1 revp18-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.18 OF 2011 IN WRIT PETITION NO.2886 OF 1999 Babanlal Nanchand Shah & Ors. .. Petitioners V/s. Suryakant Somchand Shah & Ors. .. Respondents .... Mr. A. A. Kumbhakoni, a/w. Mr. Amit Boarkar for the petitioners. Mr. P. K. Dhakephalkar, Senior Counsel a/w. Mr. A. C. Shah for the respondents. .... CORAM : A.S.OKA, J. DATE : JUNE 30, 2011. ORAL JUDGMENT: Heard the learned counsel appearing for the Petitioners and the learned counsel appearing for the respondent Nos.1 to 3. The respondent Nos.1 to 3 are the original plaintiffs. The respondent No.4 is the original first defendant. The present review petitioners are the legal representatives of the original second defendant. 2. The case made out by the plaintiffs is that the deceased husband of the first defendant was the tenant of the suit 2 revp18-11 premises at the monthly rent of Rs.30/- with effect from 17th February, 1951. The husband of the first defendant died on 2nd December, 1974. It is alleged that after the death of the husband of the first defendant, the second defendant started carrying on business in the suit premises. The suit for eviction was filed by the plaintiffs under the provisions of the Bombay Rents Hotel and Lodging Houses Rates Control Act, 1947 (hereinafter referred to “the said Act”) on various grounds urged therein. The case of the plaintiffs is that the first defendant committed breach of the terms and conditions of the tenancy and that the first defendant was the defaulter. Grounds of non user and bonafide need were also pleaded by the plaintiffs. Both the first and second defendants contested the suit by filing their respective written statements. The contention of the first defendant was that her deceased husband being the elder brother of the second defendant had taken the suit premises on rent for the business purposes of the second defendant. It is contended that right from the date of creation of the tenancy, it was the second defendant who was carrying on business in the suit premises. In the written statement filed by the second defendant, it was contended that from the year 1951, the second defendant is in possession of the suit premises as the licensee of the deceased husband of 3 revp18-11 the first defendant. 3. The trial Court framed various issues. The trial Court decreed the suit. The trial Court disbelieved the case of the second defendant that he was occupying the suit premises as a licensee of the deceased husband of the first defendant. The trial Court held that the second defendant was not entitled to protection of Section 15A of the said Act. The trial Court passed a decree for possession. The decree of possession was challenged by the second defendant by preferring an Appeal. The Appeal was allowed by the District Court and the decree was set aside by holding that the second defendant was in possession of the suit premises on 1st February, 1973 on the basis of a subsisting licence and therefore he become a deemed tenant of the said premises in accordance with Section 15A of the said Act. 4. Writ Petition No.2886 of 1999 was filed by the plaintiffs for challenging the decree of the Appellate Court. By the Judgment and order dated 16th February, 2010, the said petition under Article 227 of the Constitution of India was partly allowed by setting aside the finding recorded on the issue as to whether the second defendant was holding the 4 revp18-11 premises under a subsisting licence on 1st February, 1973. However, as the Appellate Court had not recorded the findings on merits of the grounds of eviction, the matter was relegated to the Appellate Court. Only the issue regarding deemed tenancy claimed by the second defendant was decided by this Court against the second defendant. It must be noted here that on the basis of the Judgment and order passed in writ petition, the District Court has already decided the Appeal finally by Judgment and Order dated 10th August, 2010 by confirming the decree of possession passed by the trial Court. A Revision Application has been already preferred against the said Judgment and decree by the Review Petitioners which is pending in this Court. 5. The grounds urged in support of the Review Petition relate to paragraph Nos.6 to 8 of the Judgment in the Writ Petition. The said paragraphs read thus: “6. I have given careful consideration to the submissions. Sections 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 5 revp18-11 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 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 bears 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 6 revp18-11 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 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 the 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.” 6. The learned counsel appearing for the review petitioners submitted that there is an error apparent on the face of the record in as much as in the written statement filed by the second defendant there was a specific plea that the licence fee payable by the second defendant of Rs.30/- per month was paid by him directly to the landlord towards the rent in respect 7 revp18-11 of the suit premises payable by the husband of the first defendant. The learned counsel appearing for the review petitioners submitted that the said pleading in the written statement has been specifically made in paragraph No.1 thereof. He submitted that thus there is an error apparent on the face of the record in as much as this Court has held that there was no such plea raised in the written statement. He submitted that as the said plea was raised, the Judgment is required to be reviewed. 6. I have carefully considered the submissions. The first aspect noted by the Court is that there is no pleading in the written statement of the first defendant that the second defendant was a licensee inducted by the husband of the first defendant for a licence fee or charge. The case made out by the first defendant in the written statement was that her husband had taken the suit premises on rent for the benefit of the second defendant. In paragraph No.6, this Court has noted that the specific case made out by the second defendant was that he was paying licence fees of Rs.30/- per month to the deceased husband of the first respondent. The contention raised in paragraph No.1 of the written statement of the second defendant are two fold. First is that from the year 8 revp18-11 1951, the second defendant was paying the licence fees of Rs. 30/- per month to the husband of the first defendant and after his demise to the first defendant. The second contention is that the licence fee of Rs.30/- was being directly paid by the second defendant to the lalndlord towards the rent in respect of the suit premises. In the deposition of the second defendant he initially stated that he used to pay the licence fees of Rs. 30/- per month to the husband of the defendant No.1. Thereafter, in the next sentence he stated that “I again say I used to pay it to landlord at the instance of my brother towards rent”. This statement shows that the second defendant gave up his case that he was initially paying the licence fee to the husband of the first defendant and corrected himself by saying that he used to pay the amount directly to the landlord. The first statement which is referred to in the written statement of the second defendant is that the licence fee was initially being paid by him to his brother and after his demise to the first defendant. Apart from this, there is a clear finding recorded that there is no evidence to show that a sum of Rs. 30/- per month was regularly paid by the second defendant to the plaintiffs. 7. Thus, there is no error apparent on the face of the record. There is no ground for review. Hence, the review 9 revp18-11 petition is rejected. 8. The learned counsel appearing for the review petitioners prays that the hearing of the Revision Application may be deferred as the review petitioners intend to challenge the order passed in the Review Petition. 9. Hence, hearing of the Revision Application is deferred till 9th August, 2011. 10. Decree for possession shall not be executed till then. (A.S.OKA, J.)