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2012 DIGILAW 2332 (BOM)

Supriya S. Kale v. Ranjit Diwadkar

2012-12-13

R.P.SONDURBALDOTA

body2012
Judgment:- 1) The revision applicants herein, are the plaintiffs in Regular Civil Suit No. 100 of 2002 filed by them for declaration that, they are the tenants in respect of the suit shop and for an injunction to restrain the respondents herein from dispossessing them from the suit shop without following due process of law. The trial Court, decreed the suit by its judgment and order dated 28th September, 2007. The respondents challenged the judgment and decree by preferring appeal to the District Court. Their appeal was allowed by the judgment and order dated 20th January, 2012. The present Revision Application has been filed by the applicants to challenge the order of the Appellate Court. 2) Respondent no.1 is the owner of the suit shop being Shop No.4, Ground Floor, Gopigan Apartments, Naupada, Thane. On 22nd March, 1994 an agreement for leave and license was executed between respondent no.1 and applicant no.2 for allowing applicant no.2 to use and occupy the suit shop as a licensee for a period of 11 months i.e. until 28th February, 1995 on payment of license fees of Rs.3,000/- p.m. and on other terms and conditions as stated in the agreement. Thereafter, on 22nd February 1995, 2nd February 1997, 8th January 1998, 2nd November 1999, 17th October 2000 and 4th October 2001, agreements for leave and license, each for a period of 11 months came to be executed in respect of the suit shop. The last two agreements were executed with applicant no.1 and not applicant no.2. The respondents served notice dated 5th January, 2002 upon applicant no.1 revoking the license and calling upon applicant no.1 to vacate the suit premises. The notice was received by applicant no.1 on 7th January, 2002. Thereafter, the suit came to be filed on 2nd February, 2002. 3) It is the case of the applicants, that the real transaction between the parties was never of a license as stated in the agreements executed by the parties, but was of tenancy. The respondents, however, had prepared documents of leave and license, which had been signed by the applicants from time to time, only to avoid spoiling of relations. After taking the premises on tenancy, the applicants claim to have started business therein in the name of `Saraswati Stationery and Provision Stores'. The respondents, however, had prepared documents of leave and license, which had been signed by the applicants from time to time, only to avoid spoiling of relations. After taking the premises on tenancy, the applicants claim to have started business therein in the name of `Saraswati Stationery and Provision Stores'. The applicants have obtained two telephone connections, one in the name of applicant no.2 as the proprietor of Saraswati Stationery and Provision Stores and other in the name of his brother, Sandeep at the address of the suit shop. The applicants allege in the plaint that, in the last week of January, 2002 the respondents had approached them at the shop premises and threatened to dispossess them without following due process of law. On the allegations as made, the applicants sought declaration that, applicant no.1 is the tenant in respect of the suit shop as described in the plaint and for a permanent injunction to restrain the respondents from dispossessing the applicants from the suit shop without following due process of law. The description of the suit shop as given in the plaint reads as follows:- “The shop premises admeasures about 400 sq.feet area and includes shop and behind it store room. The store room has also a door towards Western Side. It is `L' type premises. There is also a shed in front of shop. The entire premises hereinafter called the “SUIT SHOP”. Thus, according to the applicants, the suit shop includes the shop premises, the storeroom behind it and the shed in front of the shop. 4) The respondents in their written statement have disputed the above description of the suit shop. They contend that, the suit shop admeasures only 107 sq. ft. The store-room and the shed in front of the shop has always been in the possession of the respondents from where their son has been carrying on business of music recording and music classes since the year 1997. Prior thereto, one Mr. Savarkar was using those premises for conducting classes. After him, the classes were conducted by one, Mr. Javadekar. 5) The respondents allege that the proceedings initiated by the applicants are fraudulent proceedings filed with the intention of grabbing the respondents premises. The applicants are also alleged to have suppressed material facts from the Court. Prior thereto, one Mr. Savarkar was using those premises for conducting classes. After him, the classes were conducted by one, Mr. Javadekar. 5) The respondents allege that the proceedings initiated by the applicants are fraudulent proceedings filed with the intention of grabbing the respondents premises. The applicants are also alleged to have suppressed material facts from the Court. The correct facts according to the respondents, are that respondent no.2 was carrying on business from the suit shop of stationery and other provisional articles under the name and style of `Saraswati Stationery and Provision Stores . The shop has been registered ” as an establishment under the Shops and Establishment Act. Initially, the registration stood in the name of Ms. Seema Suhas Diwadkar, sister-in-law of respondent no.1. On 6th July, 1995 the registration came to be transferred in the name of respondent no.1. That registration is valid till date. Respondent no.1 being employed in an international company is required to be out of India for long intervals. Therefore, the respondents were on the lookout for a reliable person for carrying on the business of `Saraswati Stationery and Provision Stores” as a Conductor. The name of applicant no.2 was recommended to the respondents through their common friend, Advocate Mr. Godse. Applicant no.2, then was appointed as a Conductor of the business and for that purpose, the leave and license agreement for 11 months was executed. The agreements were renewed from time to time. The respondents terminated the license by serving notice upon applicant no.1 and asking the applicants to remove themselves from the suit shop. There is also a grievance made by the respondents, that the applicants were not regular in payment of the amount agreed under the agreements executed between the parties. According to the respondents, the telephone connections at the suit shop have been obtained by the applicants without their permission. The respondents had filed a counter-claim, inter-alia seeking a declaration that the applicants are trespassers in respect of the suit shop and for possession. The counterclaim, was later withdrawn by them on realisation that the same would not be maintainable in the Court of Small Causes. 6) The applicants examined applicant no.2-an employee of United India Insurance Company, P.W.2 and Clerk from the office of Tax Recovery Department of Thane Municipal Corporation-P.W.3 and an employee of Pest Control Universal Company in support of their claim. 6) The applicants examined applicant no.2-an employee of United India Insurance Company, P.W.2 and Clerk from the office of Tax Recovery Department of Thane Municipal Corporation-P.W.3 and an employee of Pest Control Universal Company in support of their claim. The respondents have not led any evidence. One of the contentions raised before the trial Court, the lower Appellate Court and also this Court is about the non-registration of the agreements of leave and license by the respondents as required under Section 55 of the Maharashtra Rent Control Act. It is contended that, as a consequence of non-registration, the contention of the applicants that applicant no.1 is the tenant in respect of the premises must prevail. The trial Court accepted the evidence of the applicants to decree the suit. It declared that the applicants are the tenants in respect of the suit shop and permanently restrained the respondents from dispossessing the applicants from the suit shop, without following due process of law. The lower Appellate Court reversed the findings holding that, as the consequence of non-registration of leave and license agreement under Section 55 of the Maharashtra Rent Control Act, the legislature has not intended, to give the status of tenant to a licensee in respect of the premises. The Appellate Court also, noted admission on the part of applicant no.2 during his cross-examination that prior to 1994, he had approached the respondents with a request to run their business under the name and style of `Saraswati Stationery and Provision Stores” and he had continued that business. It was not the case of the applicants that, they had purchased the goodwill of the business from the applicants. It further noted that the evidence of applicant no.2 was completely silent on the registration of the establishment of `Saraswati Stationery and Provision Stores under the Shops” and Establishment Act. Further, though the declaration sought in the plaint was of tenancy of applicant no.1, the evidence of applicant no.2 was that he was the tenant in respect of the suit shop. It was not his evidence that, applicant no.1 is the tenant in respect of the shop. 7) The evidence of applicant no.2 being completely contrary to the pleadings in the plaint, the suit was liable to be dismissed on this count alone. It was not his evidence that, applicant no.1 is the tenant in respect of the shop. 7) The evidence of applicant no.2 being completely contrary to the pleadings in the plaint, the suit was liable to be dismissed on this count alone. But, on such evidence, the trial Court strangely, not only decreed the suit, but granted prayer for declaration which was not asked for. The prayer in the plaint was for declaring applicant no.1 as the tenant of the suit shop. The trial Court declared, both the applicants as the tenants in respect of the suit shop. 8) The entire evidence before the Court supports the case of the respondents. In this situation, the only argument advanced by Mr. D.H. Mehta, the learned Counsel appearing for the applicants, is based on the interpretation of Section 55 of the Maharashtra Rent Control Act. He has in all earnestness and seriousness, argued that the consequence of non-registration of the leave and license agreements between the parties, is that the contention of the applicants of being tenants in respect of the suit shop, must prevail. 