PRABHUDAS DAMODAR KOTECHA Vs. MANHARBALA JERAM DAMODAR

JUDGEMENT

(1.) The order of reference dated 16.1.2006, which has occasioned the constitution of this Full Bench, has been passed by the learned Single Judge in view of a divergence of the views of the Division Benches of this court, the first being in Ramesh Dwarkadas Mehra Vs. Indravati Dwarkadas Mehra, 2001(3) ALL MR 668 and the second in Letters Patent Appeal No.129 of 1993 Mills) (Bhagirathi Lingawade and ors Vs. Laxmi Silk Mills), decided on 3.9.1993. The provisions of Section 41(1) of The Presidency Small Cause Courts Act, 1882 (for short, "PSCC Act") and section 5(4A) of The Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Rent Act") crop up for consideration in these petitions. In view of a conflict in the interpretation made by the Division Benches, in the aforesaid cases, on the language of these provisions the learned Single Judge has made a reference to the Larger Bench. The Hon'ble the Chief Justice has accordingly constituted this Full Bench to decide the same.

(2.) The Division Bench in Ramesh Dwarkadas Mehra's case was dealing with the question, "Whether a suit by a licensor against a gratuitous licensee is tenable before the Presidency Small Cause Court under section 41 of the Presidency Small Cause Courts Act, 1882 or should such a suit be filed before the Civil Court - This question was answered by the Division Bench holding that a suit by a licensor against a gratuitous licensee is not tenable before the Presidency Small Causes Court under section 41(1) of PSCC Act and it should be filed before the City Civil Court or the High Court depending upon the valuation. The Division Bench has observed that the expression "licensee" used in section 41(1) of PSCC Act has the same meaning as in section 5(4A) of the Rent Act. In other words, the expression "licensee", not having been defined in PSCC Act, must derive its meaning from the expression "licensee" as used in section 5(4A) of the Rent Act. The expression "licensee" as used in section 5(4A) does not cover a "gratuitous licensee". Consequently, the ejectment application in that case filed in the Court of Small Causes at Bombay was dismissed as without jurisdiction, holding that the suit was within the jurisdiction of this Court on the Original Side.

(3.) In Bhagirathi Lingawade's case, decided on 3.9.1993, the Division Bench has expressed a view that the provisions of Section 5(4A) and section 13(1) of the Rent Act are not at all relevant for interpreting the scope and ambit of section 41 of PSCC Act. The Division Bench, after considering the submissions advanced by the learned counsel for the parties, in paragraph 5 of the order held thus: