K M MOTWANI Vs. ALBERT SEQUEIRA

JUDGEMENT

(1.) This is an appeal against the decision of the learned City Civil Court Judge Mr. Divan dismissing the plaintiff's suit which was filed under S.47 of the Presidency Small Cause Court Act.

(2.) The undisputed facts are that the second respondent is the landlord and he let out the premises in suit prior to December 1947 to one Robert Nicolas. Robert Nicolas sublet the premises to the first respondent on 1-12-1947 and the first respondent gave leave and license to occupy these premises to the appellant in October 1948. As Nicolas did not pay rent to the landlord, the landlord filed a suit for ejectment and in February 1950 he obtained a decree. When he sought to execute the decree, the appellant obstructed and in these obstruction proceedings on 13-9-1950 an agreement was arrived at between the appellant and the second respondent by which the second respondent recognised the appellant as his tenant. The first respondent filed an application in the Small Causes Court under S. 41 contending that the appellant was his licensee, that he had terminated the licence, and he was entitled to an order of ejectment. An order vas made in his favour and the appellant then filed the suit from which this appeal arises, alleging that the order obtained by the first respondent constituted a trespass and he was entitled to compensation for the trespass. This is the suit which the learned Judge dismissed and which necessitated this appeal.

(3.) The contention urged by Mr. Lulla before us is that when the contractual tenancy of Nicolas terminated, either when the second respondent gave a notice terminating his tenancy or even when the decree for eviction was passed in February 1950, the sub-tenancy of the first respondent came to an end. The licence given to the appellant by the first respondent was by virtue of his title that he was a sub-tenant. It is only that title that entitled him to give the licence and that title determined as soon as the tenancy of Nicolas came to an end, and therefore according to Mr. Lulla it was not competent to the first respondent to maintain an application under S. 41, nor could he have obtained an order under the provisions of Chapter VII of the Presidency Small Cause Courts Act, and the order having been wrongfully obtained the application constitutes a trespass and he is entitled to succeed. The answer given by Mr. Valawalkar is that although the contractual sub-tenancy of the first respondent determined, he became a statutory sub-tenant by reason of S. 14 of the Rent Act because at the date when the sub-tenancy was created the sub-tenancy was not illegal and that the sub-tenancy created before the Rent Act came into force was protected under S. 14. In order to decide which of these rival contentions is sound, we must look at the provisions of the relevant sections.