Case: D.H. Maniar &amp; Ors Vs. Waman Laxman Kudav

to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises."There are two infirmities in the said observation. Firstly, according to the appellants case the licence stood revoked and withdrawn and then they filed the application under section 41 of the S.C.C. Act. Secondly, the filing of the application itself may in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing. But in any event, one thing is certain, that cannot have the effect of reviving the licence as opined by the learned Judge in the subsequent part of his judgment.In the tenth paragraph of his judgment the learned Judge says:"The respondents have not relied on any notice served on the petitioner to show that they would treat the petitioner as a trespasser from March 31, 1966. The respondents did not even describe the petitioner as a trespasser in proceedings. It must be therefore presumed that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises till they filed their application under section 41 of the Presidency Small Cause Courts Act."In the next paragraph the learned Judge quotes the words: "position not better than that of a trespasser" from the appellants letter written so the respondent. The contradiction in the judgment is apparent. It is difficult to understand the significance of the observation "that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises".Voluntary permission may amount to a fresh licence. The use of the expression involuntarily permitted is a contradiction in terms.11. We are distressed to find the learned Judge repeatedly expressing a view in his judgment that the conduct on the part of the appellants in allowing the respondent to continue in the occupation of the premises until the filing of the application under section 41 of the S.C.C. Act on July 10, 1967 amounted to a grant of fresh licence. It is not necessary to extract all the strange passages from the judgment of the High Court. But we shah do a few more. In the fifteenth paragraph while referring to the expression "deemed to be revoked" occurring in section 62(c) of the Easements Act it is said that "it does not necessarily mean that it is in fact revoked." The mistake is so obvious in this observation that it does not require any elaboration. In the same fifteenth paragraph occurs a passage which we exercised in vain to understand.It runs thus:"The fact that the respondents did not take any steps till they filed the application under section 41 which also would not automatically make the petitioners occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises."12. Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent "a right to continue to occupy the premises till he was evicted by an order under section 43." Such a novel proposition of law is beyond our comprehension. If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion.In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say:"The fact that the earlier agreement of licence expired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973."13. It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the High Court."Relying on the amendment of the Bombay Rent Act the respondents no doubt had withdrawn their permission under the agreements but by filing the proceedings under section 41 they permitted the petitioner to continue as the licensee as stated above; and this itself is a different kind of agreement of licence as defined under section 52 of the Easement Act."14. The learned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the Highlearned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.