Sunday, 15 March 2020

Bombay HC: Trust is not required to file resolution for filing eviction suit if all trustees have filed suit

As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the managing committee of the Trust. It is only through such resolution the trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint, to appoint or engage pleader to represent the interest of the Trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the managing committee of the appellant - Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the Trust. Thus, prima facie, suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

From the facts of the said case, it is clear that only one of the trustees had filed the suit and neither there was any pleading nor there was any evidence that the trustees had passed a resolution to, file a suit against the defendant and that the said trustee, who had filed the suit was authorised by all of the trustees to represent the Trust. If one or some of the trustees only filed the suit or such an application, this authority would be applicable, but where all the trustees have joined as the applicants in the application, that itself indicates that all the trustees had agreed and resolved to file the application for eviction. Therefore, it was not necessary to plead and prove that such a resolution was passed. In fact there was no question of authorisation of any particular trustee to file such an application because the application was filed by all the trustees jointly.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application Nos. 1254, 1255 and 1256 of 2001

Decided On: 13.03.2008

 Minoo Rustomji Shroff Vs. Dali Kavasji Gai and Ors.

Hon'ble Judges/Coram:
J.H. Bhatia, J.

Citation: 2008(4) MHLJ 71,2008(3) BCR 16


1. The applicants had filed three Applications against the respondents in these 3 Revision Applications under Section 13-A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter for short, "the Bombay Rent Act"). The Competent Authority heard the evidence in Application No. 80 of 1995 and dismissed the same on merits. Against dismissal of that application No. 80/1995, Revision Application No. 1254 of 2001 is filed. The other two Applications, being Application No. 81/1995 and No. 56/1995, were dismissed holding that in view of the evidence given in Application No. 80/95, the Competent Authority had no jurisdiction and the preliminary issue under Section 9-A of C.P.C. was decided against the applicants. Against the orders in those two matters, Revision Application No. 1255 of 2001 and 1256 of 2001 respectively are filed by the original applicants before this Court. In view of these circumstances, all these three Revision Applications may be disposed of by common judgment.

2. The admitted facts are that there is a Parsi Panchayat Funds & Properties, a Public Trust (hereinafter referred to as "the Trust") which has vast properties in the City of Mumbai. The said Trust has a Scheme to provide accommodation to the poor and needy persons belonging to the Parsi community. Therefore, the poor and needy people belonging to the Parsi community make applications to the Trust for allotment of such residential accommodation and as and when there is vacancy and availability of accommodation, the Trust provides and allots such accommodation to the applicants. In Application No. 80/1995 (Revision Application No. 1254 of 2001), Flat No. D-2/44, Multistorey Building, Bharucha Baug, Andheri (West), Bombay, was allotted to the respondent. According to the applicants, who are the trustees of the Trust, an agreement dated 29.4.1993 was executed and the flat was given to the respondent on leave and license basis. The respondent was to pay Rs. 400/-per month as license fee and further amount of Rs. 400/- towards water, sewage taxes, electricity and other charges for the common service.

3. As per the agreement executed by the respondent in favour of the Trust, he had clearly accepted that he would accept the accommodation as a licensee on leave and license basis and would never claim any right, title or interest in the property nor would claim right of tenancy or sub-tenancy. After he executed the said agreement, he was put in possession of the said flat. The agreement was for six months and as per the terms of the contract, if the possession was not taken back on expiry of six months, the licensee would continue for further six months. According to the applicants, the period of six months had expired in November, 1993. However, the respondent continued in possession as a licensee. On 6.10.1995, by a notice sent through the Advocate, the license was terminated and the respondent was called upon to vacate the premises and hand over the same to the Trust. Inspite of that notice, the respondent failed to vacate and, therefore, the application under Section 13A(2) of the Bombay Rent Act was filed before the Competent Authority. The applicants claimed order for eviction and possession and also for payment of compensation at double the rate.

4. The respondent contested the application by filing written statement. According to him, the flat was allotted to him on rental basis. In the year 1970, he had applied for allotment of residential accommodation in anticipation of retirement of his wife who was serving as a Nurse in the Railway Hospital and was provided staff quarters but after her retirement, they would have no residential accommodation. As such a request was for accommodation on rental basis. The Trust selected the eligible persons including the respondent for allotment of accommodation on rental basis and this fact was also published in Jam-e-Jamshed on 14.6.1992 by the Trust. It was contended that the document dated 29.4.93 executed by the respondent before taking possession of the accommodation was only an application and was not an agreement. It was contended that in several letters and documents, the Trust had admitted that the respondent was provided accommodation on rental basis and this indicated that the respondent was not a licensee and, therefore, the application under Section 13A(2) was not tenable and therefore the Competent Authority did not have jurisdiction to entertain the application.

