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Bombay High Court
Ramesh Dwarkadas Mehra vs Indravati Dwarkadas Mehra on 2 May, 2001
Equivalent citations: AIR 2001 Bom 470, 2001 (4) BomCR 417, 2001 (4) MhLj 483
Author: B Srikrishna
Bench: B Srikrishna, R Desai


JUDGMENT

B.N. Srikrishna, J.

1. Notice of Motion No. 2172 of 1998 in Suit No. 2747 of 1998 was directed to be placed before this Bench by an order of the Hon’ble Chief Justice in exercise of the powers under Rule 28 of the High Court of Judicature Original Side Rules. 1980 for the said Notice of Motion could be more advantageously heard by this Bench along with Letters Patent Appeal Nos. 112 of 1998 and 121 of 1998 for deciding a common question of law which has arisen in all of them.

2. Though the facts in the two Letters Patent Appeals and the Notice of Motion are different, the common question of law which arises for our consideration, and which would affect the outcome of all these proceedings, is formulated by us as under :

“Whether a Suit by a licensor against a gratuitous licensee is tenable before the Presidency Small Cause Court under Section 41 of the Presidency Small Cause Courts Act, 1882 or should such a Suit be filed before the Civil Court?

FACTS IN L.P.A. NO. 112 OF 1998

3. This Letters Patent Appeal is directed against the order of the learned Single Judge in Writ Petition No. 5986 of 1997. The Respondent-original Petitioner is the owner of Flat No. 10 in Building No. 4, Navjivan Society, Lamington Road, Mumbai 400 008. The Respondent purchased the said flat from her own funds in October 1970. Her husband living with her passed away in June 1983. The Respondent has two sons, namely, Shashi and Ramesh. Ramesh is the Appellant in this Letters Patent Appeal. Both the sons were permitted to live in two separate rooms in the said flat as licensees, without payment, by the Respondent. They misbehaved and even made complaints against the Respondent to the police. Therefore, the Respondent served a notice upon them to vacate the premises licenced to them. No reply was sent by any of them. They refused to vacate. Hence, the Respondent filed Ejectment Application under Section 41 of the Presidency Small Cause Courts Act, 1882 in May 1990 for recovering possession of the two rooms from them. Suit No. 106 of 1990 filed against Shashi came to be decreed in June 1992. Appeal filed by Shashi came to be dismissed by the Appellate Bench of the Small Causes Court in June 1993. Similarly, Civil Revision Application filed by him in this Court also came to be dismissed. He left the said room. The defence raised in the said Suit was that he was

a joint owner of the flat along with his brother (present Appellant) and their father. It was alleged that all of them had contributed to the purchase of the said flat. The Appellant herein had deposed supporting the case of Shashi, The said case was not accepted. A contention was also raised by Shashi that he was a “gratuitous licensee” and that the Small Cause Court had no Jurisdiction. But, the said contention was also rejected by the Appellate Court. In 1994, Suit No. 119 of 1990 filed against the Respondent was taken up for hearing. The Appellant had also raised similar defence of joint ownership. The Trial Court held that the Appellant was not the joint owner of the flat and that he was residing as a gratuitous licensee and that the licence was terminated. It was held that the Suit under Section 41 of the Presidency Small Cause Courts Act, 1882 was maintainable. In the Appeal filed by the Appellant, namely, Appeal No. 75 of 1995, the Appellate Bench of the Small Causes Court, by an order dated 6th October, 1997, confirmed the finding that the Appellant was not the joint owner of the flat. It was held that the Small Causes Court had no jurisdiction to decide the Suit. Hence, the order came to be passed returning the Plaint for presentation to the proper Court. Against the said judgment, the Respondent herein preferred Writ Petition No. 5986 of 1997 before this Court. The said Writ Petition was allowed by the judgment and order of the learned Single Judge dated 13th/15th April 1998. Aggrieved by the said order, the Appellant herein has preferred the present Letters Patent Appeal.

FACTS IN L.P.A. NO. 121 OF 1998

4. The suit premises Involved are the upper floor (mezzanine floor) of the garage premises situated at Nepeansea Cringe, 91, Napeansea Road, Bombay 400 006. In 1959, the Respondents permitted the Appellants to use the said premises on license basis without payment of any compensation as the parties are closely related. By notice dated 29th March 1968 the permission granted to the Appellants to occupy the premises was revoked. No reply was given to the said notice. The Appellants refused to deliver up the premises. Hence, the Respondents filed an application to recover from the Appellants vacant and peaceful possession of the suit premises on 29th March 1968 under Section 41 of the Presidency Small Cause Courts Act, 1882. Appellant No. 1 filed points of defence on 11th November 1968 contending that he was allowed to occupy the premises on tenancy basis. He admitted the close relationship between the parties, though he denied that he was permitted to occupy the premises temporarily. In view of Section 42A (now deleted by Maharashtra Act 19 of 1976), preliminary issue regarding plea of tenancy was framed. The Trial Court held in favour of the Appellants by order dated 30th March 1974. An Appeal was filed on behalf of the Respondents being Appeal No. 429 of 1974. The Appeal came to be allowed- It was held that the Appellants were only “gratuitous licensees”. The Appellants filed Writ Petition No, 580 of 1986 in this Court. It came to be dismissed on 9th December 1986 confirming the finding that the Appellants were gratuitous licensees. The Appellants preferred Special Leave Petition No. 2011 of 1987, but the Supreme Court dismissed it. On 21st December 1989, the Trial Court heard the Ejectment Application and decided against the Appellants directing their eviction from the suit premises. The Appellants filed Appeal No. 72 of 1990 before the Appellate Bench of the Small Causes Court at Bombay. The Appeal came to be

dismissed by the judgment dated 3rd March 1997 of the Appellate Bench of the Small Causes Court at Bombay confirming the finding that the Small Causes Court. Bombay had jurisdiction to decide the Appeal. Against the said order, the Appellants herein preferred Writ Petition No. 2336 of 1997 in this Court. The learned Single Judge by his judgment and order dated 13th/15th April 1998 dismissed the said Writ Petition. Aggrieved by the said judgment, the Appellants have preferred the Letters Patent Appeal.

FACTS IN NOTICE OF MOTION NO. 2172 OF 1998

5. The Suit has been brought by the Plaintiff for a declaration that the Plaintiff is the exclusive owner of the suit flat; for a declaration that the Defendants are the gratuitous, licensees of the Plaintiff and her husband being members of the family and consequently they have no right, title or interest of whatsoever nature in the Suit and for recovery of possession of the suit premises. It is the case of the Plaintiff herself in the Plaint that the suit flat has been given to the Defendants for residence gratuitously. Notice of Motion No. 2172 of 1998 was taken out in the Suit for interim reliefs. When the Notice of Motion was heard, a preliminary objection was raised on behalf of the Defendants that the dispute is one which has to be exclusively tried by the Small Causes Court by virtue of Section 41 of the Presidency Small Cause Courts Act, 1882. In view of different views taken by different Single Judges, the learned Single Judge hearing the Notice of Motion (Mrs. K. K. Baam, J.) was of the opinion that the issue had to be referred to a larger Bench for decision. Consequently, by an order made by the learned Chief Justice, this Notice of Motion has been assigned to us.

