Judgment:
R.Y. Ganoo, J.
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, ofcourse 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.
4. With the assistance of the learned Advocates on both sides, I have perused the evidence on record and other relevant documents. On consideration of the entire record, it is clear that what was given to the appellant was room Nos. 1 and 2 and there is nothing on record to show that the suit premises, namely the veranda was put under the exclusive control of the appellant.
5. It was argued by learned Advocate Mr. Nagarseth that the receipt issued in favour of the appellant mentioned House No. 105-C and hence it should be held that the suit premises formed the part of the premises let our to Appellant. It is to be noted that when the appellant approached the Court with a case that he was put in possession of room Nos. 1 and 2 as well as veranda and if room Nos. 3 and 4 were admittedly in possession of the landlord, the use of the word 'House' will have to be treated as having been used in a very loose manner and it will not mean that veranda was allowed to be used by the appellant either as tenant or licensee.
6. In Order to claim the said veranda as premises to be exclusively used by the appellant, a better quality of evidence was required. The appellant before the learned trial Judge could not lead evidence in support of his contention that the suit premises, namely the veranda was put in his control exclusively i.e. to the exclusion of the landlord who was in possession of room Nos. 3 and 4. It was sought to be agitated before this Court that certain proceedings under Section 145 of Cr.P.C. were also conducted. It is well known that the said proceedings will be always subject to the result of litigation in the Civil Court and whatever is the decision of the Civil Court deciding the rights of the respective parties will govern the relationship between the parties. In this view of the matter, what has transpired in proceeding under Section 145 of Cr.P.c., in my view is not relevant for the purpose of deciding the rights of the parties. When the evidence on record clearly goes to show that only room Nos. 1 and 2 was put under the control of the appellant and the appellant was allowed to use the said premises, namely veranda for the limited purpose of approaching WC and bath, it is impossible that the appellant could use the premises for dumping his articles and full control over the suit premises.
7. In my view, the learned trial Judge has recorded correct finding in so far as this aspect of the matter, where it was recorded that the suit premises was not let out or were not permitted to be given to the appellant under the Leave and License. Once it is recorded that the suit premises were not given to the appellant exclusively the suit for reliefs claimed as mentioned earlier would lie in the City Civil Court at Bombay and there was no need to file the suit in the Court of Small Causes. In my view, institution of the suit in the City Civil Court was proper keeping in view the averments in the plaint. For the reasons mentioned aforesaid, I am inclined to observe that the appellant has failed to make out the case that the suit premises, namely veranda was put under his control to the exclusion of the original plaintiff i.e. Mr. Shah and now the present respondent who is the heir of said Mr. Shah. If this is the position, the impugned judgment and decree delivered by the learned Judge of the City Civil Court dated 22.12.1989 cannot be interfered with and the appeal filed by the appellant is required to be dismissed.
8. In the facts and circumstances of the case, I am not inclined to saddle the appellant with costs of this appeal. Hence the Order.
ORDER
i. Appeal is dismissed with no Order as to costs.
ii. After the aforesaid Order is passed, learned Advocate Mr. Nagarseth appearing on behalf of the appellant prayed for stay of the operation of the Order of Injunction to enable the appellant to consider the future course of action. In view of the above injunction, the operation of the judgment and decree passed by the learned Judge of the City Civil Court is stayed till 20.7.2009.