SHAMJI ASOO Vs. INDERMAL DHANRAJ

JUDGEMENT

(1.) The Petitioner Also filed an ejectment application No. 587/E of 1968 against the respondent Indermal Dhanraj under section 41 of the Presidency Small Causes Court Act, seeking possession of Shop No. 5 on the ground floor of Kamla Bhuvan in Shanghai Estate, Ghatkopar, Bombay. The Petitioner was holding the shop as a tenant from the original owner and had in turn granted it on leave and licence basis to the respondent for a period of eleven months with effect from 15-9-1967. The said licence expired on 15-8-1968. Therefore, he took out the above-said proceedings for possession.

(2.) The parties arrived at a compromise and by the consent terms filed on 8-9-1970 it was agreed that the respondent should hand over vacant possession by 31-10-1970. Clause 2 of the consent terms further mentioned that the licence fees for the period 15-91968 upto 31-8-1970 were already cleared. It is Clause No. 3 which has given rise to a good deal of debate and it reads thus :

(3.) Default having occured, warrant for possession was taken out and the applicant was put in possession on 24-4-1974. On 26-4-1974 Pukhraj Indermal, son of the respondent, moved the Small Causes Court at Bombay by interlocutory Notice No. 1113 of 1974 for restoration of possession mainly on the ground that although default in payment of the licence fees for the months of January and February 1974 had occured, he had made an attempt to clear the dues in the first week of March 1974 as his father had been to his native place and had not returned but the applicant told him that he could not receive the amount from anyone except the respondent. Therefore, he kept quite; but to his surprise the warrant was executed on 24-4-1974. Next he alleged that he was a partner in the firm of Messrs. Pukhraj Indermal and as such partner he was in physical possession of these premises on the date on which the warrant was executed. He had every right to tender the licence fees but acceptance was wrongfully refused. The firm of Messrs. Pukhraj Indermal became a protected licensee and there was no right to dispossess by executing the warrant. In the alternative he pleaded that this should be treated as an application under Order 21, Rule 100 of the C.P.C. He was entitled to restoration of possession. In prayer Clause (e) of paragraph 11 he averred that possession of the suit premises be restored either to the respondent or to him or to the firm.