6. Though these are the only matters assigned to us by orders of learned Chief Justice, we have permitted Advocates in several other matters to intervene and address submissions to us as the decision taken by us on the issue would have an effect on the final determination of their matters.

7. One set of Counsel who appeared before us canvassed that a Suit between the licensor and licensee relating to recovery of possession of immovable property, where the licence is a gratuitous licensee, would lie exclusively before the Small Causes Court in Mumbai. Another set of Counsel controverted this view and contended that such a Suit does not fall within the ambit of Section 41 of the Presidency Small Cause Courts Act, 1882 and would be entertainable by the regular Civil Court – the City Civil Court, or the High Court on its Original Side, depending upon the valuation of the Suit.

CONCEPT OF LICENCE

8. The Indian Easements Act, 1882 was brought into force from 17th February 1882. This Act deals with easements and licence. Section 52 of the Indian Easements Act, 1882 defines the expression “licence” as a grant by one person to another a right to do or continue to do in or upon the immovable property of the grantor something which would in the absence of such right be unlawful and such right does not amount to an easement or an interest in the property. Section 52 does not require any consideration, material or non-material, to be an element of the definition of licence, nor does it require that the right under the licence must arise by way of contract or as a result of mutual promises. Thus, “licence” as defined in Section 52 of the Indian Easements Act, 1882 can be a unilateral grant and unsupported by any consideration. This is also the view taken by the

Supreme Court in State of Punjab v. Brig. Sukhjit Singh; (vide paragraph 30) where it observes that “payment of licence fees is not an essential attribute for the subsistence of the licence”.

9. The concept of licence is contradistinguish able from the concepts of easement and interest in property. Licence is purely a personal right created and terminable at will, which may or may not be supported by material consideration. That is the reason why Section 56 of the Indian Easements Act, 1882 provides that a licence is not transferable and Section 56 provides that where the grantor of the licence transfers the property affected thereby, the transferee is not bound by the licence already granted. Section 60 provides that a licence may be revoked by the grantor at will. There are, however, two known exceptions to this. First, where the licence is coupled with transfer of property and such transfer is in force. Second, where the licensee acting upon the licence has executed a work of permanent character and incurred expenses in the execution thereof. Section 61 of the Indian Easements Act. 1882 provides that revocation of a licence may be express or Implied. Section 62 indicates specific cases where, upon occurring of certain facts, a licence already granted is deemed to be revoked. Section 63 provides for the only right of the licensee where a licence is revoked for a reasonable time to leave the properly affected therein and to remove any goods which he has been allowed to place on such property. Section 64 provides that where a licence has been granted for a consideration and the licensee without any fault of his own is evicted by the grantor before has fully enjoyed the licence right, the licensee is entitled to recover compensation from the grantor.

LEGISLATIVE HISTORY

10. On 1st July 1882, the Presidency Small Cause Courts Act, 1882 (the 1882 P.S.S.C. Act) was enacted and came into force. A special provision was made therein (vide Section 41) laying down the procedure for recovery of immovable property. Section 41, as it was initially enacted, read as under:

“41. Summons against person occupying property without leave.

When any person has had possession of any immovable property situate within the local limits of the Small Cause Court’s Jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission, of another person or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier on any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed why he should not be compelled to deliver up the property.”

This Section as initially enacted enabled recovery of possession of immovable property of which the annual value at a rack-rent did not exceed two thousand rupees which was in possession of another as the tenant or by permission of another and such tenancy or permission had determined

or been withdrawn and the tenant or occupier refused to deliver of such property after being requested in this behalf. The Section provided for a summary remedy of a summons being issued to the occupant calling upon him to show cause. If he failed to appear before the Court, or failed to show a good cause, Section 43 enabled an order directing the Bailiff of the Court to give possession of the property to the applicant if the Small Cause Court was satisfied that the applicant was entitled to apply under Section 69. Section 46 of the Presidency Small Cause Courts Act, 1882 provided that an application for an order under Section 41 by an applicant, who was not entitled to possession of such property, would amount to an act of trespass committed by the applicant against the occupant, irrespective of whether possession was obtained as a result of the application. Section 47 empowered the Small Causes Court to stay the proceedings on the application until the person aggrieved by such trespass could file a Suit in the High Court for compensation. If a decree was obtained by the occupant in any such Suit against the applicant, such decree would supersede the order, if any, made under Section 43. Section 48 applied the provisions of the Civil Procedure Code, as far as possible, to such proceedings. Section 49 provided that recovery of possession of any immovable property under the said procedure was not a bar to the Institution of the Suit in the High Court for deciding the title thereto.

11. The Presidency Small Cause Courts Act, 1882, under Section 41 gave a summary remedy for recovery of possession of immovable property of the prescribed value. Section 41 also dealt with cases of a tenant or a person or an occupant by permission holding to the Immovable property after such tenancy or permission was determined or withdrawn. It is interesting to notice that though the Indian Easements Act. 1882 had already come into force on 17th February 1882, and contained Chapter VI (Sections 52 to 64) together with the definition of the expression “licence”, Section 41 of the Presidency Small Cause Courts Act, 1882 did not use the expression “licence”, but used the expression “permission”. It is also to be noticed that the expression “permission” was not qualified as being supported by any material consideration.

THE 1963 AMENDMENT

12. In 1963, vide Maharashtra Amendment Act. 1963 (Maharashtra Act XLI of 1963), Section 42A was added in Chapter VII of the Presidency Small Cause Courts Act, 1882. This laid down a procedure where the occupant contested an application made under Section 41 by claiming to be a lawful tenant. There was a self-contained procedure for determining the list. Taking notice of the coming into force of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, Section 42A provided that even if the occupant raised the defence that he was a “tenant” within the meaning of the Rent Act, then notwithstanding anything contained in the aforesaid Act, the Small Causes Court would decide the issue as a preliminary issue. There was a provision for appeal made under Section 42A and a provision that no further appeal would lie against such a decision.

RENT ACTS

13. In 1925, the Bombay Rent Act, 1925 was brought into force which was replaced by the Bombay Rent Act. 1939. These Acts were applicable in Bombay, Pune and Solapur areas and dealt with the rights and liabilities

of the tenants. They did not have any special or separate definition of “licence”, nor did they deal with “licensees”.

