IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1271 OF 2009 Ramdhani Jagnarayan Yadav ...Petitioner V/s. Ramnaresh Bacha Yadav (since deceased) 1.Hublal Ramnaresh Yadav & Ors. ...Respondents ...... Mr.R.D.Mishra for Petitioner. Mr.V.R.Tripathi for Respondent No.1. Mr.R.G.Dubey for Respondents 2 to 5. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 10, 2009. FEBRUARY 10, 2009. FEBRUARY 10, 2009. P.C. 1. Heard Counsel for the parties. 2. The only argument pressed before this Court is that the Court below has proceeded on erroneous assumption that the relationship of the parties was that of licensor and licensee. It is argued that the fact that the Petitioner was occupying premises along with the Respondents is a : 2 : common ground. If so, the status of the Petitioner would be that of a paying-guest and not of licensee. This argument is on the premiss that even the definition of licensee in Section 5(4A) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 excludes the paying guest. According to the Petitioner, therefore, the decision of the two Courts below though concurrent, is manifestly wrong. 3. The argument though attractive at the first blush, clearly overlooks the fact that no such plea is taken in the written statement. However, the case made out by the Petitioner is that he was joint tenant along with the Respondents. That case has been considered by the two Courts below and rejected. If the Petitioner wanted to assert that he was staying in the suit premises or occupying the same in the capacity of paying-guest, he ought to have taken that stand before the Trial Court in written statement at the first instance and produce evidence to substantiate that position. That is not the stand of the Petitioner. However, that argument is on the basis : 3 : of the allegation of the Respondents that though the Petitioner was allowed to occupy part of the suit premises along with the Respondents as licensee, he was refusing to vacate the same. Indeed, the Appellate Court has not distinguished the Judgment of the Apex Court on the above basis, however, the decision in the case of Surendra Kumar Surendra Kumar Surendra Kumar Jain v. Royce Pereira reported in AIR 1998 SC 394 Jain v. Royce Pereira reported in AIR 1998 SC 394 Jain v. Royce Pereira reported in AIR 1998 SC 394 pressed into service is of no avail in the fact situation of the present case. Hence, dismissed. 4. At this stage, Counsel for the Petitioner submits that in that case, Petitioner be granted time to vacate. The Petitioner is personally present in Court and is willing to abide by such conditions as may be imposed. As the Respondents agree to grant only six months time, it is ordered that Petitioner is granted time to vacate till 31st August 2009. The Petitioner shall file usual undertaking before this Court within two weeks from today, failing which, it will be open to the Respondents to proceed with the execution of the decree. : 4 : A.M.KHANWILKAR, J.