KIRTI SOHAN MODI AND ORS. Vs. CREATION

JUDGEMENT

(1.) This suit seeks an order of permanent injunction against the Defendant restraining it from entering upon the terraces of the Plaintiffs' buildings and a mandatory order and injunction directing the Defendant to remove the hoardings as well as of its belongings from the terraces of the buildings and to cease to occupy the premises. The Plaintiffs also seek compensation or damages for use of the suit premises by the Defendant between 1 April 2007 to the date of the suit and thereafter till the time the Defendant removes itself from the suit premises. It is the Plaintiffs' case that the Defendant was granted licence to use the premises for display of advertisements on hoardings under an agreement for licence reserving a monthly compensation payable for such user. It is the Plaintiffs' case that the agreement, which was renewed from time to time, finally expired on 31 March 2007 by efflux of time and also by termination notice issued in that behalf on 10 March 2007; and that after expiry of the licence, the Defendant has become a trespasser in respect of the suit property. It is, accordingly, claimed that the suit is between the owners of the property (Plaintiffs as trustees of Bhaidas Maganlal Charity Trust) and a trespasser (Defendant, who was a former licensee). At the hearing of the Notice of Motion, the Defendant objected to the jurisdiction of this Court to entertain and try the present suit. It is the case of the Defendant that the suit is between a licensor and a licensee for recovery of possession as well as licence fee and that such suit lies within the exclusive jurisdiction of the Courts of Small Causes under the provisions of Sec. 41 of the Presidency Small Causes Courts Act. By an order passed by this Court on 2 March 2015, this Court framed a preliminary issue of jurisdiction under Sec. 9A of the Code of Civil Procedure, 1908 in this behalf. Both the parties have chosen not to lead any oral evidence in the matter. Learned Counsel made oral submissions on the preliminary issue. This order finally determines the preliminary issue.

(2.) The Plaintiffs have relied upon an agreement dated 8 September 1989, between the Plaintiffs and the Defendant. By this agreement, the predecessor -in -title of the Plaintiffs - Chandaben Bhaidas, who was the owner of the suit premises and created a trust in respect of the suit premises, as the trustees of which the Plaintiffs claim ownership of the suit premises, permitted the Defendant to erect and display advertisements on a steel structure and Hoardings/Neon Signs by making use of the two terraces on the suit buildings. The agreement was initially for a period of one year and provided for a monthly licence fee or compensation of Rs. 15,000/ -. The agreement was renewed from time to time. By an agreement dated 26 September 1996, between the trustees of Bhaidas Maganlal Charity Trust (trust created by the deceased Chandaben Bhaidas under her last will and testament, which was duly probated by this Court) extended the agreement of licence for a further period ending on 31 March 1999. The licence period was further extended finally by a letter dated 29 August 2001 upto 31 March 2007. By their Advocate's letter dated 10 March 2007, the Plaintiffs terminated/cancelled the agreement, calling upon the Defendant to remove its belongings, including its servants, agents and hoarding signs within three weeks from the receipt of the letter or by 31 March 2007, whichever is later, making it clear that the Plaintiffs did not wish to extend the agreement any further after its expiration. It is the Plaintiffs' case that, despite termination of the agreement, the Defendant, who is nothing but a trespasser of the property after termination of the licence, has continued to illegally occupy and use the suit premises for display of advertisements. It is the Plaintiffs' case that, after expiry of the period of licence, the Defendant has no right whatsoever to remain in the suit premises. Accordingly, the Plaintiffs have prayed for a permanent injunction restraining the Defendant from entering upon the terraces of the building and also a direction and order to the Defendant to remove the hoardings and all its belongings from the terraces of the suit buildings and cease to occupy the suit premises forthwith. The Plaintiffs have also prayed for a decree for a sum of Rs. 1,27,88,182/ - as arrears of compensation/damages towards use of the premises for the period from 1 April 2007 to upto the date of the suit. It is the Defendant's case in the written statement that the Defendant is a tenant in respect of the suit premises or alternatively a licensee holding an irrevocable licence in respect of the suit premises. It is submitted that the suit premises consist of a suit site or area of about 1200 sq. ft. with permanent irremovable structures erected by the tenant/licensee at its own cost in or about 1989 -1990. The Defendant denies that the licence was for any fixed period of time or it expired on 31 March 2007.

(3.) Going by the Plaintiffs' own averments in the present suit, the Defendant is admittedly a licensee in respect of the suit premises for display of hoardings. What is, however, the Plaintiffs' case is that this licence has been terminated by the Plaintiffs and, after termination of the licence, the Defendant occupies the suit premises, using them as a trespasser. The question is whether, on these facts, the suit is between a licensor and licensee for recovery of possession of immovable property or licence fees. Sec. 41 of the Presidency Small Causes Courts Act, 1882 provides that the Courts of Small Causes alone shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee relating to recovery of possession of any property situated in Greater Bombay or recovery of any licence fee or charges in respect thereof. Learned Counsel for the Plaintiffs submits that a former licensee, whose status after termination of the licence has become that of a trespasser, is not covered by the expression 'licensee' used in Sec. 41. He relies upon the judgments of the Full Bench of our Court in Central Warehousing Corporation, Mumbai v/s. Fortpoint Automotive Pvt. Ltd., Mumbai : 2010(1) Mh.L.J. 658 and judgments of the Supreme Court in the case of Sanwarmal Kejriwal v/s. Vishwa Cooperative Housing Society Ltd. : (1990) 2 SCC 288, D.H. Maniar v/s. Waman Laxman Kudav : (1976) 4 SCC 118 as also of a learned Single Judge of our Court in the case of Kantilal Somabhai Kothari v/s. Udayvare Raghavendra Acharya : 2006 (6) Bom.C.R. 642 and a judgment of Jammu & Kashmir High Court in the case of Beant Singh v/s. Cantonment Executive Officer, Jammu : AIR Jammu & Kashmir 83 (V 47 C 37) in support of his submissions.