NEW SHORROCK MILLS Vs. SOMABHAI MATHURBHAI PATEL

JUDGEMENT

(1.) Can the petitioner who by invoking ordinary civil jurisdiction of the Court had sought possession of the premises in occupation of the respondent alleging that the respondent was a mere licensee whose licence was terminated. ask the Court to decree his claim for possession in exercise of jurisdiction conferred upon it under sec. 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) on the basis relationship between it (petitioner) and the respondent was that of landlord and tenant governed by the provisions of the Act ? I am called upon to answer this question in this revision application in the background of the following facts.

(2.) . Petitioner is a public limited Company. The respondent was in its employment and it is alleged that the respondent was given premises in one of the properties owned by the petitioner for his use and occupation as a licensee on account of his employment with the petitioner The respondent retired from service and the petitioner terminated the licence and called upon the respondent to hand over vacant possession of the premises in his occupation (herein after referred to as the suit premises) to the petitioner on or before January 31 1978 The respondent however failed to deliver possession of the suit premises to the petitioner. Petitioner therefore filed a suit being regular Civil Suit No. 348 of 1978 in Court of Civil Judge Senior Division at Nadiad for recovery of possession of the suit premises from the respondent and mesne profits. The defence of the respondent was that he was a tenant and not a licensee as alleged by the petitioner in the suit premises. In substance the respondents contention was that he was a tenant entitled to the protection under the Act and the petitioner was not entitled to recover possession of the suit premises from him except as provided under the Act. It was further contended by the respondent that since the petitioner had invoked the ordinary civil jurisdiction of the Court claiming possession of the suit premises on the ground of termination of the licence the Court had no jurisdiction to decree the petitioners claim for possession.

(3.) . The learned trail Judge by her judgment and decree dated 31/12/1979 upheld the respondents contention that he was petitioners tenant in the suit premises. She however held that the petitioner was entitled to recover possession of the suit premises from the respondent under sec. 13(1)(f) of the Act inasmuch as the suit premises were let out to the respondent for use as a residence by reason of his being in the employment of the petitioner and the respondent had ceased to be in such employment on his retirement from the petitioners service. Consequently the learned trail Judge decreed the petitioners suit. Feeling aggrieved by the decree passed by the learned trail Judge the respondent went in appeal before the District Court at Nadiad. The learned Extra Assistant Judge Nadiad who heard the appeal confirmed the finding of the learned trail Judge that the respondent was the petitioners tenant. He allowed the appeal and dismissed the petitioners suit holding that since the petitioner had failed to prove that the respondent was its licensee no relief could have been granted to the petitioner. In other words according to the learned Judge once it is held that the respondent is a tenant and not the licensee as claimed by the petitioner the case would be governed by the provisions of the Act and no decree could have been passed in the present suit which was filed on the ground that the respondent was petitioners licesee. Petitioner has preferred this revision application challenging the view taken by the learned Judge.