JUDGMENT
M.B. Shah, C.J.
1. The petitioner, Hindustan Lever Limited, has filed this Revision Application against the judgment and order dated 7th October 1989 passed by the learned Metropolitan Magistrate, 7th Court, Dadar, Bombay, in Case No. 465/N of 1989 dismissing the application filed by the petitioner under section 145 of the Code of Criminal Procedure in respect of Flats Nos. 4 and 5 in the building known as “Prakash”, 2nd floor, 611/3, Sion-Trombay Road, Chembur, Bombay (hereinafter referred to as “the disputed flats”). Shri P.V. Ramanathan, who is the Administrative Manager of the Company, filed application under section 145 of the Criminal Procedure Code against respondent No. 1 and 2 as they forcibly and wrongfully dispossessed the petitioners from the disputed flats on or about 17th or 18th January 1968.
2. It is the case of the petitioner-Company that the disputed flats were taken on lease from 1st February 1972 from its owner Ramlal Wadhawan. Thereafter the owner Ramlal Wadhawan sold the said flats to one Smt. Durga Devi Chopra in the year 1974. Hence the Company started paying the rent to the said Druga Devi. In October 1976, one Roshanlal informed the Company that Smt. Durga Devi has expired on 28th May 1976 and that he was appointed as an Executor of her Will. According to the Will, Smt. Durga Devi had bequeathed the property to her four grand-daughters, who were minors at that time. The petitioner-Company, after verifying the death certificate and after obtaining consent on behalf of the minors, started paying rent to Roshanlal. It is also pointed out that in the year 1976 Roshanlal offered to sell the disputed flats to the Company, but at that time the Company replied that they were not interested in purchasing the flats. The letters exchanged between Roshanlal and the petitioner-Company in this regard are produced on record at Exhibits “A” and “B”. It is also stated that the Company had allotted the flats to Mr. Sivaskandan, who was the Manager of the Company at that time, for his residence. He stayed there from 1st November 1972 till 16th January 1988. He vacated the said flats because he resigned from the Company with effect from 1st January 1988 and he was permitted to stay there for a few days more because he had to make some alternative arrangement. It is also pointed out that on behalf of the Company, Shri Ramnathan took possession of the said flats on 16th January 1988. Thereafter on 18th January 1988 at 12.00 noon Shri Sivaskandan found that someone had occupied the disputed flats and hence he informed about it to Shri Ramnathan. Thereafter Shri Ramnathan reached the premises and he was told by respondent No. 1 that any person coming from the petitioner-Company would not be permitted to enter the disputed flats and that if anybody entered he will have to face dire consequences. Therefore, Shri Ramnathan reported the matter to police and First Informations Report was lodged. On 23rd January 1988, Shri Sivaskandan filed an affidavit in support of the application under section 145 of the Code of Criminal Procedure (Code’s for short). That affidavit is at Exhibit “J”.
3. It is also pointed out that when Shri Ramnathan went to the Police Station, Sub-Inspector of Police Shri P.G. Khade, who was the Duty Officer, instructed one Police Constable to accompany Shri Ramnathan to visit the disputed flats and see the actual position. On reaching the main entrance of the premises, Shri Ramnathan found that the locks put by him on the outside of the two main doors were not there and the door latches were unlocked. There were two other locks, one each on the hook of each of the two doors . The doors were closed from inside. The Constable pressed the door bell and after a few minutes one person opened the door. Some other persons were also inside the flats. It is also stated that Shri Ramnathan was not permitted to enter the flats by the hirelings of the respondents and only the Constable was permitted to enter the flats. Thereafter First Information Report was lodged at the Chembur Police Station for offences punishable under sections 451, 454 and 457 read with section 114 of the Indian Penal Code.
