TMI Blog1991 (4) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... premises. The other parties to these proceedings arc also described with reference to the said appeal. The tenancy of Bhatena was terminated by notice dated November 6, 1969 and thereafter he continued in occupation of the premises as a statutory tenant by virtue of protection conferred by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act'). On October 12, 1971, Bhatena permitted respondent No. 5 and his wife, respondent No. 6 to occupy, as licensees, for a period of 11 months, a portion of the said premises, consisting of two rooms with common user of kitchen under an agreement dated October 12, 1971, executed by Respondent No. 5. Under the terms of the said licence agreement, respondent No. 5 agreed to pay by way of compensation for use and occupation a sum of ₹ 325/- per month and paid a sum of ₹ 3575/ - to Bhatena towards the said compensation for a period of 11 months. He also deposited a sum of ₹ 5,000/- with Bhatena under the terms of the agreement dated October 12, 1971. Bhatena died on November 15, 1971 leaving behind respondents Nos. 1 to 4 as his heirs. Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have become a tenant in accordance with the provisions of Section 15A of the Bombay Rent Act. The said suit was also not contested by respondents Nos. 1 to 4 and it was decreed ex-parte against them on March 2, 1979. 5. Since the vacant possession of the premises was not handed over to the appellants by August 31, 1978 in accordance with the order dated July 14, 1978 passed in the Ejection Application the appellants took out warrant of possession and when they tried to execute the same through bailiff on September 12, 1978, respondents Nos. 5 and 6 raised an objection that they have a right to occupy the premises and they refused to hand over the possession. Thereupon, the appellants took out an obstruction notice to remove respondents Nos. 5 and 6 as well as for a general order to remove all persons which would be found from the premises. In the said proceedings, the appellants submitted that respondents Nos. 5 and 6 have no legal right in the premises and that they cannot claim any protection under the provisions of the Bombay Rent Act as amended by Maharashtra Act XVII of 1973, inasmuch as the licence was not subsisting in their favour on February 1, 1973. Respondents N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and that the licence that was created in favour of respondents Nos. 5 and 6 by Bhatena was perfectly legal. The Appellate Bench further found that the said licence was continued after the death of Bhatena and the same was not revoked at any time and it was subsisting on February 1, 1973 and, therefore, respondents Nos. 5 and had acquired a right to become a deemed tenant protected under Section 15A of the Bombay Rent Act. In that view of the matter, the Appellate Bench upheld the order of the Judge, Court of Small Causes at Bombay discharging the obstruction notice and they dismissed the appeal of the appellants. Feeling aggrieved by the said order of the Appellate Bench, the appellants filed a petition under Article 227 of the Constitution in the Bombay High Court which was dismissed by the High Court by judgment dated October 5, 1990. The High Court has set aside the finding recorded by the Appellate Bench of the Court of Small Causes about respondents Nos. 5 and 6 being entitled to claim protection under Section 15A of the Bombay Rent Act and has held that the licence created in favour of respondents Nos. 5 and 6 by Bhatena or by his legal heirs stood revoked by efflux of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 41 of the Presidency Small Cause Courts Act and order dated July 14,1978 was an order passed by the court without jurisdiction it is not open to respondents Nos. 5 and 6 to challenge the same and that too in proceedings in execution under Order 21, Rule 97 CPC. 8. Shri R.F. Nariman, the learned Counsel appearing for respondents Nos. 5 and 6 has, on the other hand, submitted that the licence granted in favour of respondents Nos. 5 and 6 was subsisting on February 1,1973, as found by the Appellate Bench of the Court of Small Causes and that respondents Nos. 5 and 6 were entitled to claim protection as deemed tenant under Section 15A of the Bombay Rent Act and that the High court, in exercise of its jurisdiction under Article 227 of the Contitution, was in error in setting aside the finding of fact recorded by the Appellate Bench. Shri Nariman has also urged that since respondents Nos. 5 and 6 are to be treated as deemed tenant under Section 15A of the Bombay Rent Act, eviction proceedings under Section 41 of the Presidency Small Cause Courts Act were not maintainable and the order dated July 14, 1978 passed in the said proceedings was an order passed by a court without jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary 1, 1973 which means that there must be a valid licence granted in his favour and the said licence must be subsisting on February 1, 1973. [See: D.H. Maniar and Ors. v. Waman Laxman Kudav 1911(1) SCR 403 and Ludhichem Agencies etc. v. Ahmed R.V. Peer Mohamed and Anr. . A licence can be created by a statutory tenant, i.e., a tenant whose contractual tenancy is terminated and who continues in occupation by virtue of the protection afforded by the Bombay Rent Act and against whom a decree of eviction has not been passed. [See Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (supra)]. 