FATIMABAI NOOR MOHAMED Vs. M KHALLIL AHMED

JUDGEMENT

(1.) THIS writ petition is preferred against the judgment and order dated 21st of March, 1984, passed by the Appellate Bench of Small Causes Court, Bombay, in Appeal No. 644 of 1982 confirming the judgment and order dated 30th of September, 1982, passed by the learned Judge of the same Court decreeing the suit of the plaintiff holding that he is a deemed tenant and/or protected licensee.

(2.) FEW facts which gave rise to this litigation are that the present petitioner defendant was carrying on the business of pan beedi through her husband as her constituted attorney in the suit premises at Jacob Circle, Bombay. It is not disputed that by an assignment deed dated 16th September, 1964, the petitioner purchased the said business and it is also mentioned in the said assignment deed that the said business of pan beedi was being carried on by the predecessor-in-title of the petitioner since the year 1954. On 1st of September, 1972, the present petitioner entered into an agreement with the respondent plaintiff for conducting the said business for a period of 11 months. The grievance of the petitioner is that during that time he was sick suffering from tuberculosis and it was impossible for him to carry on the said business on account of his illness. It is further his case that during this period the present respondent approached him with a request that he may be allowed to conduct the said business. In the aforesaid circumstances, the said business was given to the respondent for conducting for a period of 11 months on 1st of September, 1972, and the said period expired on 31st July, 1973. After the expiry of this period of 11 months, the petitioner further entered into a second agreement for a further period of 11 months by a further agreement dated 27th August, 1973. However, the respondent even after the expiry of this period of 11 months continued to conduct the said business till January, 1977. On 6th January, 1977, petitioner gave a notice calling upon the present respondent to vacate the suit premises. After the receipt of the said notice, the respondent filed suit being R. A. Decl. Suit No. 523 of 1977 in the Court of Small Causes on 10th of March, 1977, stating that he was in exclusive possession of the suit premises as a protected licensee from the year 1970 and he may be declared as a protected licensee or deemed tenant under the amendment of the Bombay Rent Act which came into force in the year 1973. I may mention here that nowhere in the plaint the present respondent made a mention of any written agreement executed between him and the petitioner, but merely made averment that he is a protected licensee from the year 1970 and, therefore, on 1st of February, 1973, when the new Rent Act came into force his licence was in subsistence. The defendant filed his written statement in the said suit and denied the contentions of the plaintiff-respondent that he was a protected licensee. He submitted that the said premises was a business premises where he was conducting the Pan beedi business. He further submitted that the said business was purchased by him on 16th September, 1964, by the said deed of assignment and in the said deed of assignment it was clearly mentioned that in the suit premises his predecessor-in-title was conducting the said business from the year 1954. He also submitted that he was suffering from tuberculosis and was handicapped to do the said business for some time. During this period the present approached him and requested him the he may be allowed to conduct the said business. It was in these circumstances that the petitioner entered into the said agreement with the respondent plaintiff on 1st of September, 1972. According to him, the dominant intention of the said leave and licence agreement was to allow the respondent to conduct the business of the said pan beedi in the suit premises on payment of compensation of Rs. 200/- per month to the petitioner and in order to express this intention the said writing was created in favour of the respondent. He also submitted that the said agreement was again renewed on 27th August, 1973, for a further period of 11 months, though the respondent continued to conduct the said business even after the expiry of this second term. Subsequently on 6th January, 1977, the petitioner called upon the respondent to hand over the said business back to him along with the suit premises and it is because of this action by the petitioner, the respondent has filed the present suit.

(3.) IT is pertinent to note that in the written statement the defendant has taken a specific plea that since on the basis of the written agreement the said business was given to the respondent for conducting, the respondent plaintiff is excluded from the definition of licensee under section 5 (4a) of the Bombay Rents, Hotel and Lodging Houses Rates control Act, 1947 (hereinafter for brevity sake referred to as the said Act of 1947 ). In the trial Court both the parties led the evidence and after going through the oral and documentary evidence, the trial Court came to the conclusion that the respondent was a licensee in the suit premises and the said premises was in exclusive possession of the respondent. Since the licence was in subsistence on 1st of February, 1973, the respondent was entitled to protection under the amended provisions of the Bombay Rent Act, which came into force in the year 1973. However, while rejecting the plea of the respondent-plaintiff that he was conducting the said business in the suit premises from the year 1970, both the Courts below proceeded on the footing that the respondent was introduced in the suit premises on 1st of September, 1972, by the first agreement between the parties. Since there was no writ petition against this finding. I shall now proceed on the footing that the respondent-plaintiff was introduced in the suit premises on 1st of September, 1972.