4. Subsequently, on 21st January 1988, the petitioner-Company filed an application under section 145 of the Code before the learned Metropolitan Magistrate, 21st Court, Bandra, Bombay. Another application under section 146(1) of the Code was filed for sealing the premises. On the same day the learned Magistrate passed a preliminary Order under section 15 and issued notice under section 146(1) of the Code to respondent Nos. 1 and 2. It is also pointed out that respondent No. 3 claims to have acquired the disputed flats under a Leave and Licence Agreement dated 17th January 1988 and in the Revision Application it was directed that respondent No. 3 should be made a party respondent in the proceedings under section 145 of the Code. It is also pointed out that the application under section 146(1) of the Code for sealing the disputed flats was rejected by the learned Magistrate by his order dated 10th February 1988. In that revision application the Court directed early disposal of the main application under section 145 of the Code. In that revision application the Court has observed that on going through the impugned order it was found that there were couple of sentences in the impugned order which reveal that the learned trial Magistrate had more or less made up his mind and, therefore, it would be in the interest of justice that the matter be heard by a Magistrate other than Mr. L.D. Motwani and the case was transferred from the Court.
5. Thereafter evidence was recorded by the learned Magistrate, 7th Court, and by his judgment and order dated 7th October 1989 the application under section 145 of the Code was dismissed. Hence this revision application.
6. The learned Counsel appearing on behalf of the petitioner-Company submitted that the order passed by the learned Magistrate is, on the face of it, illegal and perverse. He submitted that in the present case it is an admitted fact that the Company was in possession of the disputed flats upto 16th January 1988. It is the say of respondent No. 1 that respondent No. 1 took possession of the said flats as Shri Ramnathan handed over possession thereof to him on behalf of the Company. This version of respondent No. 1 is not at all believable because :
“i. there was no reason for the Company to hand over possession of the disputed flats which the Company was occupying since the year 1972 till 1988;
ii. there is no correspondence between the Company and any of the respondents to indicate that the Company had agreed to hand over possession of the disputed flats to respondent No. 1;
iii. the learned Magistrate has gulped down the fabricated and unbelievable version of respondent No. 1 that Shri Ramnathan handed over possession of the said flats to respondent No. 1 on behalf of the petitioner-Company without there being any reliable evidence on record.”
In my view, the submission made by the learned Counsel for the petitioner-Company is required to be accepted. Admittedly, the petitioner-Company was in possession of the disputed flats upto 16th January 1988. Mr. Sivaskandan, Administrative Manager of the Company, has, on his retirement from service, handed over possession of the said flats to Shri Ramnathan. It is not the say of respondent No. 1 or respondent No. 2 that the petitioner-Company handed over possession of the said flats to them. Their only defence is that Shri Ramnathan handed over possession of the said flats to them. However, there is absolutely no documentary evidence to prove this defence. The learned trial Magistrate has accepted the unbelievable and fabricated version of respondent No. 1 that possession of the two valuable flats let out to the Company was handed over to him by Shri Ramnathan for no reason. This version of respondent No. 1 is such that no reasonable or prudent person would believe it.
Now I would discuss the evidence on record.
7. In support of its case, the petitioner-Company has examined Shri Ramnathan. It is his say that from the year 1960 he was working with the petitioner-Company; that he was working in the Administration Department since 1982: that he was Manager in Administration Department; that he was dealing with allotment of flats of the Company in Bombay; that the disputed flats were taken on lease basis on 1st February 1972 from Shri Ramlal Wadhawan; that both these flats are combined units; that after Shri Ramlal Wadhawan sold the said flats to Smt. Durga Devi, rent was being paid to her by the Company; that after the death of Smt. Durga Devi, rent in respect of the said flats was being continuously paid to Roshanlal Wadhawan as agreed by respondents Nos. 1 and 2 who gave consent on behalf of the minors as deceased Durga Devi had executed a Will bequeathing her rights in the said flats in favour of her four minor grand-daughters. Shri Ramnathan further deposed that Shri Sivaskandan, who was the Manager of the Company, stayed in the disputed flats from 1st February 1972 till 16th January 1988 and he handed over possession to him on 16th January 1988 at 6 p.m. In the cross-examination made on behalf of the respondents, nothing substantial is brought out which would falsify his version. However, it may be mentioned that the suggestion made on behalf of the respondents that he had handed over possession of the disputed flats to respondent No. 1 and that for that purpose his employer had pulled him up has been categorically denied by him. He has repeatedly denied that he has surrendered or handed over possession of the said flats to respondent No. 1.
