Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10258 OF 2004
Shiv Kumar I. Agarwal ) through Constituted Authority )
Shri. Ashok Kumar I. Agarwal, )
Presently aged about 81 years, R/at. 340, )
Sea Nymph, A.B. Nair Road, Juhu, )
Mumbai- 400 049 ) ....Petitioner
2. Deepak Mathur (deceased) ) through legal heirs )
2a. Tamanna D. Mathur, )
Wife of Deepak Mathur (deceased) )
2b. Arsh Deepak Mathur, )
Son of Deepak Mathur (deceased) )
2c Faiz Deepak Mathur, )
Son of Deepak Mathur (deceased) )
All of above residing at Flat No.19, )
Vimala Mahal, Pedder Road, )
Mumbai – 400 026. )
3. Seema Mathur, Now known as )
Mrs. Shameena Nashir Rawoof, )
D/o. Dayal Swarup Mathur (deceased)
R/at. Flat No.19, Vimala Mahal, )
Pedder Road, Mumbai – 400 026. ) ….Respondents
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Mr. Vishal Kanade a/w. Ms. Janhavi Joshi, Ms. Lata Dhruv & Ms. Swati Sutar i/b Dhru & Co. for Petitioner.
Mr. Mandar Limaye a/w. Mr. Vedant Bende & Ms. Tanvi Kamat
Deosthale for the Respondents.
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JUDGMENT
1. This petition is filed under Article 226 and 227 of the Constitution of India, challenging the judgment and order dated 25.06.2003 passed by the Appellate Bench of Small Causes Court at Mumbai in Appeal No.283 of 2000. By the said impugned order, the judgment and order dated 29.10.1999 passed by the Judge of Small Causes Court at Mumbai in L.E. & C. Suit No.112/134 of 1991 is set aside and the said suit is dismissed. By the impugned order the Petitioner’s suit, seeking eviction of Respondents from the suit premises, is dismissed. Flat No.19, Vimala Mahal, Pedder Road, Mumbai 4000 026 is the subject matter of the present petition and same is hereinafter referred to as ‘suit premises’ for short.
2. The Petitioner is original Plaintiff and Respondents are original Defendants and/or their legal representatives.
3. The case of the Petitioner in short is as under. That the Petitioner is owner/licensor of the suit premises, which was given on license to one Mr. Dayal Swaroop Mathur (hereinafter referred to as ‘the said Mr. Mathur’ for short) under leave and license agreement dated 15.02.1971. The said agreement was for a period of 11 months commencing from 15.02.1971 and expiring on 14.01.1972. Monthly compensation was agreed at Rs.1000/- per month. The said Mr. Mathur expired on 31.08.1971, as a result of which, the leave and license agreement stood revoked. In any case, the agreement was to expire on 14.01.1972 by efflux of time. The Petitioner called upon original Defendants (widow, son and daughter of said Mr. Mathur) to vacate the suit premises, however, they avoided to comply. Defendant No.1 - Smt. Mehzabeen filed first application for fixation of standard rent in respect of the suit premises in the year 1973. This application was withdrawn. Thereafter, she again filed second application for fixation of standard rent in the year 1977 contending inter alia that the Defendants are tenants in respect of suit premises. According to the Petitioner, the second standard rent application was barred by res judicata. According to the Petitioner, after the death of said Mr. Mathur, and also by efflux of time, leave and license agreement has come to an end and therefore the Defendants have no right, title and interest to retain the possession. According to the Petitioner, the Defendants are trespassers. The Petitioner filed the said suit seeking eviction of the Defendants from suit premises under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as ‘the PSCC Act’ for short).
4. The Defendants filed written statement contending inter alia that said Mr. Mathur was in need of residential accommodation for his family and in order to circumvent the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (‘Bombay Rent Act’ for short), the parties executed the agreement titled as ‘leave and license’, however, it was understood that the agreement was only for name-sake and in substance, the transaction was of creating tenancy. Since said Mr. Mathur was in need of premises urgently, he signed on leave and license agreement. It was contended that monthly compensation of Rs.1000/- was in fact rent. It was contended that since the agreement was never intended to be acted upon, there is no question of termination of leave and license agreement, either on the death of said Mr. Mathur or by efflux of time. Also case of continuation of license by oral agreement or by necessary implication, from time to time and on same terms and conditions, is pleaded. It was contended that the Defendants are protected licensee/deemed tenants being in possession on 01.02.1973 under section 15A of the Bombay Rent Act.
5. The Defendants and their Advocate remained absent and therefore evidence of the Petitioner was recorded and the matter was adjourned for cross-examination. However, due to further absence of the Defendants, no cross-examination was conducted. The evidence was closed and the suit was decreed ex-parte on 29.10.1999.
