ORDER
R.J. Kochar, J.
1. The original defendant No. 3 is the present appellant. He was subsequently impleaded in the suit filed by the original plaintiff, the respondent No. 1 herein against the original defendant Nos. 1 and 2, respondent Nos. 2 and 3 herein. The suit was for administration of the estate of the deceased Boman Bozargi, who was the father of plaintiff and defendant No. 1 and the husband of defendant No. 2. The dispute in respect of the administration of the estate was amicably resolved by all the aforesaid three parties. The learned trial Judge had disposed of the suit in respect of the administration of estate as per the
settlement between the parties on 19th February 1997. The right and dispute in respect of the defendant No, 3 was left behind and the same has been decided in the aforesaid suit against the defendant No. 3, who was directed to hand over vacant and peaceful possession of the suit property i.e. canteen and open air restaurant at Bombay Hocky Association ground and the business thereof to the plaintiff and the defendant Nos. 1 and 2 (hereinafter referred to as the respondents) including the requisite licences within three months from the date of the judgment and order of the trial Court dated 4th August, 1997. Aggrieved by the said judgment and order the appellant has preferred this first appeal. The appellant continues to be in possession of the suit premises pursuant to the interim order passed by this Court in the first appeal.
2. Shri Abhyankar, the learned Counsel for the appellant has fairly made a statement that his client would pay and hand over directly to the defendant No. 2 an amount of Rs. 2,02,500/- towards the arrears of royalty payable by the appellant to the defendant No. 1 on behalf of the respondents for the period from August 1997 to 31st January 2002 pursuant to the orders of the trial Court. The said amount shall be handed over within one week from today.
3. The appellant is aggrieved by the impugned judgment and order passed by the trial Court and has challenged the findings recorded against him on various grounds. I am not recording here the facts averred by the plaintiff in the suit in respect of the administration of the estate of the deceased as the dispute does not survive any more having been settled amongst the legal heirs of the deceased. The only dispute which survives is in respect of the open air restaurant which is in possession of the defendant No. 3. According to the plaintiff, the defendant No. 3 was and is only a contractor or a conductor of the said restaurant and was and is not either a sub-lessee of a sub-tenant of the said premises. There is no dispute about the fact that the deceased was a lessee of the suit premises which belonged to the Bombay Hocky Association. The said canteen business was run by the deceased who, on account of his old age, appear to have entered into an agreement with the appellant-defendant No. 3 whereunder the said business of the canteen was handed over to the appellant on certain terms and conditions which were reduced in writing in the said agreement dated 1st February 1978. The original agreement which was signed by the parties was in Pershian language and, therefore, the same was translated for being relied upon the same for determination of their respective rights arising from the said agreement. It is thus clear that there is no dispute about the existence of such an agreement between the deceased and the appellant.
4. The learned trial Judge had impleaded the appellant as the defendant No. 3 in the original suit on the request made by the appellant. All the issues in respect of the dispute amongst the family members having been settled, the learned Trial Judge recorded evidence and received documents to the extent of adjudication of rights of the present appellant in respect of the suit premises and the business. From the pleadings of the parties, the learned trial Judge framed and tried the following two issues which were concerning the rights of the whole family and the present appellant, the defendant No. 3. For ready reference the said issues i.e. Issue No. 6 and 8 are reproduced hereinbelow.
Issue No. 6. “Do the plaintiff and defendant Nos. 1 and 2 prove that they are entitled to terminate the contract of defendant No. 3 to run B. H. A. Restaurant at the conclusion of suit and recover possession from defendant No. 3?
Issue No. 8. “Does the defendant No. 3 prove that the cause of action for recovery of possession from him, amount to misjoinder in a suit for administration of estate?
