Full Judgment Text
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PETITIONER:
LILAWATI H. HIRANANDANI
Vs.
RESPONDENT:
USHA TANDON
DATE OF JUDGMENT20/10/1995
BENCH:
PARIPOORNAN, K.S.(J)
BENCH:
PARIPOORNAN, K.S.(J)
KULDIP SINGH (J)
CITATION:
1996 AIR 441 1995 SCC Supl. (4) 158
JT 1995 (7) 386 1995 SCALE (6)115
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
PARIPOORNAN, J.
The original respondent in Ejectment Application No.
149/929/E of 1965 in the Court of Small Causes at Bombay --
respondent in Writ Petition No. 1823/83 (hereinafter
referred to as ’the original respondent’), is the appellant
in this appeal. The original applicant in the said Ejectment
Application -- petitioner in Writ Petition No. 1823/83
(hereinafter referred to as ’the original applicant’), is
the respondent in this appeal. The matter arises in
connection with the eviction of the original respondent from
the premises, comprised in flat No. 36. 36, Block No. 30-C,
27-A, Mazgaon Terrace. One Sri Syed Abdul Hamid Kadri was
the owner of the entire building. The original applicant was
a tenant under Shri Kadri long before 1965. The property was
mortgaged to a trust. Pursuant to some litigation, the
property was put up for auction on 6.10.1965. Prior to this
auction, on 14.8.1965, the tenants of the flat formed a
Society called Mazgaon Terrace Co-operative Housing Society
Ltd. The entire building in question was purchased by the
society. The original applicant became a member of the
society on 26.9.1965. It is stated that the flat covered by
the ejectment application was allotted to the original
applicant.
2. The original applicant gave a licence over a portion
of the flat in her possession to the original respondent. By
notice dated 3.8.1966, the licence was terminated. On
29.11.1966, the ejectment application was filed under
Section 41 of the Presidency Small Cause Courts Act, 1882
(herelnafter referred to as ’the Act’). In the said
proceedings, the original respondent claimed the benefit of
Section 42A -- the right of tenancy. The Court repelled the
said plea by order dated 17.8.1973. The appeal filed from
the aforesaid order, was dismissed on 18.10.1977.
Thereafter, the original respondent raised an objection
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under Section 43 of the Act,contending that the applicant is
not entitled to file the application under Section 41 of the
Act. By order dated 17.7.1978, the Court of Small Causes,
Bombay rejected the said plea relying on its earlier order
dated 17.8.1973 passed under Section 42A of the Act. The
original respondent filed special civil application No.
2268/78 before the Bombay High Court and assailed the orders
passed under Section 42A as well as under Section 43 of the
Act. Masodkar, J., by judgment dated 6th of October, 1982
ordered a remit of the matter, for a fresh consideration.
The learned Judge held that the plea of the original
respondent under Section 43 of the Act should be considered
afresh and in case of rejection of the said defence, it is
open to the original respondent to challenge the orders made
under passed the order dated 24.1.1983 holding that the
application filed under Section 41 of the Act by the
applicant is not maintainable since the initial title of the
applicant asa tenant has come to an end. The original
applicant filed Writ Petition No. 1823/83 before the High
Court of Bombay and assailed the order of the trial court
dated 21. 4. 1991, the learned single Judge of the Bombay
High Court set aside the judgment and order passed by the
Small Causes Court dated 21.4.1983 and allowed the
application filed by the original applicant. The original
respondent after having obtained special leave in Special
Leave Petition (Civil) No. 5509 of 1992, has filed this
civil appeal.
3. We heard counsel. Mr. Harish Salve, Senior Counsel
appearing for the appellant, raised two contentions. They
are : (i) the orginal applicant had given a licence to the
original respondent while she was a tenant of Sri Kadri and
when she became a tenant member of the society, her old
status came to an end, and so, she is disqualified under
Section 43 of the Act for obtaining a decree from the Court,
and (ii) by the judgment in Special Civil Application No.
2268/78 dated 6.10.1982 the Court had directed that in case
the plea of the original respondent under Section 43 of the
Act fails, the challenge to the orders made under Section
42A is open. In the judgment impugned in this appeal, the
learned single Judge was in error in stating that the
challenge to the orders passed under Section 42A cannot be
entertained. On the other hand, Counsel for the respondent
submitted that the judgment passed by the learned single
Judge rejecting the plea made under Section 43 of the Act,
is justified. It was further submitted that the plea made by
the original applicant under Section 42A of the Act has no
substance.
4. In order to adjudicate the controversy raised in this
case, it will be useful to bear in mind the relevant
provisions of the Presidency Small Cause Courts Act of 1882
(Act 15 of 1882) :
.41. "When any person has had possession
of any immovable property situate within
the local limits of the Small Cause
Court’s jurisdictions and of which the
annual value at a rack-rent does not
exceed two thousand rupees, as the
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 or any
person holding under or by assignment
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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."
