1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.1036/2008 Smt.Muli Mava Chawda and others. ..Appellants -VERSUS- Kamleshsingh Harnamsingh Chouhan. ..Respondent ......... Mr.Karl Tamboli, Advocate i/b M.P.Vashi & Associates, for the Appellants. Mr.Vivek Kantawala with Ms.Martha Butada, Advocates i/b Vivek Kantawala & Associates, for the Respondent. .......... CORAM : A.P.DESHPANDE, J. DATED : 04th APRIL, 2009. P.C. : 1. In view of the order passed by the Supreme Court while disposing of Special Leave Petition No.488/2009, the present First Appeal was granted precedence and by the consent of the parties the same was heard and is being disposed of by this order. 2. The present appeal is filed by the Appellants/Defendants against whom the suit for mandatory injunction is decreed by the City Civil Court by judgment and decree dated 05.04.2008 and direction has been issued to hand over the possession to the Respondent. 2 3. The Respondent instituted a suit for possession by terming the same as suit for mandatory injunction and thereby, claimed possession of the premises in occupation of the present Appellants. According to the Respondent/Plaintiff, he is the co-owner and joint authorized Manager of Lalsingh Mansingh Building. The original Defendant Mava Kala Chawda was employed as a sweeper by the Plaintiff' s predecessors for cleaning the toilet blocks, passage and staircases of the said building. The Plaintiff has averred in the plaint that Lalsingh Mansigh Building is huge structure having more than 100 tenements, hence, the Plaintiff felt that it is absolutely necessary that the sweeper looks after the said building round the clock. It is then averred that the Defendant who was working as sweeper was allowed to occupy the empty space at the rear side end of the common passage, A Wing side, by the side of sanitary block on the first floor of Lalsingh Mansingh Building and the said premises constitute the suit premises. 4. On own showing of the Plaintiff, occupation/possession of the Defendant is permissive possession as the Defendant was permitted to occupy the premises with a view to facilitate availability of the Defendant's services round the clock for cleaning and sweeping. Perusal of the paragraph No.1 of the plaint further reveals that the Defendant was using the municipal water from the tap installed in the bathroom of the sanitary block free of charge. It is then stated that no charges were recovered from the Defendant in respect of the suit 3 premises allowed to be occupied by the Defendant. Thus, crux of the Plaintiff' s case is that the Defendant was allowed to occupy the suit premises without charging any rent from him with a view to secure round the clock services for sweeping and cleaning. 5. The said case of the Plaintiff was opposed by the Defendant by contending that he was inducted in the suit premises as tenant and that sum of Rs.25/- were deducted from the salary payable by the Plaintiff to the Defendant. The case sought to be made out by the Defendant about he being the tenant and the rent being deducted from the salary payable by the Plaintiff to the Defendant has been rejected by the Trial Court and rightly so in my view. The Defendant has utterly failed to establish that any rent was being paid in consideration of occupying the premises in question. Thus, on facts the Plaintiff succeeds in establishing the averments made in paragraph No.1 of the plaint which are reproduced herein above. 6. One circumstance which needs to be mentioned at the outset and which has some bearing on the controversial issues raised in the appeal is that the Defendant raised a preliminary objection to the maintainability of the suit before the Trial Court (City Civil Court) and urged the Trial Court to frame the preliminary issue. Following preliminary issue was framed by the Trial Court (City Civil Court):- “Whether, this Court has jurisdiction to entertain and try the suit?” 4 7. The relevant facts, which gave rise to framing of the preliminary issue, are that the Plaintiff claimed that the Defendant who was employed earlier as sweeper stopped the work of sweeping and cleaning since October 1985 on the ground that he was being paid insufficient salary and thus, the Defendant becomes trespasser. Touching this aspect of the matter, it is case of the Defendant that though he ceased to be the employee working as sweeper and cleaner in the building, his occupation of the premises would be lawful and at any rate he cannot be termed as trespasser. It is a common ground. I may hasten to add that if the Defendant is held to be a trespasser the suit would be very much maintainable in law and could be tried by the City Civil Court. Answering the preliminary issue against the Defendant who raised it, the Trial Court by an order dated 06.07.1999 held that in view of the averments made in the suit that the Defendant is a trespasser the Court has jurisdiction to try the suit. The said order was not challenged and thus, in the submission of the learned counsel for the Respondent, has assumed finality. 