1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.621 OF 2009 Sevanthi Narayan Pilke & Ors. .. Applicants versus Sunil Upendra Mehta & Anr. .. Respondents Mr.A.G.Joshi & Ms Namrata S. Pednekar for the applicants. Mr.M.P.Vashi a/w Mr.N.K.Singh i/by M/s.M.P.Vashi & Associates for respondent No.1. ALONGWITH CIVIL WRIT PETITION NO.5179 OF 2009 Sunil Upendra Mehta .. Petitioner versus Sevanthi N. Pilke & Ors. .. Respondents Mr.M.P.Vashi a/w Mr.N.K.Singh i/by M/s.M.P.Vashi & Associates for the petitioner. Mr.A.G.Joshi & Ms Namrata S. Pednekar for respondent Nos.1, 2 and 3. CORAM : A.S.OKA, J. DATE : 20th January 2010. P.C: . By an administrative order passed by the Hon’ble the Acting Chief Justice, both the matters have been assigned to this Court. Both the petitions arise out of the same suit and therefore for convenience, the parties are hereinafter referred to with reference to their status before the trial Court. The plaintiffs filed a suit under section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter 2 referred to as the said Act of 1882). The case of the plaintiffs is that they are the owners of a flat in a co-operative housing society, more particularly described in paragraph 1 of the plaint. The case of the plaintiffs is that the defendants were working as their maid-servants for several years. The suit flat consists of three rooms, a toilet and a bathroom. The allegation in the suit is that the defendants were permitted to use a room admeasuring 10ft X 7ft. It is alleged that the defendants were allowed to use and occupy the said room free of charge for the purposes of residence as a facility. It is stated that the defendants have ceased to be in the employment of the plaintiffs. The Advocate’s notice dated 6th November 1996 was served to the defendants calling upon them to vacate the said room. As the defendants did not vacate, suit was filed by the plaintiffs. 2. The defendants contested the suit. The contention of the defendants is that the father of the 1st defendant was a resident of a chawl. The said chawl was situated behind the bungalow of one Vaikunthbhai Mehta. The said Vaikunthabhai Mehta is the predecessor in title of the plaintiffs. According to the case of the defendants the said predecessor was desirous of developing the property and therefore he approached the residents of the chawl. He offered that if the residents vacate the premises in the chawl, they will be provided rent free accommodation of a single room tenement with common bathroom and W.C in the proposed building. In view of the said assurance, occupants of the chawl agreed to vacate the respective premises. It is alleged that as per the said assurance , the father of the 1st defendant was given one room tenement which is subject matter of the suit. It is contented that the said room was given to him by 3 way of permanent alternate accommodation free of costs. It is contended that father of the 1st defendant had implicit faith in the said Vaikunthbhai Mehta and therefore he did not insist on execution of proper documents. 3. The trial Court dismissed the suit. The trial Court recorded a finding that the plaintiffs have proved that the defendants were occupying the suit room as a gratuitous licensees. The trial Court relied upon decision of a Division Bench of this Court in the case of Ramesh Mehra Vs. Indramati Mehra (AIR 2001 Bombay 470) in which it was held by the Division Bench that a suit filed by the licensor for possession of the premises given to gratuitous licensee is not maintainable under section 41 of the said Act of 1882. Therefore, the suit was dismissed on the ground that the Court of Small Causes had no jurisdiction. 4. An appeal was preferred by the plaintiffs. The Appellate Court framed point for determination on the status of the defendants by putting burden on the plaintiffs to prove that the defendants were gratuitous licensees in respect of the suit premises. The Appellate Court also framed point of jurisdiction. Another point was framed on the aspect of revocation of licence of the defendants by the plaintiffs. The Appellate Court found that the defendants were gratuitous licensees and their licence was revoked. The Appellate Court relied upon a decision of Full Bench of this Court in the case of Prabhudas Kotecha Vs. Smt.M.J.Damodar & Ors (2007 (5) Maharashtra Law Journal 341) by which the earlier decision of the Division Bench in the case of Ramesh Mehra (supra) was overruled. The Full Bench held that a suit filed by the licensor against the 4 gratuitous licensee for eviction was maintainable under section 41 of the said Act of 1882. Therefore, the Appellate Court proceeded to pass a decree for eviction. The revision application has been preferred by the defendants for challenging the said decree of eviction. 5. On the basis of the decree of the Appellate Court , execution application was filed by the plaintiffs. On 16th February 2009 the defendants filed a writ petition in this Court for challenging the decree of eviction. On 5th March 2009 , warrant of possession was ordered to be issued by the executing Court. On 5th March 2009 itself the warrant was sought to be executed when 1st defendant gave a writing to the Court bailiff that she will vacate the suit premises on 6th March 2009. It appears that on 6th March 2009 the bailiff accompanied by police went to the site for taking over possession. According to the case of the plaintiffs the possession was taken over and the plaintiffs put up a lock on the premises. The case of the respondents is that at 3.15 p.m on 6th March 2009 itself this Court passed an ad-interim order in writ petition filed by the defendants directing the parties to maintain status-quo. However, before the said order could be communicated to the bailiff , he proceeded to the site. An application was made by the defendants before the executing Court for restoration of possession on the ground that order of status-quo was passed by this Court and in breach of order of status-quo, possession was taken over. By order dated 4th May 2009, the Court of Small Causes directed that possession be restored to the defendants. That is the order impugned by one of the plaintiffs by filing Writ Petition No.5179 of 2009. 