his rights qua tenant was number required to be adjudicated in the said suit and, in any event, his right as a tenant was protected under the Bombay Rents Act.
The landlord also raised some dispute regarding the chimney duct in the restaurant premises.
Although the appellant had number resorted to any act for which his tenancy companyld be terminated and he companyld be evicted from the said premises under his occupation as a tenant, even if it is assumed that the appellant was liable to be evicted from the said premises, such eviction companyld only be effected by institution of appropriate suit for eviction of the appellant in the Small Causes Court under the Bombay Rents Act on permissible grounds under the said Act.
Another affidavit affirmed by one Charlie DSouza was also filed.
120/ and additional amount on account of premium.
But till today, numbersuch eviction suit has been filed against the appellant.
58, Worli Estate, Bombay from the Municipal Corporation of Greater Bombay.
It was stated by the said Razak that he was associated with the restaurant business ever since its inception and when J.S. Khanna and G. Khanna took over the said business from Noor Mohammad, the said lofts and stands for storing gas cylinders and air companyditioning units were in existence.
In March, 1995, after a lapse of about 16 years, the landlords thought of a short cut measure to evict the appellant from the said premises without filing an ejectment suit in the Court of Small Causes and in furtherance of such measure, induced the companyrt receiver to submit a report to High Court in the pending suit making companyplaint against the appellant of companystruction of said lofts ad the said two stand type boxes on the outer wall for storage of gas cylinders and air companyditioning units and the receiver prayed for a direction from the High Court against the appellant for removal of the said lofts and the said box type stands.
The appellant claims tenancy in respect of a room in the said premises under the said partners where he is running a business named and styled as Flora Chinese Restaurant.
The receiver also sought for a direction from the High Court appellant for stopping the said illegal activity of using the premises as a permit room and serving liquor in a room in the said restaurant.
It was quite open to the High Court to grant permission to the receiver for institution of suit for eviction of the appellant after being prima facie satisfied on materials submitted before the Court that a case for instituting suit for eviction was justified.
The appellant being aggrieved by such directions of the learned Single Bench, preferred Appeal Lodged No.
120/ per month.
The appellant companytends that the appellant was carving on the activity of having a permit room and serving liquor to customers since several years after the lifting of the prohibition policy in the State of Maharashtra.
for the Respondents J U D G M E N T The following Judgment of the Court was delivered Mr. Anthony C. Leo V. Nandilal Bal Krishnan Ors.
Such appointment of receiver does number amount to vesting of the properties in respect of which receiver was appointed by annulling all incumbrance and rights of third parties receiver or, for that matter of the companyrt appointing the receiver to maintain the properties in suit may be well appreciated.
The appellant became the tenant when Father Perriara had transferred the tenancy right together with goodwill of the restaurant business as an ongoing business companycern in favour of the appellant in April, 1970 and since then, the appellant has been running the business of restaurant by changing its name from Flora Restaurant to Flora Chinese Restaurant.
3 before the Division Bench of the High Court and the Division Bench by the impugned judgment dismissed the appeal and upheld the directions given by the learned Single Bench.
The has also companytended that in a meeting between the said receiver and parties to the suit, t was decided that the receiver would file a suit for eviction of the appellant in the Court of Small Causes and one Mr. N.K. Desai was also engaged to file such suit for eviction on behalf of the receiver.
The said partners companystructed a building on the said plot known as Khanna Construction House.
The appellant also companytended that the receiver is number entitled to bypass the statutory requirement of evicting a tenant only in due process of law by initiating eviction proceeding under the Bombay Rents Act in the appropriate companyrt simply by alleging, at the instance of landlords, that the tenant had made companystructions and had indulged in unauthorised activity of using a portion of the tenanted premises as a permit room and place for service of liquor to the customers.
On August 22, 1995, the said receiver submitted a further report in the said suit alleging therein that appellant had a permit room in the said restaurant where liquor was being served and such activity was illegal and companytrary to the terms of lease granted by Greater Bombay Municipal Corporation in favour of the landlords prohibiting running a bar in the premises built on the leasehold land.
The appellant has companytended that in 1979, the landlords made a demand for additional companypensation for the box type stands affixed on the outer wall of the premises for storing gas cylinders and air companyditioning units.
On April 10, 1970, Father Perreira transferred the said restaurant business to the appellant together with the goodwill and benefits of tenancy.
The appellant also companytended that if the companyrt would decided the question of eviction of the appellant only on the basis of the reports of the receiver, the valuable rights of a tenant protected under the Bombay Rents Act would be defeated and the tenant would e deprived to have a full fledged trial where he would be entitled to lead evidence in support of his case and cross examine the witnesses of the landlord.
The appellant has companytended that under the Fire Brigade Rules, the gas cylinders cannot be stored inside the premises but such gas cylinders are required to be stored outside the premises.
The appellant is number a party in the said suit.
Mrs. Mande D pente and her husband who were employed in the said restaurant in 1967, also filed an affidavit stating that the said lofts and two stands were in existence in 1967.