8. The next witness examined on behalf of the Company is Shri Khade, Sub-Inspector of Police, attached to the Chembur Police Station. It is his say that Shri Ramnathan came to the Police Station on 18th January 1988 and lodged complaint of forcible dispossession of the disputed flats. He sent one Police Constable with him to the place of offence and after the Police Constable returned to the Police Station, he recorded the First Information Report for offences punishable under sections 451, 452 and 457 read with section 114 of the Indian Penal Code. He has produced at Exhibit “M” the two keys given to him by Shri Ramnathan. In the cross-examination he has stated that he made preliminary inquiry before registering the offences and that he has drawn panchnama of the scene of offence or 18th January 1988, which is produced at Exhibit “R-1”.
9. As against this, respondent No. 1 Shadilal Keshavram Chopra has stated in his deposition that the building “Prakash” consisting of ground plus two and half floors was constructed by Prakash Construction and Engineering Company; that on the ground floor there are offices, on the first and second floors there are residential flats; that he was having his office on the ground floor of the building; that Flat Nos. 4 and 5 are situate on the second floor of the building; that on the 2nd floor there are five flats; that Ramlal Wadhawan originally purchased the said flats from the Builders, of which he was one of the partners in the year 1964 or 1965; that Ramlal Wadhawan sold those flats to his mother Smt. Durga Devi Chopra; that thereafter his mother appointed Roshanlal Wadhawan as a Trustee to manage the affairs of the said flats; that Roshanlal Wadhawan was his father-in-law; that his mother, by a Will, bequeathed the said flats to his four daughters and that three years prior to his death Roshanlal Wadhavan appointed him to look after the affairs of his property, including Flats Nos. 4 and 5 which were in possession of the petitioner-Company. He has specifically admitted in his examination-in-chief itself that Flats Nos. 4 and 5 were in possession of Hindustan Lever till 16th January 1988 and that Shri Sivaskandan was in occupation thereof. It is his say that Shri Ramnathan promised him that possession of the said flats would be handed over as soon as Shri Sivaskandan retired and he was likely to retire on 1st January 1988. According to him, this information was given to him by Shri Ramnathan in the month of October, 1987. It is his further say that on 16th January 1988 at about 7.00 p.m. a small boy called on him in his office and informed him that someone wants to see him in Flats Nos. 4 and 5; he saw that Shri Ramnathan was standing at the door of the flats who informed him that he was getting relief from his promise given to him and informed him that he was handing over possession of the said flats. Thereafter he went inside the flat and found that the said flat was totally vacant.
10. It is his further say that Shri Ramnathan then asked him to take over possession of the said flats along with the fittings and fixtures; that thereafter he asked Ramnathan to come to his office, but Ramnathan said that he would come later on; that subsequently he went to his office, got one letter typed to the effect that he has taken over vacant possession of the flats along with the fittings and fixtures and the original door key; that at that time one Bholanath Agarwal, Secretary of the Society, appeared there and he signed the said letter in original and duplicate in the presence of Ramnathan. He has produced on record at Exhibit “R-1” the letter dated 16th January 1988 signed by him and Bholanath. He asked Ramnathan to sign copy of the said letter in token of having received the original, but Ramnathan informed him that as it was Saturday, the said procedure would be taken care of in his office and subsequently he took possession of the flats. In cross-examinations respondent No. 1 has stated that Bholanath Agarwal is one of the members of the Society and that he had purchased a flat from Prakash Construction. He has also stated that he was not a party to the agreement with the petitioner-Company in respect of the disputed flats nor does he remember having entered into any correspondence with the Company to take possession of the flats. He also stated that he does not remember having addressed any letter to the Company in his personal capacity for taking back possession or requesting the Company to hand over possession of the said flats to him. He has also admitted that Bholanath Agarwal was not residing in that building since he had sold his flat prior to 16th January 1988. Finally he has admitted that the Petitioner-Company was paying quarterly rent by cheque.