14. On 13th February, 1947, the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “Rent Act, 1947”) was brought into force which consolidated the law relating to control of rent. Even this Act as enacted originally did not deal with licence, licensees or their rights.

15. The Act as originally enacted deals only with the rights and liabilities of landlords and tenants as defined in the Act. There was large scale attempt to evade the rigour of the Act by creating what were known as “leave and licence” agreements. These agreements usually had a short period, not exceeding eleven months, and were renewed from time to time. Such agreements specifically declared that they were mere “licences” for consideration and did not create any right of tenancy or any other right in the immovable property.

16. Considering the rampant evasion of the provisions of the rent control legislation, an amendment was moved to make the rent control provisions applicable even in the case of the so-called leave and licence agreements. Legislative Assembly Bill No. 1 of 1973 was moved specifically with this objective. The Statement of Objects and Reasons appended to LA Bill No. I of 1973 (published in M. G. G., February 22. 1973 pages 42 to 48) provides as follows :-

“It is now notorious that the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, is being avoided by the expedient of giving premises on leave and licence for some months at a time, often renewing from time to time at a higher licence fee. Licensees are thus charged excessive licence fees; in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee. It is necessary to make provision to bring licensees within the purview of the aforesaid Act. It is therefore provided by clause 14 in the Bill that persons in occupation on the 1st day of February 1973 (being a suitable anterior date) under subsisting licences, shall for the purposes of the Act, be treated as statutory tenants, and will have all the protection that a statutory tenant has, under the Act.”

The Bill also prohibited taking of or charging of licence fees in excess of standard rent and permitted increases and for reasonable amount of amenities and services.

17. Section 15A of the Rent Act, 1947 implements this objective and provides that notwithstanding anything contained elsewhere in the Act, or anything contrary in any other law for the time being in force, or in any contract, where a person is on 1st February 1973 in occupation of any premises or any part of which is not less than a room as a licensee, he shall on that day deemed to have become, for the purposes of this Act, the tenant of the landlord in respect of the premises or part thereof in his occupation. Simultaneously, the definition of the expression “tenant” in Section 5(11) was amended to include such licensees as shall be deemed to be tenants by virtue of Section 15A. The expression “licensee” was also amended by insertion of sub-section (4A) in Section 5 as meaning a person who is in occupation of the premises or of such part as the case may be in a subsisting agreement for licence given for a licence fee or charge. This definition also

excludes from its operation several categories of licensees to which we shall
have occasion to make reference later.

1976 AND 1982 AMENDMENTS TO P.S.C.C. ACT

18. By Maharashtra Amendment Act XIX of 1976, entire Chapter VII containing Sections 41 to 49 was replaced by Sections 41 to 45. Section 41 as enacted by Act XIX of 1976 was amended by deleting the words “or any other law for the time being in force” in sub-section (1) by Maharashtra Act XXIV of 1984. Chapter VII as presently applicable provides for an appeal vide Section 42, the procedure to be followed in the proceedings vide Section 43 and finally Section 45 declares that nothing contained in the Chapter shall be deemed to be a bar to a party to a Suit, appeal or proceedings, from suing in a competent Court to establish question of title to immovable property.

19. Counsel who contend in favour of the Small Causes Court’s jurisdiction, have argued thus :-

Section 41 of the Presidency Small Cause Courts Act. 1882, in its pre-1976 form, enabled the proceeding being brought against an “occupant” who failed to deliver up the Immovable property after the permission given to him to occupy the properly had been terminated or withdrawn. The word “permission” used in the Section means the same thing as the formal word “licence” used in Section 52 of the Indian Easements Act, 1882. A “licence” may or may not be for material consideration. After Section 41 was amended in 1976, the Section has made it explicit and permitted a proceeding by a “licensor” against a “licensee” relating to the recovery of possession of any immovable property situated in Greater Bombay or relating to the recovery of the licence fees or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. Sub-section (2) of Section 41, of course, excludes the jurisdiction of the Small Causes Court where such suits are covered by some special enactments. It is contended that the expressions “licensor” and “licensee” used in Section 41 are unqualified and have to be given their wide meaning without injecting into them an element of material consideration. The judgment of the Supreme Court in Brig. Sukhjit Singh (supra) is pressed into service to contend that consideration is not a sine qua nan of a “licence”.

20. Counsel who contend per contra that the Small Causes Court would have no jurisdiction, contend thus :

Section 9 of the Civil Procedure Code recognizes and provides that a Civil Court has jurisdiction to entertain all Suits other than those which are expressly or impliedly barred. Exclusion of jurisdiction of the Civil Court Is not to be readily inferred and a statute ousting such Jurisdiction must be strictly construed. Section 41 of the Presidency Small Cause Courts Act, 1882 does not by itself oust the Jurisdiction of the Civil Court. Even the non obstante clause therein merely overrides the provisions contained in the Presidency Small Cause Courts Act, 1882, but does not override the provisions of other law. That is only intended to override the bar under Section 19(d) of the Presidency Small Cause Courts Act, 1882 to the Jurisdiction of the Small Causes Court to entertain suits for recovery of immovable property. The expression “licence”, though not defined in the Act, must take its colour from Section 5(4) of the Bombay Rent Act which provides that it must be for a fee or a charge. Sect ion 51 of the Bombay Rent

Act makes it clear that it is an Act which is cognate and pan” materia with Section 41 of the Presidency Small Cause Courts Act, 1882. Further, by the application of principle of Noscitur a sociis, the expression “licensor” and “licence” being in the company of the expressions landlord and tenant and recovery of license fees or charges or rent suggests that the “licence” referred to in Section 41 must be one for consideration and not a mere gratuitous licence.

21. Both sets of Counsel have argued ably and supported their arguments by reference to a number of authorities some of which we shall have occasion to deal with.

22. In Vishwanath Sawant v. Gandabhai Kikabhai, a learned Single Judge of this Court, analysing the nature of a licence, took the view that licence could be of two kinds, namely, a bare licence which is a matter of personal privilege and a licence coupled with a grant or interest. While a bare licence without anything more is always revocable at the will and pleasure of the licensor and is not assignable, a licence coupled with grant or interest cannot in general be revoked so as to defeat the grant to which it is incidental. The learned Single Judge referred to the definition of the expression “licence” in Section 52 of the Indian Easements Act and then observed : “In my judgment, it is only when a licence is created as of right that it can be covered under the provisions of Section 52. When a permission is afforded not as of right but as of grace or where a permission is afforded, it is incidental or ancillary to say a family arrangement, an arrangement of employment or the like, the same would not amount to a licence under Section 52. The transaction has to partake the nature of a commercial transaction for valuable consideration before it can partake the nature of a right envisaged by Section 52 of the Indian Easements Act.” We notice that this observation is directly contrary to the view of the Supreme Court in Briq. Sukhjit Singh’s case (supra). In Briq. Sukhjit Singh (supra), the Supreme Court in categorical terms has held that payment of licence fees is not an essential attribute for the subsistence of a licence.

