Bombay High Court
N. N. Dogra (Deceased) Thr. Lrs. Ajay N. ... vs Mira J. Pahlajani (Deceased) Thr. Lrs. ... on 21 August, 2024
2024:BHC-AS:33479
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.617 OF 2018
N.N. Dogra
Deceased through Legal Heir
Ajay N. Dogra
Adult, having address at
Premises No. 23, 2nd Floor, 5,
Prem Court, Peddar Road,
Mumbai 400 026 ....Applicant
Versus
1. Mira J. Pahlajani
Deceased through Legal
Representative:
la. Asha J. Pehalajani
Daughter of late Mira J.
Pehalajani,
P.G.accom. at 10, Standard House,
Opp. Standard Cinema)
Colaba, Mumbai-400 005
Ib. Veena Rajinder Kesar
Daughter of late Mrs. Mira J. 1
Pehalajani
C-363, C Long Park View,
6 Floor, Block C, 7th Lane,
Koregoan Park, Pune - 411 001
2. Mohini U. Jadvani
C/o. Raj H. Vaswani, 47-45D,
Venus Apartment, Worli Seaface
Mumbai-400 018)
3. Raj H. Vaswani
47-45 D, Venus Apartment
Worli Seaface, Mumbai-400018
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AND
4. Minakshi V. Panjabi
5. Sonu N. Dogra
6. Neeta K. Shahani
Daughter of Defendants No.1
(Deceased)
All Adult Having address at
Premises No.23, 2nd Floor, 5,
Prem Court, Peddar Road,
Mumbai-400 026. ...Respondents
WITH
CIVIL REVISION APPLICATION NO.618 OF 2018
N.N. Dogra
Deceased through Legal Heir
Ajay N. Dogra
Adult, having address at
Premises No. 23, 2nd Floor, 5,
Prem Court, Peddar Road,
Mumbai-400 026 ....Applicant
Versus
1. Mira J. Pahlajani
Deceased through Legal
Representative.
1a. Asha J. Pehalajani
Daughter of late Mira J. )
Pehalajani,
P.G.accom. at 10, Standard House,
Opp. Standard Cinema)
Colaba, Mumbai-400 005
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1b. Veena Rajinder Kesar
Daughter of late Mrs. Mira J.
Pehalajani
C-363, C Long Park View, 6th
Floor, Block C, 7th Lane,
Koregoan Park, Pune 411 001
2. Mohini U. Jadvani
C/o. Raj H. Vaswani, 47-45D,
Venus Apartment, Worli Seaface
Mumbai-400 018)
3. Raj H. Vaswani
47-45 D, Venus Apartment
Worli Seaface, Mumbai-400 018
AND
4. Sonu N. Dogra
5. Neeta K. Shahani
Both Adult Having address at
Premises No.23, 2nd Floor, 5,
Prem Court, Peddar Road,
Mumbai-400 026
6. Minakshi V. Panjabi
Daughter of Plaintiff No. 1
Adult having address at 33,
Sita Mahal, Bomanji Petit Road,
Mumbai - 400 036. ...Respondents
________
Mr. Herbert A. Noronha for the Applicant.
Mr. Shailendra S. Kanetkar with Mr. Yash Deval for Respondent Nos.1A,
1B, 2 and 3.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 14 AUGUST 2024.
PRONOUNCED ON : 21 AUGUST 2024.
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JU DGMENT
1 These two Civil Revision Applications are filed by the heirs of
Mr. N.N. Dogra-the original occupant of suit premises, challenging the
decrees passed by Appellate Bench of the Small Causes Court on 6 October
2018, by which their claim of tenancy in respect of the suit premises is
rejected and they have been directed to handover possession of the suit
premises to the owners (Respondents). The Appellate Bench has reversed
the decree passed in favour of Mr. N.N. Dogra in RAD Suit No. 90 of
1992 which had declared him to be a tenant in respect of the suit premises.