8. While the suit was pending in the Trial Court, an important intervening event had taken place and the same is that the Full Bench decided the controversial issue of jurisdiction vide its judgment reported in 2007(5) Bombay C.R. 01. The Full Bench interpreted Section 41(1) of the Presidency Small Cause Courts Act. The Full Bench was called upon to ascertain the width of expression “licencee” used in Section 41(1) of the Presidency Small Cause Courts 5 Act. The Full Bench held that expression “licencee” used in Section 41 is used in general sense of term as defined in Section 52 of the Easement Act. The Full Bench concluded that expression “licencee” used in Section 41(1) is a term of wider import so as to mean and include a gratuitous licencee also. It is also held by the Full Bench that in view of wider import given to the expression “licencee” which includes a gratuitous licencee also, a suit by licensor against a gratuitous licencee is tenable before the Small Cause Court under Section 41 of the Presidency Small Cause Courts Act. Thus, on own showing of the Respondent/Plaintiff in the present case the occupation of the Defendant undisputedly, at least while the Defendant was in employment, was that of the gratuitous licencee and a suit for possession against the licencee would be triable under Section 41 of the Presidency Small Cause Courts Act by the Small Cause Court. 9. Attention of the Trial Court does not appear to have been invited to the judgment of the Full Bench and thus, the Trial Court decided the suit without considering the effect of the said Full Bench judgment. 10. In the backdrop of the facts and circumstances narrated herein above, the learned counsel for the Appellants has contended:- (1) that the special statute viz. the Presidency Small Cause Courts Act provides for a special forum to deal with the cases between 6 the landlord and tenant and the licensor and licencee and as the special forum is carved out to deal with the cases falling under Section 41(1) of the special Act, the jurisdiction of the City Civil Court stands excluded to try the cases which are triable by the Small Cause Court under Section 41. (2) that a wrong decision on a pure question of law does not operate as res-judicata. With a view to counter the submission made by the learned counsel for the Respondent that interim order deciding the preliminary issue has assumed finality and hence, cannot be reagitated, it is submitted by the learned counsel for the Appellants that the principle of res-judicata is not applicable to a wrong decision on a pure question of law and hence, it is open for the Appellants to canvass before this Court that the view taken by the Trial Court while deciding the preliminary issue is erroneous decision. To press this contention, it is submitted that the issue of res-judicata is a principle relating to the procedure which stands at par and could be equated with other principles of estoppel, waiver and acquiescence. 10. The incidental issue which arises for consideration is as to whether the principle of res-judicata applies to the proceedings in the same suit at later stage. It is not in dispute that the principle of res- judicata applies in the same suit or proceedings at the subsequent stage. 11. In support of the contentions that the principle of res- judicata has no application when a pure question of law is decided, 7 the learned counsel for the Appellants has relied upon the three Judges judgment in case of Mathura Prasad Bajoo Jaiswal and others vs. Dossibai N.B. Jeejeebhoy (1970(1) SCC 613). In the said judgment, the Supreme Court has observed: In para No.5 :- “A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res-judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res- judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceedings, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding nor when the earlier decision declares valid a transaction which is prohibited by law.” In para No.10:- “A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not in our judgment, operate as res-judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot 8 operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.” The Supreme Court has held that where the law is altered since the earlier decision, th earlier decision will not operate as res judicata between the same parties. While reaching the said conclusion, the Apex Court has relied upon the earlier judgment of the Supreme Court in case of Tarini Charan Bhattacharjee (ILR 56 Cal 723). 12. Perusal of the above referred judgments brings home the following propositions of law:- (1) the doctrine of res-judicata belongs to the domain of procedure. (2) a pure question of law unrelated to the facts which give rise to right cannot be deemed to be the matter in issue. (3) where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties. (4) the question of jurisdiction of the Court or of procedure or a pure question of law unrelated to the right of the parties to a previous suit is not res-judicata in the subsequent suit. 13. The next judgment on which reliance is placed by the learned counsel for the Appellants is in case of Isabella Johnson vs. M.A.Susai ((1991) 1 SCC 494). Placing reliance on Mathura Prasad' s 9 case (supra) the Apex Court held that “The view that the principle of res-judicata is applicable to an erroneous decision on jurisdiction, cannot be regarded as good law. A court which has no jurisidction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.” This proposition applies to a converse situation with full force. 14. Thus, the position of law that emerges from the Supreme Court judgments referred to herein above clinches the issue raised in the present appeal as well and I safely conclude that the decision of the City Civil Court holding that it has jurisdiction to try and decide the suit, while deciding the preliminary issue, though not challenged and has purportedly assumed finality as contended by the learned counsel for the Respondent, will not operate as res judicata and this Court can independently decide the question of jurisdiction. The Trial Court has not dealt with the question of jurisdiction of the City Civil Court in its judgment deciding the suit on merit by simply referring to the decision given on the preliminary issue, the Trial Court has concluded that the City Civil Court has jurisdiction to try the suit. Be that as it may, having held that the decision on the preliminary issue does not operate as res judicata as it incorrectly decides the question of jurisdiction and erroneously decides a pure question of law. The said question will have to be decided by applying the ratio laid down 10 by the Full Bench judgment, which holds that a suit by lessor against lessee needs to be instituted in the Small Cause Court having regard to Section 41(1) of the Act. In that view of the matter, it has to be concluded that the City Civil Court did not and does not have jurisdiction to decide the suit instituted by the Respondent as the same is based on the averments about the Defendant being a gratuitous licencee not making any payment of licence fees or royalty or by whatever name called. 