23. Vishwanath (supra) is the leading judgment which holds that, in the case of a gratuitous licence, the Small Causes Court would have no jurisdiction to entertain a Suit. It may not be necessary to go into the full details of the facts in Vishwanath (supra). In Vishwanath (supra), after holding that the Defendant was holder of a personal gratuitous license which permitted him to occupy the suit premises, which licence had been revoked and, consequently, rendering the continued occupation of the Defendant that of a trespasser, the learned Single Judge held that such a person cannot continue to claim to be a licensee entitled to any protection whatsoever either under the Easements Act or under the Bombay Rent Act and that he was a rank trespasser. The Suit was filed on the footing that the Defendant was a rank trespasser and the learned Single Judge also came to the conclusion that, after revocation of the licence initially granted to the Defendant, the status of the Defendant was not that of a licensee, but of a rank trespasser. Hence, it was held that the continued possession of the Defendant was nothing but that of a trespasser and consequently the City Civil Court had jurisdiction to try the Suit. Hence, the provisions of

Section 41 of the Presidency Small Cause Courts Act, 1882 or Section 28 of the Bombay Rent Act were held not applicable. It was held that the Defendant was not entitled to the protection of Section 28 of the Bombay Rent Act inasmuch as occupation was not coupled with and under a subsisting licence as on 1st February 1973. Though this judgment is correct on the facts of the case, it does not afford any assistance to us in deciding the issue that is posed before us. The view taken by the learned Single Judge that a person who was inducted on to the premises initially as a licensee and whose licence came to be terminated later on, could be treated as a mere trespasser, with respect, appears to be contrary to the view taken by the Division Bench of our High Court in Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel.

24. In Nagin’s case (supra), a similar contention was raised, namely, that when the relationship of licensor and licensee had been terminated by efflux of time or by termination of licence, the erstwhile licensee turns into a trespasser and, therefore, the Civil Court would have Jurisdiction to entertain a Suit for recovery of possession. The contention was that Section 41 of the Presidency Small Cause Courts Act, 1882 dealt with the case of licensor and licensee and landlord and tenant. It was urged that a person whose licence had been cancelled would cease to be a licensee and would be a rank trespasser and, therefore, not be covered by Section 41 of the Presidency Small Cause Courts Act, 1882. This contention was categorically rejected by the Division Bench which pointed out that the use of the words “a licensor and licensee” and “a landlord and tenant” in the said Section 41 had no such particular significance or effect as canvassed and that these words have been used in accordance with a very well-settled and normal legislative drafting practice. In various statutes dealing with rights and obligations arising out of jural or contractual relationship and enforcement of such rights and obligations the parties are described by the legal character they bear. The Division Bench gave a number of illustrations of the principle by which parties are described by the character which they held, or once held, as a means of identification or a label to point out the particular rights and obligations which arise out of such relationship either during its subsistence or after its termination i.e. existing relationship or erstwhile relationship. The contention that the moment a licence is terminated, the licensee turns into a trespasser was categorically rejected by the Division Bench. We are, therefore, of the view that though the conclusion in Vishwanath (supra) may be right, the reasoning on which it is based appears to be erroneous and contrary to the principle laid down in Nagin’s case (supra).

25. Conrad Dias v. Joseph Dias, follows the decision in Vishwanath (supra) and takes the view that a person residing with parents in the house cannot claim any legal character, much less a character of “licensee”, as defined in Section 52 of the Indian Easements Act, but would be residing simpliciter as a member of the family and nothing more and nothing less We have our doubts on this proposition also. A member of a family undoubtedly has a licence to reside with the family, albeit that the licence

may not supported by any material consideration, but arising out of familial relationship, love or affection. This is a far cry from saying that such a licence would not be one within the meaning of Section 52 of the Easements Act. We have already pointed out that Section 52 in turns does not rule out a licence being granted for consideration other than material.

26. In Conrad Dias (supra), the Defendant was a member of the family who was a son who had fallen into the bad books of the father and was sought to be injuncted from entering or continuing to remain in the suit premises. The learned Single Judge took the view that the pleadings in the case showed that question of title and adverse possession was raised. The learned Single Judge was of the view that even if Section 41 of the Presidency Small Cause Courts Act, 1882 was attracted, it did not specifically bar the jurisdiction of the Civil Court by reason of Section 9 of the Civil Procedure Code. He further relied upon Section 45 of the Presidency Small Cause Courts Act, 1882 which keeps open the option to a party to bring a suit, appeal or proceeding in which a question of title to any immovable property arises. Then the learned Single Judge considered the arguments on the assumption that the Defendant could be called a gratuitous licensee residing in the house of his father. While deciding the case on this assumption, the learned Single Judge distinguished the cases of Nagin M. Dagli v. Haribhai M. Patel, Eknath Vithal v. Mansukhlal, and Hoshang Rustomji Dotiwala v. Rustomji E. Dotiwala,3 and preferred to rely on the judgment in Vlshwanath (supra) and concluded by observing that Section 41 of the Presidency Small Cause Courts Act, 1882 does not apply to a suit filed by a father against a son either for possession or for injunction.

27. The same learned Judge (Vaidyanatha, J.) also decided the case of P. Vijaykumar and others v. V. C. Gopalkrishnan, This judgment was decided on the concession that it was not disputed that a gratuitous licensee is not one covered under Section 41 of the Presidency Small Cause Courts Act, 1882. (See observations in paragraph 10) and also by following Vishwanath’s case (supra).

28. In Adi S. Mehta v. Adil G. Illava, the Defendant was found to be a gratuitous licensee who had never set up any claim or right in the premises and did not put forward or plead any consideration for the use and occupation of the suit premises. His licence was revoked. A Suit was brought in this Court for a declaration that the Defendant was a trespasser and for a consequential order directing him to quit and vacate the suit flat. A preliminary objection to the tenability of the suit was raised on the ground that under Section 41 of the Presidency Small Cause Courts Act, 1882, the Small Causes Court had exclusive Jurisdiction to try such a suit. Observation of this Court in Nagin’s case (supra) that the amendment to Clause 12 of the Letters Patent of the High Court made it clear that where a suit is cognizable either by the Bombay City Civil Court or by the Presidency Small Causes Court, the High Court would not have continued concurrent

jurisdiction to try such Suit, was pressed into service. Here again, the learned Single Judge followed the judgment in Vishwanath (supra) and over-ruled the preliminary objection raised to the tenability of the suit on the ground that the Defendant was a rank trespasser.