5. In Application No. 81/1995 (CRA No. 1255/2001) and Application No. 56/1995 (CRA No. 1256/2001) also the respondents were provided accommodation by the Trust and similar agreement as in the first case was executed by the respondents. In both these matters, the premises were provided to the respondents. Notice was issued to the respondents to vacate the premises but they failed to vacate. The applicants filed applications under Section 13A-2 of the Bombay Rent Act before the Competent Authority for eviction, possession and recovery of possession. In both these matters, the respondents had taken almost similar defences as in the first case and, according to them, as there was no agreement of leave and license, the application under Section 13A(2) was not tenable and the Competent Authority did not have jurisdiction. They also requested under Section 9-A of the C.P.C. to raise the preliminary issue about the jurisdiction of the Competent Authority.

6. After hearing the evidence in Application No. 80/1995, the learned Competent Authority came to the conclusion that the alleged agreement dated 29.4.1993 was not an agreement but only an application made by the respondents and in view of admission of the Trust in number of letters and documents, the accommodation was provided to the respondent on rental basis as a tenant and not as a licensee. The Competent Authority held that he was a tenant and not a licensee and, therefore, the application under Section 13A(2) is not tenable. In the result, the Application No. 80/1995 came to be dismissed.

7. In other two cases i.e. Application Nos. 81/1995 and 56/1995, the Competent Authority did not record evidence of the parties and observed that as the document purporting to be leave and license agreement was similar to the document in Application No. 80/95, he did not think it necessary to take evidence in these two matters and he observed that taking into consideration the contents of the said documents and the findings in Application No. 80/1995, he was of the opinion that the respondents were inducted as tenants on rental basis and not as a licensee and, therefore, the Competent Authority did not have jurisdiction under Section 13-A(2) of the Bombay Rent Act. In view of this finding on the preliminary issue about the jurisdiction, both the applications came to be dismissed. The original applicants have preferred these three Revision Applications against the aforesaid orders of dismissal.

Heard learned Counsel for the parties and perused the relevant record. As the trial Court has recorded evidence and dismissed the Application No. 80/1995 on merits, it will be convenient to deal with the evidence led in that matter first.

There is no dispute that the property belongs to the Trust and the applicants were the trustees. Also, there is no dispute that respondent was allotted the accommodation and the respondent had executed the document dated 29.4.1993 Exhibit "A" and on the basis of 10 that he was put in possession of the premises. If the documentary evidence on record is carefully perused, the documents, which are relied upon by the respondent, appear to be correspondence, letters and publications from the side of the trust much prior to 29.4.1993. The other group of documents which are relied upon by the Trust, include the document dated 29.4.93 Ex.A-1 and other documents executed on that day or immediately thereafter. It will be useful to first refer the documents relied upon by the respondent in support of his contention that he was provided accommodation on rental basis. First such document is the certificate dated 16.1.1991 from the office of the Trust. This certificate shows that the respondent was an applicant for rental accommodation and his application would be considered as per Categorywise Merit Rating Scheme in its normal turn alongwith other applicants in his category. Thereafter, there is another certificate dated 15.5.1992 again issued by the Trust. By this, the Trust certified that Mrs. Nergish Gai, who is the wife of the respondent, had been short-listed for rental accommodation by the Trust. It further stated that the said accommodation would be subject to all prescribed formalities expected to be ready somewhere in October 1992. There is another letter dated 27.8.1992 from the office of the Trust to the respondent whereby he was requested to attend the office of the trust. In this letter, reference is to his Application No. STQ 165 for Rental Accommodation (Shortlisted for Bharucha Baug). Then there is a letter dated 23.11.1992 from the Trust to the respondent. In that letter also, reference is to his application for rental accommodation. Besides this, the Trust had issued a public notice in its local publication am-e-Jamshed dated 14.6.92 which shows that the trustees had prepared a list of tentative allottees for rental accommodation. The respondent was one of them. On the basis of these documents, it is vehemently contended by the learned Counsel for the respondent that the Trust had from time to time admitted in all these documents that the accommodation was to be provided on rental accommodation, which means the respondent was to be inducted as a tenant in the said accommodation and not as a licensee.

