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

The appellants in this appeal by special leave had filed an application under section 41 ofThe Presidency Small Cause Courts Act, 1882 hereinafter referred to as the S.C.C. Act, against the respondent to compel him to quit and deliver up the possession of the premises in question. The Small Cause Court made an order in favour of the appellants under section 43 of the S.C.C. Act. On the filing of an application in revision by the respondent in the Bombay High Court, a learned single Judge of that Court has set aside the order of the Small Cause Court and dismissed the appellants application for eviction of the respondent. Hence thisappellants had allowed the respondents to occupy the shop premises in question which are situated outside Swadeshi Market, Kalbadevi Road in Bombay under certain agreements of leave and licence which were renewed from time to time. The last agreement was dated April 30, 1965. Duration of the period of licence mentioned in this agreement was in the followingThis agreement shall be deemed to have commenced from 1st May 1965 and shall remain in force for 11 months and will automatically come to an end on 31st March, 1966 on which day the Party of the Second Part shall remove himself from the premises of his own accord with all his articles and belongings and in event of the Party of the Second Part not clearing out of the premises on the said day viz., 31st March, 1966 the parties of the First Part shall be at liberty to remove the goods and articles of the party of the Second Part by themselves, by employment of labour at the cost and on account of the party of the Second Part and shall be entitled to stop and prevent the, Party of the Second Part from entering the premises and making use of the same by himself or his agent."The respondent did not vacate and remove himself from the premises as per the aforesaid term of the agreement. He purported to claim to be a tenant of the premises and with that end in view his Advocate wrote a letter to appellant No. 1 on May 23, 1966 stating therein that the respondent was a tenant of the shop premises and had remitted the rent for the months of March and April, 1976. A reply to the letter aforesaid of the respondents advocate was given on behalf of the appellants on June 14, 1966 refuting there- in the respondents claim of being a tenant of the shop premises and asserting that he was a mere licensee. It was also said that the said licence had automatically come to an end on March 31, 1966 and thereafter he was "no better than a trespasser".Subsequent correspondence followed between the parties in which the appellants showed their readiness and willingness to accept money from the respondent by way of compensation for the use and occupation of the shop premises without prejudice to their rights and threatening to take legal action for getting the possession of thethe 10th July, 1967 the appellants filed an application under section 41 of the S.C.C. Act. The respondent contested that application, inter-alia, on the ground that he was a tenant of the shop premises and was, therefore, protected against the eviction under The Bombay Rents, Hotel .and Lodging House Rates Control Act, 1947 (for brevity, the Bombay Rent Act). As per the requirement of section 42A of the S.C.C. Act, the question whether the respondent was a tenant of the appellants was tried as a preliminary issue by the Small Cause Court, Bombay. A single Judge of that Court by his Judgment and order dated June 30, 1972 held against the respondent and found that he was not a tenant of the appellants in respect of the shop premises. An appeal was taken by the respondent to a Bench of two judges of the Small Cause Court under section 42A(2) of the S.C.C. Act. By a reasoned order dated December 11, 1972 the appellate Bench upheld the finding of the single Judge and summarily dismissed the appeal. The respondent filed a writ application in the High Court which after hearing the appellants was dismissed on July 3, 1973.The Bombay Rent Act was amended by Maharashtra Act 17 of 1973. By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973 the status and protection of a tenant under the Bombay Rent Act. The respondent, thereafter, by an amendment of his written defence filed in the Small Cause Court proceeded to take the additional plea of protection under Maharashtra Act 17 of 1973. Although the amendment was not fully and effectively allowed by the Small Cause Court Judge, the parties had proceeded on the footing that such a plea became available to thelearned single Judge of the Small Cause Court held that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March, 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into. In that view of the matter the Trial Court held that the respondent was not entitled to the protection of the Bombay Rent Act conferred on a licensee by Maharashtra Act 17 of 1973. The Court allowed the appellants application and made an order under section 43 of the S.C.C. Act directing t he respondent to vacate and hand over peaceful possession of the premises to the appellants within one month from the date of the order i.e. the 11th October, 1974. This order was not appealable. Hence respondent filed a revision before the High Court. A learned single Judge of the High Court by his judgment and order dated February 18, 1975 allowed the revision and, as stated above, set aside the order of the Small Cause C ourt and dismissed the appellants application for eviction of the respondent.

Reasoning:
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.