The Appellate Bench has also decreed LE & C No.136/161 of 1992 filed by
landlords by ordering eviction of the heirs of Mr. N.N. Dogra from the suit
premises.
2 Flat No.23, in Building named 'Prem Court' situated at 5, Peddar
Road, Mumbai, are the 'Suit Premises'. Defendants claim to be the owners
in respect of the suit premises. Occupant of suit premises, Mr. Narindar
Nath Dogra filed RAD Suit No.90 of 1992 before Court of Small Causes at
Bombay seeking a declaration that he is a tenant in respect of the suit
premises. On the other hand, landlords filed LE & C Suit No.136/161 of
1992 treating Mr. Dogra as a trespasser and seeking his eviction from suit
premises. By judgment and decree dated 17 February 2006, Small Causes
Court decreed RAD Suit No.90 of 1992 and declared Mr. Dogra to be
deemed tenant in respect of the suit premises and restrained the landlords
from dispossessing him from the suit premises without following the due
process of law. On the same day i.e. on 17 February 2006, LE & C Suit
No.136/161 of 1992 filed by landlords came to be dismissed.
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3 The landlords filed Appeal No.392 of 2006 challenging the decree
in RAD Suit No.90 of 1992. They also filed Appeal No.253 of 2007
challenging the decree LE & C Suit No.136/161 of 1992. The Appellate
Bench of the Small Causes Court has delivered two separate judgments on
6 October 2018 allowing both the Appeals. Accordingly, the decree passed
in RAD Suit No.90 of 1992 is set aside and the said Suit is dismissed. LE &
C Suit No.136/161 of 1992 is decreed directing the heirs of Mr. Dogra to
vacate the suit premises with further direction for conduct of enquiry into
mesne profits from the date of notice of termination of license till date of
possession.
4 Mr. Noronha, the learned counsel appearing for the Applicants in
both the Civil Revision Applications would submit that Mr. Dogra has
become a deemed tenant/protected tenant under provisions of section 15A
of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(Bombay Rents Act) since he was a licensee in respect thereof as on 1
February 1973. He would submit that though the tenure of the last License
Agreement expired on 23 March 1968, the license arrangement was
continued by virtue of various correspondence between the parties. That
the landlords kept on accepting the amount of compensation in respect of
license initially directly from Mr. Dogra and later by through the society.
That the license came to be revoked for the first time on 29 November
1991 and that no demand was made for possession of the suit premises
before 29 November 1991. That there is sufficient evidence on record to
indicate payment of rent/license fees till the year 1985. Mr. Noronha would
submit that Mr. Dogra has been held to be a licensee while answering point
No.1 by the Appellate Bench. That therefore he would became a deemed
tenant under provisions of section 15A of the Bombay Rent Act.
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5 Mr. Noronha would further submit that the Appellate Bench has
erred in holding that Mr. Dogra was not occupying the suit premises under
a subsisting license as on 1 February 1973. Relying on judgment of this
Court in Kiritkumar Vallabhdas Gajaria and another vs. Champaben
Narottam Kapadia and others, AIR 1998 Bom. 337, he would submit that
even a gratuitous licensee becomes a licensee and that therefore such
licensee, as on 1 February 1973, automatically becomes deemed tenant.
Inviting my attention to various findings recorded by Trial Court in
judgment and order delivered in RAD Suit No.90 of 1992, he would
submit that the Trial Court had rightly arrived at the conclusion that the
intention of the parties was to create tenancy in respect of the premises and
that therefore the Agreement of Leave and License was subsisting as on 1
February 1973. He would submit that the Appellate Bench has erroneously
reversed well-reasoned decision of the Trial Court by ignoring conduct as
well as correspondence between the parties, which clearly envisaged a valid
subsisting license as on 1 February 1973. He would therefore pray for
setting aside the decrees passed by the Appellate Bench.
