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TMI Blog1989 (8) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... known as Central Cafe Udipi of which he was the owner and which was conducted in tenanted premises. This restaurant was situated at Vishvas Nivas King, Edward road Parel, Bombay. The period of this agreement was for five years commencing from December 25, 1956 '. with an option to renew the same. Under the agreement, defendant No. 3 was referred to as the owner and the plaintiff was referred to as the conductor. It is significant that in the opening part of the agreement the expression conductor was defined as inclusive of the heirs, executors, administrators and assigns of the plaintiff. This agreement provided that all furniture, pots, pans, utensils and things mentioned in the list attached thereto would continue to belong to defendant No. 3 and the plaintiff admitted this fact. Certain payments were to be made by the plaintiff to defendant No. 3 by way of royalty. On January 11, 1958 the plaintiff entered into an agreement with defendant No. 1 permitting defendant No. 1 to conduct 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. 1 was to pay ₹ 700/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court gave different and inconsistent versions of what had happened. In his affidavit dated March 26, 1959 filed by him in a notice 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 consent of the plaintiff. 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. In his written statement defendant No. 3 alleged that it was defendants Nos. 1 and 2 who had handed over the possession of the said restaurant to him on behalf of the plaintiff. Curiously, 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. No written statement was filed by defendant No. 2 who was conducting the business of the said restaurant. What is more curious is that he was present in the Trial Court through out the trial suit never stepped into the witness box and defendant No. 3 in his evidence gave different versions as to how he had obtained possession of the said restaurant. At one stage he even stated that he was entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit till the plaintiff was put in possession. 7. Defendant No. 3 appealed against this decision to the High Court. The High Court dismissed the appeal. 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. 3 that he had obtained possession of the aforesaid business and the premises in which it was conducted either with the knowledge or with the consent of the plaintiff and came to the conclusion that defendant No. 3 had surreptitiously obtained the possession of the aforesaid business and premises by collusion and behind the back of the plaintiff. The High Court noted the serious inconsistencies in the evidence given by defendant No. 3 and his witnesses and rejected their evidence. The High Court pointed out that a couple of documents produced by defendant No. 3 appeared to be extremely doubtful and had little sanctity either in fact or in the eye of law. The High Court took the view that defendant No. 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. 3 were nothing short of trespass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh 1977CriLJ433 . The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence is called for under Article 136 of the Constitution. 11. In the result, the appeal fails and is dismissed with costs throughout. The amount deposited by the appellant in this Court will be permitted to be withdrawn by the plaintiff who is respondent before us. 12. learned Counsel for the respondent submitted before us that the conduct of the appellant was such that apprehension could justly be entertained that the appellant would try to avoid compliance with the decree for possession confirmed by this Court by putting some outsider in possession or some other underhand means and that we should direct the executing court that the decree should be executed with the police help against any person or persons who might be in possession of the business and premises wherein it was conducted. Instead of giving any directions to the executing court in this regard, we order that the Court Receiver of Bombay High Court is appointed as the Receiver of the said business and the premises in which the same was conducted as stated aforesaid . He will take possession of the said business and premises from whosoever may be in possession thereof. He may apply for police help in taking pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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