29. In S. B. Parab and others v. Dr. Mrs. Roshan S. Boyce, the Defendant was permitted to occupy the premises free of rent since her husband was working under the Plaintiff. Since there was no evidence adduced by the Defendant to show that any rent was paid to the licensor, it was held that the licence was not for any consideration and that the Defendant being a gratuitous licensee, it was not a licence within the meaning of the Rent Act, that it was a special privilege given to the licensee which came to an end on his death. Here again, the learned Single Judge preferred to follow the ruling in Vishwanath’s case (supra) that the Civil Court had jurisdiction.

130. In Vijay K. Divekar v. Deepak J. Gandhi and others, the Defendant was temporarily given permission to occupy the suit premises without any charge. The Court held that the Defendant was a gratuitous licensee and, therefore, not entitled to protection of Sections 4A and 15A of the Bombay Rent Act. On an analysis of Section 28 of the Bombay Rent Act, read with Sections 4A and 15A, the learned Single Judge was of the view that, having regard to the ingredients of the latter two Sections, their application excludes a gratuitous licensee from the protection of Section 15A. Consequently, Section 28 of the Bombay Rent Act would not apply to such a case and, therefore, the ordinary Civil Court (the City Civil Court in that case) would continue to have jurisdiction for recovery of the possession of the premises from the gratuitous licensee. On the facts it was found that though the Respondent-Defendant was put in exclusive possession of the premises and continued to remain in possession of the suit under a licence which was subsisting on 1st February 1973, since the Appellant was a gratuitous licensee, he was not covered by Section 15A of the Rent Act, nor protected under Section 28 of the Bombay Rent Act. Consequently, it was held that City Civil Court had jurisdiction to entertain the Suit.

31. These are the judgments which were relied upon to support the proposition that a Suit for recovery of possession given under a gratuitous licensee did not fall within the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882.

32. After having carefully considered all these judgments, we are of the view that none of these judgments lays down the wide proposition as contended. In the factual matrix of each case, a particular view has been taken, the correctness of which is not the subject matter before us. We have, therefore, decided to approach the matter on basic principles.

33. We have already pointed out that Section 41 of the Presidency Small Cause Courts Act, 1882, when it was enacted, did not use the words “licensor” or “licensee”. It only talked of : (i) a person having possession of any immovable property situate within the local limits of the Small Cause Court’s jurisdiction of which the annual rack rent did not exceed two thousand rupees; (ii) as a tenant or “by permission” of another person; (iii) such tenancy or permission had been determined or withdrawn and (iv) the tenant or occupier refuses to deliver up such property in compliance with

the request made in that behalf. In such circumstances, the Section permitted an application to be made to the Small Cause Court against the occupant calling upon him to show cause as to why he should not be compelled to deliver up the property.

34. Section 43 of the Presidency Small Cause Courts Act, 1882 enabled the Small Causes Court, if no good cause was shown, to issue an order to the Bailiff to recover possession of the property. It Js interesting to note that at this juncture there was no exclusive jurisdiction vested in the Small Causes Court. Section 46 enabled the occupant, if aggrieved by the order of the Court, to file a suit in the Civil Court. Similarly, there was nothing in Section 41 or in the Letters Patent which conferred exclusive jurisdiction on the Small Causes Court.

35. After its amendment in 1963, by Maharashtra Act XLI of 1963, Section 42A was added to the Presidency Small Cause Courts Act, 1882. This Section provides that if the occupier of the immovable property called upon to hand over possession raises a contention that he was a tenant of the immovable property within the meaning of the Bombay Rent Act and consequently entitled to protection thereunder, then notwithstanding anything contained in the Rent Act, such a question had to be decided by the Small Cause Court as a preliminary issue. There was also a provision for an appeal. It is of significance that Section 41 remained unamended at this stage and still continued to use the expression “permission”. Nowhere did the Act uses the expression “licensor” or “licensee”.

36. We find that the expression “licensor and licensee” came to be used for the first time when Section 41 was amended by Maharashtra Amendment Act XIX of 1976. The marginal note of Section 41 was changed to “Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie to Small Cause Court.” This Section, for the first time, was re-worded to deal with proceedings between licensor and licensee relating to the recovery of possession of an immovable property or relating to the recovery of licence fee or charges or rent. This Section was given an overriding effect as indicated by the non-obstante clause “Notwithstanding anything contained elsewhere in this Act” and the suit lay in the Small Causes Court irrespective of the value of the subject matter of such suit or other proceeding. Sub-section (2) excluded the operation of sub-section (1) to the cases covered by the Bombay Rent Act, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act. 1888, the Maharashtra Housing and Area Development Act, 1976 and such other Acts. Provision for appeal and revision were added. Section 43 provided that in all suits, appeals and proceedings in Chapter VII, the Small Causes Court, as far as possible, follow, the procedure and, unless excepted, follow the procedure under the Civil Procedure Code. Section 45 kept open a right of the party to a proceeding in which a question of title to immovable property arises and is determined, to sue in a competent Court to establish his title to such property.

37. Was the substitution of the expression “permission” by the expressions “licensee” and “licensor” merely accidental, or was there a definite purpose in this exercise carried out by the Legislature? The Bombay Rent Act, as initially enacted, also did not apply to “licensees”. This led to the

large scale evasion of the provisions of the Act by entering into “Leave and Licence” agreements for limited short periods. To remedy the situation, and to bring such cases under the purview of the Act, by the amendment carried out by Maharashtra Act 17 of 1973, Section 15A was added to the Bombay Rent Act for giving protection to such “licensees” who were in occupation of any premises or any part thereof being not less than one room as licensees, whose licence was in subsistence on 1st February 1973. Similarly, the expression “tenant” was amended by the same Act so as to apply to such licensee as shall be deemed to be tenant for the purposes of the Act by Section 15A. It was this amendment of 1973 which applied the provisions of the Rent Act and gave protection under the Act to the class of “licensees” who were occupying specific premises as on the cut off date i.e. 1st February 1973. In our view, the inspiration for using the expression “licensee” in Section 41 of the Presidency Small Cause Courts Act, 1882, must have been derived from this amendment of 1973 carried out in the Bombay Rent Act. We cannot be unmindful of the fact that Section 51 of the Bombay Rent Act provides that unless there is anything repugnant in the subject or context, references to suits or proceedings in the Bombay Rent Act, shall include reference to proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882 and references to decrees in the Rent Act shall include references to final orders in such proceedings. That the two Acts are cognate, and have to be read in conjunction as complementing each other, is clearly postulated in Section 51 of the Bombay Rent Act.

