1 CRA704OF08.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.704 OF 2008 Achanna A Naik .. Applicant -versus Dr. (Mrs) Suvarna Ramrao Shridhankar @ V.C. Khadtare .. Respondent. Mr. S. N. Vaishnav i/b M/s N. N. Vaishnav, for the Applicant. Mr. R.R. Arolkar, for respondent. CORAM: R.C. CHAVAN, J. DATED: 18th August, 2010 P.C. 1. By consent of respective parties, this Civil Revision Application is taken up for final hearing at the admission stage . 2. This revision is directed against the concurrent finding of both the learned Judge of Court of Small Causes at Bombay and its Appellate Bench, dismissing the suit of applicant-original plaintiff, for ejectment of the respondent. 3. The applicant had first filed a suit for respondent’s ejectment in the year 1981 without permission u/s 22 of the Maharashtra Slum Areas (Improvement) Demolition, Rehabilitation Act, l971 (for short called as “Slums Act”), from the competent authority. Since the premises are situated in the Slums Area, on 18th October, 1988, the suit was dismissed on the ground that 2 CRA704OF08.sxw permission was not obtained from the competent authority. 4. In that suit, present respondent had raised a ground that he become owner of the premises by virtue of agreement of sale. But this ground was given up by the respondent before Trial Court when it decided the suit on 18th October, l988. Against the order of learned Trial Court, the present applicant filed appeal as well as a writ petition, which were dismissed. 5. The applicant applied before the competent authority for obtaining permission to file the suit. After a long journey at various levels including this Court, eventually on 12.8.2003, the applicant secured permission from the competent authority for filing suit for eviction of respondent. Thereafter the applicant filed present suit bearing No.258/280 of 2003 for respondent’s ejectment. 6. Though the summons was served on the defendant, defendant did not file any written statement. Thus the facts deposed to in the claim affidavit by the plaintiff have gone unrebutted. It, however, seems that defendant had raised an objection about tenability of the suit and both the Courts below held that since the new suit was filed on the same cause of action on which earlier suit was filed in the year l98l, and since the earlier suit was not withdrawn with liberty to file fresh suit, the suit was not saved by sub section 3 of section 14 of the Limitation Act and the suit was liable to be dismissed as barred by limitation. 3 CRA704OF08.sxw 7. Before the Appellate Bench it was sought to be pointed that the suit of the year 2003, was not filed on the same cause of action on which previous suit was dismissed. Taking the same view the Appellate Bench also found that the plaintiff ought to have pleaded the extension of period of limitation by exclusion of time, as required under Order VII rule 6 of Civil Procedure Code. The Appellate Bench, therefore, upheld the judgment of the Trial Court. 8. I have heard learned counsel for the applicant as well as learned counsel for respondent. It would have been ideal for the plaintiff to have withdrawn the suit of year l98l with liberty to file fresh suit after obtaining permission from competent authority. It would have been also ideal for the plaintiff to have pleaded exclusion of time while computing the limitation for filing fresh suit by stating that he was diligently prosecuting his cause before the competent authority. This he has not done, though he has given account of what he had done in all those l6 years . All the same, the Hon’ble Supreme Court in, Consolidated Engineering Enterprises -vs- Principal Secretary, Irrigation Department and ors , (2008) 7 Supreme Court Cases 169, has held that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits, but failing because the Court is unable to give him such a trial. 9. In the present case the applicant failed in his first round 4 CRA704OF08.sxw of litigation, only because permission from the competent authority was not obtained. Therefore, it could be stated that the prior proceedings failed due to defect of jurisdiction or other reason of like nature, since the Court could not have entertained the suit in absence of permission u/s 22 of the Slums Act. 10. The further time spent by the applicant in obtaining permission from the competent authority and the first round of litigation, that has to be excluded under the provisions of section l5(2) of Limitation act. The learned counsel for the applicant, relying on the judgment in Abdul Hamid Abdul Kadar v-s- Mohamed Hasankhan, 2004 (3) Mah L. J. 973, pointed out that when the plaint contains relevant details about the earlier proceeding, that should be enough for claiming exclusion of time under sub section 2 of section 14 and 15 of the Limitation Act. Therefore, the Courts below were not justified in not dismissing the suit only because the applicant had not specifically claimed exclusion of time under sub section 2 of section l4 & l5 of the Act, in the suit, though he had given the details about the earlier litigation as also his endevour to get requisite sanction. 11. As already observed since the respondent had failed to file written statement, there is nothing to indicate that the pleas raised by the plaintiff for ejectment on facts are not correct. Learned counsel for the respondent submitted that the respondent 5 CRA704OF08.sxw has become tenant of the head tenant. First the applicant would have to go and then alone respondent could claim any independent rights bypassing the applicant. As already observed respondent had come with a plea that he was in possession in pursuance of agreement of sale with the applicant himself, which plea had been given up at the time of hearing of suit in the year 1981. Thus, the respondent must be held to have been staying as licencee of the applicant. 12. The learned Judges should have seen that irrespective of whether the applicant explained the time spent in previous round of litigation or in obtaining the permission from the competent authority, respondent was a mere licensee and upon termination of licence, he had to go some day or the other. The effect of the judgments impugned would be to allow respondent to continue on the site for all times to come since any suit filed will meet the same fate by applying same wrong logic. 13. In view of above facts, the finding and the judgments of the Courts below cannot be sustained. It has to be held that the applicant had requisite permission from the competent authority to evict the respondent. Respondent’s license had been revoked. Respondent has no other protection and therefore, respondent had to be evicted. The Revision application is therefore, allowed. The impugned orders are quashed and set aside and the plaintiff’s suit 6 CRA704OF08.sxw is decreed. 14. The learned counsel for the respondent seeks stay to this order for a period of 8 weeks. The decree may not be put to execution for a period of 8 weeks on respondent’s furnishing usual undertaking within a period of two weeks before the Trial Court and subject to their depositing the arrears of license fee upto date. (R. C. CHAVAN, J.)