6 The Civil Revision Applications are opposed by Mr. Kanetkar, the
learned counsel appearing for Respondents/original Plaintiffs. He would
submit that the License executed in favour of Mr. Dogra came to an end on
23 March 1968. Thereafter no license was granted in his favour and
therefore his continuation in respect of the suit premises after expiry of
license was in capacity as trespasser. That for claiming status as deemed
tenant under the provisions of section 15A of the Bombay Rent Act, it was
necessary that a valid and subsisting license existed as of 1 February 1973.
That in the present case, since the license had expired on 23 March 1968,
Mr. Dogra could not have claimed status of deemed tenant as on 1
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February 1973. Mr. Kanetkar would rely upon judgment of Supreme Court
in D.H. Maniar & Others vs. Waman Laxman Kudav, (1976) 4 SCC 118 in
support of his contention that a licensee in possession after expiry of license
is not entitled to status as deemed tenant under section 15A of the Bombay
Rent Act. He would submit that the Appellate Bench of the Small Causes
Court has rightly considered an admission given by the witness that there
was no License Agreement in force as on 1 February 1973.
7 So far as the finding of the Appellate Bench about status of
Mr. Dogra as licensee is concerned, Mr. Kanetkar would submit that the
said finding is recorded in the context of his claim as tenant and that the
said finding does not mean that he was a licensee as on 1 February 1973.
Mr. Kanetkar would pray for dismissal of both the Civil Revision
Applications.
8 Rival contentions of parties now fall for my consideration.
9 The moot issue involved in the present case is about status of the
original licensee Mr. N.N. Dogra in respect of the suit premises. He
contended that he is a tenant in respect of the suit premises and was
therefore entitled to protection under the Rent Control Legislation. On the
contrary, it is the contention of the landlords that said Mr. Dogra was a
trespasser after expiry of tenure of license and therefore did not have right
to remain in occupation of the suit premises. Thus, the key to the problem
at hand is about subsistence of Mr. Dogra's license in respect of the suit
premises. Here again, there is no dispute about the position that the initial
induction of Mr. Dogra in respect of the suit premises was that of a licensee
under Leave and License Agreement dated 23 June 1962. However his
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status as deemed tenant in respect of the suit premises is claimed on the
ground that he remained as a licensee as on 1 February 1973 and
accordingly acquired the status of deemed tenant under provisions of
section 15A(1) of the Bombay Rent Act. Thus, the moot question involved
here is whether license in favour of Mr. Dogra subsisted as on 1 February
1973 or his treatment as deemed tenant.
10 To answer the question, it would be necessary to consider the
background in which Mr. Dogra came to be inducted in respect of the suit
premises. On 23 June 1962, a Leave and License Agreement was executed
between Smt. Adetibai Govardhandas Jaisinghani through her power of
attorney Mrs. Raj H. Vaswani as licensor and Mr. N.N. Dogra as the
licensee. The initial license was on monthly compensation of Rs. 275/- for
a tenure of 11 months. At the expiry of the initial tenure of license, the
same was renewed from time to time by making endorsements on the
Leave and License Agreement. It appears that the License Agreement was
extended on four occasions, each time for 11 months. The last endorsement
in the Agreement is dated 2 July 1967 by which the License Agreement
was renewed for 11 months and was to expire on 23 March 1968. It
appears that some correspondence took place between the parties during
the year 1965 about return of possession of the suit premises, however
since it is the undisputed position that the License Agreement was last
renewed upto 23 March 1968, it is not necessary to make detailed reference
to the said correspondence.
11 It appears that after expiry of the last renewal on 23 March 1968,
letter dated 13 June 1968 was sent by Mr. H.G. Vasvani to Mr. Dogra with
a request for deposit of Rs.550/- to the Society by adjusting the same
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against compensation for months of May and June 1968. Thus, though the
License Agreement had expired on 23 March 1968, Mr. Vasvani requested
Mr. Dogra to pay the compensation for the months of May and June 1968
by making direct payment to the Society. Thus, letter dated 13 June 1968
clearly shows that the parties agreed for continuation of license
arrangement even after 23 March 1968.
