M.L. NAG Vs. BHOPINDER RAI

JUDGEMENT

(1.) THE Petitioner herein is the original Defendant and the Respondent herein is the original Plaintiff. The Plaintiff moved an application under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It was the contention of the plaintiff that the defendant was allowed to use and occupy the premises for residential purpose on Leave and Licence basis for 11 months by Agreement dated 1st October, 1983 on monthly licence fee/compensation of Rs.375.00 per month. The said Leave and Licence period had expired on 31st August, 1984 and the agreement dated 1st October, 1983 was automatically terminated from 31st August, 1983 by an efflux of time. It is then contended that the Defendant originally came in the premises from 1st April, 1978 by an agreement of Leave and Licence dated 1st April, 1978. The premises, according to the Plaintiff, were given on Leave and Licence, as the Plaintiff was residing out of Ulhasnagar at the place of posting of her husband, who is an Army Officer. The Plaintiff has further pleaded that on the expiry of the period of Licence the Defendant was asked to hand over possession, but, however, on some excuse or the other he had neglected and failed to vacate the premises and to hand over the peaceful and vacant possession of the said premises to the plaintiff and that from 1st September, 1984 the Defendant is a trespasser in the said premises. It is then contended that the Defendant continued in the said premises who otherwise had come trespasser by efflux of time on expiry of the agreement and was called upon to pay mesne profits at the rate of Rs.750.00 per month by notice dated 29th December, 1987 till the defendant handed over the peaceful and vacant possession of the premises to the plaintiff. It is the contention of the plaintiff that the Defendant failed to hand over the possession nor has paid the compensation as mesne profits. Therefore, the suit for eviction.

(2.) THE defendant contested the proceedings. The defendant contended that the suit was not maintainable as the relationship between the plaintiff and the defendant was that of landlord and tenant. The Defendant contented that the plaintiff had sued the defendant on the basis of the agreement dated 1st October, 1983, which agreement purports to induct the defendant into the suit premises for a period of 11 months with effect from 1st October, 1983. The defendant has pleaded that in fact the defendant was residing in the premises for more than a decade since the year 1977-78 till 30th October, 1983 when the Plaintiff got executed an agreement for 11 months period. The defendant contends that after the agreement dated 1st October, 1983 had expired on 31st August, 1984 the Defendant has continued to reside in the premises without execution of any agreement. The defendant has pleaded that he is a tenant as (i) he has been residing in the premises from the Year 1977-78 continuously and there has been no break in the continuous possession of the said premises and that he was residing right in the premises with his family members from the inceptions; (ii) that Flat No.40 consists of two Wings and both Wings are self contained Wings with separate entrance doors. The Wing in occupation of the Defendant consists of two rooms, kitchen and W.C. with separate entrance door and (iii) the Defendant has been paying rent to the plaintiff for more than a decade and that even after the expiry of the purported agreement the defendant has paid the rent from 1st August, 1984 till 31st December, 1987.

(3.) THE Competent Authority, Konkan Division, Bombay, by his Judgment and order dated 30th June, 1989 has directed the eviction of the Defendant. The defendant was directed to give vacant and peaceful possession of the premises to the plaintiff. The defendant was also directed to pay compensation at double rate to agreed compensation i.e. at Rs.750.00 from January, 1988 till the possession of the premises is restored to the plaintiff.