38. An accepted canon of interpretation is that the meaning of expressions not defined in statute can be derived from a cognate part materia statute, whether earlier or later. (See in this connection Attorney General v. HRH Prince Ernest Augustus of Hanover, and J. K. Steel Ltd. v. Union of India. This fortifies the view that the expression “licensor” and “licensee” used in Section 41 of the 1882 P.S.S.C. Act, have the same meaning as in Section 5(4A) of the Bombay Rent Act. That the Bombay Rent Act and Chapter VII of the Presidency Small Cause Courts Act, 1882 are pari materia, is incontrovertible in view of the specific provision made in Section 51 of the Bombay Rent Act. The expression “licence” not having been defined in the Presidency Small Cause Courts Act, 1882 must, therefore, derive its meaning from the expression “licensee” as used in Section 5(4a) of the Bombay Rent Act.

39. There is another consideration on which we are inclined to take the view that the “licensee” contemplated under Section 41 is not a bare gratuitous licensee, but must be licensee whose licence is supported by material consideration. The principle Noscitur a socits demands that words must take colour from words with which they are associated. Reading of Section 41 of the Presidency Small Cause Courts Act. 1882 shows that it Is equally applicable to proceedings between “a licensor and a licensee” or “a landlord and a tenant” relating to the recovery of possession of any immovable property situated in Greater Bombay or relating to the recovery of “licence fee or charge or rent therefor”. We are of the view, that clubbing of “licensor and licensee” with “landlord and tenant”, and the clubbing of causes relating to recovery of possession with recovery of licence fees or

charge or rent, is not merely accidental. There is close association and this is a case where the principle Noscitur a sociis would clearly be applicable-We are, therefore, of the view that the expressions “licensor and licensee” used in Section 41 derive their colour from the expression “landlord and tenant”. The latter is a relationship based on material consideration; the same concept must, therefore, colour and permeate the expression “licensor and licensee”. Further, the use of the expression “licence fee, charge or rent” in close juxtaposition is also not without reason, and must colour the expression “licensor and licensee” used in the Section. The observations of Supreme Court in The State of Bombay and others v. The Hospital Mazdoor Sabha and others, (vide paragraph 9) and in M. K. Ranganathan and another v. Govt. of Madras and others, (vide paragraphs 21 and 22) and in M/s. Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, Baroda, (vide paragraphs 12) support this canon of interpretation of the statute.

40. In the judgment in M. K. Ranganathan (supra). Supreme Court pointed out in paragraph 19 that though the Statement of Objects and Reasons is certainly not admissible as an aid to the construction of a statute, it may be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which was sought to remedied. If a plea of tenancy was raised and succeeded, the matter would again have to be tried by the Small Causes Court. Conversely, in a proceeding initiated in the Small Causes Court on the footing of tenancy. If a defence of licence was taken and succeeded, the plaint would have to be returned and re-presented to the City Civil Court or the High Court depending on the valuation. It was considered that this caused unnecessary delay, expense and hardship to the suit or to move from Court to Court and have the issue of jurisdiction decided. Further, Chapter VII of the Presidency Small Cause Courts Act, 1882 did not preclude separate sutts on title where relationship admittedly was not between that of a landlord and tenant. In order to overcome these difficulties, and to eliminate delay, expenses and hardship to the suitor, and to have uniformity of procedure, the amendments were carried out in the Presidency Small Cause Courts Act. 1882 “so that all suits and proceedings between a landlord and tenant or a licensor and a licensee for recovery of possession of premises or for recovery of rent or licence fee irrespective of the value of the subject matter should go and be disposed of by Small Causes Court either under that Act or the Rent Control Act”. The context in which the amendment was made thus becomes very important and Haydon’s rule of identifying the mischief and eliminating it, becomes relevant.

APPLICATION OF THE MISCHIEF RULE

41. Immediately prior to the 1976 amendment, the fact situation was as under :-

(a) Suits between a landlord and a tenant relating to recovery of possession of premises or rent, irrespective of the value of the subject matter, would have to be filed in the Court of Small Causes, Bombay under Section 28 of the Bombay Rent Act.

(b) Suits and proceedings for the recovery of licence fees between a licensor and a licensee falling within the provisions of Section 5(4A) of the Bombay Rent Act also had to be instituted in the Small Causes Court irrespective of the value of the subject matter. Section 5(4A) of the Bombay Rent Act mostly applied to licences for material consideration but also contains an inclusive and exclusive provision. Section 5(4A) read with Sections 7, 20 and 28 of the Bombay Rent Act covered only suits between licensor and licensee for recovery of licence fees and did not cover suits between licensor and licensee for recovery of possession of licensed property.

(c) Suits between licensors and licensees for recovery of possession of premises were required to be filed either in the Presidency Small Causes Court or in the City Civil Court or in the High Court depending on the rack rent of the property concerned.

(d) Suits between licensors and licensees for recovery of licence fees, in cases not covered by the Bombay Rent Act, were required to be brought in the Presidency Small Causes Court, City Civil Court or the High Court according to the value of the subject matter i.e. the amount of licence fees involved.

42. It was pointed out in the Statement of Objects and Reasons of the Amending Bill L. C. Bill No. XXI of 1975 that, depending on whether plea of licensee/tenancy succeeded in one or the other Court, the plaint would be returned and the suitorwould have to recommence his long and arduous challenge in another Court. The Bill was intended to cut through this Gordian knot to save public time and money and avoid unnecessary delay, expenses and hardships to suitors. By the amendment carried out in Section 41, all suits of the type indicated therein were brought within the Jurisdiction of the Small Causes Court irrespective of the value of the subject matter.

43. A careful analysis of the Statement of Objects and Reasons shows
that the Bill proceeds on the footing that under the existing law “the licensor
has to go to different Courts for recovery of possession of premises and licence
fees and if the plea of tenancy is raised by the Defendants and succeeds, the
matter is again to go to the Small Causes Court.”

This obviously contemplates a situation of licence for consideration for otherwise the plea of tenancy could not be raised. The other situation contemplated under the Statement of Objects and Reasons is where proceedings on the basis of tenancy has started in the Small Causes Court “and subsequently the defence of licence is taken and succeeds” .

Here again, the suit could not have been filed on the basis of a tenancy, if the licence was gratuitous. Thus, it appears to us that the factual situation which was in the contemplation of the Legislature when bringing forward the amendment to Section 41 by Act XXI of 1975, did not include a gratuitous licensee. Thus, we are fortified in our thinking that the amendment to Section 41, despite its somewhat wide language, was not intended to apply to gratuitous licensee.

