HASSAN ABDUL Vs. NANDGAURI BHOGILAL

JUDGEMENT

(1.) THIS is a revisional application from the Small Causes Court at Bombay under the following circumstances. The respondents are the owners of a property known as 'Balkrishna Niwas' 2nd Road, Khar, Bombay. They filed an application in ejectment under Section 41 of the Presidency Small Cause Courts Act, against (1) Sukunraj Sagarmal Jhaveri, (2) Gajraj Sagarmal Jhaveri, (3) S.S. Mule and (4) M.A. Moidu, contending that Sukunraj Sagarmal Jhaveri and Gajraj Sagarmal Jhaveri were their licensees and that the licence was terminated. As to S.S. Mule and M.A. Moidu, it was alleged that as they were in possession under the licensee, they were joined as parties to the proceeding. It appears that the original defendants Nos. 1 to 4 did not file any defences whatsoever to this proceeding. In June of 1961, the petitioner filed an application before the Court in that proceeding, contending that he was in possession of the premises and M.A. Moidu was only his servant, that he was vitally interested in that proceeding and, therefore, he should be added as a party. This application was heard on merits after issuing of notice to the original applicants and thereafter allowed. The petitioner after becoming a party to that application raised a contention that he was the direct tenant of the owners and that he was entitled to the protection of the Rent Act. The original applicants denied that he was their tenant. On these contentions, an issue was cast as required by amended Section 42A of the Presidency Small Cause Courts Act, the amendment having been effected by the Maharashtra Act, L of 1968, which applied to all proceedings, pending as well as to those to be filed in future.

(2.) THE issue was 'whether respondent No. 5 shows that he is a tenant'. The learned trial Judge answered the issue against the petitioner holding that he had not established that he was a tenant. The petitioner, therefore, filed an appeal to the Bench of Judges under Section 42A(2) of the Act. The appeal Bench, however held that the appeal was not competent.

(3.) SECTION 41 enables the owner of the premises to file an application for eviction of a person (i) when he has had possession of immovable property as a tenant, (ii) or by permission of another person or (iii) of some person through whom such other person claims and such tenancy or permission has been determined or withdrawn and if he refuses to deliver possession. It is obvious that in order to be able to file an application under Section 41 of the said Act, it is not necessary that the - person against whom the application is filed must accept that he is a licensee. Even if the person is in occupation of the premises through a tenant or through a licensee, an application would lie against him under Section 41 of the Act. If the applicants allege that the person in occupation is a trespasser, then the application would not be competent.