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2018 DIGILAW 938 (GUJ)

Kumudchandra S. Doshi v. Poonam Grover Associates

2018-07-31

PARESH UPADHYAY

body2018
JUDGMENT PARESH UPADHYAY, J. 1.1 This Appeal is directed against the judgment and decree passed by the Ahmedabad City Civil Court dated 04.09.2014 in Civil Suit No.599 of 2009, to the extent it has dismissed the counter-claim filed by the defendant. 1.2 The present respondent had initially filed a suit (as a tenant) in the Small Causes Court at Ahmedabad, seeking protection qua the possession of the suit premises (a residential flat) by way of permanent injunction against the owner of the suit premises (the present appellant). It was registered as HRP Suit No.2559 of 2006. The Court did not accept the status of the plaintiff as a tenant and consequently, the plaint was returned to the plaintiff for being presented to the competent Civil Court. It was presented to and came to be registered as Civil Suit No. 599 of 2009 in the City Civil Court at Ahmedabad. 1.3 The defendant (owner of the suit premises) filed counterclaim, praying for various claims against the plaintiff, principally seeking vacant and peaceful possession of the suit premises from the plaintiff, who according to the defendant, was neither a tenant nor even a licensee, since the leave and license agreement had also expired long back. 1.4 On the conclusion of the trial, the Trial Court has dismissed the suit and has refused to protect the possession of the plaintiff over the suit premises, which is not under challenge and has thus attained finality. The Trial Court has however, also dismissed the counter-claim filed by the original defendant (the owner of the suit premises). It is this second part of the judgment and decree of the Trial Court (rejection of counter-claim which also included seeking possession of the suit premises from the plaintiff), which is challenged by the defendant in this appeal. 2. The point for determination in this appeal is, whether the Trial Court has committed any error by rejecting the counterclaim filed by the original defendant, more particularly the relief of restoring the possession of the defendant over the suit premises, and if yes, what relief can be / need to be granted to the appellant. 3. Heard learned advocates. 4. Mr. Tarak Damani, learned advocate for the appellant has submitted that the Trial Court has committed error by dismissing the counter-claim filed by the original defendant (owner of the suit premises). 3. Heard learned advocates. 4. Mr. Tarak Damani, learned advocate for the appellant has submitted that the Trial Court has committed error by dismissing the counter-claim filed by the original defendant (owner of the suit premises). He has further submitted that even after deciding the issues against the plaintiff, the Trial Court has dismissed the counter-claim filed by the defendant, which is ex-facie erroneous. It is submitted that for more than one decade by this time, the plaintiff has not paid any amount to the defendant. Learned advocate has extensively taken this Court through the record and proceedings and has submitted that, this appeal be allowed. In support of his submissions, Mr.Damani, learned advocate for the appellant has relied on the decision of the Supreme Court of India in the case of Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria reported in, (2012) AIR SC 1727 (1). 5. On the other hand, Mr. Ramnandan Singh, learned advocate for the respondent - original plaintiff has submitted that, the Trial Court has not committed any error while rejecting the counter-claim and no interference be made by this Court. He has supported the judgment of the Trial Court. He has also taken this Court extensively through the record and proceedings of the Trial Court to support his case. It is submitted by him that this appeal be dismissed. 6. Having heard learned advocates for the respective parties and having considered the record and proceedings of the Trial Court, this Court finds as under. 6.1 The suit premises is a residential flat. 6.2 On 15.04.2004, the appellant had entered into a leave and license agreement for the period of 11 months. It was once extended and the extended period also expired on 14.02.2006. It is not in dispute that, there is no extension / fresh agreement / license of any nature thereafter. 6.3 The owner of the premises asked the licensee to handover the vacant and peaceful possession of the flat, which he did not. Instead, the respondent instituted HRP Suit No. 2559 of 2006 before Small Cause Court, Ahmedabad, seeking protection of possession over the suit premises, which, as noted above, was returned by the Small Causes Court for want of jurisdiction. Instead, the respondent instituted HRP Suit No. 2559 of 2006 before Small Cause Court, Ahmedabad, seeking protection of possession over the suit premises, which, as noted above, was returned by the Small Causes Court for want of jurisdiction. It got registered as Civil Suit No. 599 of 2009 before the Ahmedabad City Civil Court, seeking injunction against the owner and further, for protection of his possession over the suit premises. 6.4 The owner on the other hand filed a counter-claim praying for various claims against the plaintiff, principally seeking direction from the Trial Court against the plaintiff to handover the vacant and peaceful possession of the suit premises. 