6. Admittedly, the defendants chose not to file an application under Order IX Rule 13 of the Civil Procedure Code, 1908 (‘CPC’, for short). Instead, they filed the aforesaid appeal. The Appellate Bench of Small Causes Court framed points for consideration and held that the suit filed by the Petitioner is not within limitation and that the Defendants are tenants/protected licensee. The Appellate Bench not only set aside the ex-parte judgment and decree, but dismissed the suit. The Appellate Bench, in its wisdom, did not remand the suit back for trial, but dismissed it. It is in these circumstances that the Petitioner/Plaintiff is before this Court challenging the dismissal of his eviction suit.
7. During the pendency of the petition, Defendant No.1 Smt. Mehzabeen expired and Defendant No.2 also expired and legal heirs are brought on record.
8. I have heard Mr. Kanade, learned counsel for the Petitioner and Mr. Limaye, learned counsel for Respondents.
SUBMISSIONS
9. Mr. Kanade, learned counsel for the Petitioner, submitted that the Respondents filed standard rent applications twice, however, withdrew both the applications. Nobody stepped into witness box in support of the case of the Respondents. Since they have filed first appeal and not an application under Order IX Rule 13, the aspect of sufficient cause is not relevant and the case will have to be considered on merits. He submitted that there was no subsisting license as on 01.02.1973 and therefore Section 15A of the Bombay Rent Act will not apply. He submitted that there is no evidence about renewal of license and therefore about subsisting relationship of licensor - licensee. He submitted that there is no evidence about payment of license fees post expiry of leave and license agreement. He submitted that the Plaintiff’s witness has not been cross-examined and therefore, the suit was rightly decreed. He submitted that in the absence of finding about ‘tenancy’, Article 67 of the Limitation Act, 1963, will not apply. He relied upon the following judgments: i. D.H. Maniar and Ors. V. Waman Laxman Kudav [(1976) 4 SCC 118 (three Judges Bench of Hon’ble Supreme Court)]. ii. Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath and Ors. [(1991) 2 SCC 141]. iii. Vinay s/o Ambadas Kaikini and Anr. V. Court Receiver, High Court of Judicature at Bombay [2010(6) Mh.L.J. 407]. iv. Ludhichem Agencies and Ors. V. Ahmed R.V. Peer Mohamed and Anr. [(1981) 4 SCC 273].
10. Per contra, Mr. Limaye, learned counsel for the Respondents, submitted that the legal heirs of the original licensee - said Mr. Mathur kept paying rent and therefore they are protected licensee/deemed tenants being in possession on 01.02.1973, u/s. 15A of the Bombay Rent Act. That the cause of action as shown in paragraph No.7 of the plaint is that on the death of said Mr. Mathur (in August 1971) and on determination of leave and license agreement by efflux of time (in January 1972), the Defendants are said to be trespassers and therefore suit filed in the year 1991 is barred by limitation. He submitted that the aspect of limitation was not considered by the Trial Court. That no notice of termination or revocation has been issued from 1972 till 1991 and therefore, the judgment of D.H. Maniar (supra) will not apply. He submitted that there was no element of hostility and therefore this is a clear case of permissive user. He further submitted that long standing permissive user post alleged expiry of license, coupled with payment of compensation must lead to finding of tenancy and therefore the suit is rightly dismissed by the Appellate Bench. He relied on following judgments in support of his submissions. i. Mani Nariman Daruwala Alias Bharucha (deceased) through LRS and Ors. V. Phiroz N. Bhatena and Ors. [(1991) 3 SCC 141]. ii. Maharashtra Rajya Veej Vitaran Company, Malkapur and Anr. V. Manoj Abarao Deshmukh and Anr. [2015(3) Mh.L.J. 459]. iii. N.N. Dogra V. Mira J. Pahlajani (C.R.A. No.617 of 2018 Bombay High Court Judgment pronounced on 21.08.2024 by Single Judge).
11. Mr. Kanade, in rejoinder, submitted that the license is a personal right and therefore it must be established by Defendants, which is not established in the present case and therefore section 22 of the Limitation Act would apply. He submitted that this is a case of continuous breach or tort and therefore fresh period of limitation begins to run at every movement of the time during which breach or tort continues. He submitted that since the possession of the Respondents continued without any authority or subsisting license, the suit, as filed by the Petitioner, is not barred by limitation. CONSIDERATION, REASONS AND CONCLUSION
12. I have carefully considered the rival submissions and perused the record.
13. At the outset, it is necessary to be noted that the Defendants/Respondents have chosen not to file an application under Order IX Rule 13 of the CPC and therefore the aspect as to whether the Defendants were prevented by any sufficient cause for appearing in the suit is not relevant consideration. The Defendants had filed written statement, therefore summons was duly served. The Defendants chose to file substantive first appeal and therefore, the case will have to be considered on merits of rival claims.