S.42A. "Procedure where occupant
contests as a lawful tenant, etc:- (1)
If in any application pending in the
Small Cause Court immediately before the
date of commencement of the Presidency
Small Cause Courts (Maharashtra
Amendment) Act, 1963, or made to it on
or after such date, the occupant appears
at the time appointed and claims that he
is a tenant of the applicant within the
meaning of the Bombay Rents, Hotel and
lodging House Rates Control Act, 1947
and in consequence whereof he is
entitled to the protection of that Act,
and if such claim is not admitted by the
applicant. then notwithstanding anything
contained in that Act the question shall
be decided by the Small Cause Court as a
preliminary issue.
2) An appeal against the decision on
the issue shall lief to a Bench of two
Judges of the Small Cause Court."
S.43. "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."
S.47. "Whenever on an application being
made under section 41 the occupant binds
himself, with two sureties, in a bond
for such amount as the Small Cause Court
thinks reasonable, having regard to the
value of the property and the probable
costs of the suit next hereinafter
mentioned, to institute without delay a
suit in the High Court against the
applicant for compensation for trespass
and to pay all the costs of such suit in
case he does not prosecute the same or
in case judgment therein is given for
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the applicant, the Small Cause Court
shall stay the proceedings on such
application until such suit is disposed
of.
If the occupant obtains a decree in
any such suit against the applicant,
such decree shall supersede the order
(if any) made under section 43.
Nothing contained in section 22 shall
apply to suits under this section."
5. There was some discussion as to whether the original
applicant gave a declaration to the society regarding the
surrender of the earlier tenancy in exchange for the
conferment of (tenant) membership of the newly formed
Cooperative Society. The learned single Judge held that the
evidence on this aspect is inconclusive. The matter was not
pursued thereafter by both the parties. The question which
arises for consideration is as to whether the application
filed by the original applicant is maintainable when she
became a tenant-member of the society. The learned single
Judge held that the tenancy of the original applicant has
only changed colour by virtue of the society stepping into
the shoes of the original landlord, Shri Kadri, that the
original applicant did not cease to be a tenant, that there
is no legal determination of the tenancy of the original
applicant, that the original applicant has not sold or
disposed of the premises but continued in possession of the
same. It is only the ownership of the building that has
changed and the original applicant tenant, became a part
owner, by the membership in the society in respect of the
same premises and her tenancy had not been determined. The
tenancy has not ended or ceased or terminated or
extinguished. In this view of the matter, the learned single
Judge held that explanation to Section 43 is inapplicable to
the instant case, and the plea of the original respondent
stating that the title of the applicant has been determined,
is without force. the learned single Judge declined to go
into the question whether the provisions of Section 42A of
the Act are applicable as in his opinion the matter was
concluded by the earlier order.
6. We are of opinion that the original respondent
(appellant herein) (occupant) has failed to show that the
permission granted by virtue of a title was determined
previous to the date of the application. the appellant has
failed to show cause within the meaning of Section 43 of the
Act and the learned single Judge was justified in holding
so. The crucial words in the explanation to Section 43 of
the Act to the effect that the "permission granted by virtue
of the title which determined precious to the date of the
application. The appellant has failed show cause within the
meaning of Section 43 of the Act and the learned single
Judge was justified in holding so. The crucial words in the
explanation to Section 43 of the Act to the effect that the
"permission granted by virtue of a title which determined
precious to the date of the application" predicate that the
status of the grantor, (the original applicant) should have
been terminated or should have come to an end or ceased or
concluded to say that the original applicant, admittedly a
tenant of the owner, Sri Kadri, ceased to have tenancy
right, when the building came to be owned by the society
wherein the applicant became a part-owner. The title of the
original applicant became "enlarged" or augmented and was
not determined.
7. The appellant’s counsel placed considerable reliance
on the decision of the Bombay High Court in K.M. Motwani v.
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Albert Sequeira and Another (AIR 1960 Bombay 18) to contend
that the title of the original applicant was determined when
she became a part-owner of the society. In that case, the
second respondent landlord let out the premises to one
Robert Nicolas prior to 1947. On 1.12.1947 Nicolas, sub-let
the premises to the first respondent. In October, 1948, the
first respondent granted a licence to the appellant in the
said appeal. The second respondent landlord filed a suit for
eviction against Nicolas which was decreed in 1950. The
legal effect flowing from the said decree was that the
tenancy granted to Nicolas was determined. It was
terminated. By such termination, the sub-tenancy granted to
the first respondent and the licence granted to the
appellant also came to an end. The appellant licensee
obstructed when the second respondent landlord initiated
execution. On 13.9.1950, the appellant and second
respondent-landlord came to an agreement wherein the
appellant was recognised as a tenant. Thereafter, the first
respondent - sub-tenant filed an application under Section
41 of the Act against the appellant and obtained an order.
