possession of the entire suit shop premises was given to him and he was in exclusive possession of the suit shop premises. Clause 6 of the agreement reads thus :---
'It is hereby agreed and declared that the use and occupation of the licensee of the licensed premises shall be only in the capacity of licensee of the licensor and that by this agreement sub-tenancy or any other right in or to the licensed premises is not created. One key of the licensed premises shall always remain with the licensor, another key will remain with the licensee.'
The learned Judge has lost sight of this clause and has proceeded under a wrong presumption that the intention of entering into agreement of leave and licence is to create tenancy or sub-tenancy and he generalized the presumption and held that there was an intention of creating sub-tenancy which was barred by section 15 of the Rent Act. Therefore, he held that the appellant-defendant was a trespasser as his possession was in violation of the statutory provision and no protection can be given to him under the amended provision as he was ordered to be dispossessed before the amended provision came into force. The judgment was delivered on 11th August, 1987 and the amendment to section 15 of the Rent Act came into force on 1st October, 1987. Therefore, the benefit of this amended section could not be available to the appellant-defendant. That apart, if we want to know the real intention of the parties as expressed in the agreement of leave and licence, we will have to go through the oral evidence of the plaintiff as well as the defendant. It is an admitted fact that the agreement (Exhibit A) was entered into between the parties. Therefore, there is no dispute regarding the contents and the terms and conditions of the said agreement. Now, in the oral evidence of the plaintiff, it has been categorically stated by him that the defendant came to him in 1970 with a request to allow him to use some portion of the shop premises for his business. Thereafter the plaintiff and the defendant have entered into an agreement of leave and licence (Exhibit A). The said agreement was for a period of eleven months from 1st July, 1970 to 31st May, 1971. Further, it is also mentioned that the said licence can be extended not more than once. It is stated that as the licence period expired, the plaintiff demanded possession of the suit shop premises from the defendant. However, the defendant refused to hand over possession of the said shop premises but instead filed a criminal complaint against the plaintiff. The plaintiff issued a notice through his Advocate terminating the licence of the defendant. Clause No. 4 of the said agreement recites that the licensee shall deposit with the licensor a sum of Rs. 4,000/- on or before the execution of the agreement and the said deposit shall remain with the licensor without any interest till the expiry of the period of the agreement or till the determination thereof and the said deposit is taken for the due observance and performance of the terms and conditions of this agreement. In his deposition, the plaintiff has categorically stated that there was no intention to create sub-tenancy. Out of good will, the defendant was allowed to use some portion of the shop premises for a period of eleven months. As against this, in the oral evidence of the defendant, he had tried to make out a case of creating sub-tenancy. Further, the defendant has tried to impress upon the Court by stating that he was in exclusive possession of the suit shop premises and the plaintiff was not doing any business therein. A litigant must come with clean hands. If we go through the written statement of the defendant and his oral evidence, it does not inspire any confidence of the Court. It is pertinent to note that in paragraph 13 of his deposition, the defendant has stated thus :---
'I cannot say whether the licence agreement produced by the plaintiff is sham and bogus agreement. I also cannot say whether there is a dispute regarding the interpretation of the terms of that agreement. It is true that the written statement in this suit was filed on 6-8-1982. The averments in para one of the plaint in Suit No. 3974 of 1971 filed by me that 'there is dispute regarding interpretation and/or the actual meaning of the agreement between the parties' are not correct.'
In paragraph 14 of his deposition, the defendant has deposed thus :---
'I also cannot say whether the agreement was a sham or bogus agreement or otherwise.'
Again, in paragraph 18, the defendant has deposed thus :---
'I cannot say about the averments made in paragraph 7 by me in the said affidavit in reply that 'the agreement was obtained by fraud and that I was forced to sign as I was in needy circumstances'.'
The defendant has further deposed thus :---
'It is not correct that my evidence that is prejudicial to plaintiff's evidence is false.'
In paragraph 14, the defendant has categorically deposed thus :---
'According to me, since the time I took the possession of the suit premises under the agreement, my intention has been not to vacate the suit premises. Deposit this intention, I entered into an agreement which was for a period of eleven months. I signed the agreement with the clause that the premises will not be used as a godown though I intended to use the premises for godown purpose. Though I wanted the plaintiff not to carry on any business in the suit premises. I signed the agreement having a clause that he could carry on his business from the premises. Though I had not received any furniture as mentioned in the agreement, I signed the agreement having averments that I had received the furniture mentioned in the agreement.'
The above categorical statements before the trial Court assume much importance in the context of the affidavit-in-reply filed by the defendant in Notice of Motion No. 2398 of 1971 in the suit, wherein it has been stated thus :---
'The agreement was obtained by fraud and I was forced to sign as I was in needy circumstances.'
