KHALIL AHMED BASHIR AHMED Vs. TUFELHUSSEIN SAMASBHAJI SARANGPURWALA

JUDGEMENT

(1.) This appeal by special leave arises from the judgment and order of the High Court of Bombay dt. 17th Nov. 1980. The main question involved in this appeal is whether the appellant was a licensee or a tenant and also incidentally the question whether the Court of Small Causes, Bombay had jurisdiction to deal with the eviction petition in this case. The premises in question belongs to the Bombay City Weavers Co-operative Limited. They filed ejectment proceedings against one Sugrabhai Mohammed Husain, their tenant and obtained a decree. It is stated that the appellant was a monthly tenant of the suit premises since about 2nd Feb. 1965. On or about 9th of February, 1965 a fresh document of that date was executed and it is alleged that the appellant continued by virtue of that agreement. It is alleged that this agreement was entered into between the parties since the respondent wanted to charge more rent or mesne profits. This agreement is in writing and this was for a period of five years, i.e., from 1st Sept. 1965 to 31st Aug. 1970. The main contention involved in this appeal is whether the appellant was a tenant or a licensee The answer would be dependent upon the construction of the aforesaid document. It is necessary, therefore, to refer to the said agreement in little detail. The agreement is described as an agreement of 'leave and licence' entered into between the respondent on the one hand and the appellant on the other wherein the respondent had been described as the 'licensor' and the appellant had been described as the 'licensee' and the recitals therein recite that the licensor was seized and possessed of and was otherwise well entitled as the monthly tenant of the workshop premises situated at 231, Ripon Road, Co-operative Building, Bombay, being the premises in dispute, and whereas the licensee had approached the licensor to allow him to occupy and use the said premises for the purpose of carrying out his business of workshop for a period of five years and whereas the licensor had agreed to allow the licensee to use the premises under the said leave and licence of the licensor for a period of five years from 1st Sept. 1965 till 31st of August, 1970, that agreement was being executed. It was stated that the licensor gave and granted his 'leave and license' to the licensee to use and occupy the said premises for the period of five years. Clause 2 of the said agreement recites that the licensee had agreed to use the premises as above and merely for the purpose of workshop business. It further goes on to state that the "licensee shall not under any circumstances be allowed to use the premises for the residential purposes or any other purpose save and except specified therein". The period of leave and licence was to commence from 1st Sept. 1965 to 31st Aug. 1970 and it was further submitted that the licensee and the licensor shall not terminate the said agreement earlier save and except on the ground of breach of any of the terms and conditions written therein. The licensor was entitled to terminate the agreement earlier notwithstanding the fact that the period of the agreement might not have expired. It further stipulated that the licensee should deposit a sum of Rs. 2,500/- for the due performance of the terms and conditions of the agreement. The said deposit was to be kept free of interest and the same was to be refunded to the licensee on the licensee surrendering possession of the said premises by removing himself and his belongings on the expiry of the period of the agreement or sooner termination or determination thereof after deducting all the dues if any for payment of compensation. It further stipulated that the licensee shall pay to the licensor a monthly compensation of Rs. 225/- per month. It is further stipulated that the licensee would be entitled to keep the keys of the said premises with him and shall be at liberty to work in the said premises for twenty hours subject to restriction of rules and regulations imposed by the Municipal or any other local authority or authorities. It is further provided that the licensee shall be alone responsible and liable for any breach or contravention of any rule or regulation of the said authorities and he shall indemnify the licensor therefor. The document further stipulated that the licensee shall be at liberty to construct loft and electric fittings and apparatus and tools and shall be entitled to the ownership thereof and shall be free to carry away such articles and the licensor agreed and undertook that he shall not obstruct the removing of such articles at the time of the delivery of the possession of the said workshop. It is further mentioned in the said agreement that it was agreed by the licensee that if he commits any default of any terms and conditions or fails to pay the compensation for two months or if the licensee at any time puts up false or adverse claim of tenancy or sub-tenancy the licensor shall be entitled to terminate the agreement and cancel and revoke and withdraw the leave and license granted earlier and shall be entitled to take possession forthwith of the said premises. It is further stipulated that the licensee shall pay the electric charges in respect of consumption of electricity and the rent of the said premises should be paid by the licensor only. The agreement recited that the licensee shall not allow any other person to use and occupy the said premises and shall not do any unlawful or illegal business therein. The agreement further recited that the licensor shall have the full right to enter upon the premises and inspect the same at anytime. In setting out the terms of the agreement the emphasis has been supplied to the relevant clauses to highlight the points in controversy.

(2.) On or about 9th Nov. 1970 the respondent herein filed an ejectment proceeding against the appellant under S. 41 of the Presidency Small Cause Courts Act, 1882. It is well to refer to S. 41 of the said Act which is in Chapter VII and deals with summons against person occupying property without leave and provides that when any person had possession of any immovable property situate within the local limits of the Small Cause Court's jurisdiction and of which the annual value at rack-rent did not exceed two thousand rupees, as the tenant, or by permission of another person, or of some person through whom such other person claims, and such tenancy or permission has been determined or withdrawn then a suit can be filed by a summons against the occupant calling upon him to show cause therein. It was only when the person was in occupation by permission of the grantor that after the recovery of the permission a suit for possession could have been instituted under S. 41 of the said Act.

(3.) On or about 9th Nov. 1970 the owner of the premises filed an ejectment proceeding against one Sugrabhai Mohammed Husain and obtained a decree. The trial Judge in the instant case passed a decree in ejectment petition filed by the respondent and ordered the appellant to vacate the premises before 31st Jan. 1975. Before the Judge, Court of Small Causes the points of defences were filed in which the appellant had stated that the application was not maintainable and the plaintiff was himself occupying the premises under one Sugrabhai Mohammed Husain who himself had adopted ejectment proceedings against the respondent. The appellant was contending that he was a direct tenant of the respondent. Without prejudice to the above contention it was contended by the appellant that the respondent was not the owner of the workshop and also denied that he had given the workshop to respondent for conducting business. The submission was that there was sub-tenancy by the respondent in favour of the appellant as a monthly tenant of the business with the articles and machinery belonging to the appellant and not to the respondent. On those grounds it was contended that ejectment proceeding was liable to be rejected.