the appellant filed a suit under Section 47 of the Act,
stating that the order obtained by the first respondent
under Section 41 of the Act resulted in trespass. The trial
Court dismissed the suit. The high Court of Bombay allowed
the appeal. the High Court found that the right of sub-
tenant, the first respondent, came to an end when a decree
was passed against Nicolas, the tenant. The title of the
first respondent - but-tenant by which he gave the licence
to the appellant was ’determined’ as soon as the tenancy of
Nicolas came to an end. The said decision is distingushable
on facts. We are of the view that there is no determination
or extinguishment or termination of the tenancy rights of
the original applicant in this case, as it happened in the
decision reported in AIR 1960 Bombay 18. It is true that the
Court also observed that if an application under Chapter VII
can be maintained by a person not under an original title
but under a different or subsequent title, then the Small
Causes Court would have to go into the question of title and
that is exactly what the Legislature wanted to prevent and
it was clear that it was not contemplated by the Legislature
that under Chapter VII of the Small Cause Courts Act the
Court should go into difficult questions of title. The said
decision was rendered before the amendment inserted by
Maharashtra Amendment Act (Act 41 of 1963) whereby Section
42A was brought into force from 1.1.1964. Section 42A of the
Act mandates that if in an application (filed under section
41) pending in the Small Cause Court, the occupant claims
that he is a tenant of the applicant under the Rent Control
Act and so entitled to the protection of that Act, and if
such claim is not admitted by the applicant, the question
shall be decided by the Small Cause Court as a preliminary
issue. The decision is subject to an appeal to a bench of
two Judges of the Small Cause Court. After insertion of
Section 42A in Chapter VII, it is envisaged that complicated
questions regarding title should be adjudicated by the Small
Cause Court in certain cases. To a limited extent, the
scheme of Chapter VII of the has been altered or changed.
So, the broad observations in AIR 1980 Bombay 18, regarding
the scope and the intention of the legislature with respect
to the scheme envisaged by Chapter VII of the Act may
require a second look, in an apporpriate case.
8. The second and only other contention raised by Mr.
Salve, Senior Counsel, was that the applicability of Section
42A of the Act should have been considered by the learned
single Judge. It is true that the said plea was not
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considered. We informed Counsel that since this matter is
pending for nearly 30 years, we will ourselves consider the
matter. The plea was that the appellant (the original
respondent) is a tenant under the Rent Control Act and not a
licensee and, so the matter requires investigation and
adjudication. Our attention was invited to a letter written
by the original respondent to the applicant dated 22nd July,
1958 appearing at page 126 of the paperbook. The
communication of the original respondent addressed to the
applicant states thus :-
"To
Usha Tandon alias Mrs. Usha Gopalan,
Dear Madam,
Re: Premises in "Mazagaon Terrace" at Mazagaon.
I hereby record that at my request and
earnest entraties you have been kind
enough to me to permit to me to occupy a
part of your flat No. 30/36 in "Mazagaon
Terrace" Situated at Mazagaon, which
part consists of one hall, one bed-room
and one store room as your licencee only
with intent that no right or interest
whatsoever in the said premises or any
part thereof is created in my favour.
I hereby further record that I shall at
any time whenever required you and
without any objection or hinderance
whatsoever, vacate and give quiet and
peaceful possession of the said premises
to you, but in that event you will
inform me at least a month before.
Yours faithfully
(Emphasis supplied)
The nomenclature or the label for the arrangement is
unambiguous. It is only a ’licence’. The appellant sought
permission of the original applicant to occupy a portion of
the flat belonging to the original applicant. No right, or
interest whatsoever in the said premises or any part thereof
is appellant also undertook to vacate the building and to
give quite possession to the applicant at any time when
required to do so. All that was stipulated was that the
information should be given one month before it is so
required. The document is clear. Act was in existence ever-
since 1947. The appellant (the original respondent) as well
as the applicant were aware or should be deemed to be aware
of the prevailing state of law. The chose to call the
arrangement as a "licence". Permission was sought to occupy
a part of the flat an it was given. In our opinion, the
specific label or nomenclature of the arrangement and the
contents of the communication, should conclude the matter.
It is idle for the appellant to contend that she is entitled
to the protection of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 as a tenant. We are of the
view that the plea based on the section 42A of the Act is
without substance and we repel the same. Our above reasoning
and conclusion are in accord with the Bench decision of this
court in Swarn Singh vs. Madan Singh (1995 Supp (1) SCC
306). No other point was raised in the appeal. We affirm the
judgment of the learned single Judge dated 28.11.1991 and
dismiss this appeal. However, there shall be no order as to
costs in this appeal.