8. On the other hand, learned Counsel for the applicant vehemently contended that merely because in these letters and documents, the word "rent" or "rental" was used, the respondent cannot be treated as tenant. It is contended that immediately before allotment of the accommodation to the respondent, correspondence had taken place and thereafter the agreement was executed by the respondent in favour of the Trust. In these documents, he had clearly agreed that he was accepting the accommodation on leave and license basis. In support of this contention, the learned Counsel for the Trust relied upon the documents beginning with 26.4.1993.

9. The letter dated 26.4.93 was issued by the Joint Secretary of the Trust to the respondent with reference to his application for accommodation. This letter clearly shows that in response to the letter of request dated 15.4.93 submitted by the respondent, the Trust had decided to allot him on leave and license basis one room kitchen flat No. D-2/ 44 at S.B. Bharucha Colony, Andheri subject to fulfillment of prescribed requirements. It also made clear that the occupation charges of the flat had been fixed at Rs. 800/- and he was requested to complete the documentation formalities as already explained to him. This letter was received by the respondent on 29.4.93. After receipt of this letter, the respondent executed the document dated 29.4.93 marked Ex.A-1. Paras 1, 3, 7, 8, 10, 12, 14 and 16 of the said agreement are relevant for decision of this matter. They read as follows:

1. I shall use the premises only for accommodation and living purpose with your leave and permission as a Licensee only. I do not claim any right or protection as a tenant of the said premises and I shall not claim any such right or protection when the said premises will be allotted to me.

3. I shall pay Rs. 400/- as licence fee of the said premises or such higher amount as the Trust may fix subsequently on the Trustees finally becoming fully aware of their liabilities towards the outgoings of the property. I also agree to pay towards all future increases in the property taxes, rates, cesses and charges such sums as the Trustees may prescribe and fix at their sole discretion from time to time."

7. I myself and on behalf of all my family members who will be staying along with me in these premises hereby agree and admit that no claim will be put forward regarding any right title or interest in the said premises and/or no claim will be put forward for exclusive possession and/or claim for tenancy or sub-tenancy, or to the said premises. Needless to mention that the servants working in the premises will also not be entitled to make any such claim on any ground whatsoever for obvious reasons. The purpose of this admission is to declare unequivocally that this Agreement shall not be interpreted as creating any right of tenancy or sub-tenancy.

8. The Trustees have exclusive right to transfer me to any other premises (which maybe smaller than these premises now licensed to me) in exchange for these premises by giving me eight days' Notice and in such circumstances on receipt of such Notice I shall be bound to surrender to the Trustees the possession of these premises licensed to me without any objection whatsoever.

10. The trustees are the final authority and they are authorised without giving any reason to transfer any tenant or licencee from one room/ flat to another or from one Colony to other Colony of the Trustor the exchange of such premises between the occupants. If any occupant objects he or she will be liable to vacate the premises. In the event of such exchange/ transfer of rooms, flats or Colony all the rules prescribed in the forms shall be applicable and biding on such occupants as did before such transfer or exchange.

12. If I am given a licence the clear understanding will be given to me before such allotment and you the Trustees are entitled to withdraw terminate or end my license ,without giving any reason after giving me three weeks' notice. I hereby indemnify you that at the time of such withdrawal termination or waiving my licence I am responsible to remove my family members staying with me in the premises, remove my chattels, furniture and luggage brought by me in the premises elsewhere and hand over peaceful possession of the premises along with the fixtures intact.

14. I understand, agree and confirm that this licence is granted to me for a period of six months from the date mentioned below and that in the event of your not requiring me to vacate the premises upon the expiration of this period by serving me with a notice of seven days, the same will be deemed to be extended for a further period of six months subject, of course to your overriding rights to revoke the same at any time and shall be deemed to be extended in this manner for period of six months at a time.

16. It is clearly understood that legal possession of the premises is always with the Trustees and I am only a bare licensee of the Trustees, under this Agreement, as this Agreement does not create tenancy rights or lease rights in my favour.

From these terms of the agreement incorporated in the said document, it is clear that the respondent agreed to accept the accommodation on leave and license basis as a licensee. He clearly accepted that he would not claim any right of tenancy or sub-tenancy. He also accepted that the period of license was only six months and if he would not be called upon to vacate the same on expiry of six months, the licence would be deemed to have been extended for six months. In para 8 of the said agreement, the respondent clearly admitted that the trustees would have exclusive right to transfer him to any other premises which might be smaller than the premises given under this licence. This document was admittedly signed by the respondent on 29.4.93 after receiving the letter dated 26.4.93 from the Trust, whereby he was informed that the Trust had decided to allot the said accommodation to him on leave and license basis and whereby he was also required to complete the documentation as explained to him.