EXCLUSION OF CIVIL COURT’S JURISDICTION

44. There is another strong reason why we are inclined to take this view. It is an accepted proposition of law for more than six decades that the jurisdiction of the Civil Court is not ousted unless there is an enactment which expressly, or by implication, bars and takes away the jurisdiction of the Civil Court and confers it on any other special forum. “It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied” said Lord Thankerton in Secretary of State v. Mask & Co., and this proposition of law has been reiterated with approval in all the subsequent judgments. In the Pabbojan Tea Co. Ltd. v. The Deputy Commissioner. Lakhimpur and others, the Supreme Court referred to Section 9 of the Civil Procedure Code which provides that the Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Supreme Court approved the observations of Lord Thankerton in Secretary of State (supra) and also reiterated the observations of Viscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Govt. “It Is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s Courts for the determination of his rights is not be excluded except by clear words.”

45. In P. M. A. Metropolitan and others v. Moran Mar Marthoma and another, the Supreme Court was concerned with the exclusion of the Civil Court’s jurisdiction by statute. After referring to Section 9 of the Civil Procedure Code, the Supreme Court observed, “One of the basic principles of law is that every right has a remedy. Ubijus ibiremedtemis the well known maxim. Every civil suit is cognizable unless it is barred. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue Smt. Ganga Bat v. Vijay Kumar,. The expansive nature of the Section is demonstrated by the use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred.”

46. Abdul Waheed Khan v. Bhawani and others. I s an authority for the well settled proposition that a statute ousting the jurisdiction of a Civil Court must be strictly construed. [See also the observations of the Supreme Court in Magiti Sasamal v. Pandab Bissoi and others, and Shri Raja Durga Singh of Solon v. Tholu and others,.

47. With these principles in mind, let us now scan the provisions of Section 41 and see the extent to which the jurisdiction of Civil Court is intended to be excluded thereunder.

48. Ex-facie reading of Section 41 of the Presidency Small Cause Courts Act, 1882 does not indicate that the jurisdiction of Civil Court is excluded thereunder. In fact, the wording of Section 41 would suggest that the jurisdiction of the Small Causes Court is in addition to and not to the exclusion of the competent Civil Court. In Nagin (supra) this issue was considered by the Division Bench of our High Court. A contention was specifically raised that Section 41 gave concurrent jurisdiction of the Small Causes Court without taking away the jurisdiction the High Court on its Original Side or the Bombay City Civil Court possessed prior to the coming into force of the 1976 Amending Act. This Court rejected the contention by placing reliance on the amendment carried out to Clause 12 of the Letters Patent of this Court and Section 3 of the Bombay City Civil Court Act, 1948. The Bombay City Civil Court Act, 1948 and the Bombay High Court Letters Patent Act, 1948 were both brought into force simultaneously on 16th August 1948 by Notification dated 14th August 1948. The cumulative effect of these two amendments was that the High Court had no jurisdiction to receive, try and determine any suit cognizable either by the Presidency Small Causes Court at Bombay or the Bombay City Civil Court. It was for this reason that the Division Bench overruled the contention and held that where a suit is cognizable either by the Bombay City Civil Court or the Bombay Presidency Small Causes Court, the High Court would not have concurrent jurisdiction to try such, a suit. Thus, a suit which falls within Section 41 of the Presidency Small Cause Courts Act, 1882 and is cognizable by the Small Causes Court, would not be cognizable by the City Civil Court by reason of Section 3 of the Bombay City Civil Court Act, 1948 and would not be cognizable by the High Court on the Original Side by reason of the amendment to Clause 12 of the Letters Patent. Thus, the result is that Section 41 of the Presidency Small Cause Courts Act, 1882 excludes the jurisdiction of Civil Court i.e. the Bombay City Civil Court upto its pecuniary jurisdiction, and thereafter the Original Side of the High Court.

49. Having reached the conclusion that Section 41 of the Presidency Small Cause Courts Act, 1882 excludes the jurisdiction of the Civil Court in respect of matters made cognizable by the Small Causes Court, the principle of stricto construction must, therefore, apply. The jurisdiction of the Civil Court cannot he said to have been taken away beyond what was intended.

50. As pointed out by the Supreme Court in M/s. Kamala Mills Ltd. v. State of Bombay,. “The question about the exclusion of the jurisdiction of Civil Courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.” Thus, the contention that the jurisdiction of the Civil Court must stand excluded in a proceeding between licensor and licensee for recovery of possession of licenced immovable property or for recovery of licence fees, must stand the scrutiny of the aforesaid test- The scheme of the Section, the collocation of words and the application of Noscitur a sociis, suggest to us that the proceedings between the licensor and licensee contemplated under Section 41 of the Presidency Small Cause

Courts Act, 1882 were those in the case of a non-gratuitous licence i.e. a licence for material consideration. It is only such cases of licenses supported by material consideration which fall under Section 41 which are excluded from the purview of the Civil Court’s jurisdiction and vested exclusively in the Small Causes Court.

51. Two judgments of the Supreme Court were cited as militating against the view we are inclined to adopt. First is, Mansukhlal Dhanraj Jain and others v. Eknath Vithal Ogale,. This judgment arose out of a judgment of the Single Judge of our High Court in Eknath Vithal Ogale v. Mansukhlal Dhanraj Jain and others,. The Supreme Court in this judgment Mansukhlal Jain (supra) was concerned with the interpretation of Section 41 of the Presidency Small Cause Courts Act. 1882 in the context of the contention that the Suit for injunction between a licensor and licensee was not contemplated under the said Section. The Supreme Court referring to Section 41 took the view that the non-obstante clause contained in the Section makes it clear that even if the Suit may lie before any other Court, if such a Suit falls within the scope of Section 41(1), it can only be entertained by the Court of Small Causes. It held that for applicability of Section 41(1) of the Presidency Small Cause Courts Act, 1882, the following conditions must be satisfied before taking the view that jurisdiction of regular competent Civil Court like City Civil Court is ousted :-

(i) It must be a suit or proceeding between the licensee and licensor; or

(ii) between a landlord and a tenant;

(iii) such suit or proceeding must relate to the recovery of possession of any property situated in Greater Bombay; or

(iv) relating to the recovery of the licence fee or charges or rent thereof.

Thereafter the Supreme Court referred to the Plaint and pointed out that the Plaintiffs had claimed relief on the basis that they were licensees on monetary consideration and the Defendants were the licensors. Hence, condition No. (i) was held satisfied. While dealing with Condition No. (iii), the Supreme Court interpreted the words “relating to the recovery of possession of any property” as being of wide import so as to take in their sweep any Suits in which the grievance is made that the Defendant is threatening to illegally recover possession from the Plaintiff-licensee. It was held that Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the Defendants to forcibly recover possession would be covered by the wide sweep of the words “relating to recovery of possession” employed by Section 41(1) of the Presidency Small Cause Courts Act, 1882. Thus, a Suit for injunction was held to fall within Section 41 of the Presidency Small Cause Courts Act. 1882.

