M F DESOUZA Vs. CHILDRENS EDUCATION UPLIFT SOCIETY

JUDGEMENT

(1.) THIS is a defendants application for revision of a judgment of the Presidency Small Cause Court, Bombay, decreeing the plaintiff's suit for possession of a portion of a room which is in the occupation of the defendant as a licensee by virtue of a compromise decree passed in the previous litigation between the parties by this Court. Now, one of she terms of the consent decree is that the defendant will be entitled to occupy the aforesaid portion of the room as a licensee and that the licence in her favour would be irrevocable. The plaintiff, which is an educational society, contends that it is entitled to revoke the licence because the defendant has not been paying any compensation to the plaintiff for the use and occupation of the portion of the room in her possession as a licensee. The defendant contended that the consent decree made no reference whatsoever to the payment of rent or compensation to the plaintiff, and that, therefore, she was not liable. She further stated that while she was a licensee in respect of the entire room, she used to pay Rs. 15/- per month as rent to the plaintiff, and now that she is in possession of only one-third the portion, she is liable to pay only Rs. 5/- per month. She has further stated that she has tendered rent or compensation to the plaintiff at the rate of Rs. 5/- per month, but that the plaintiff has refused to accept it and therefore, according to her, she has committed no breach whatsoever of 'he terms of the licence.

(2.) ON behalf of the plaintiff it is contended before me that a licence must always be regarded as revocable at the will of the licensor except in the two cases set out in S. 60 of the Easements Act. Section 60 reads thus:

(3.) THEN it was contended that the learned Judge of the Court below has found that the defendant has not been paying any compensation to the plaintiff for her occupation of the l/3rd portion of the room and has therefore committed a breach of a term of the licence. Because of the breach of the term, the plaintiff says that it is entitled to revoke the licence. Now, if we scan the terms of the consent decree passed in the preliminary suit, we find that there is no reference whatsoever to the right of occupation being conditioned by the liability to pay compensation. The learned Counsel for the plaintiff, however, says that this must be implied in the agreement between the parties. He further points out that, even according to the defendant herself, she was not occupying the room or using it without paying rent, and that when she was examined before the Court below she has admitted that she did not expect to use the room gratis and that she was liable to pay the proportionate amount of rent; i. e. Rs. 5/ -. From this he wants me to conclude that one of the conditions of the licence was the payment of compensation by the defendant to the plaintiff. All that we have is the plaintiff's statement in the "cause of Action" to the effect that the defendant neglected to pay "the licence charges at the rate of Rs. 15/- per month. " There is no averment there, or even in the evidence of Dharamdas who was examined on behalf of the plaintiff, to the effect that the payment of Rs. 15/- per month was a condition for the occupation of one-third of the room. Now, since the plaintiff has failed to. establish that the payment of Rs. 15/- per month was a condition of the licence, it is not open to it to say that it is entitled to revoke the licence because the defendant has not been paying compensation at the aforesaid rate.