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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.