The learned trial Judge held both the issues in favour of the plaintiff and against the defendant No. 3 i.e. the appellant. The trial Court has upheld the right of the legal heirs of the deceased to terminate the contract and seek possession of the canteen premises and the business from the defendant No. 3 and the Court itself terminated the contract and directed the defendant No. 3 to hand over possession of the premises to the legal heirs of the deceased. The learned trial Court has concluded on the basis of the pleadings and evidence that there was no challenge to the ownership or lease hold rights of the deceased and that under the agreement the appellant-defendant No. 3 had accepted the said position. It was the contention of the appellant that he was the sub-tenant of the canteen premises and that under the agreement, the deceased had created a sub-tenancy in his favour. According to him, therefore, the aforesaid agreement was not an agreement for conducting the business but the same was in reality an agreement to create sub-tenancy in his favour. According to him, the so called agreement was really a paper arrangement and not to be acted upon. Shri Abhyankar, the learned Counsel appearing for the appellant has submitted that the said agreement was a sham and bogus one and in reality it was never intended to be acted upon and the same was meant for consumption of the Bombay Hocky Association. Shri Abhyankar has taken me through the entire agreement to submit that the tenor and the content of the agreement show that it was not for the purpose of conducting business but the same was to create a sub-tenancy so that the appellant would run the business according to his own management and with his own staff and assets. The agreement was initially for a period of five years on certain terms and conditions in respect of the monthly payment to be made by the appellant etc. Shri Abhyankar has also laid stress on the fact that the deceased was not able to conduct the business due to his old age and had, therefore, in reality handed over the premises to enable the appellant to run his own business on the said premises. Shri Abhyankar has tried to submit that the deceased had virtually no business and no furnitures or Fixtures in the canteen and in fact the appellant took efforts to uplift the canteen to attract the customers to earn profit. Shri Abhyankar submitted that his client had invested an amount of Rs. 20,000/-for renovation indicating that it was not a contract for conducting the business but the premises were given to the appellant to run his own business in accordance with his own management and his staff and property. What Shri Abhyankar has submitted is that the rights of the defendant No. 3 could not have been determined in the suit for administration as his client was only a stranger to the estate of the deceased. According to him, the relationship of lessor and lessee or sub-lessee or tenant and sub-tenancy could not be decided in a suit for administration of the estate. The learned Counsel has submitted that there was
predominant evidence to show that his client was sub-tenant of the premises and he could not be evicted by an order of the City Civil Court in the suit for administration of the estate. He further submitted that the City Civil Court had no jurisdiction to try the dispute and had no power to order eviction of the appellant as it was the exclusive jurisdiction of the Small Causes Court under the Bombay Rent Act read with the Presidency Small Causes Courts Act.
5. As far as the point in respect of the protection under Section 5(4-A) of the Bombay Rent Act is concerned, Shri Abhyankar has fairly not pressed this point and, therefore, I need not advert to it. In any case, the said provision protects such licences or sub-leases which are created on or before 1st February 1973. Admittedly the said provision of the Bombay Rent Act is not applicable and not attracted in the present case as the agreement is dated 1st February, 1978.
6. Shri Abhyankar, however, has tried to pursuade me that the agreement between the deceased and the appellant was in fact a document creating subtenancy or sub-lease of the premises in favour of the appellant. Shri Abhyankar pointed out that all the three conditions stipulated in section 105 of Transfer of Property Act are fulfilled i.e. in the agreement initially the duration of the contract was specified, monthly rent or consideration was described and possession was also given to the appellant. Shri Abhyankar has further pointed out that the deceased was not in a position to run the canteen and there was actually no business and there were no customers. Besides, the appellant brought furniture on the condition that he would take away the same after the expiry of the stipulated period. Shri Abhyankar has also pointed out that the agreement was not restricted to the appellant but was made inheritable to his wife/son. Shri Abhyankar has, therefore, submitted that in the suit for administration of the estate, the issue whether the appellant was a sub-lessee of the premises or the conductor of the business could not be decided in view of section 28 of the Bombay Rent Act and the trial Court could not order eviction of the appellant in the suit for administration of the estate.
7. Shri Rajiv Kumar, the learned Counsel appearing for the original plaintiff and the defendant Nos. 1 and 2, i.e. the respondents herein submitted that the appellant had never raised the issue of jurisdiction of the Civil Court and had in fact submitted to the jurisdiction and, therefore, he cannot now be permitted to raise the same in the appeal for the first time. He himself had joined in the suit and, therefore, he cannot now say that the Court had no jurisdiction as he had submitted to the jurisdiction. The learned Counsel also refuted vehemently the case of the appellant that he was a sub-tenant or a sub-lessee of the premises which was given to him by the deceased under the agreement dated 1st February 1978. According to the learned Counsel for the respondents the appellant had never asserted his right as the sub-lessee or sub-tenant of the canteen premises. For the first time in the written statement the appellant sets up the plea of tenancy. Prior to filing of the written statement the proceedings were continued for different reasons and the appellant had filed a number of affidavits wherein he had consistently claimed to be a contract or to run the business and from 1983 to 1989 at no point of time, he had pleaded that he was a sub-lessee or a sub-tenant. According to Shri Rajiv Kumar, therefore, it was a totally contradictory and dishonest stand taken by the appellant. The learned counsel has
also pointed out from the evidence that the appellant had not made out a positive case of tenancy either in the cross examination of the plaintiff or in his examination in chief. Nor did he say that the agreement between the deceased and the appellant was not to be acted upon. In fact the agreement was signed by two witnesses. The appellant has not examined any of the witnesses to prove his case that the agreement was not to be acted upon. The crucial witness Mr. Kohli on the said point was also not examined corroborating the stand taken by the appellant that the agreement was not to be acted upon and what was really intended was creation of sub-lease. Shri Rajiv Kumar has, therefore, submitted that the stand taken by the appellant was contradictory at every stage. He further pointed out several incidents from the record that the appellant was making contradictory statements, including the point of water connection, which according to him was not there but from the documents it was proved from records that the canteen premises had water connection was in existence from 1972. Both the learned Counsel have taken me through the entire evidence and through the entire proceedings and oral evidence. Both the learned counsel have cited the following judgments.