5 6. The learned counsel appearing for the defendants in support of revision application submitted that the suit filed by the plaintiffs proceeds on the footing that the plaintiffs are the owners of the suit flat. He placed reliance on a decision of this Court in the case of Usha Arvind Dongare Vs. Suresh Raghunath Kotwal (1990 Maharashtra Law Journal 306). He submitted that it is the co-operative housing society which is the owner of the flat and therefore, the Court of Small Causes had no jurisdiction to entertain and try the suit. He submitted that the remedy was to file a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960. He placed reliance in that behalf on a decision of the Apex Court in the case of M/s.Electricial Cable Development Association Vs. Arun Commercial Premises Co-operative Housing Society Ltd (AIR 1998 Supreme Court 1998). He submitted that going by the case of the plaintiffs, the licence allegedly granted to the defendants was a licence not coupled with a grant or interest to occupy the suit premises. He, therefore, submitted that after revocation of alleged licence , the possession of the licensee is that of a trespasser. He submitted that the defendants cannot be gratuitous licensees. He placed reliance on a decision of this Court in the case of Vishwanath Sawant Vs. Gandabhai Kikabhai (1990 Maharashtra Law Journal 1145). He invited my attention to the decision of the Apex Court in the case of D.H.Maniar Vs. Waman Laxman Kudav (1978 Bombay Law Reporter 533). He, therefore, submitted that a decree for possession is completely illegal. 7. I have given careful consideration to the submissions. The case made out 6 by the plaintiffs in the plaint is that the defendants were gratuitous licensees and they were granted a licence to occupy the room in question by virtue of the fact that they were employed as maid-servants by the plaintiffs. The licence was revoked by the plaintiffs and by advocate’s notice dated 6th November 1992 the defendants were called upon to vacate as they ceased to be in the employment of the plaintiffs. The only contention raised in the written statement was that on the basis of assurance given by Vaikunthbhai Mehta , the said room was given to the father of the 1st defendant as a rent free permanent accommodation in lieu of premises occupied by him in the old chawl. This is the only defence in the written statement. 8. Thus, the allegation in the plaint is that the defendants were gratuitous licensees of the plaintiffs. As far as jurisdiction of the Court of Small Cause to entertain a suit under section 41 is concerned, the Full Bench of this Court in the case of Prabhudas Kotecha (supra) concluded the issue by holding that a suit for possession by a licensor against a gratuitous licensee is maintainable under section 41 of the said Act of 1882. It must be noted here that there is a concurrent finding recorded by both the Courts below that the plaintiffs have proved that the defendants were gratuitous licensees of the room in question and the plaintiffs had revoked their licence. As far as finding of fact is concerned, the Appellate Court has referred to the evidence of first witness of the defendants in which it was admitted that the plaintiffs are legal heirs of Vaikunthbhai Mehta. The witness admitted in cross-examination that the plaintiffs are the owners of flat No.5 and that they were paying all taxes and maintenance charges in respect 7 of flat No.5. The issue before the Court was whether the plaintiffs were licensors of the defendants. If the licensor-licensee relationship is established or is admitted, the issue of title of the licensor becomes irrelevant in so far as proceedings under section 41 of the said Act of 1882 are concerned. As held by the Full Bench of this Court , such a suit between licensor and licensee comes within the exclusive jurisdiction of Court of Small Causes governed by section 41 of the said Act of 1882. A Member of a tenant co-partnership Co-operative Housing Society is entitled as a matter of right to hold a flat in the building of the society by virtue of his membership. The right of a Member in respect of such a flat is heritable and transferable. In any event section 91 of the said Act of 1960 has no application as the dispute between the plaintiffs and the defendants cannot be said to be touching the business of the society. Therefore, the argument based on section 91 of the said Act of 1960 will have to be rejected. 9. The first witness examined by the defendants admitted in the cross- examination that Vaikunthabhai Mehta had given premises in the chawl to her mother free of charge but she had no knowledge whether it was given by way of servant’s quarters. The witness admitted that the defendants have no documentary evidence to show that they have become owners of the premises in dispute and that the room has been allotted to them on ownership basis. As stated earlier, the only defence of the defendants was that the room subject matter of dispute was allotted to them as a permanent accommodation by Vaikunthabhai Mehta in lieu of premises held by father of the 1st defendant in old chawl which was subsequently demolished. The concurrent finding is that no 8 evidence could be adduced by the defendants to prove the case that the room in question was allotted by way of permanent accommodation to the father of the 1st defendant. 10. That is the reason why Courts below have accepted the case that the plaintiffs were licensors and defendants were gratuitous licensees. The decision of this Court in the case of Usha Dongre (supra) will not help the defendants. Once it is held that the defendants were gratuitous licensees of the plaintiffs, law laid down by the Full Bench operates and the Court of Small Causes gets jurisdiction to pass a decree for eviction. It is not possible to disturb the concurrent finding of facts recorded by the Courts about the status of the defendants as gratuitous licensees. It is, therefore, not possible to interfere in revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908. 11. Now turning to the writ petition, it must be stated here that order of restoration of possession has been passed by the executing Court only on the ground that possession was taken over in execution after order of status-quo was passed in the writ petition (which was converted into the Revision Application No. 621 of 2009). The revision application is being dismissed on merits. Therefore, the decree for possession is being confirmed. In the circumstances, the order dated 4th May 2009 which is impugned in the writ petition directing the plaintiffs to restore possession to the defendants will have to be set aside. The said order was passed only on the basis of ad-interim relief granted in the writ petition. The writ petition has been converted into revision application which is being 9 dismissed by this judgment and order. Therefore, the order impugned in the writ petition will have to be quashed and set aside. 12. Hence, I pass the following order: : O R D E R : (a) Civil Revision Application No.621 of 2009 is dismissed with no order as to costs. (b) The Writ Petition No.5179 of 2009 is allowed and order dated 4th May 2009 (Exhibit C to the petition) is quashed and set aside. There will be no order as to costs. (A.S.OKA,J)