10. The learned Counsel for the respondent contended that if the form of this document dated 29.4.93 Ex.A-1 is looked into, it will appear that it was only an application and not an agreement because on the first page at the top of the document, there was a column for name of applicant and then it was addressed to the Trustees of the Parsi Punchayet, and then it started with words "Dear Madam 8s Sirs,". It is contended that on the last page of this document also there are words "Signature of the applicant" and not "Signature of the licensee". In view of this format, the Competent Authority also came to the conclusion that it was only an application and not an agreement executed by both parties. It was contended on behalf of the respondent and it was accepted by the Competent Authority that as this document was not signed by any of the trustees or representative of the Trust nor it indicated that it was accepted by the Trust, it does not amount to agreement and it is only an application.

11. However, this contention does not appear to be correct looking to the several documents on record. As pointed out earlier, this document or agreement dated 29.4.93 was executed by the respondent after getting letter dated 26.4.93. It is material to note that on 29.4.1993, the respondent deposited amount of Rs. 800/- with the Trust. It included an amount of Rs. 400/- towards the licence fee and the amount of Rs. 400/- towards the other ad hoc charges. The letter dated 30.4.1993 (Exhibit "A-11") was given by the respondent to the trustees authorising his wife to collect the possession letter. After execution of this document Ex.A-1, payment of licence fee and letter Ex. A-11 the Joint Secretary of the Trust issued a letter dated 30.4.1993 (Exhibit A-10) to the Site Engineer, Bharucha Colony, informing him that the said flat had been allotted to the respondent on leave and licence basis and he was requested to hand over possession of the said flat to the respondent on 3.5.1993. This letter also shows endorsement in the handwriting of wife of the respondent to the effect that she had received the original and duplicate of this letter. Admittedly, after getting this letter, the respondent was put in possession on 3.5.1993. From these documents, it becomes clear that the respondent accepted the accommodation on leave and license basis. It is material to note that all the documents beginning with 26.4.1993 onwards reveal that the respondent was inducted on leave and license basis and not as a tenant. In fact, even in the earlier documents, no word like "tenant" or "tenancy" was used. Only the words "Rental Accommodation" were mentioned. But incidentally, when the actual contract took place, even the words "rent" or "rental accommodation" were not used anywhere and in the document, there were clear terms showing that the respondent was inducted as a licensee on leave and license basis. Thus the possibility of tenancy or sub-tenancy is ruled out by the terms of the contract incorporated in the agreement.

12. It is difficult to accept the contention of the respondent that the document dated 29.4.1993 (Exhibit "A-1") was only an application and not as an agreement. In fact, as pointed out earlier, he executed this document in response to the letter dated 26.4.1993 from the Trust and having executed it, he also deposited the license fee on the same day. After this agreement was submitted by him in the office of the Trust, on 30.4.1993 the Trust directed its Site Engineer to give possession of the accommodation to the respondent. It indicates that the respondent accepted the terms of the contract as incorporated in the document dated 29.4.1993. In fact, if these letters and documents are read together, it becomes clear that after the Trust had selected the applicant for allotment of accommodation, he was informed that he could be allotted the accommodation on leave and license basis and he had to execute certain documents as explained to him. That was a kind of offer made by the Trust to the respondent and the respondent accepted that offer by executing the document (Exhibit "A-1") on 29.4.1993. This document was accepted by the Trust and he was put in possession thereof. In view of this, it must be held that the document (Exhibit "A-1") is the leave and license agreement entered into between the parties and it is not merely an application as held by the Competent Authority.

13. It will be material to note that the respondent himself had filed RAD Suit No. 1013/1995 in the Court of Small Causes seeking declaration that he was a tenant. In para 1 of that plaint, he had clearly admitted that the agreement dated 29.4.1993 was entered into. In that suit, he had filed copy of the agreement dated 29.4.1993. It shows that respondent had always treated the said document Ex.A-1 as an agreement and not as an application.