(i) AIR (37) 1950 (East) Punjab 276, Mt. Shafi-ul-Nisa v. Mt. Fazal-ul-Nisa (ii) 1953 NLJ 284 = AIR 1953 Nag 276, Goswami Rameshpuri Guru Maheshpuri and Anr. v. Madhukar and Ors. (iii) Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and Ors. (iv) 7905 Privy Council (Vol. XXXIII) Page 180, Benode Behrari Bose v. Nistarini Dassi (v) 1923 Bombay Series Vol. XLVlll Page 331, Mahomedally Adatnji Masalawalla v. Abdul Hussein Adamji Masalawalla.(vi) AIR 1954 Travancore-Cochin 399, Oilur Bank Ltd. v. Little Flower Bank Ltd. (vii) , Masireddi Suryanarayana v. Akula Anasuamma.
There is no quarrel with the propositions of law laid down by the aforesaid parties. The scope and ambit of the suit for administration also cannot be disputed and has not been disputed. In view of my decision from the facts that the appellant was only a contractor or a conductor of the canteen business. I do not think it necessary to discuss the above judgments in any more details.
8. Shorn of all the details in respect of the pleadings and evidence, both the learned Counsel fairly agreed to one point that the only crucial issue was in respect of the status of the appellant. If the appellant was held to be a sub-lessee or sub-tenant of the canteen premises in that case, the Civil Court will have no jurisdiction to pass any consequential orders and for that purpose, the plaintiff and the legal heirs of the deceased will have to approach the Small Causes Court seeking eviction of the appellant and for all other appropriate reliefs. If, however, it is held that the appellant was only a conductor of the business and not a sublessee of the canteen premises in that case, the Civil Court will have jurisdiction to decide the said issue to include in the estate of the deceased, the lease hold rights of the deceased in respect of the canteen premises and the Civil Court could pass the necessary consequential orders. Though the appellant has specifically pleaded in the written statement filed by him in the year 1994 claiming to be a sub-tenant of the canteen premises, it is pertinent to note that at no point of time in the past, in the Court proceedings, he asserted himself to be a
sub-tenant or sub-lessee of the canteen premises. The fact whether he was a contractor or a conductor or was a sub-lessee of the canteen premises was exclusively within the knowledge of the appellant. It cannot be said that he was not knowing or that he was not aware of his own status and relationship in respect of the canteen business and the canteen premises. He does not appear to be an illiterate person. He is a prudent and shrewd businessman and knows his rights very well. He himself had approached the Court to get himself impleaded in the suit when he realised or when he came to know that his rights were at stake or the Court was likely to appoint Court receiver for the canteen premises of the said business. The question whether he was a contractor of the business, in my opinion, has been answered by the appellant himself on oath in his three affidavits filed in the Court proceedings. The first affidavit is dated 3rd March 1988 in which the appellant has sworn as “I have been running the open air restaurant and B. H. A. canteen as the contractor since the lifetime of the father of the plaintiff No. 1 and husband of defendant No. 2 for the past several years. ..,……” “This was the affidavit sworn by the appellant first time in the year 1988
and he declared himself as the contractor of the restaurant and canteen. He has specifically admitted that he was running the business as contractor. He has also specifically stated on oath that “the restaurant business with open air restaurant and B.H.A, canteen is carried on in the premises belonging to Bombay Hockey Association.” On the basis of the aforesaid averments, the appellant got himself impleaded in the suit as defendant No. 3. If he were to be either a sub-lessee or a sub-tenant, he would have correctly and aptly described himself as a sub-lessee or sub-tenant of the premises, which belonged to the Bombay Hockey Association. The truth has a strong tendency to come out on surface by pushing down all the lies at the bottom. The appellant was truthful and had admitted in the affidavit that he was a contractor of the restaurant and the canteen. Nothing prevented him from coming out with the case in the affidavit that he was a sub- -lessee or sub-tenant. In his second affidavit filed by the appellant in Notice of Motion No, 6205 of 1989 in para 4 the appellant again truthfully described himself as an existing contractor. It is significant to note that not only in this affidavit the appellant did not assert that he was sub-lessee or sub-tenant but on the contrary he conceded to his truthful status of the contractor of the business and that he further asserted that he was regularly making payment of monthly royalty as ordered by the Court. The trial Court had passed an order in the notice of motion No. 6205 of 1989. The learned Judge has considered pleadings of both the sides and had specifically observed on the basis of the facts before him that the permission to conduct the business given by the Court to the defendant No. 3 was given to him personally and on defendant No. 3 being unable to conduct the business himself for any reason or ceasing from the business altogether for any reason, the possession of the business and the premises shall be taken over by the Court till the time suitable orders are passed for conduct of the business. If the appellant were to be aggrieved by the observations of the learned Judge in the aforesaid order in the notice of motion, the appellant would have certainly challenged the said order warning him of taking possession of the business of the premises. It is clear from the said order that both the sides had proceeded on the basis that the appellant was only a conductor of the business. Had it been that he
