1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.101 OF 2010 Rajendra D. Akhade & Ors. ...Applicants. v. Mr. Jashwant P. Thacker (Deceased) & Anr. ...Respondents. Mr. Atul G. Damle, adv. For the Applicants. Mr.P.K.Dhakephalkar i/by Sachin U. Dhakephalkar, advs. For the Respondent No.5. CORAM : J.H. BHATIA, J. DATED : APRIL 5, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 Respondents filed suit no.499/545 of 1987 as trustees of the Willingdon Sports Club for eviction and possession of the suit premises situated on the land of the said club. According to them, defendant Shankar, who was the predecessor of the present applicants was employed to work as Hamal in the club in the year 1958 and then he was promoted as head attendant at the swimming pool of the club. The suit premises being a hut, was given to him as a servant's quarter. He continued to be in service till 1st February, 1986. After giving resignation of the employment of the club, he was required to vacate the service quarter by the end of February, 1986 which he did not. Therefore, 2 a letter dated 7th March, 1986 was written by the plaintiffs to vacate the same but in vain. The defendant admitted that he was in the employment of the club and had resigned from the service with effect from 1st February, 1986 but he denied that the suit premises were allotted to him as service accommodation. According to him, he was allowed to erect a hut on the open land since prior to 1973. He also paid rent or compensation at the rate of Rs.20/- per month and it was deducted from his salary. According to him, if he,being a licensee, is protected under the law. He also challenges the jurisdiction of the Small Cause Court. 4 Several issues were framed and the trial Court came to conclusion that the Small Cause Court had no jurisdiction to entertain suit for eviction against licensee. The trial Court held that he was licensee however, the suit came to be dismissed. Against dismissal of the suit, plaintiff preferred Appeal No.798/04. The Appellate Court held that the Small Cause Court had jurisdiction to entertain the suit. It also held that original defendant was a licensee and the plaintiffs were entitled to recover vacant and peaceful possession of the premises from the defendant. Accordingly, appeal was allowed. Suit was decreed with the direction that the defendant should hand over vacant and peaceful possession of the suit premises on or before 1st March, 2010 and shall 3 pay compensation of Rs.5,700/-, and inquiry regarding mesne profits from the date of suit till recovery of possession of the suit premises was directed under Order 20 Rule 12(1)(c). 5 At the outset, it may be stated that it is well settled by the decision of the full bench of this Court in Prabhudas D. Kotecha and Ors. v. Smt. Manharbala J. Damodar 2007(4) ALL MR 651 that the Small Cause Court has jurisdiction to entertain the suit for eviction against the licensee including gratuitous licensee. Therefore, that question is answered. 6 The learned counsel for the revision applicants, who are the legal heirs of the original defendant raised two points. Firstly, according to him, suit itself was not tenable because three persons had filed suit claiming to be the trustees of the Willingdon Sports Club but as it is proved that the said club was not registered as trust, they have no authority to file the suit and, therefore, suit is liable to be dismissed. In paragraph 1 of the plaint, they had claimed that they were trustees of the Willingdon Sports Club and all the assets and liabilities of the Willingdon Sports Club were vested in the plaintiffs. In paragraph 3 of the plaint , they contended that the trustees were elected from time to time to represent the said club and by Rule 7 of the club, all the 4 properties of the club stand vested in the said trustees and they are also empowered to represent the said club in any legal proceeding and, therefore, they were entitled to file suit. Even though club is not registered as trust, it can be treated as an association of persons, who have come together with name as Willingdon Sports Club. Said association of persons had formulated certain rules for running the club and as per the rules they elect their representatives called as trustees and they are also empowered to represent said association of persons or members of the club in any legal proceeding. Therefore, they get the authority even to file suit or to defend the suit filed against the club. The First Appellate Court relied upon certain authorities including Mohamed Ibrahim Khan v. Shri Gajanan Rama Parab Gaonkar AIR 2006 BOMBAY Page 179 and Singhai Lalchand Jain (dead) v. Rashtriya Swayamsewak Sangh Panna & Ors. (1996) 3 SCC 149 In the case of Mohamed I. Khan (Supra), this Court had held that when a suit is filed in representative capacity for recovery of possession on behalf of the unregistered association of the members of the Muslim community, suit is maintainable under the law. In Singhai Lalchand Jain (Supra), the Supreme Court held that though no permission of the Court was taken under Order 1 Rule 8 of the CPC to be sued in a 5 representative capacity by or on behalf of the Sangh, but under Rule 8 (1)(b) of the Order 1 of CPC, it may sue or be sued. The defendant is sued on behalf of and for the benefit of all the persons, who are interested. In the present case the Willingdon Sports Club may be treated as association of persons, who had come together to form a club. They framed the rules in a way as if it is a trust and, therefore, even though it is not registered as a trust, said association of persons could sue or be sued and by their rules they had authorised their representatives, who are periodically elected as their trustees, to sue or be sued for and on behalf of the said club or members of the said club. Therefore, I do not see any substance in the contention of the learned counsel about the tenability of the suit. 7 The learned counsel for the revision applicants also contended that the deceased defendant was in occupation of the licensee since prior to 1st February, 1973 and, therefore, by virtue of provisions of section 15A, he would be deemed to have become tenant of the landlord in respect of the said premises.. It appears that even though a plea was taken in the written statement that he was paying occupation charges or compensation or rent @ Rs.20/- and the same was deducted from his salary, no such evidence has come before the Court, thereofore, 6 at the most , it can be held that he was gratuitous licensee. Licensee has been defined in Section 5(4)(A) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (In brief ‘Rent Act’). It clearly shows that for the purpose of said rent Act, licensee means the person who is in occupation of the premises under a subsisting agreement for license given for license fee or charge and naturally Section 15A gives protection to licensees as understood in section 5(4)(A). If it would have been proved that the deceased defendant was paying certain licence fee or occupation charges to the plaintiffs, he could be protected under Section 15(A) of the Rent Act. However, as it is proved that he was gratuitous licensee , he would not be entitled to protection under Section 15A. 8 Taking into consideration the facts and circumstances and the points raised by the learned Counsel for the revision applicants, I find no substance in the present revision application. I do not see any irregularity or illegality in the findings and the final order passed by the appellate Court, therefore, there is no reason to interfere in the impugned judgment and order. 7 9 For the aforesaid reasons, revision application stands dismissed. (J.H. BHATIA,J.)