1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2886 OF 1999 Suryakant Somchand Shah & Ors. .. Petitioners versus Smt.Ma Kamalabai S. Shah & Ors. .. Respondents Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.A.C.Shah i/by Mr.R.M.Pethe for the petitioners. None for the respondents. CORAM : A.S.OKA, J. DATE : 16th February 2010. JUDGMENT: . This writ petition was called out for final hearing yesterday. I have heard the submissions of the learned senior counsel appearing for the petitioners. The judgment was not delivered yesterday as none appeared for the contesting respondents. Today when the petition is called out, none appears for the respondents. 2. This petition under Article 227 of the Constitution of India arises out of suit for possession filed by the petitioners. The suit relates to a premises more particularly described in paragraph 2 of the plaint. It is alleged in the plaint that the suit premises were let out to the deceased husband of the 1st respondent at the monthly rent of Rs.30/- with effect from 17th February 1951. The allegation made in the suit is that the husband of the 1st respondent died on 2nd December 2 1974. Till his death, the husband of the 1st respondent was carrying on business in the suit premises. It is alleged that after the demise of the husband of the 1st respondent, in connivance with the 1st respondent , the 2nd respondent started carrying on business in the suit premises. However, the suit premises has been kept closed for a period of four to five years before the date of institution of the suit. The suit is filed by the petitioners for eviction under the provisions of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) on various grounds such as breach of terms and conditions of the tenancy, arrears of rent, bonafide requirement etc. 3. The suit was contested by the 1st respondent by filing written statement. It was contended in the written statement that the deceased husband of the 1st respondent being elder brother of the 2nd respondent ,had taken the suit premises on rent for the business purposes of the 2nd respondent. It is alleged that since date of creation of tenancy i.e from 1951 it is the 2nd respondent who is carrying on business in the suit premises. In paragraph 4 of the written statement it is reiterated that the suit premises has been taken on rent by the deceased husband of the 1st respondent for the benefit of the 2nd respondent. In the written statement filed by the 2nd respondent it was contended that from the year 1951 he is in possession of the suit premises as the licensee of his elder brother i.e the husband of the 1st respondent. 4. The trial Court framed various issues including an issue whether the 2nd respondent is entitled to protection of section 15A of the said Act. The trial Court 3 held the said issue against the 2nd respondent and proceeded to pass a decree for possession. The trial Court dealt with the case made out by the 1st and 2nd respondents at the time of recording of evidence that the 2nd respondent was paying monthly rent directly to the landlord. The trial Court held that the 2nd respondent was carrying on business in the suit premises since prior to 1973. However, the trial Court disbelieved the case of the 2nd respondent that he was occupying the suit premises as a licensee of the deceased husband of the 1st respondent. An appeal was preferred against the decree by the 2nd respondent. By the impugned judgment and decree ,the Appellate Court has set aside the decree for possession by holding that the 2nd respondent was in possession of the suit premises on 1st February 1973 on the basis of a subsisting licence and therefore he has become a deemed tenant. 5. The learned senior counsel appearing for petitioners has taken me through the impugned judgment, pleadings and evidence on record. The case made out by the 1st respondent was that the premises were taken on rent by the 1st respondent husband for the benefit of the 2nd respondent. He pointed out that there is no finding recorded that any licence fee was being paid by the 2nd respondent to the 1st respondent. He submitted that an altogether new case was made out at the time of evidence that the 2nd respondent was paying monthly rent in respect of the suit premises to the petitioners. He submitted that there is no evidence adduced by the 2nd respondent to show that the monthly rent was being paid by him directly to the landlords. Inviting my attention to the findings recorded 4 by the Appellate Court he submitted that mere possession on 1st February 1973 is not sufficient to apply section 15A of the said Act. He submitted that the findings recorded by the Appellate Court are inconsistent with each other and the same are perverse. He pointed out that the Appellate Court has recorded a finding that the licence fee was paid by the 2nd respondent in the form of rent to the landlord. He, therefore, submitted that the impugned judgment and decree of the Appellate Court deserves to be set aside and the decree passed by the trial Court will have to be restored. 