52. This judgment, in our view, is an authority for what it decides, namely, that the expression “relating to” is wide enough to include Suits for injunction within its scope. In our view, this judgment cannot be read as an authority to hold that in a Suit for proceeding between the licensor and licensee, even where there is a gratuitous licence, would fall within the purview of Section 41. In fact, as we read it, the Supreme Court was neither concerned with, nor has made any observations about proceedings between

a licensor and licensee where the licence is gratuitous, though the Court referred to the pleading of the Plaintiff that he was a licensee for consideration. On the other hand, it appears to us that some of the observations in paragraph 14 of the judgment in Mansukhlal (supra) are significant and implicitly support the view we are inclined to take.

53. The Supreme Court observed in paragraph 14 of Mansukhlal Jain
(supra) “When Section 41(1) of the Small Cause Courts Act is read in juxta
position with the aforesaid Section 28 of the Bombay Rent Act, it becomes
clear that pari materia words are used about nature of suits in both these
provisions for conferring exclusive jurisdiction on Small Cause Courts,
namely, they alone can entertain such suits or proceedings relating to
recovery of possession of premises. It is of course true that Section 41 of
the Small Cause Courts Act deais with such suits between the licensee and
licensor while Section 28 of the Bombay Rent Act deals with suits between
landlord and tenant. But the nature of such suits as contemplated by both
these sections is the same, namely, it should be the suit relating to the
recovery possession of premises.

(Emphasis by us)

Thus, if the nature of the suits contemplated by Section 28 of the Bombay Rent Act and Section 41 are same; then a fortiorari the character of the suitors must be the same; since the Bombay Rent contemplates all licensees to be non-gratuitous, Section 41 also must be held to contemplate the cases of proceedings between licensors and non-gratuitous licensees.

54. The judgment of the learned Single Judge in Cawas Dhunjishaw Saher v. Dr. Keikobad C. Batliwala, was pressed in to service to contend that this judgment was confirmed by the Supreme Court in its unreported judgment in Special Leave Petition (Civil) Nos. 14085 and 14118 of 1994, dated 27th October 1994. It is true that this was a case where the finding of the Small Causes Court was that the Plaintiff was a gratuitous licensee who was staying in the premises only by the courtesy of his maternal uncle-Defendant and allowed to continue to remain in the premises even after the death of the Plaintiffs mother. It was held that there was no evidence to prove that any rent had been paid to the landlord or that the Plaintiff had contributed to the repairs and maintenance of the house. Hence, it was held that the Petitioner Cawas Saher was not entitled to the benefit of amended Section 15A of the Bombay Rent Act any further as the application filed for ejectment under Section 41 of the Presidency Small Cause Courts Act, 1882 was maintainable. A careful perusal of the judgment does not show that the issue as to whether Section 41 would apply to the case of a gratuitous licensee was either raised, or argued, or considered. The judgment appears to proceed on the footing that because the licensee was held to be a gratuitous licensee, Section 15A of the Bombay Rent Act would not apply and that the application for ejectment was maintainable under Section 41 of the Presidency Small Cause Courts Act, 1882. Even the judgment of the Supreme Court, though dismissing the Special Leave Petitions, has not really considered this question of law, nor deals with this proposition of law. We are, therefore, not inclined to accept the argument that the issue contended seriously before us stands concluded by the judgment of the Supreme Court in the said Special Leave Petition. All that the Supreme

Court seems to have held is that the Court below did not appear to have committed any error in law in holding that the mother of the Appellant-Cawas Saher, being the sister of the Respondent, had been permitted to reside as a gratuitous licensee and further that the Courts below were right in holding that the Appellant could not be said to be a statutory tenant having inherited right from his mother or grand-mother. It was seriously contended that since the finding that the Appellant was a gratuitous licensee, whose licence had been revoked, had been expressly confirmed by the Supreme Court, this judgment of the Supreme Court must be held to decide, sub silentio, that the Small Causes Court has jurisdiction to entertain a Suit against a gratuitous licensee for recovery of possession of immovable property. We are afraid that it is not possible to read such a ratio in this judgment. As observed by the Privy Council in Quinn v. Leathem,.

” …….. there are two observations of a general character which I wish to
make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that, the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

We are not inclined to accept that there is any such ratio decidendi in this judgment as contended by the learned Counsel. The question of the jurisdiction of the Small Causes Court to entertain a Suit against a gratuitous licensee was neither raised, nor considered, nor answered by the Supreme Court in this judgment.

55. Thus, considered from all points of view, we are of the view that Section 41 of the Presidency Small Cause Courts Act, 1882 invests jurisdiction in the Small Causes Court to entertain proceedings between licensor and licensee only where the licence is not gratuitous, i.e. It is for a consideration other than material.

56. A number of other authorities were also cited at the bar but we have not referred to all of them as we do not think them to be of assistance in deciding the controversy before us.

57. We, therefore, answer the question referred for our opinion as under:

“A Suit by a licensor against a gratuitous licensee is not tenable before the Presidency Small Causes Court under Section 41 of the Presidency Small Cause Courts Act, 1882 and such a Suit should be filed before the Civil Court – the City Civil Court or the High Court, depending on the valuation.”

58. For the aforesaid reasons, we pass the following order :

ORDER

(a) in the result, we allow the Letters Patent Appeals and set aside the judgment and order of the learned Single Judge (P. S. Patankar, J.) dated 13th/15th April 1998 passed in Writ Petition No. 2336 of 1997 and Writ Petition No. 5986 of 1997.

(b) We uphold the judgment of the Appellate Bench of the Small Causes Court in Appeal No. 75 of 1995 holding that the Small Causes Court had no jurisdiction to decide the Suit since the relationship between the parties was one of a gratuitous licensee. Consequently, Writ Petition No. 5986 of 1997 stands dismissed and Rule is discharged therein without any order as to costs.

(c) We allow Writ Petition No. 2336 of 1997 and make the Rule absolute quashing and setting aside the judgment dated 3rd March 1997 made by the Appellate Bench of the Small Causes Court at Bombay in Appeal No. 72 of 1990 upholding the trial Court’s judgment dated 21st December 1989 made in Ejectment Application No. 378/E of 1968. Ejectment Application No. 378/E of 1968 is, therefore, dismissed as without jurisdiction. No order as to costs.

(d) We overrule the preliminary objection raised in Notice of Motion No. 2172 of 1998 and in Suit No. 2747 of 1998 and hold that the Suit is within the jurisdiction of this Court on the Original Side and we direct that the Suit be disposed of in accordance with law.

59. Parties to act on an ordinary copy of this Judgment duly authenticated by the Sheristedar/Associate of this Court.

60. Issuance of certified copy expedited.


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