was a sub-lessee or sub-tenant of the canteen premises, he would have certainly been consistent and truthful to mention that he was in possession of the canteen premises as sub-tenant or sub-lessee. There is a third affidavit dated 29th January, 1992, filed by the appellant in the notice of motion No. 7195 of 1991. Even in this affidavit, the appellant does not claim that he was a sub-lessee or a sub-tenant. He has clearly contemplated his truthful position as the conductor of the business on payment of royalty on the basis of the original agreement or the contract. It is, therefore, not possible for me to accept the contention of Shri Abhyankar that the appellant was a sub-lessee or sub-tenant of the canteen premises through the deceased who as the original lessee by stretching to construe or interpret the agreement between the deceased and the appellant and by reading whatever is not recorded in writing in the said agreement. I am not able to agree with the submissions of Shri Abhyankar that (he said agreement was a sham or bogus agreement and that the same was not to be acted upon as it was for the purpose of avoiding any legal hitch to be created by the principal lessor of the premises. The agreement is crystal clear to read that the deceased had intended to handover the business of the canteen which he was running and the premises to the appellant on certain terms and conditions which were reduced in writing. There is nothing on record to show that the said agreement was not intended to be acted upon and that it was only a paper arrangement between the signatories of the agreement.
9. There is, therefore, absolutely no doubt in my mind that the appellant was merely a conductor or contractor of the canteen business and the canteen restaurant and that he was neither a sub-lessee nor a sub-tenant of the canteen premises. No party can be allowed to approbate or reprobate as far as facts are concerned. Till the appellant filed his written statement in the year 1994, he had all along asserted his status as the contractor or a conductor of the business. 1 fail to understand how he can be allowed to plead to the contrary to say that he was not a contractor or a conductor but a sub-tenant or sub-lessee of the canteen premises.
10. From the entire evidence on record, I find no infirmity or illegality in the conclusions drawn by the trial Court that the defendant No. 3 was given the premises on conducting basis. Once having determined the status of the appellant all the other consequential reliefs would automatically follow. The appellant was only a contractor or the conductor of the business and such a contract can always be terminated by one of the parties to the contract or the legal heirs of one of the parties.
11. By an order dated 31st January, 1983 passed by the trial Court in Notice of Motion No. 270 of 1983 the contract between the parties was continued from 1-2-1983 till the hearing and final disposal of the suit. The contract was, therefore, made dependant on the final order in the suit. The suit has been decreed on 4th August, 1997 and, therefore, the contract between the appellant and the deceased and his legal heirs has automatically come to an end. Besides, the legal heirs of the deceased have every right to terminate the contract at the conclusion of the suit and they have also right to recover possession from the appellant. It is also significant to note that even the aforesaid order of the City Civil Court declaring that the contract shall continue till the hearing and final
disposal of the suit would clearly indicate that the appellant had accepted the status under the contract as a contractor and that continuance of the contract was till the disposal of the suit.
12. In the aforesaid circumstances, I do not find any illegality or infirmity in the judgment and order of the trial Court that the appellant, that is, the defendant No. 3 is lawfully and rightly directed to hand over the vacant and peaceful possession of the open air restaurant and the business thereof to the plaintiff and the defendant No. 1 and 2 including the requisite licence within three months from the date of the order. It appears that the appellant is continuing with possession in pursuance of the order passed by this Court on 13th November, 1997. There is no merit and substance in the appeal and the same, therefore, is dismissed. Interim order granted on 13th November, 1997 stands vacated. The appellant shall handover vacant and peaceful possession of the canteen premises and the business to the respondents on or before 28th February, 2002.
13. Shri Bhate, Advocate for the appellant prays for stay of this order.
Prayer of stay is refused.