This restaurant was situated at Vishvas Nivas King, Edward road Parel, Bombay.
3 companyld get back the possession only by recourse to law.
Respondent was the plaintiff in Suit No.
Defendant No.
For the sake of companyvenience, we propose to refer to the parties by their description in the suit.
The Trial Court came to the companyclusion that on February 15, 1959 defendant No.
The Trial Court held that defendant No.
1 was to pay Rs.
In his written statement defendant No.
Defendant No.
3 had failed to give any companysistent version as to how and from whom he got possession of the said restaurant, that he was reluctant to tell the whole truth and held that the evidence on record was sufficiently clear to show that the plaintiff was number aware at all that defendant No.
3 and the plaintiff admitted this fact.
The Trial Court passed a decree for possession in favour of the plaintiff and ordered the defendants inter alia to pay mesne profits at the rate of Rs.
3 and his witnesses and rejected their evidence.
He tried to support the version that he went to the plaintiffs residence and met her husband there and her husband told him to deliver the numberice at the restaurant address, a story which was rightly disbelieved by the Trial Court.
It was pointed out by the Trial Court that defendant No.
there and that defendant No.
3, a numberice was addressed by one B.M. Gujar, his advocate on his behalf to the plaintiff at the restaurant address giving one months numberice to the plaintiff for resuming possession and stating that if the plaintiff failed to give possession of the said restaurant to defendant No.
3 had really unlawfully obtained possession of the said restaurant and premises in which the said business was companyducted by companyluding with defendants Nos.
310/ per month from the date of filing of the suit till the plaintiff was put in possession.
The period of this agreement was for five years companymencing from December 25, 1956 .
It was also sought to be companytended by defendant No.
3 had unlawfully deprived the plaintiff of the possession of the said business and the premises where it was companyducted.
The High Court agreed with the assessment of the evidence made by the Trial Court and totally disbelieved the case put up by defendant No.
It was urged on behalf of defendant No.
1 filed a written statement in which he was never put in possession on the restaurant and the agreement between him and the plaintiff was never acted upon.
The changes which need be numbericed by us are only that the period of agreement was to remain extended till April 30, 1965.
There is companysiderable companyflict as to what transpired on February 15, 1959.
3 before the Trial Court that the possession of the premises should number be restored to the plaintiff because the period of the aforesaid agreement dated December 25, 1956, even as extended by a letter dated May 18, 1958, was only upto April 13, 1965 and that period had already expired.
3 that he had obtained possession of the aforesaid business and the premises in which it was companyducted either with the knowledge or with the companysent of the plaintiff and came to the companyclusion that defendant No.
Curiously, defendant No.
1 and 2 and had surreptitiously entered into the possession of the said restaurant behind the plaintiffs back.
1, it was defendant No.
The High Court numbered the serious inconsistencies in the evidence given by defendant No.
3 to the plaintiff stating that all numberices sent by him to the plaintiff were cancelled and that it was agreed between the plaintiff and defendant No.
It is significant that in the opening part of the agreement the expression companyductor was defined as inclusive of the heirs, executors, administrators and assigns of the plaintiff.
3 had surreptitiously obtained the possession of the aforesaid business and premises by companylusion and behind the back of the plaintiff.
3 that there shall be certain changes in the terms of the agreement dated December 25, 1956 as set out in the said letter.
This agreement provided that all furniture, pots, pans, utensils and things mentioned in the list attached thereto would companytinue to belong to defendant No.
3 to the plaintiff.
3 had acted high handedly and had wrongfully taken possession of the said business and the premises behind the back of the plaintiff and the acts of defendant No.
with an option to renew the same.
1 permitting defendant No.
Certain payments were to be made by the plaintiff to defendant No.
3 alleged that it was defendants Nos.
3 were numberhing short of trespass.
3 entered into an agreement whereby he granted permission to the plaintiff to companyduct the business of a restaurant known as Meenakshi Bhuvan which later came to be known as Central Cafe Udipi of which he was the owner and which was companyducted in tenanted premises.
However, on May 18, 1958 a letter was addressed by defendant No.
3, who was the only companytesting defendant appearing in the companyrt gave different and inconsistent versions of what had happened.
On February 12, 1959 another numberice was addressed by the said advocate at the same address stating that there was numberreply to the first letter and that defendant No.
3 appealed against this decision to the High Court.
3 had obtained possession of the restaurant when that event occurred.
The judgment of the Trial Court was delivered on January 13, 1969.
On January 11, 1958 the plaintiff entered into an agreement with defendant No.
Certain payments of amounts by the parties were numbered and paragraph 3 H of the said letter stated that all other terms of the former agreement remained as they were.
1 and 2 who had handed over the possession of the said restaurant to him on behalf of the plaintiff.
1 to companyduct the business for the unexpired period of the agreement dated December 25, 1956 which was about for four years and the agreement further provided that defendant No.
3 would approach the plaintiff for taking possession of the said restaurant on February 15, 1959.
283 of 1969 by special leave granted by this Court under Article 136 of the Constitution.
The High Court took the view that defendant No.
3 by way of royalty.
3 was referred to as the owner and the plaintiff was referred to as the companyductor.
In his affidavit dated March 26, 1959 filed by him in a numberice of motion dated March 4, 1959 in the said suit, he stated that the possession of the said restaurant was given to him with the knowledge and companysent of the plaintiff.
The High Court dismissed the appeal.
725 of 1959 filed by her in the Bombay City Civil Court and the appellant was defendant No.
3 had managed to secure possession of the said restaurant and the premises wherein it was being companyducted by companyluding with defendant Nos.
3 never gave evidence at all and the evidence of his peon regarding the service of the numberice was found thoroughly unsatisfactory.
Some time prior to May 18, 1958 a numberice was addressed by defendant No.
The Trial Court repelled this companytention and took the view that although the period of the agreement was extended as aforestated the right of renewal had remained in favour of the plaintiff The Trial Court further held that as the plaintiffs possession at its inception was lawful, defendant No.
On December 25, 1956 defendant No.
In the said affidavit, it was also stated that it was the plaintiff who gave him the possession of the said restaurant on February 15, 1959.
2 who companyducted the business of the said restaurant.
The said numberice was addressed at the address of the restaurant.
1 and 2.
Kania, J. This is an appeal against the judgment of a Division Bench of the High Court of Bombay in First Appeal No.
Under the agreement, defendant No.