14. Before proceeding with the matter any further, let us see how the Appellate Bench has dealt with rival claims.
14.1. Perusal of the Appeal Court’s judgment (Paragraph 17) shows that it was conscious of the fact that the Defendants in written statement have not denied the title of the Plaintiff, but had taken defence of landlord-tenant relationship and that leave and license agreement was executed for name-sake to circumvent provisions of Bombay Rent Act. The Appeal Court was also conscious of the fact that this contention has not been proved by the Defendants by adducing evidence.
14.2. The Appeal Court has held that there was no case of adverse possession made out by Respondents and therefore it is for the Plaintiff to show that there is no limitation of 12 years. Yet, the Appeal Court held that the Defendants continued in possession till 1991 without interruption or demand of possession and therefore Articles 65 or 67 of the Limitation Act would apply and the suit is barred by limitation. The said reasoning is perverse, in as much as, it is nobody's case that Defendants were in adverse possession. Therefore, question of application of Article 65 does not arise.
14.3. It must be noted that Article 67 of the Limitation Act can be considered and applied only after the Court comes to a positive conclusion that there was landlord-tenant relationship, which is not at all established in the present case.
14.4. The Appeal Court was also conscious of the fact that it is for the Respondents to establish that they were in possession under existing license if they are to seek protection under section 15A of the Bombay Rent Act (see paragraph 19). Mere permissive user after expiry of license would not establish continuation of license, to claim protection as deemed tenant.
14.5. Strangely, the Appeal Court in paragraph 21 of the judgement has held that “It was not the case of the Plaintiff that, the defendants were in arrears since 1972. Therefore, it is necessary to be inferred that possession of the Defendants was from even 1/2/1973 as permissive possession. Therefore, it is necessary to consider them as licensees under subsisting leave and licence agreement which might be yearly, therefore, plaintiff has not challenged their possession till the year 1991.” On such inference, the Appeal Court has considered the Defendants as licensees under subsisting leave and license agreement. The Appeal Court has held that allowing the Defendants to continue in possession after the death of licensee is necessary to be inferred to mean that there was jural relationship created by Plaintiff in favour of tenant. The Appeal Court, in the same paragraph, has also assumed that Defendants have made payments and Plaintiff has accepted them after the license period was over.
14.6. The Appeal Court has thus proceeded to assume things and held about payment of compensation in absence of any evidence to support it. The Appeal Court has simply equated permissive possession with subsisting valid license with consideration. This is perverse.
15. Considering the above and further considering the Petitioner’s advanced age, it is necessary to consider the case on merits, here in writ petition and remand is out of question.
16. The most important consideration here is whether there was subsisting license between the parties. Section 15A of the Bombay Rent Act mandates that where any person is in occupation of any premises or any part thereof as a licensee as on 01.02.1973, he shall on that date, be deemed to have become tenant. Section 15A starts with non-obstante clause.
17. Perusal of the leave and license agreement dated 15.02.1971 shows following clauses:
18. Admittedly, there is no evidence before the Court that the licence agreement was extended beyond 14.01.1972 in writing. There is no such case even pleaded. There is also no evidence at all about payment of compensation or its acceptance between parties. Under above clauses, the Defendants agreed not to get any tenancy rights. The stand that it was executed name-sake to circumvent the provisions of Bombay Rent Act is both convenient and illegal. If the intention of the parties was different from what is written in the agreement, then it is for defendants to establish such intention. The Defendants have simply failed to do so. The stand that said Mr. Mathur was in need of premises and therefore signed the agreement, is also a self-suiting, convenient stand, which is not established by evidence.
19. License is defined under section 52 of the Indian Easement Act 1882, which reads as under: "52. “License" defined - Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable 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 license.”
20. The three Judges’ Bench of the Hon’ble Supreme Court, way back in the year 1976, had an occasion of considering the provisions of section 15A of the Bombay Rent Act in the case of D.H. Maniar (supra) when, the Hon’ble Supreme Court has held as under:
21. It is therefore clear that to get the advantage/protection of Section 15A of the Bombay Rent Act, it is necessary that defendant must establish subsisting agreement of license as on 01.02.1973. If license under subsisting agreement is not established, then the defendant does not get advantage. It is also clear that a person continuing in possession of premises after termination, withdrawal or revocation of the license, continues to occupy as a trespasser and such person cannot be called a licensee.
22. In the present case, admittedly, the Respondents have not led any evidence. They have not cross-examined Plaintiff’s witness. There is nothing on record to establish that after 14.01.1972 when the leave and license agreement came to an end by efflux of time, the license was ever continued or renewed. In that view of the matter, there is nothing on record to establish that on 01.02.1973, the Defendants were licensee under a subsisting license and therefore, they cannot claim protection of becoming deemed tenants.
