KIRITKUMAR VALLABHDAS GAJARIA Vs. CHAMPABEN N KAPADIA

JUDGEMENT

(1.) BOTH these petitions can be disposed of by this common order as they involve the same point. The point involved is whether the Court of Small Causes at Bombay under section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as S. C. C. Act), in its pre-1976 form as also post-1976 form, has jurisdiction to entertain and try an application or suit for ejectment against a gratuitous licensee? fact IN WRIT PETITION NO. 2336 OF 1997: the suit premises involved are the upper floor (mezzanine floor) of the garage premises situated at Napeansea Gringe, 91, Napeansea Road, Bombay 400 006. In 1959, the respondents permitted the petitioners to use the said premises on license basis without payment of any compensation. The parties are closely related. By notice dated 29th March, 1968 the permission granted to the petitioners to occupy the premises was revoked. No reply was given to the said notice. The petitioners refused to deliver the premises. Hence, the respondents filed an application to recover from the petitioners vacant and peaceful possession of the suit premises on 29th March, 1968 under section 41 of the S. C. C. Act. The petitioner No. 1 filed points of defence on 11th November, 1968 contending that he was allowed to occupy the premises on tenancy basis. He admitted the close relationship between the parties, though denied that he was permitted to occupy temporarily. In view of section (now 42-A deleted by Maharashtra Act 19 of 1976), preliminary issue regarding plea of tenancy was framed. The trial Court held in favour of the petitioner by order dated 30th March, 1974. Appeal was filed on behalf of the respondents, being Appeal No. 429 of 1974. The Appeal came to be allowed. It was held that the petitioners were only gratuitous licensees. The petitioners filed Writ Petition No. 580 of 1986 in this Court. It came to be dismissed on 9th December, 1986 confirming the finding that petitioners were gratuitous licensees. The petitioners preferred S. L. P. No. 2011 of 1987 but the Supreme Court dismissed it. On 21st December, 1989, the trial Court heard the Ejectment Application and decided against the petitioners directing eviction from the suit premises by the Small Cause Court, Bombay. The petitioners filed Appeal No. 72 of 1990 before the Appellate Bench of the Court of Small Causes at Bombay. The Appeal came to be dismissed confirming the finding that the Small Cause Court, Bombay was having jurisdiction to decide the Appeal. FACTS IN WRIT PETITION NO. 5986 OF 1997 : the petitioner is the owner of flat No. 10, in Building No. 4, Navjivan Society, Lamington Road, Mumbai 400 008. The petitioner purchased the same from her own funds in October, 1970. Her husband was living with her who passed away in June 1983. The petitioner is having two sons- Shashi and Ramesh. Ramesh is the respondent in this petition. Both the sons were permitted to live in two separate rooms in the said flat as licensees without payment by the petitioner. They misbehaved and even made complaints against the petitioner to the police. Therefore, the petitioner served a notice upon them to vacate it. No reply was sent by any of them. They refused to vacate. Hence, the petitioner filed Ejectment Applications under section 41 of the S. C. C. Act in May 1990 for recovering possession from them. The Suit No. 106 of 1990 filed against Shashi came to be decreed in June 1992. Appeal filed by Shashi came to be dismissed by the Appellate Bench of the Small Cause Court in June 1993. Similarly, Civil Revision Application filed by him in this Court also came to be dismissed. He left the said room. The defence raised in the said suit was that he was a joint owner of the flat alongwith his brother (present respondent) and their father. It was alleged that all of them had contributed to the purchase of the said flat. The respondent herein has deposed supporting the case of Shashi. The said case was not accepted. A contention was also raised by Shashi that he was a gratuitous licensee and the Small Cause Court had no jurisdiction. But the said contention was also rejected by the Appellate Court. In 1994 the Suit No. 119 of 1990 filed against the petitioner was taken up for hearing. The respondent has also raised similar defence of joint ownership. Again the trial Court held that the respondent was not the joint owner of the flat and he was residing as a gratuitous licensee and the license was terminated. It was held that the suit under section 41 of the S. C. C. Act was maintainable. In Appeal filed by the respondent, being Appeal No. 75 of 1995, the Appellant Bench by order dated 6th November, 1997 confirmed the finding that respondent was not the joint owner of the flat. It was held that he was a gratuitous licensee. It was further held that the Small Cause Court has no jurisdiction to decide the suit. Hence, the order came to be passed returning the plaint for presentation to the proper Court.

(2.) THE learned Counsel appearing for the parties invited my attention to a number of decisions which are usually cited at the hearing of such cases. I am making a brief reference to them. However, at the outset, I must observe that for too long it has been the order of the day in this city of Bombay, particularly for persons in unjustified occupation of premises, to litigate for decades by clutching to one point or the other, and taking advantage of some lacuna and bringing the other party to the breaking point. Invariably the claims are couched in a vaneer of profoundness and used as justification for such wrongful retention of the premises, thereby defeating rights of the other. The present petitions before me are classic illustrations of how judicial process is sought to be used as a cover for the perpetuation of possession on the solitary plea of jurisdiction.

(3.) SECTION 41 of the S. C. C. Act pre-1976 stood as under :