JUDGMENT
M.F. Saldanha, J.
1. This petition raises an important issue with regard to the interpretation of section 43 of the Presidency Small Cause Courts Act, 1882 and in particular, the question as to when can it be held that the title under which the tenancy was created stands determined. a few facts that are relevant are set out below.
2. The petitioner, in this case, has originally instituted proceedings under section 41 of the Presidency Small Cause Courts Act, 1882 before the Court of Small Causes at Greater Bombay, against the respondent, for recovery of possession of part of the disputed premises. The facts in this case are unusual and so are some of the circumstances. The premises consisted of Flat No. 36 in a building that is now called the Mazagaon Terrace Co-operative Society Ltd., and the petitioner had granted a licence to use part of the her flat to the respondent. This Society came into existence around the year 1965 and the time-frame is of some consequence to the decision of the dispute.
3. Admittedly, the present petitioner was a tenant in respect of the flat in question prior to the year 1965. At that time, the building belonged to one Syed Abdul Hamid Kadri. Pursuant to some litigation, the property was put up for auction on October 6, 1965. Prior to this auction, a co-operative society of the tenants was formed and this society was called the Mazagaon Terrace Co-operative Housing Society Ltd., which came to be registered on 14th August 1965. It is undisputed that the building in question was purchased by the Society and it is also not a disputed fact that the majority of the original tenants became members of that society.
4. The application filed by the petitioner in November 1966 for recovery of possession was heard, in the first instance, by the Small Causes Court and the trial Court over ruled the defence of the respondent who sought to contend that the agreement was not one of a licence but that the respondent was entitled to certain protection under the provisions of the Rent Act. The respondent-licenses carried the matter in appeal and the appeal Court confirmed the judgment of the trial Court. Finally, by a judgment and order dated 31-7-1978, the respondent was ordered to vacate and hand over possession of that part of the flat which was in her use and occupation.
5. The respondent thereafter filed Writ Petition No. 2268 of 1978 before this Court, which petition was finally heard and disposed of by this Court through a judgment dated 6th October 1982 of Masodkar, J. (as he then was). One of the contentions canvassed at the time of the hearing of the earlier petition when it was heard by Masodkar, J., by Mrs. Shenoi, learned Counsel for the respondent was that the provisions of section 43 of the Act had erroneously been construed by the courts below for the reason that the courts had not taken into account the change of situation as a result of which, the original applicant was no longer a tenant of the original landlord but had become a member of the newly formed Society. It was argued before the High Court that by virtue of the change of status of the original applicant, that the provisions of section 43 and in particular, the explanation thereto, would constitute a valid defence to the application under section 41 and that consequently, the matter required re-consideration. The High Court upheld this position and remanded the matter to the Court of Small Causes for redetermination of issue. The High Court, in its judgment also observed that it was open to the parties to lead fresh evidence, if they so desired, and directed the Court to consider this issue afresh. I need to point out that the main issue on which there was a concurrent finding, viz., that the original agreement conferred a licence simplicitor was left undisturbed by the High Court. In fact, the application of section 43 could only be involved if this was the position.
6. After the remand, the applicant stepped into the witness box and stated that she had become a member of the Co-operative Society on 26th September 1965. She further contended that the respondent who was her licencee was paying a compensation of Rs. 100/- per month in respect of the disputed premises prior to her becoming a member of the Society and that there had been no change in the situation till February 1966. The applicant was cross-examined by the learned Counsel appearing on behalf of the respondent and the applicant was pointedly asked as to whether she had signed a declaration before the Society had issued to her the share certificate. This declaration pertained to surrender of the earlier tenancy in exchange for the conferment of tenant membership of the newly formed Co-operative Society. The Secretary of the Society was also examined as a witness. The Secretary has deposed to the fact that the letters were sent out to all the earlier tenants asking them to sign the requisite declarations but he has thereafter stated in his evidence that many of the members did not sign such a declaration. To a pointed question with regard to the signing or otherwise of the declaration by the applicant, the Secretary had replied “I do not remember if the applicant had also submitted such a declaration before the enrolment membership certificate was issued to her”. The matter was left at that and in the arguments that took place subsequently, the submission that was canvassed before the trial Court was that by virtue of the applicant’s change of status that she was no longer entitled to an order under section 41. The contention was that the applicant had created the licence when she was a tenant of Kadri, that she is now a tenant member of the Society and in so far as her old status has come to an end, she was disqualified under section 43 from obtaining a decree from the Court. The trial Court upheld this contention for a variety of reasons set out in that judgment. It is against this judgment of the Court of Small Causes, dated 24th January 1983, that the present petition has been filed.