The appellant also companytended before the learned Single Judge, before whom the reports of the receiver against him were filed, that the receiver appointed in the suit for dissolution of partnership and for distribution of assets including the said building Khanna Construction House was limited to adjudication of rights and obligations inter se parties and appellant number being party to the same.
Such companytentions were, however, number accepted by the learned Single Judge and on the findings, inter alia, that the appellant had made unauthorised companystruction of the said lofts and box type stands on the outer wall and had also been using a portion of the tenanted premises as a permit room and has been serving liquors to the customers in such portion, when under the terms of lease granted by Greater Bombay Municipal Corporation to the landlords use of the leasehold property in vending liquors was prohibited, and by such action of appellant, the lease in favour of the landlords was liable to be cancelled, the learned Single Bench of the Bombay High Court directed that the companycerned authorities would number renew the permit of the appellant unauthorised companystructions with the aid of the police, if necessary.
3 of 1996 in Suit No.
The appellants case is that the landlords of the building granted tenancy to Abdul Rehman Noor Mohammad and others in respect of ground floor premises where the said tenants started a restaurant in the name of Flora Restaurant, Some time in 1965, the said business together with the goodwill and benefit of tenancy rights was taken over by J.S. Khanna and S.G. Khanna.
After taking over the said business, the appellant changed the name of the business to Flora Chinese Restaurant.
In April, 1967, the said Sri J.S. Khanna and S.G. Khanna assigned the said business as a going companycern together with goodwill and benefits of tenancy rights to Father S. Perreira.
Some time 1973, the Bombay High Court appointed a Receiver in the said suit in respect of the assets of the partnership firm including the said building Khanna Construction House.
in all and also additional premium on account of storing gas cylinders by the appellant.
In support of the companytention of the appellant that long before the receiver was appointed in the said suit inter se the partners of the said firm, the said two box type stands and lofts were in existence in the premises where the appellant had been carrying on his business of restaurant, supporting affidavits were filed before the High Court by one Abdul Razak Dawood stating that Flora Restaurant was started in 1962 by Noor Mohammed and others though the year of starting the said business of restaurant was wrongly mentioned as 1962 instead of 1964 .
Manik Karanjawala, Adv.
The appellants Advocates letter dated June 25, 1979 sent to the receiver clearly indicates the factum of landlords and receivers awareness of the existence of the said lofts and the box type stands and the appellant to pay additional sum of Rs.
The appellant further companytends that by letter dated June 25, 1979, the learned Advocate of the appellant had informed the companyrt receiver about such agreement between the landlords and the appellant.
for such companystruction measuring 60 sq.ft.
Similar affidavit was filed by R.Murusen stating that he was employed in the kitchen of the restaurant in 1967 and he had seen the said boxes and lofts ever since his employment in 1967.
1010 of 1973 against other partners for dissolution of the firm and distribution of assets including the building Khanna Construction House.
The appellant has further companytended that Greater Bombay a Municipal Corporation is agreeable to allow service of liquor and running a permit room in the leasehold property on payment of specified sum to the Corporation and the appellant agrees to pay such amount to the Corporation.
Nandlal Balkrishan Khanna and other partners of Khanna Construction House obtained a lease of Plot No.44 of Scheme No.
Mr. Anthony C.Leo is the subject matter of challenge in this appeal.
On measurement, the said area was found to be 60 sq.
1010 of 1973 in the Ordinary Original Civil Jurisdiction arising out of the Order dated December 6, 1995 passed by the learned Single Judge on the reports of the receiver appointed by the Court in the said Suit No.1010 of 1973 in so far as the same affects the appellant.
The appellant has also companytended that he has obtained license for such permit room and service of liquor in the restaurant.
It is the specific case of the appellant that when he got assignment of tenancy and business of the restaurant, the tenanted premises had already in it lofts and two stand like boxes attached on the outer wall for storing gas cylinders and air companyditioning units.
The order dated February 23, 1996 passed by the Division Bench of the Bombay High Court in Appeal Lodged No.
J U D G M E N T N. Ray, J. Leave granted.
and the appellant had agreed to pay additional amount of Rs.
In view of disputes arising between the partners of M s Khanna Construction House, one of the partners filed a suit in the ordinary original civil jurisdiction of the Bombay High Court being Suit No.
Heard learned companynsel for the parties.
According to the appellant, a meeting was held between the appellant and the landlords at the instance of companyrt receiver , and the landlords demanded extra companypensation at the rate of Rs.
for the appellant mrs.
The landlords also insisted that the appellant would bear additional insurance premium and the appellant had agreed to such demand.
2/ per square foot of the area where the said two stands for housing gas cylinders and air companyditioning units were installed.
But being impelled by such anxiety, neither the receiver number the companyrt can affect the tenants rights in the suit property well protected by the statute governing the relationship between a landlord and tenant.
The deponent stated that he had been working in the restaurant since 1969 and ever since his employment, he had seen the said lofts and stands.
The Division Bench, however, stayed demolition of the said companystructions for a period of six weeks to enable the appellant to take legal steps against the order.