12 On 28 August 1968, Mr. Vasvani sent letter to Mr. Dogra
complaining about non-receipt of any payment of compensation after April
1968 and requesting Mr. Dogra to deposit compensation covering the
months from May to August 1968 in the Bank Account of Mrs. Raj H.
Vasvani so as to enable her to make necessary payments to the Society.
Thus, letter dated 28 August 1968 once again demanded compensation
upto August 1968 thereby indicating willingness on the part of the Mr. and
Mrs. Vasvani to continue the license arrangement. By letter dated 10 March
1969, Mr. Vasvani wrote to Mr. Dogra that he had cleared compensation
upto December 1968 and receipts for the same were also issued to Mr.
Dogra. Mr. Vasvani demanded compensation for further period of two
months (January and February 1969) again on 26 May 1969. Mr. Vasvani
requested Mr. Dogra for compensation for months of April and May 1969
confirming issuance of receipts of compensation upto March 1969. Thus,
the above letters clearly indicate that agreement on the part of Mr. & Mrs.
Vasvani to continue the license arrangement. Along with the Compilation
of Documents, several receipts are placed on record in respect of
compensation paid from time to time. By receipt at Exhibit 17(A)
compensation for the months of April, May, June and July 1971 was
acknowledged by Mrs. Raj H. Vasvani. It appears that after July 1971 Mr.
Dogra went on depositing the amount of compensation directly with the
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Society and accordingly various receipts issued by Society from August
1971 till February 1985 are placed on record. There is some
correspondence between Mr. Dogra and the Society, with a copy to Mrs.
Raj Vasvani, about deposit of various amounts by Mr. Dogra in the Society
on behalf of Mrs. Vasvani.
13 This is how, there appears to be an agreed arrangement between Mr.
and Mrs. Vasvani and Mr. Dogra about payment of compensation in
respect of the suit premises. The compensation upto July 1971 appears to
have been paid directly to Mrs. Vasvani, for which receipt was executed by
her (Exhibit 17A). After August 1971, the amount of compensation
appears to have been deposited directly with the Society. The arrangement
of making payments directly to the Society does not appear to be a
unilateral action on the part of Mr. Dogra as is apparent from the earlier
correspondence. By letter dated 13 June 1968, an express request was made
by Mr. Vasvani to deposit the amount of compensation of Rs. 550/-
directly with the Society which was to be adjusted towards compensation
for the months of May and June 1968. There is no denial to the fact that
till 29 November 1991 the owner did not raise any objection to the
arrangement of Mr. Dogra occupying the suit premises. For the first time
on 29 November 1991, advocate notice was addressed to Mr. Dogra on
behalf of the owners claiming that the Leave and License Agreement had
come to an end on 23 March 1968 and Mr. Dogra was never accepted as
licensee after 23 March 1968 and that he continued to remain in the
premises as a trespasser. If the license agreement had come to an end on 23
March 1968 and Mr. Dogra was to occupy the premises against the consent
of the owners, it would not have taken 13 long years for the owners to seek
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recovery of possession of the suit premises. On the contrary, the
correspondence between parties as well as arrangement of payment of
compensation clearly indicates that Mr. Dogra continued to remain in
occupation of the suit premises with the consent of the owners.
14 There is no denial to the position that as on crucial day of 1 February
1973, Mr. Dogra was in occupation of the suit premises. The only debate is
about the capacity in which he occupied by the premises. The landlords
claim that the possession was as trespasser whereas, it is Mr. Dogra's
contention that he remained in occupation as a licensee. Trespass
essentially involves occupation of property without the consent of owner.