15. The learned counsel for the Respondent has submitted that occupation/ possession of the Defendant cannot be termed as possession of licencee. To bring home the point, reliance is placed on the judgment of this Court in case of Vishwanath Sawant vs. Gandabhai Kikabhai (1990(2) Bom. C.R. 406). The proposition of law propounded in the said judgment is that licence envisaged by Section 52 of the Indian Easements Act is not merely to put in possession but requires other necessary trappings of some interest or grant. Section 52 of the Indian Easements Act defines licence thus:- “Where one person grants to another......... a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.” (emphasis provided) 11 16. The learned Single Judge in case of Vishwanath Sawant (supra) observed:- Para-20: “This takes me to the consideration of the nature of possession of the defendant in respect of the suit premises. In my view, a distinction will have to be drawn between the grant of a licence contemplated either under the Indian Easements Act or under the Bombay Rent Act and a mere permission to occupy. The owner may permit his servant to sleep is one of the rooms in his Bungalow. He may invite a friend resident abroad to his hospitality. He may give his house for painting. In this case he may withdraw from possession and hand over possession to the painter for completing the turn key project. One may encourage his wife's brother at his education and permit his residence as a member of the family. Can it be said that these possessions are the possessions which are sought to be protected by the legislature? I should think not.” The learned Single Judge has tried to make a distinction between the class of licencees by terming one class as a `bare licencee' which comprises persons who are extended personal privilege and other being the class of persons whose licences are coupled with grant or interests. A `bare licence' without anything more is always revocable at the will and the pleasure of the licensor and is not assignable or to extend it further inheritable. On the other hand, if the licence is coupled with grant or interest then the grantor cannot in general revoke it so as to defeat the grant to which it is incident. 17. Perusal of the said judgment reveals that the first category 12 which is referred to as a bare licence by the learned Single Judge would cover the category of persons who have no right to exclusive possession or enjoyment of the premises. The category of persons who are referred to in paragraph No.20 such as permitting a servant to sleep in one of the rooms in Bungalow, is altogether a different situation for the obvious reasons. This is not the fact situation in the present case. The Defendant was put in exclusive possession of the defined premises with facility to have drinking water tap to be used by him and the possession of the premises was handed over to the Defendant with a view to avail his round the clock services of cleaning and sweeping. Thus, the premises were handed over as a licencee coupled with grant or interest. In my considered opinion, the Trial Court has committed jurisdictional error in holding, in the first place, that the order deciding the preliminary issue about the jurisdiction of the City Civil Court to try and decide the suit, has assumed finality and cannot be reconsidered. In the second place, the Trial Court has erred in holding that the City Civil Court has jurisdiction to try and decide the suit as the plea raised by the Defendant about he being the tenant is rejected and/or not answered in favour of the Defendant. The Trial Court having come to a decision that the occupation/possession of the Defendant was that of gratuitous licencee then the Full Bench judgment operates with full vigor and robs of the City Civil Court of jurisdiction to try and decide the suit by virtue of operation of Section 41 of the Presidency Small Cause Courts 13 Act. 18. Lastly, the learned counsel for the Respondent has tried to contend that the Full Bench decision if applied to all pending cases and/or the cases already decided before its pronouncement, it would result in causing utmost inconvenience and hardship to the parties who have obtained the decrees from the City Civil Court. True it is that the decree holders who have obtained the decrees from the City Civil Court would be put to inconvenience and hardship, however, as the controversy has been finally resolved by an authoritative judgment pronounced by the Full Bench, the consequences must follow. The Full Bench judgment will have to be read as interpreting law as it stood since beginning. There is no merit in the submission of the learned counsel for the Respondent that the Full Bench judgment ought to be read as operating prospectively. 19. In the result, the appeal has to be allowed. The Appellants succeed. The Appeal is allowed. The impugned judgment and decree passed by the City Civil Court is quashed and set aside. JUDGE