AMRITLAL VALJI Vs. G S SHAH

JUDGEMENT

(1.) The Small Causes Court tried two suits. The first was a suit instituted by the Petitioner in December 1973 claiming a declaration of tenancy. The second was a suit instituted by the Respondent in March 1979 for possession, under Section 41 of the Presidency Small Causes Courts Act, 1882. The suit instituted by the Respondent was decreed. The suit instituted by the Petitioner came to be dismissed. The judgment and order of the Trial Judge was delivered in November 1991 and was confirmed in appeal by the Appellate Bench of the Small Causes Court on 17th April, 1996. These petitions under Article 227 impugn the correctness of the judgment of the Appellate Bench. The two writ petitions arise out of the proceedings in the declaratory suit on the one hand and the suit for eviction on the other.

(2.) The premises in the present case comprise of Flat No.5 situated on the first floor of a building known as Sagar Mahal at Walkeshwar Road, Mumbai 400 006. The First Respondent is a medical doctor and was at the material time in the service of the Central Railways as an Assistant Medical Officer. On 1st December, 1972, an agreement styled as a caretaker agreement was entered into between the First Respondent and the predecessor-in-interest and father of the Petitioners, Amratlal Valji who expired during the pendency of these proceedings. Under the agreement a licence was granted to Amratlal Valji to reside in the premises for a term of six months. The execution of the agreement has not been disputed. By Maharashtra Act 17 of 1973 the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were amended inter alia to incorporate by Section 15A a protection to licensees who were in occupation of premises on 1st February, 1973. Amratlal Valji instituted a declaratory suit on 20th December, 1973 in the Small Causes Court. The First Respondent instituted a suit for eviction under Section 41 of the Presidency Small Causes Court Act, 1882 on 15th March, 1979. Evidence was adduced in common. The Trial Judge dismissed the declaratory suit and decreed the suit for eviction instituted by the First Respondent. That order was confirmed by the Appellate Bench of the Small Causes Court.

(3.) In assailing the correctness of the judgment and order of the Appellate Bench, two submissions have been urged before the Court on behalf of the Petitioner; (i) Though the agreement dated 1st December, 1972 is styled as a caretaker agreement and purports to confer no more than a licence to the Petitioner to occupy the premises for a period of six months, in substance the intention of the parties was to create a tenancy. While the agreement of 1st December, 1972 was in fact executed by the Petitioner, both the Courts have erred in rejecting the contention of the Petitioner that it was obtained by fraud or misrepresentation; (ii) The Petitioner was in occupation of the premises under a licence which subsisted on 1st February, 1973 and upon the enactment of Maharashtra Act 17 of 1973 he attained the status of a tenant as envisaged by law. Both these submissions fall for consideration before the Court.