14. In the instant case, the Judge, Court of Small Causes, had held that respondents Nos. 5 and 6 were not entitled to any protection under the law on the view that after the termination of the contractual tenancy in 1969 Bhatena did not have any right to grant a licence. Relying upon a decision of the High Court wherein it was held that even a statutory tenant can create a licence, the Appellate Bench held that the licence created in favour of the respondents Nos. 5 and 6 by Bhatena was perfectly legal. This view of the Appellate Bench is in consonance with the law laid down by this Court in Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 had filed Declaratory Suit No. 1506/5225/73 against the legal heirs of Bhatena wherein an ex parte decree had been passed declaring that respondent No. 5 is tenant in respect of a part of premises in his occupation. The plaint of that suit is on record. In the said plaint, it is stated that after the death of Bhatena, the original tenant, respondent No. l had addressed a letter dated July 25, 1972 wherein respondent No. 5 has been described as a licensee and reference has also been made to the letter of the advocate of respondent No. l dated February 8, 1973 calling upon respondent No. 5 to pay to him the amount of compensation due upto February 11, 1973. In the said plaint, it was also averred that the licence that was created in favour of the plaintiff (respondent No. 5) was subsisting on February 1, 1973. An ex parte decree was passed in favour of respondent No. 5 in that suit and the same is on record. A reference to the same has also been made in the judgment of the Appellate Bench. The letters dated July 25, 1972 and February 8, 1973 are also on the record. In addition, there is a letter dated November 21, 1971 addressed by respondent No. l to respondent No. 5 whereby resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove the jurisdictional fact [See: Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and Ors. (supra)]. In the present case in the Eviction Application (EA No. 88/E of 1972), the appellants had stated that the statutory tenancy in respect of the premises came to an end with the death of Bhatena and that the defendants (respondents Nos. l to 4) who are the heirs and legal representatives of Bhatena are liable to deliver over vacant possession of the premises and they have no right of their own in the same. Although in the written statement filed on their behalf respondents Nos. 1 to 4 had claimed that they were tenants of the premises but they did not take any steps establish the said claim and the matter was decided ex parte against them on the basis of the averments contained in the eviction application. The order dated July 14, 1978 passed against respondents Nos. 1 to 4 in E.A. No. 88/E of 1972 cannot, therefore, be held to be without jurisdiction. Moreover, in appeal arising out of SLP No. 16512/90, a counter affidavit has been filed on behalf of respondents Nos. l to 4 wherein it is stated that after the death of Bhatena they did not become tenants of the premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16512/ 90, an interim order was passed by this Court on January 15, 1991 directing respondents Nos. 5 and 6 to pay a sum of ₹ 30,000/- in three equal instalments of ₹ 10,000/- each at an interval of two months and the first of such instalments had to be paid within two weeks from the date of the said order and the second after the interval of two months from such date and they were further directed to pay compensation at the rate of ₹ 325/- per month for the period commencing from January 1, 1991 within February 15, 1991 and will go on depositing the same thereafter every month within 15th of each succeeding month. In furtherance to the said order, it is directed that apart from the sum of ₹ 30,000/- which is required to be paid in accordance with the said directions of this Court the balance amount payable by respondents Nos. 5 and 6 towards compensation for the period October 12, 1971 to October 31, 1990 shall be paid in instalments of ₹ 10,000/- each at the interval of two months after the third instalment for the sum of ₹ 30,000/- has been paid. As regards compensation for the period subsequent to October 31, 1990, respondents Nos. 5 and 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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