11. The other witness examined on behalf of the respondents is Bholanath Radhakishan Agarwal to prove the letter at Exhibit “R-1”. In cross-examination he has stated that he has ceased to be the Secretary of the Society and that he has sold his flat in the year 1987. It is his say that when he went to the disputed flats, respondent Nos. 1 and Ramnathan only were present; that he was not knowing Ramnathan by his name; that he has not asked Ramnathan to sign Exhibit “R-1”; and that he had no occasion to go to the office of respondent No. 1
12. The third witness examined on behalf of the respondents is Prem Kapoor (respondent No. 3). It is his say that he was staying in the disputed flats since 17th January 1988 by virtue of a leave and licence agreement at Exhibit R-3(1). He has further stated that he was paying Rs. 1200/- per month as compensation to Roshanlal and has paid Rs. 10,000/- as deposit. In cross-examination he has admitted that he came to know for the first time on 16th January 1988 that he was getting the disputed flats for occupation. He has further stated that one person by name Kewal Kisan Monga told him that the disputed premises are being vacated and told him to have talks with Roshanlal Wadhawan; that on 17th January 1988 he went to the residence of Roshanlal and at about 2.30 p.m. on that day the agreement was prepared and thereafter possession of the flats was handed over to him. In further cross-examination he has admitted that K.L. Chopra is his brother-in-law; that he was knowing Roshanlal from the beginning who is related to him through his brother-in-law; that K.L. Chopra and Roshanlal are real brothers and that K.L. Chopra signed the agreement. He has further stated that he was knowing the home address of respondent No. 1 but did not know his telephone number. It is also stated that he was knowing respondent No. 1 as he was the son-in law of Roshanlal.
13. This is the state of affairs of the evidence on record. The present case is required to be decided on the aforesaid evidence. It is apparent from the above evidence that upto 16th of January 1988 the petitioner-Company was in possession of the disputed flats.
14. Now, the question is whether the defence raised by respondent No. 1 that Shri Ramnathan (P.W. 1) handed over possession of the said flats to respondent No. 20 or respondent No. 2 is acceptable. The learned Magistrate arrived at the conclusion that “it clearly appears from the evidence that possession of the said flats was handed over to Shadilal (respondent No. 1) along with the key”. For this purpose he has relied upon Exhibit “R-1”, which is a carbon copy of a letter dated 16th January 1988 signed by respondent No. 1 and witness Bholanath Agarwal. From the evidence it is clear that this finding of the learned Magistrate is, on the face of it, erroneous. There is absolutely no documentary evidence on record to show that at any point of time the petitioner-Company had agreed to hand over possession of the disputed flats to respondent Nos. 1 and 2 or either of them. There is no correspondence whatsoever between the Company on the one hand and respondent Nos. 1 and 2 on the other or with any other person that the Company should hand over possession of the premises let out to it. This fact is also admitted by respondent No. 1.
15. The story put up by respondents Nos. 1 and 2 is so absurd and improbable that in a city like Bombay, Hindustan Lever Ltd. which is a multi-national Company, would hand over two flats, of which it was a tenant, to the landlord without any rhyme or reason and without any documentary record. No reliance can be placed on the carbon copy of the letter dated 16th January 1988 (Exhibit “R-1”) written by respondent No. 1 and witnessed by Bholanath Agarwal because that letter was written by respondent No. 1 in his own favour. The said letter is sought to be relied upon by the learned Magistrate for arriving at the conclusion that Ramnathan had handed over vacant and peaceful possession of the disputed flats together with the fittings and fixtures therein forgetting the fact that it is a self-serving document. Admittedly it is not signed by Ramnathan or any other authorised person of the petitioner-Company. It is the say of respondent No. 1 and witness Bholanath Agarwal that when the said letter was written, Ramnathan was present. If Ramnathan was really present and has handed over possession of the disputed flats to respondent No. 1, then Ramnathan himself would have written such a letter to respondent No. 1 recording the fact of handing over possession of the said flats by the Company.
16. The learned Magistrate has further referred to the Agreement dated 17th January 1988 in favour of respondent No. 3. This document also would not in any way establish that the petitioner-Company has handed over possession of the disputed flats to respondent No. 1. This Agreement also is a self-serving document created in favour of respondent No. 3 who is a close relative of respondent No. 1 as admitted by respondent No. 3 in his cross-examination. Therefore, no reliance can be placed on the said document.