7. Mr. Vishwanath, learned Counsel appearing on behalf of the petitioner has, in the first instance, submitted that the onus of proving that the status of the applicant had changed lies squarely on the respondent. He has submitted that the applicant had prima facie satisfied the Court of Small Causes that the original arrangement between the parties was one of a licenese simpliciter and according to Mr. Vishwanath, it was the defence of the respondent that because the provisions of the Rent Act did not apply to her, that the applicant was disqualified from an order by virtue of section 43. That the legal onus shifted to the respondent to establish this fact is what learned Counsel contends, and adds that the defence failed to do so. Mr. Vishwanath lays strong emphasis on the fact that the applicant did step into the witness box and give evidence and that the applicant did also call the secretary of the Society to corroborate that evidence whereas the respondent who had challenged the status of the applicant before the High Court refrained from stepping into the witness box or from producing any evidence of any type. Mr. Vishwanth, therefore, submits that the respondent who had asked for the remand from the High Court has failed to substantiate the plea that was canvassed on the earlier occasion before this Court and consequently, that the earlier orders should ipso facto stand revived. Mr. Vishwanath has supported his argument by taking me through the oral evidence and the documentary evidence produced after the remand and submitted that the respondent has not established to the satisfaction of the Court that the earlier tenancy of the applicant had been determined. Mr. Vishwanath, therefore, submitted that in the absence of this fact being established to the satisfaction of the Court, that there is no ground on which the order passed against the respondent by the Court on the earlier occasion can be interferred with.
8. Mrs. Shenoy learned Counsel appearing on behalf of the respondents has pointed out, and to my mind with some justification, that in order to establish a defence under section 43 of the Rent Act, it is not essential for the respondent or the defendant as the case may be, to step into the witness box or for that matter, to lead oral evidence. She has pointed out that within the framework of the procedure permissible, if it is shown to the Court either through cross-examination or otherwise, that the applicant is legally disqualified or the applicant is not legally entitled to an order, that the respondent can still succeed and that consequently, merely because she has not led evidence, her case is not at all prejudiced. In support of her argument, Mrs. Shenoy submits, that the admitted facts on record will first have to be scrutinised by the Court and if it can be demonstrated from those facts that the undisputed position is that the original landlord having defaulted and a Court order having been passed against him, the property was put up for auction and was thereafter purchased by the present Society, that all rights that had been in existence inter se between the applicant and the original landlord stood extinguished from the date of this happening. Mrs. Shenoy submits that once those rights have been extinguished, the status of the applicant stands materially altered in so far as she has become a tenant member of the newly formed society, after which point of time, according to Mrs. Shenoy, an application under section 41 of the Act would not be maintainable. It is her contention that by virtue of the changed situation, even if the applicant is entitled to utilise one or more of the available remedies, that the summary procedure under section 41 would be barred. The extension of this argument is that the question as to whether the applicant had signed the declaration or whether she did not sign the declaration is irrelevant for the reason that by operation of law, her earlier status has been altered and once she becomes a member of the Co-operative Society, the transition takes effect for, she no longer continues as a tenant of the old landlord. To my mind, this position is somewhat correct though not wholly. The evidence led before the Court of Small Causes is inconclusive on the question as to whether the applicant signed the declaration or not. The evidence is, however, conclusive with regard to one aspect viz, that the applicant is a member of the Co-operative Society and if that is so, then the question of her present status vis-a-vis her earlier one calls for some minute examination.