6. I have given careful consideration to the submissions. Section 15A of the said Act provides that if any person on 1st February 1973 is in occupation of any premises as a licensee, he shall on that date be deemed to have become for the purpose of the said Act the tenant of the landlord in respect of the premises in his possession. Sub-section 4A of section 5 of the said Act defines “licensee”. Under sub-section 4A , “licensee” means a person who is in occupation of the premises under a subsisting agreement for licence given for a licence fee or charge. Therefore, for applying section 15A ,as on 1st February 1973 the person must be in possession of any property under subsisting agreement for licence which is given for a licence fee or charge. Thus, a gratuitous licensee is excluded from definition of “licensee” under sub-section 4A of section 5 of the said Act. In the written statement of the 1st defendant the specific case made out by the 1st defendant/1st respondent is that her husband had taken the premises on rent for the benefit of the 2nd respondent and that the 2nd respondent used to pay the rent 5 in respect of the suit premises to the petitioners. There is no pleading in the written statement of the 1st respondent that the 2nd respondent was a licensee inducted by her husband for licence fee or charge. Perusal of the written statement filed by the 2nd respondent shows that his contention is that he is in possession of the suit premises from the year 1951 as a licensee of his brother (deceased husband of the 1st respondent). It is further stated that since the year 1951 the 2nd respondent was paying licence fee of Rs.30/- per month to the deceased husband of the 1st respondent and thereafter to the 1st respondent. 7. The 2nd respondent stepped into witness box. In the examination-in-chief he stated thus: “ ..... My brother had obtained the suit premises on rent for me and allowed me to occupy it as his licensee. I used to pay licence fee at Rs. 30/- per month to my brother. I again say I used to pay it to landlord at the instance of my brother towards rent. The counterfoils in the rent receipt books bear my signature. I am tenant of the suit premises. No notice was given to me by the landlord for vacating the suit premises. ....” 8. Thus, the case made out in the written statement was changed by the 2nd respondent by contending that licence fee of Rs.30/- per month was paid by him to the landlord towards rent payable by his brother. The specific case in the written statement was that the 2nd respondent was paying licence fee to the deceased husband of the 1st respondent and thereafter to the 1st respondent. Thus, altogether a new case was made out in his evidence by the 2nd respondent that he was paying the amount of licence fee payable to the 1st respondent 6 directly to the landlord towards the rent in respect of the suit premises. At this stage, it must be noted that the 1st respondent has not come out with a case that the 2nd respondent was her licensee. There is no evidence adduced by the 2nd respondent to show that at any time licence fee was paid by him either to the deceased husband of the 1st respondent or to the 1st respondent. That was the specific case of the 2nd respondent in his written statement. But in the examination-in-chief he has not come out with a case that licence fee was paid by him to the 1st respondent or to her husband during his lifetime. The Appellate Court has recorded a finding that licence fee was paid in the form of rent by the 2nd respondent. Such a case was never made out by the 2nd respondent in the pleadings. Moreover, there is no evidence placed on record to show that at any time the 2nd respondent had paid licence fees to the 1st respondent or to her husband. There is no evidence to show that sum of Rs.30/- per month was paid regularly by the 2nd respondent to the petitioners and that the said amount was in fact payable by him to the 1st respondent as a licence fee. Therefore, apart from the fact that the existence of licence in favour of the 2nd respondent is not established, even assuming that the 2nd respondent is licensee, he has not proved that the licence was for a licence fee or a charge. Therefore, the findings recorded by the Appellate Court on this aspect are perverse and the 2nd respondent cannot be a licensee within the meaning of sub-section 4A of section 5 of the said Act. 9. The decree has been set aside by the Appellate Court on the ground that 7 there was no notice issued by the petitioners to the 2nd respondent who was the real tenant. Even the ground of bonafide requirement has been negatived without considering or without adverting to the evidence on record. Therefore, the only the course open to this Court is to set aside the impugned judgment and decree and to remand the appeal to the Appellate Court for deciding the same in accordance with law. However, the issue regarding applicability of section 15A stands concluded and it is held that the 2nd respondent has not proved that he was in possession of the suit premises on 1st February 1973 under a subsisting licence for a licence fee or charge. Therefore, the Appellate Court will have to go into merits of the decree passed by the trial Court. The contention of the learned senior counsel appearing for the petitioners was that the 2nd respondent has no locus to challenge the decree passed by the trial Court. However, that aspect will have to be agitated before the Appellate Court. 10. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and decree dated 16th October 1998 is quashed and set aside and Civil Appeal No.586 of 1991 is restored to the file of the District Court. (b) It is made clear that issue No.2 framed by the trial Court stands answered against the 2nd respondent and the contention based on issue No.2 will not remain open. (c) The Appellate Court will decide the appeal afresh on merits as 8 expeditiously as possible and in any event the appeal shall be disposed of within a period of four months from the date on which writ of this order is received by the Appellate Court. (d) Rule is made partly absolute in above terms with no orders as to costs. (e) Civil Application No.591 of 2005 does not survive and the same is disposed of. (f) Record and Proceedings to be sent to the trial Court immediately. (A.S.OKA,J)