On the other hand, occupation with express or implied consent becomes
permissive use. Permissive use of property gives rise to presumption of
existence of license. If permissive use is without payment of consideration,
compensation, fees or rent, it becomes a gratuitous license, whereas if some
payment is accepted by the owner for letting the occupant to occupy the
premises, it becomes a clear case of license for consideration. In the present
case, there is nothing on record to indicate that the owners raised any
objection for occupation of the premises by Mr. Dogra till 1991. Thus his
occupation was permissive till 1991. So far as payments are concerned,
payment of compensation directly to the Society as on 1 February 1973 is
proved. Therefore, in my view, it cannot be stated that Mr. Dogra was a
trespasser in respect of the suit premises. What is important to note is the
fact that from August 1971 till February 1985 the owners never raised any
objection about Mr. Dogra making payments directly to the Society. In my
view therefore, there was permissive use of the suit premises by Mr. Dogra
as on the crucial date of 1 February 1973.
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15 Mr. Kanetkar has strenuously relied upon Judgment of the Apex
Court in D.H. Maniar (supra) in support of his contention that occupation
of person continuing in premises after revocation of license does not
become a lawful occupation and that his occupation is in his capacity as a
trespasser. According to Mr. Kanetkar such a person cannot be called a
licensee. Reliance in this regard is placed on findings in paragraph 10 of the
judgment which reads thus:
"10. It is thus clear beyond doubt that in order to get the advantage of Section
15A of the Bombay Rent Act, the occupant must be in occupation of the
premises as a licensee as defined in Section 5(4A) on the first of February, 1973.
If he be such a licensee, the non-obstante clause of Section 15A(1) gives him the
status and protection of a tenant in spite of there being anything to the contrary
in any other law or in any contract. In other words, even as against the express
terms of the subsisting contract of licence the licensee would enjoy the benefits
of Section 15A. But if he is not a licensee under a subsisting agreement on the
first of February, 1973, then he does not get the advantage of the amended
provision of the Bombay Rent Act. A person continuing in possession of the
premises after termination. withdrawal or revocation of the licence continues to
occupy it as a trespasser or as a person who has no semblance of any right to
continue in occupation of the premises. Such a person by no stretch of
imagination can be called a licensee. If, therefore, the respondent was not a
licensee under a subsisting agreement in occupation of the premises on the first
of February, 1973 he could not take shelter under Section 15A of the Bombay
Rent Act. The trial Judge found against him. Apart from the position that this
was essentially a question of fact and a finding on which could not be interfered
with by the High Court in exercise of its revisional power under Section 115 of
the Code of Civil Procedure, the High Court has done so, as we shall point out,
by committing such gross errors of law and fact that we were constrained in the
beginning of our judgment, though very reluctantly, to make some strong
observations against the judgment of the High Court."
16 However the facts in D.H. Maniar (supra) involve specific revocation
of license by the owners. In the case before the Apex Court, the license was
revoked by letter dated 22 May 1966 and it was specifically stated in the
said letter that the Respondent was a trespasser after expiry of the license
on 31 March 1966. Therefore, the observations of the Apex Court in
paragraph 10 of the judgment are required to be read with the context of
the above facts. Even in paragraph 10 of the judgment, the Apex Court has
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used the words "termination, withdrawal or revocation of the license". In
the present case license in favour of Mr. Dogra was neither terminated,
withdrawn or revoked before 29 November 1991. In my view, the ratio in
D.H. Maniar (supra) would have no application to the facts and
circumstances of the present case.