9. The second submission that has been canvassed by Mr. Vishwanath is that the provisions of section 43 and the explanation viz, that there has been determination of the title of his client and the question of her locus standi to present an application under section 41 are both fallacious in law. Mr. Vishwanath submits that it makes little difference as to whether the applicant before the Court of Small Causes was a tenant of Mr. Kadri or whether by virtue of the change that has taken place in 1965, she has become a member of the Society, for according to Mr. Vishwanath, the status of the present applicant under section 41 remains unaltered. To this extent, Mr. Vishwanath’s argument is to the effect that section 43 contemplates a situation whereby an applicant who possess a title to the disputed premises ceases to possess that title in the Course of the proceedings and, therefore, gets disqualified from recovery of possession. In substance, what is contended by Mr. Vishwanath is that even if it is held that the applicant ceases to be a tenant within the meaning of the Bombay Rent Act and thereafter became a tenant member of a Co-operative Society: vis-a-vis the licensee and the applicant’s right to recover possession, the position in law remains unaltered. The trial Court had placed reliance to a very large extent on a Division Bench judgment of this court reported in LX, Bombay Law Reporter, page 1282 in the case of K.M. Motwani v. Albert Sequeira, In that case, the Division Bench of this Court had occasion to interpret section 43 and in particular, the explanation thereto and the Court was not entitled to an order under section 41. The facts of that case were entirely different to the situation that obtains in the present case. The Division Bench was dealing with a situation wherein the tenant had been in arrears of rent, legal proceedings were instituted against the tenant and a decree in ejectment had been passed against the tenant. The Court was, therefore, basically concerned with the locus standi of that particular tenant, who had filed the application under section 41 against the sub-lessee and the Court came to the conclusion that section 43 applied squarely and that the applicant was not entitled to recover possession. Those facts are distinguishable from what we are faced with here in so far as the original tenancy of the present applicant has not been determined by any decree of a Court nor is the present applicant left in what one may call a legal vacuum on the date when the application was filed or for that matter, when the order in her favour was passed. By virtue of a set of circumstances entirely beyond her control, if the ownership of the building has changed hands, the all important question that arises would be as to whether the locus standi of the applicant vis-a-vis the sub-lessee viz, the licensee has been extinguished or not. In the present case, it is undisputed that the tenancy of the applicant has only been altered or modified or for that matter, it has only changed colour by virtue of the Society having come into the shoes of the original landlord. To my mind, therefore, the ratio of the Division Bench judgment that has been relied upon by the trial Court has been misapplied to the facts of the present case.
10. On behalf of the respondent, Mrs. Shenoy has placed reliance on certain decisions, because, she has, in the first instance, submitted that while deciding present issue, it is not open to the Court to go into the character of the title. Mrs. Shenoy submits that on a simple, clear and correct interpretation of section 43, all that the Court is empowered to examine is the limited question as to whether or not the title on the basis of which the original application was filed has been determined or not. She submits that by determination, it pre-supposes that the title has been extinguished by operation of law by efflux of time or for that matter, by act of the parties. She submits that in the present case, the Court is concerned with the original title on the basis of which the application under section 41 was preferred viz, the title which the applicant possessed in her capacity as a tenant under the provisions of the Bombay Rent Act when the building was owned by Mr. Kadri. She states that in so far as it can be demonstrated that the title that was in existence at the point of time when the petitioner approached the Court has been determined that, according to her, the application itself should fail because the correctness of the final order in the application under section 41 itself becomes legally suspect.
11. With regard to this argument, it needs to be recorded that the dispute before me is of a sightly different character. What is in fact pointed out is that the petitioner filed the application before the Court, admittedly, on 29-11-1966. On that date, the petitioner was already a member of the Society and it is not that on 29-11-1966, she was a tenant of Mr. Kadri. The real controversy is that, as pointed out by Mrs. Shenoy, the application under section 41 proceeds on the footing that the applicant was a tenant of the premises and by necessary implication, it would mean that the applicant had proceeded on the basis of her old status. It is, therefore, pointed out that to some extent, the status of the applicant was not correctly described to the Court and that the Court have, for all intends and purposes, proceeded on the footing that she was a monthly tenant of the old landlord without-taking into consideration the changed circumstances. This, to my mind, is really technical and would not make much difference to the complexion of the matter because, the applicant was a member of the Society on 29-11-1966 and after that date, there has been no change what so ever. The real issue is as to whether the title she possessed when the licence was created, viz, her status of a tenant had been determined or not.