23. The argument that there is no notice of termination or revocation till filing of the suit and therefore the ratio of D.H. Maniar (supra) would not apply, has no merit for following reason. In the facts of present case, license is admittedly expired by efflux of time. Section 62(c) of the Indian Easement Act 1882, reads as under: “62. License when deemed revoked – A license is deemed to be revoked - (a) xxx (b) xxx
(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;” Thus revocation includes ‘expiry of license by efflux of time’. The Hon’ble Supreme Court in D. H. Maniar (supra) has taken note of above provision of law, in paragraph 8 of the said judgment. Since it is not the case of the Defendants that on 01.02.1973, the period under agreement had not expired, present case is squarely covered by law laid down in D.H. Maniar (supra).
24. The argument that the Defendants continued to pay compensation even in absence of renewal of leave and license agreement, is without merit, since there is no evidence of continued payment or its acceptance.
25. Way back in September, 1986, the Hon’ble Suprme Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram [AIR 1987 SC 117], has held that ‘the licence is not an interest in property and it is purely a personal right.’ Personal right must be established by leading evidence. In the present case, the Respondents have not led any evidence to establish continuing license in their favour and therefore they are not entitled to protection under the Bombay Rent Act.
26. Having held that the Respondents are not protected licensee, their continued possession of the suit premises is an ongoing/recurring cause of action. Therefore, the suit filed in the year 1991 is well within limitation and Appeal Court was not justified in holding that the suit is barred by limitation. The Appeal Court was not justified in applying Article 67 of the Limitation Act, which deals with suit by a landlord to recover possession from tenant within 12 years from the determination of the tenancy.
27. So far as judgment of N.N. Dogra (supra) relied upon by the Respondents is concerned, paragraph No.11 of the said judgment indicates that in the facts of that case, after expiry of last renewal of license, the licensor had requested licensee to deposit certain amount by adjusting the same against compensation. In that context, and in those particular facts, the learned Single Judge of this Court held that parties agreed for continuation of license arrangement even after expiry of license period. The facts of the present case are completely different and therefore, the judgment of N.N. Dogra (supra), being clearly distinguishable, will not advance the case of the Respondents.
28. So far as the judgment Maharashtra Rajya Veej Vitaran Company (supra) is concerned, the learned Single Judge of this Court was considering the lease terminated by efflux of time and therefore it was held that suit for possession must be filed within 12 years from the date of determination of lease by efflux of time. In the present case, there is no lease agreement. Present case is purely of ‘leave and license’ under written agreement, which expired prior to 01.02.1973. Therefore the said judgment will also not advance the case of the Respondents.
29. In Gokak Patel Volkart Ltd. (supra) and Vinay s/o Ambadas Kaikini & Anr. (supra), the Hon’ble Supreme Court and this Court (respectively) has held that trespass is a continuing offence and therefore cause of action would continue. In the present case in absence of evidence about subsisting license after 14.01.1972, the Respondents are nothing but trespassers in continuation giving rise to continuous cause of action, and therefore, the suit filed by the Petitioner is well within limitation. These judgments support the case of the Petitioner.
30. In the case of Mani Nariman Daruwala (supra), the Hon’ble Supreme Court was considering almost identical situation where although written statement was filed claiming tenancy, they did not take any steps to establish the said claim and the matter was decided ex-parte. In that case, the portion of premises for which license was not proved, was directed to be handed over to the licensor. In the said case the Hon’ble Supreme Court found that High Court was not justified in interfering with the finding recorded by the Appeal Court in limited jurisdiction under Article 227 of the Constitution of India. In the present case, however, the finding of the Appeal Court about subsistence of license after its expiry by efflux of time and payment of compensation, is found to be perverse therefore, in my considered view, interference is necessary. Hence the judgment in Mani Nariman Daruwala (supra) will not advance the case of the Respondents.
31. In the aforesaid facts and circumstances and for the reasons indicated above, the Appeal Court was not justified in holding that the Defendants are protected licensee/deemed tenants in the suit premises and was also not justified in holding that the suit is barred by limitation. I find both these findings perverse in the peculiar facts and circumstances narrated above. Therefore, I find it necessary to interfere. Accordingly, the petition succeeds and following order is passed: (a) The impugned Judgment and Decree/Order dated 25.06.2003 passed in Appeal No.283 of 2000 by Appellate Bench of Small Causes Court at Mumbai, is quashed and set aside. The Judgment and Decree dated 29.10.1999 passed by the Small Causes Court at Mumbai in L.E. & C. Suit No.112/134 of 1991 is confirmed. (b) Considering the advanced age of the Petitioner, the Respondents are directed to hand over vacant and peaceful possession of the suit premises to the Petitioner within a period of six weeks from today. The decree of eviction becomes executable immediately after 6 weeks.
(c) Rule is made absolute and writ petition is disposed of in above terms. No order as to cost. copy of this order. (M.M. SATHAYE, J.)