17 As observed above, facts and circumstances of the present case do
not indicate that Mr. Dogra was a trespasser as on 1 February 1973. His
occupation in the suit premises was undoubtedly with the permission of
the owners. In Kiritkumar Vallabhadas Gajaria and another (supra) this
Court has held that a gratuitous licensee is also a licensee within the
meaning of section 52 of the Easement Act. This Court held in paragraph
22 as under:
"22. I have already pointed out section 41 of the Presidency Small Cause
Courts Act pre-1976 and post-1976. Further Heading of Chapter VII pre-1976
is 'Recovery of possession of Immovable Property' and Heading of section 41 is
"Summons against person occupying property without leave". The heading of
Chapter VII post-1976 reads as 'Recovery of possession of certain immovable
property and certain licence fees and rent' and the heading of section 41 reads as
"Suits or proceedings between licensors and licensees or landlords, land tenants
for recovery of possession of immovable property and licence fees or rent except
to those to which other Acts apply to lie in Small Cause Court". Further a plain
reading of section 41 of the Act, pre-1976 and post-1976, as reproduced above
shows that the person must be in possession of premises by permission of
another person and that such permission must be withdrawn before filing an
application against such a person. Once the permission is withdrawn, he
becomes ad person occupying property without leave. Section 41 exactly covers
this. Section does not speak that a person should be in possession of premises on
giving some consideration. Section 41 clearly shows that application can be filed
even against a person occupying premises gratuitously. A gratuitous licensee
would be a licensee within the meaning of section 52 of the Easement Act and,
therefore, even after revocation of such licence, the suit would be between the
licensor and the licensee as held by the Division Bench in Nagin 's case followed
by Pendse, J. in Eknath Vithal's case (cited supra) and and affirmed by the
Supreme Court in (1995) 2 SCC 665 : AIR 1995 SC 1102. Therefore, because
of the termination of license, the licensee may become a trespasser, but
nonetheless the suit is not against trespasser. It is only against a license is revoked
licence whether with consideration or without consideration."
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18 The license of the Mr. Dogra in the present case got terminated only
on 29 November 1991. Therefore Mr. Dogra could be treated as a
trespasser only with effect from 29 November 1991.
19 I am therefore of the view that Mr. Dogra satisfied the test of a
deemed tenant under provisions of section 15A of the Bombay Rent Act.
Mr. Dogra was undoubtedly in possession of the suit premises as on 1
February 1973 in capacity as a licensee and therefore he has become
deemed tenant within the meaning of section 15A (1) of the Bombay Rent
Act. The Trial Court in my view had rightly decreed RAD Suit No. 90 of
1992 by holding that the license subsisted as on 1 February 1973. The
Appellate Bench has erred in reversing the said finding of the Trial Court.
The Appellate Court has erred in relying on judgment of this Court in
Baldeodas Mahavirprasad vs. G.P. Sonavalla, AIR (35) 1948 Bombay 385,
in which case there was termination of tenancy by notice to quit. Therefore,
principle of acceptance of rent after service of notice to quit will have no
application in the present case. Since the owners never served any notice of
termination or revocation of license on Mr. Dogra at any point of time
before 29 November 1991. The finding of the Appellate Bench that Mr.
Dogra was not occupying the suit premises under subsisting license as on 1
February 1973 is therefore unsustainable and liable to be set aside. Once
Mr. Dogra is held to be a deemed tenant under provisions of section 15A of
the Bombay Rent Act, LE & C Suit No.136/161 of 1992 is bound to fail as
the said suit was premised on assertion of owners and Mr. Dogra was mere
trespasser. Since Mr. Dogra has been held as tenant under section 15A of
the Bombay Rent Act, the owners will have to make out a valid ground for
seeking his eviction as Mr. Dogra enjoyed protection under the provision
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of the Bombay Rent Act and now the Maharashtra Rent Control Act, 1999.
In my view therefore the Appellate Bench has erred in reversing the decrees
passed by the Trial Court in RAD Suit No.90 of 1992 as well as in LE &
Suit No.136/161 of 1992.
20 The Civil Revision Applications are accordingly succeed and I
proceed to pass the following order:
ORDER
(i) Decrees dated 6 October 2018 passed by the Appellate Bench of Small Causes Court in Appeal Nos.392 of 2006 and 253 of 2007 are set aside.
(ii) Decrees passed by the learned Single Judge of the Small Causes Court on 17 February 2006 in RAD Suit No.90 of 1992 and LE & C Suit No.136/161 of 1992 are confirmed.
21 With the above directions, both the Civil Revision Applications are allowed. There shall be no order as to costs.
(SANDEEP V. MARNE, J.)
Digitally signed
by
SUDARSHAN SUDARSHAN
RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.08.21
16:51:12 +0530
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