6.5 The Trial Court, on the basis of the pleadings, framed the following issues and after considering the evidence led before it and after hearing the parties, answered those issues as under. "(1) Whether the plaintiff proves that he is the tenant at monthly rent of Rs. 2500/- of the suit premises? (Negative) (2) Whether the plaintiff proves that he is ready and willing to enhance the amount of rent as per the agreement? (Negative) (3) Whether the defendant proves that plaintiff was a licensee on the basis of the agreement, which was expired on 14/2/2006? (Affirmative) (4) Whether the defendant is entitled for mesne profits? If yes, at what rate? (Negative) (5) Whether the plaintiff is entitled for the reliefs as prayed for? (Negative) (6) Whether the defendant is entitled for the reliefs as prayed for? (Negative) (7) What order and decree?" (As per the final order)" 6.6 The above findings are not challenged by the original plaintiff. The refusal by the Trial Court to protect the possession is also accepted by the plaintiff. 6.7 This Court has considered the reasons recorded by the Trial Court in the impugned judgment vis-a-vis the contentions of the learned advocates for the respective parties. This Court finds that, the Trial Court has committed an error, to the extent that, on one hand, it has held that the plaintiff is not entitled to any protection qua the possession of the suit premises, and at the same time, the Trial Court has also refused to give any direction to the plaintiff to handover the possession of the suit premises to its real owner. This is required to be set right by this Court. This is required to be set right by this Court. While doing so, the decision of the Supreme Court of Indian in the case of Maria Margarida Sequeria Fernandes (supra) is also kept in view. It is noted that the reasons recorded by the Trial Court to deny relief to the plaintiff itself is sufficient to allow the counterclaim at least qua the possession of the suit premises as asked for by its real owner. Rejection of counter-claim by the Trial Court is thus illegal and the same needs to be set aside by allowing it to make it in conformity with the other part of the judgment and decree which is accepted by the plaintiff. The plaintiff therefore needs to be directed to hand over the vacant and peaceful possession of the suit premises to the present appellant, even if the other aspects in the counter-claim like mesne profit etc., are not gone into by this Court. 7. It is noted that, the suit premises is owned by the appellant, who had initially entered in leave and license agreement. The furniture - fixture etc., was also provided to the licensee, for which separate agreement was entered into by the wife of the appellant, who was owner of the furniture - fixture in the said flat. The reasons recorded by the Trial Court indicate that, the Trial Court expected the wife of the appellant also, to initiate appropriate proceedings (may be counterclaim) to get back the said furniture - fixture. This was completely beyond the scope of the dispute between the parties and the wife of the appellant not being the party to the proceedings, in no way would prejudice the case of the appellant, which principally pertains to the possession of the suit premises. Specific reference needs to be made to the reasons recorded by the Trial Court in Para : 28 of the impugned judgment. It is this additional error also, which needs to be corrected by this Court. 8. It is noted that it is not in dispute that, the plaintiff has not paid any amount to the present appellant since more than a decade. 9. It is this additional error also, which needs to be corrected by this Court. 8. It is noted that it is not in dispute that, the plaintiff has not paid any amount to the present appellant since more than a decade. 9. It is also noted that, the suit premises is a residential flat in that pocket of the Ahmedabad City, where the prices of real estate are very high and the plaintiff has continued with unauthorised occupation thereof since more than a decade. While giving appropriate direction to the present respondent with regard to handing over of the peaceful and vacant possession of the suit premises, it also needs to be provided that the continuance of possession thereof by him even now, should cost him appropriately. While moulding relief, this aspect is kept in view by this Court. 10. For the reasons recoded above, the following order is passed. 10.1 This Appeal is allowed. 10.2 The impugned Judgment and decree passed by the Ahmedabad City Civil Court dated 04.09.2014 in Civil Suit No.599 of 2009 is quashed and set aside, to the extent it has dismissed the counter-claim Exh.21, filed by the original defendant - present appellant. 10.3 The counter-claim Exh.21, filed by the original defendant - present appellant in the suit is allowed to the extent it has asked for possession of the suit premises from the plaintiff. 10.4 The respondent - original plaintiff is directed to handover the vacant and peaceful possession of the suit premises to the present appellant within a period of three months from today. 10.5 In the event, the respondent - original plaintiff does not handover the possession of the suit premises to the appellant by 31.10.2018, as ordered above, the respondent shall pay Rs. 75,000/- per month to the appellant, for the period during which the possession of the suit premises is retained by him after 31.10.2018. It is recorded that to quantify this amount, the factor which is taken into consideration by this Court is that, the suit premises is a residential flat in that pocket of the City of Ahmedabad, where the prices of real estate are very high and the plaintiff has continued with unauthorised occupation thereof for over a decade without paying any amount to the owner of the premises. 10.6 It is clarified that, the above stipulation of paying Rs. 10.6 It is clarified that, the above stipulation of paying Rs. 75,000/- per month to the appellant from 01.11.2018, is in no way a permission to the respondent, to retain the possession of the suit premises and it would be open to the appellant to resort to any coercive proceedings, in accordance with law, to get back the possession of the suit premises. 10.7 Ordered accordingly. 10.8 The decree passed by the Trial Court stands modified to the above extent. 10.9 Decree be drawn accordingly.