9) Section 55 of the Maharashtra Rent Control Act, reads as follows:- “55. Tenancy agreement to be compulsorily registered. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and license or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908. (2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and license or have been let to him, shall prevail, unless proved otherwise. (3) Any landlord who contravenes the provisions of this section shall, on conviction, be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or with both.” 10) Section 55(1) above, requires compulsory registration of the agreement of tenancy and the agreement of leave and license. Sub-Sections (2) and (3) provide for consequences of non-registration of the agreements. Sub-Sections (2) and (3) provide for consequences of non-registration of the agreements. The first consequence is about the contents of the agreement, which is relevant for the present purposes and the second consequence is of punishment to the landlord upon whom lies the statutory responsibility of getting the agreement registered. Under Section 55(2), in the absence of the written registered agreement, what shall prevail is the contention “of the tenant about the terms and conditions subject to which the premises have been given to him” on leave and license or on tenancy. This privilege granted is not absolute. It is qualified by making it subject to any other proof that may be brought by the landlord. Plain reading of the language of the provision indicates that, the privilege granted therein to the tenant/licensee is limited to his contentions as regards the terms and conditions that would govern the specific relationship between the parties. The privilege does not extend to claiming a relationship or a right different from that mentioned in the agreement. If the legislature desired to extend the privilege beyond the terms and conditions in the agreement, it would have specifically granted it in the provision, by saying that the contention of the tenant/licensee as regards the right/relationship created under the agreement shall prevail. To put the construction on Section 55(2) as suggested by Mr. Mehta, will mean reading something more into the provision, than what occurs therein. The rules of interpretation, do not permit this, unless the provision as it stands, is either meaningless or of doubtful meaning. The provision of Section 55 (2) as it stands, can neither be said to be meaningless nor of doubtful meaning. Therefore, there can be no substance in the argument that, as a consequence of non-registration of the agreements for leave and licence, the contention of the applicants that they are the tenants in respect of the suit premises, shall prevail. The applicants needed to establish the right of tenancy claimed by them by independent positive evidence, which they have failed to do. Therefore, the lower Appellate Court has rightly observed that the relationship is unaffected and that the legislature never intended to give status of tenant to the licensee as a consequence of non-registration of leave and license agreement. The applicants needed to establish the right of tenancy claimed by them by independent positive evidence, which they have failed to do. Therefore, the lower Appellate Court has rightly observed that the relationship is unaffected and that the legislature never intended to give status of tenant to the licensee as a consequence of non-registration of leave and license agreement. 11) The applicants have also not produced any evidence to establish that, they are the owners of the business of `Saraswati Stationery and Provision Stores. The registration of the establishment under the Shops and Establishments Act standing in the name of respondent no.1, indicates that the business is owned not by the applicants, but by respondent no.1. 12) In all the above circumstances, the lower Appellate Court has rightly appreciated the dispute and allowed the appeal. The lower Appellate Court, while allowing the Appeal has merely set aside the order of the trial Court. It has, however, not recorded that the suit filed by the applicants is dismissed. The impugned order is therefore confirmed with an addition that the suit filed by the applicants is dismissed. The Revision Application is accordingly disposed off.