17. The learned Magistrate has further relied upon the evidence with regard to production of keys to prove that respondent No. 1 was in possession of the flats on 18th January 1988. The learned Magistrate has appreciated this evidence without applying his mind to the fact that when Ramnathan visited the premises on 18th January 1988 he was not permitted to enter the premises. Thereafter he contacted the police and subsequently he went to the flats along with a Police Constable. The flats were found locked. Thereafter the Police Constable rang the door bell. P.S.I. Shri Khade has stated that on 18th January 1988 when he went to the premises at 6.15 p.m. he found four ladies and one small child inside. According to him, respondent No. 1 produced four keys and he applied all the keys to the outdoor padlocks and night latches which were fitting to it. Therefore the learned Magistrate has drawn an inference that respondent No. 1 who was having the keys was in possession of the flats. In my view, possession of the keys of the flats on 18th January 1988 would hardly throw any light on the fact as to whether possession of the flats was handed over by Ramnathan to respondent No. 1. P.S.I. Shri Khade has stated that the keys with respondent No. 1 appeared to be original one, but respondent No. 1 was not prepared to give the said keys to him at that time and on 28th January 1988 respondent No. 1 produced the four keys and he took possession thereof under a panchanama. The fact that respondent No. 1 had applied some locks and had after some days handed over the keys thereof to P.S.I. Shri Khade would not mean that Ramnathan had handed over possession of the flats to respondent No. 1. Apart from this aspect, there is absolutely no other evidence on record to prove that Ramnathan had handed over possession of the disputed flats to respondent No. 1 or to respondent No. 2. The highly interested version of respondent No. 1 that he took possession cannot be accepted by any standard. Respondent No. 3 is a close relative of respondent No. 1 and he was a party to taking of wrongful possession of the flats. No prudent man could rely upon the two self-serving documents created by them. It is apparent that respondents Nos. 1 and 2 have taken forcible and wrongful possession of the said flats on 17th or 18th January 1988 i.e. within one or two days from the date when the petitioner-Company’s Manager Shri Sivaskandan vacated the said flats.
18. In this view of the matter, this revision application is required to be allowed. The impugned order dated 7th October 1989 passed by the learned Metropolitan Magistrate, 7th Court, Dadar, Bombay, is quashed and set aside. Respondents Nos. 1, 2 and 3 are directed to hand over possession of Flats Nos. 4 and 5 in building “Prakash”, 2nd Floor, 611/3. Sion-Trombay Road, Chembur, Bombay, to the petitioner-Company within a period of four weeks from today. If the possession is not so handed over by respondents Nos. 1, 2 and 3, the Officer in charge of the Chembur Police Station is directed to restore possession of the said flats to the petitioner-Company. Rule is accordingly made absolute.
19. The learned Counsel for respondents Nos. 1, 2 and 3, however, pray for six months’ time to vacate the premises. Considering this request and the ensuing monsoon season, it is directed that if respondents Nos. 1, 2 and 3 file, within fifteen days from today, usual affidavit-cum-undertaking to vacate the said flats, then respondent No. 3 will be allowed to continue in possession of the said flats till 30th September 1996. In the said undertaking, respondent Nos. 1, 2 and 3 would specifically state as under :-
i. that they are in occupation of the flats in dispute and no other person is in possession thereof as a licensee or sub-tenant or in any other capacity whatsoever;
ii. that they will give vacant and peaceful possession of the flats in dispute to the petitioner-Company as ordered above;
iii. that they will not induct any other person in the flats in dispute in any capacity whatsoever.
Respondent No. 3 shall also state as to how many persons are presently residing along with him in the said flat and shall also file undertaking of the major persons to vacate the said premises.
20. In case the affidavit as aforesaid is not filed within fifteen days from today, then this order shall become operative and respondents Nos. 1 to 3 shall hand over possession of the said flats within four weeks from today. Further, if there is breach of the undertaking, then appropriate action would be taken against respondents Nos. 1 to 3 under the Contempt of Courts Act, 1971 and other applicable provisions of law.
21. Issuance of certified copy of this judgment is expedited.