12. For this purpose, it is, however, essential to go into a deeper examination of the provisions of section 43, which reads as follows:
“43. Order for possession.
If the occupant does not appear at the time appointed and show cause to the contrary the applicant shall, if the Small Cause Court is satisfied that he is entitled to apply under section 41, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order.
Explanation. If the occupant proves that the tenancy was created or permission granted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section.”
Under the explanation to section 43, one of the defences that is available to the respondent is to show that the tenancy was created or the permission granted by virtue of a title which determined previous to the date of the application and on so doing, the respondent shall be deemed to have shown cause within the meaning of this section.
13. On behalf of the present respondent, it is contended that the point of time at which the licence was created or granted, was admittedly when the applicant possessed the status of a monthly tenant and it was in that capacity and under that legal title that she had moved the Court. The effort, therefore, is to show that the status or title which was in existence at the point of time when the licence was granted has been determined prior to the date of the application. On the facts before, me, in simple terms, the argument is that if the applicant ceased to be the monthly tenant prior to 29-11-1966, then, the application under section 41 was not competent. Another point on which I am required to decide the application ultimately is the question as to whether the tenancy in question was determined or not. I have already held that there has been a degree of alternation or change in the tenancy but that this cannot be construed as legal determination of the tenancy. For purposes of establishing that the tenancy was determined, it will have to be shown that the legal locus which the applicant possessed to recover possession of the premises has ceased to be in existence. Admittedly, in this case, the applicant has neither sold nor disposed of the premises nor has the applicant been legally ousted from the premises. The applicant has continued to be in possession of the premises. The status of the applicant has not changed but it is only the ownership of the building that has been altered and in this view of the matter, it would not be permissible to hold, on these facts, that the tenancy has been determined.
14. The explanation to section 43 refers to a title which determined, previous to the date of the application and we are, therefore, required to investigate as to what precisely was the intention of the Legislature in using this clause. Though the matter is one of some importance and has been argued with a degree of seriousness, this crucial aspect has been virtually-left in the air. Neither of the learned Counsel have so much as applied themselves to this issue which is the focal point of the controversy.
15. Black’s Law Dictionary defines the term “title” in relation to property in the following terms:
“Title is the means whereby the owner of lands has the just possession of the property. The union of all the elements which constitute ownership. Full independent and free ownership. The right to or ownership in land: also, the evidence of such ownership. Such ownership may be held individually, jointly, in common, or in cooperate or partnership form.
One who holds vested rights in property is said to have title whether he holds them for his own benefits or for the benefit of another.”
A perusal of this definition would virtually set the present controversy at rest because the title which is the source or the fountainhead of the rights on the basis of which the applicant before the Court seeks the relief of restoration of possession, was her status of a tenant. If one were to account for the subsequent changes after 1965 and take cognizance of them, that status has not ended but has in fact been fortified into one of symbolic ownership of the premises in so far as it has been transformed without any break in point of time into one of tenant membership of the society in respect of the same premises.
16. It would be useful to advert to the definition of the term “determined” which is to be found in Black’s Law Dictionary and is “the expiration of an estate or interest in property or of a right, power or authority coming to an end in any way whatever.” In simple terms, therefore, there can be no ambiguity about the fact that where the Legislature used the expression “determined” in relation to the title that it contemplated a situation whereby that title has ended or more correctly the rights in respect of the property in question have ceased or culminated. The test that will have to be applied for purposes of the explanation to section 43 would, therefore, crystalise into determining whether the rights possessed by the applicant, before the Court in relation to the property had come to an end or not. It is the culmination that disqualifies and not a variation or a modification.