In the whole of his evidence, the appellant-defendant has no where deposed that the said agreement (Exhibit A) was obtained under fraud or coercion. On the contrary, he has categorically admitted in his cross-examination that his intention from the very beginning was to grab the suit shop premises from the plaintiff. Therefore, the question is :---
How far reliance can be placed on the oral evidence of such a witness who has no respect for truth?
So far as the interpretation of the words 'licensee' and 'sub-tenant' are concerned, the learned trial Judge has held that the appellant-defendant was a sub-tenant. Since the creation of sub-tenancy is barred by section 15 of the Bombay Rent Act, it is held that the appellant-defendant was a trespasser on the suit premises and, therefore, he was liable to be evicted under section 13(1) of the Rent Act. The learned Judge is correct in his view that in 1971 there was no question of deciding the issue regarding sub-tenancy because it was barred by section 15 of the Rent Act. However, the respondent has challenged this finding by filing his cross-objection in this appeal. In my view, there is more cogent evidence - oral as well as documentary. It can be safely held and declared that the appellant-defendant was a licensee rather than a sub-tenant of the suit premises, evicted under section 13(1) of the Rent Act. A licensee is not entitle for any legal protection if his intention is proved not bona fide but to grab the property under the guise of leave and licence and he is liable to vacate the suit property. Any miscarriage of justice can be removed by applying law of equity. It reveals from his own evidence that his intention from the beginning was to grab the suit shop premises from the plaintiff, who was a tenant thereof and was working as an office boy with some private firm. As against that, the appellant-defendant has deposed in his evidence in paragraph 2 that in 1970 he was owning 17 trucks and he also used to hire about 25 to 30 trucks for his transport business and his annual gross turn over in 1970 out of the transport business was about rupees six crores. The agreement (Exhibit A) is a leave and licence agreement and the same was for a period of eleven months only. Admittedly, by notice dated 31st May, 1971 the licence came to be terminated and as the appellant-defendant did not vacate the suit shop premises in pursuance of the said notice, the respondent-plaintiff filed the present suit. As observed above, the real intention of the appellant-defendant was to grab the suit shop premises from the respondent-plaintiff from the very beginning. The defendant has admitted in his cross-examination that he had no intention to vacate the suit shop premises after the expiry of eleven months. Having regard to this clinching evidence on record, the trial Court ought to have held that the agreement was a leave and licence agreement and the appellant-defendant was a licensee and not a sub-tenant. The Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L. Rs. and others v. Jagannmath (dead) by his L. Rs. and others, reported in : AIR1994SC853 , has observed thus :---
'A person, who's case is based on falsehood can be summarily thrown out at any stage of the litigation.'
The defendant falls in that category.
Further, in the case of C.J. Ghadiali and others v. Z.B. Wadiwalla, reported in 1981 M.L.J. 876, it has been observed thus :---
'However, after the above amendment, there is a complete change in law and now it is only in the absence of a member of the tenant's family residing with the tenant at the time of his death that any heir of the deceased tenant acquires tenancy rights under the Rent Act. The provisions of section 5(11)(c) of the Rent Act provided for a right of succession different from the one under the ordinary law. It must, therefore, follow that the right of possession also will be of the person who is a tenant under section 5(11)(c).'
And further :---
'.....Whether the plaintiff was a tenant under section 5(11)(c) cannot grant relief regarding tenancy inasmuch as the claim includes a right to enter and enjoy the premises which is not within the competence of the City Civil Court and Court and consequently will not be available to the Appellate Court in an appeal therefrom.'
This argument is not available to the learned Counsel for the simple reason that the trial Court has held the appellant-defendant a trespasser and, therefore, held that he has no right to remain in the suit premises. Therefore, in my view, the appellant-defendant has failed to make out a case in his favour.
As against that, the respondent-plaintiff has filed his cross-examination challenging the finding of the trial Court that the appellant-defendant was a sub-tenant, as there was no right to create any sub-tenancy and it was barred by section 15 of the Rent Act. In view of the aforesaid facts and circumstances, the respondent-plaintiff is entitled for a declaration that on the basis of the leave and licence agreement (Exhibit A), the appellant-defendant was a licensee of the respondent-plaintiff and his licence period was only for eleven months and the licence came to be terminated by the notice issued through the Advocate and since 1971 the defendant was a trespasser on the suit premises.
10. In the result, the appeal fails and the same is dismissed. The cross-objection filed by the respondent-plaintiff is allowed and the appellant-defendant is directed to forthwith hand over possession of the suit shop premises to the respondent-plaintiff.11. The Court Receiver, who is in the custody of the suit shop premises, is directed to hand over the suit shop premises to the respondent-plaintiff forthwith.
Certified copy expedited.
Court Receiver to act on certified copy of the order without passing accurate.