RAGHUNATH P SINGHANIA Vs. YASIN T MAVANY

JUDGEMENT

(1.) THIS suit has been filed by the plaintiff with the following prayers.

(2.) FLAT No. L-3, 12th Floor, Breach Candy apartment, 70-C Bhulabhai Desai Road, Bombay-400026, hereinafter referred to as the suit flat was owned by Mrs. Asha Lata Singhania, late mother of the plaintiff, hereinafter referred to as the mother. By an agreement dated 15th April, 1968, the mother entered into a leave and licence agreement with the father of the defendant, hereinafter referred to as the ex-licensee. The licence fee was fixed at Rs. 1,300/- per month. Initially the period of licence was for 11 months commencing from 15th Aprit, 1968 and ending on 15th March, 1969. Four options of 11 months each for renewal were given to the ex-licensee. The father of the defendant had died. Thereafter the defendant has been residing in the suit flat along with his family. According to the plaintiff, the mother by a letter dated 28th June, 1972 terminated the licence. Even otherwise it is stated that the licence came to an end by efflux of time on 14th November. 1972 when the four options for renewal expired. It is specifically provided in clause (1) of the agreement that after the four options, the agreement shall stand terminated. It is further stated that this licence cannot possibly be held by the defendant as it was given for the personal use and occupation of the ex-licensee who was a Managing Director of a firm in Goa. The other terms and conditions of the agreement were that the premises will be maintained in a good and tenantable condition. He was not to part with possession of the suit flat nor to run any paying guest house during the continuance of the licence. He was to observe the rules and conditions of the co-operative society. An undertaking was given that the ex-licensee will remove his family and servants from the suit flat on the expiry of the licence. In clause 18 of the agreement it is categorically stated that the exclusive possession of the flat will remain with the mother. This clause also contains a covenant to the effect that the licensee shall not construe this agreement as granting him any interest whatsoever, of any nature, including tenancy, sub-tenancy or any right in respect of the flat. The licensee also gave an undertaking in that he shall never claim any tenancy or sub-tenancy as provided above. This clause also provides that licensee is not paying and shall also not claim that he is paying rent in respect of the flat. The licence granted is personal and as such cannot be assigned or transferred by the licensee. In spite of the undertaking given above, the ex-licensee failed to deliver vacant possession to the mother in response to the letter dated 28th June, 1972. The mother passed away in 1990 and, therefore, the plaintiff has inherited the flat. Even the request made by the plaintiff, who is the son of the original owner, for vacating the flat has been refused by the defendant. It is claimed that the defendant is in occupation of the suit flat as a trespasser.

(3.) AN affidavit in reply has been filed wherein preliminary objection has been taken that this Court has no jurisdiction to try, entertain and dispose of the suit as the lis is between the landlord and the tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947, hereinafter referred to as the rent Act. On merits it has been pleaded that the ex-licensee was the father of the defendant, he having passed away, the rights of the ex-licensee have been inherited by the defendant. There is no valid revocation of the licence created by the agreement dated 15th April, 1968 either by the letter dated 28th June, 1972 or by efflux of time on 14th November, 1972. The ex-licensee was continuously paying the rent/licence fee to the mother. Thereafter the licence fee has been paid to the plaintiff. Since the licence was in subsistence on 1st February, 1973, the defendant is entitled to the protection of the Rent Act. All cases pertaining to the matters covered by the rent Act have to be filed in the Small Causes court acting as the Rent Court. That being so, it is submitted that jurisdiction of the High Court is barred under section 41 of the Presidency Small cause Courts Act, 1882 which was substituted by a new Chapter consisting of sections 41 to 46 by the presidency Small Cause Courts (Maharashtra amendment) Act, 1975 (Maharashtra Act XIX of 1976 ).