17. Mrs. Shenoy placed reliance on a decision of the Supreme Court in the case of Keshavji Ravji and Co. & others v. Commissioner of Income Tax. This case, undoubtedly, arose out of a proceeding under the Income Tax Act, but Mrs. Shenoy relied on the head note that appears on page 237, wherein the following observation appears:
“An ‘explanation’, generally speaking is intended to explain the meaning of certain phrases and expressions contained in a statutory provision. There is no general theory as to the effect and intendment of an Explanation except that the purposes and intendment of the ‘Explanation’ are determined by its own words. An Explanation, depending on its language, might supply or take away something from the contents of a provision. Hypothetically, an Explanation may be introduced by way of abundant caution in order to clear any mental cobwebs surrounding the meaning of a statutory provision spun by interpretative errors and to place what the legislature considers to be the true meaning beyond controversy or doubt.
However, the express prospective operation and effectuation of the ‘Explanation’ might perhaps, be a factor necessarily detracting from any evincement of the intent on the part of the legislature that the Explanation was intended more as a legislative exposition or clarification of the existing law than as a change in the law as it then obtained. Since Explanation 1 to section 40(b) of the Income Tax Act took effect prospectively from April 1, 1985, it cannot be said that it was intended as a mere legislature exposition or clarification of the existing law.”
On the basis of this observation, learned Counsel contends that the explanation to sections 43 is added to amplify the scope of the main body of the section and to that extent, if there is any ambiguity with regard to the question as to in what circumstances the respondent is entitled to resist an application under section 41, the explanatory part of this section makes the position quite explict. There is, to my mind, no ambiguity with regard to either the scope of the main body of section 43 or for that matter, the explanation. The short issue in this case is centered around, as I have indicated above, the question as to whether the title in question has been extinguished or not. The title in this case is virtually to be determined by the question as to whether the applicant has the right to continue in legal and lawful occupation and possession of the premises and furthermore, whether the applicant possesses the requisite legal right to recover the possession of the premises from third-parties by virtue of such status. On the facts before me, there can be title doubt about the fact that both these questions will have to be answered in the affirmative.
18. Mrs. Shenoy has also submitted that there is a considerable change of status with regard to the applicant, by virtue of the Co-operative Society having come into the position of the original landlord. She adverts to the fact that as a member of the Co-operative Society, the applicant would normally be precluded from parting with possession of the premises, save and except with the permission of the society. Mrs. Shenoy also points out that as far as a Co-operative Society and a member are concerned, that all disputes arising in relation thereto are required to be taken to a special forum viz, the Co-operative Court. She submits that in this view of the matter, it would certainly to open to the respondent to contend that the old title has been extinguished and replaced by an entirely new one and to that extent, section 43 would apply. Mrs. Shenoy has drawn my attention to two decisions, the first of them being a decision of the Supreme Court, reported in A.I.R. 1990 Supreme Court, page 1562, in the case of Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd & others, 1990(1) Bom.C.R. 796 S.C. The question before the Supreme Court in this case was as to whether a Society can proceed to evict a licensee occupying a flat in a tenant co-partnership Society since 1957 in a proceeding case, after considering the legal position, held that by virtue of the rights claimed by the licencee and by virtue of the fact that the licencee does not have anything to do with the Society, that the proceeding cannot be governed by the provisions of section 91 of the Maharashtra Co-operative Societies Act. The Supreme Court came to the conclusion that the rights and liabilities of the parties would have to be examined by the Court of Small Causes since protection under the provisions of the Rent Act was applicable. As far as the present proceeding is concerned, it has already been conclusively held that the licencee does not qualify for any protection under the provisions of the Rent Act and consequently, the decision, to my mind would not have any application to the facts of the present case. It is however, necessary to observe that in this and in several other decisions, the courts have unambiguously categorised the status of member of a Co-operative Society as that of a “tenant-owner”. The same is the position with regard to another Division Bench decision of this Court, reported in 1980, Maharashtra Law Journal, page 539 in the case of Contessa Knit Wear v. Udyog Mandir Co-operative Housing Society, 1980 Bom.C.R. 493, where in the Division Bench of this Court, while examining the jurisdiction of the Court of Small Causes in a case of the same type as, referred to by me in the earlier decision, held that the provisions of section 28 of the Rent Act are not attracted. We are not concerned with the remaining issues that fell for consideration in that case but the observations of the Court are clearly to the effect that the licencee cannot claim any protection from eviction by the Society independently of the member. In paragraph 6 of that judgment, the Court had occasion to examine the status of the member of the Co-operative Society and had occasion to observe that a member is referred to as tenant, and as such, his position is pari materia with that of a tenant.
19. As regards the final relief claimed by the petitioner in this case, Mr. Vishwanath, learned Counsel for the petitioner submits that if the impugned order is set aside, ipso facto, the applicant would be entitled to a warrant for possession. Mrs. Shenoy on the other hand submits that the earlier order passed by the Court on the strength of which the said warrrant came to be issued was set aside and that the High Court thereafter remanded the proceedings to the Trial Court. Mrs. Shenoy submits that it is incorrect to argue that it was a partial remand because once the order was set aside, that the entire matter was thrown open. She submits that the limited issue canvassed before the Court on the basis of which the impugned order is passed centered around section 43, its applicability, etc. She submits that there are several other grounds on which the respondent would be entitled to resist the warrant of possession and consequently, it is her application that even if the impugned order is set aside, the matter be remanded to the trial Court to hear the parties and thereafter decide as to whether the warrant of possession is liable to be issued. To my mind, this application cannot be granted because the limited issue on which the remand has been made to the trial Court centered around the applicability of section 43. That issue has now been decided by this Court and, therefore, the petitioner herein who is the original applicant would, as a necessary consequence, be eligible to execute the order and obtain possession of the premises. It would not be open to the trial Court to entertain any challenge from the respondent at this point of time.
20. Mrs. Shenoy prays that the respondent be granted sufficient time to consider her position in law and if so advised, to present an appeal to the Supreme Court against this order.
21. This case involves the interpretation of section 43 and the respondent is certainly entitled to test the correctness or otherwise of this order before the Supreme Court, if she so desires. For this purpose, the respondent is granted time of 12 weeks from the date on which the certified copy of this judgment is ready for delivery. This presupposes the fact that the application for the certified copy will be made forthwith and that expedition orders will be obtained by the respondent or her learned Counsel. On expiry of the aforesaid period, if there is no stay order from the Supreme Court, the trial Court shall execute the warrant of possession.
22. Before parting with this judgment, it is necessary to advert to another aspect of the case which is of consequence. Mr. Vishwanath made bitter grievance of the fact that the applicant who is the wife a Service Officer has been made to litigate for the recovery of possession of part of her own flat for 16 years and that his client is left with a bitter experience. He admitted that this is not a proceeding under section 13(A)(1) of the Rent Act, which makes a special provision for the recovery of premises belonging to Service Officers without going through the otherwise cumbersome procedures prescribed under the Rent Act. He stated that the Court should not have lost sight of the fact that the law has made a special provision for persons belonging to this category. It was his submission that in these circumstances, a Court must necessarily take cognizance of the special status of such a litigant and consequently, the time factor should be cut down to the minimum and the recovery of possession ordered without allowing any frivolous or time wasting proceedings to come in the way. There is much substance in these submissions particularly, in view of the fact that this High Court and the Supreme Court have upheld the position in law that making special provision for a special class of persons to which Service Officer belong is constitutionally valid and justified. The fact that the application was made not under that special provision, to my mind would not make much difference in the approach which a Court must necessarily adopt to a litigation which falls into that category. It would be useful for the trial Courts dealing with such cases to bear these special features in mind, particularly since the attempt in many quarters is to protract the litigation, to dilate it and to carry on for decades through Court proceedings which retired service personnel can barely afford to withstand. The objective at all times must be to uphold the spirit of the law and not to allow it to be frustrated.
23. For the reasons indicated above, the order under challenge is liable to be set aside. The petition is accordingly allowed. The judgment and order of the Court Small Causes, dated 24th January 1983 is consequently set aside. Rule is made absolute in terms of prayer (a). In the circumstances of the case, there shall be no order as to costs.