SAGIR AHMED NANHE Vs. MARIA PIEDADE GONSALVES

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) THE husband of the respondent was a tenant in the premises bearing shop No. 1 at 104, Matharpakhadi Road, Mazgaon, Mumbai-10 (for short the suit premises ). During his life time, he carried out business of tailoring in the suit premises in the name and style of "bella Vista Tailors. " After his death in 1963, the respondent continued to carry on the said business of tailoring for several years. In the year 1969, she granted a licence to conduct the said business in favour of the petitioner and one other. The licence was renewed from time to time and finally by a Leave and Licence Agreement dated 1st March 1972, the petitioner alone was granted the licence to carry on the said business of gents tailoring in the same name viz. "bella Vista Tailors. " Incidental to the licence to carry out the said business, the petitioner was allowed to use the suit premises for the purpose of carrying on the said business. According to the respondent, this agreement of licence dated 1st March, 1972 was a business conducting agreement and after expiry of the period of the licence, the petitioner ought to have returned the said business along with the suit premises to the respondent.

(3.) THE petitioner disputed the nature of the agreement dated 1st March, 1972. According to him, the agreement was not a business conducting agreement but was a camoflouge to avoid creation of sub-tenancy. According to him he was a sub-tenant/licencee of the suit premises and was not a business conductor. On expiry of the period of the licence, the petitioner filed a suit bearing R. A. E. Declaratory Suit No. 1310/4471/74 alleging that he was deemed to have become a tenant in respect of the suit premises under the provisions of the Bombay Rent and Lodging Houses Rates Control Act, 1947 (for short Bombay Rent Act ). The said suit was dismissed for default on 6th October, 1975. The Notice of motion bearing Misc. Application No. 1629 of 1975 for restoration of the suit was allowed subject to the petitioner depositing Rs. 5000/- towards the compensation upto July, 1976 within a period of six weeks failing which the motion was deemed to have been dismissed. The petitioner failed to deposit the said amount and therefore, dismissal of the suit became final.