14. The certificates, documents and public notice in Jam-e-Jamshed relied upon by respondent were issued during the year 1991 and 1992, i.e. long before the present applicant was actually offered the accommodation on leave and license basis. There also only word "rental" was used as stated above. Merely because the word "rent' or "rental" was used in those letters, it cannot be presumed that the Trust had agreed to induct the respondent as a tenant in the accommodation. In (Rahjendra B. Nair v. Suresh D. Dyanmothe and Anr.) MANU/MH/0392/2002 : AIR2002Bom382 , the learned Single Judge of this Court (Dr. D.Y. Chandrachud, J.) held that where agreement was for license to licensee, mere use of the word "rent" instead of compensation would not be dispositive of legal relationship. Therefore, merely because of the user of the word 'rental' in those letters, the contract cannot amount to contract of tenancy.

15. Section 13A(2) of the Bombay Rent Act reads as follows:

13-A(2) Landlord entitled to recover possession of premises given on licence on expiry of licence.

(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord, on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of license by making an application to the Competent Authority; and the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.

(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.

Explanation:- For the purpose of this Section-

(a) the expression "landlord" does not include a tenant or a sub-tenant who has given premises on licence;

(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.

16. Section 13A(2) provides special provision for recovery of possession of premises given on licence for residence on expiry of the license period. Explanation (b) to the said Section provides that an agreement of licence in writing shall be conclusive evidence of the fact stated therein. This Explanation was interpreted in number of cases by this Court. In (Jasmeet Hoon v. Smt. Rita Johar and Anr.) MANU/MH/0008/2001 : (2001)1BOMLR82 , the learned Single Judge (Dr. D.Y. Chandrachud, J.) relied upon number of authorities including in (Swami Attah v. Mrs. Thrity Poonawalla) MANU/MH/0047/1996 : AIR1996Bom257 , (Automatic Electric Ltd. v. Rita M. Rupani) 1972(2) Mh.L.J. 269 and (Ramesh Ramrao Hate v. Parvez B. Bhesania) MANU/MH/0462/1996 : (1996)98BOMLR784 to come to the conclusion that the Explanation (b) to Section 13-A(2) prescribes a special rule of evidence and an agreement of licence in writing shall be conclusive evidence of the facts stated therein and in view of this, it is not permissible for the Court to go behind the document to find out the real intention of the parties or to arrive at a conclusion that the document is of lease and not of leave and license. In fact, the licensee cannot lead any evidence against the terms of the agreement. In Ramesh Ramrao Hate v. Parvez B. Bhesania (supra), Mr. Justice R.M. Lodha of this Court had observed in para 9 of the judgment as follows:

9. Once the legislature by explanation (b) of Section 13-A(2) has provided that a written agreement of licence shall be conclusive evidence of the facts stated therein, it provided a special rule of evidence for the purpose of proceedings under Section 13-A(2) of the Bombay Rent Act. The intention of the legislature was to give finality to the existence of a fact occurring in the written agreement of leave and licence. In other words legislature intended to shut out any other evidence which would detract from the conclusiveness of that evidence. The object of expression 'conclusive evidence of fact stated therein' is aimed to give finality to the establishment of the existence of the fact or facts stated in the written leave and licence agreement from the proof of another. The argument of learned Counsel for the petitioner that Explanation (b) only makes the written agreement of licence conclusive evidence as regards the licensor and not against the licensee is very difficult to be appreciated. Once it is provided by the legislature that an agreement of licence in writing shall be conclusive evidence of the facts stated therein, it prohibits from leading any other evidence which may affect the conclusiveness of that evidence. The law laid down by the Apex Court in Smt. Somawanti and Ors. case (supra) is clear answer to the contention of the learned Counsel for the petitioner wherein the Apex Court has held that once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. Not only that when a certain evidence is made conclusive evidence, it prohibits any other evidence to be led which may detract from the conclusiveness of that evidence, but also the Court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Once an execution of the agreement of leave and licence is not disputed before the Competent Authority in an application under Section 13A(2) based on such leave and licence agreement, it is conclusive evidence of the facts stated therein and no other evidence can be led inconsistent with the said facts by either of the parties and is conclusive between the parties of the facts stated therein. The Competent Authority has no option but to hold that the facts stated therein do exist. Same position holds good also in a case where the execution of written agreement of leave and licence is denied and the Competent Authority after recording evidence reaches the conclusion that execution of such agreement for leave and licence has been proved by the licensor.
17. Same view was taken by this Court in (Raj Prasanna Kondur v. Arif Taher Khan and Ors.) MANU/MH/1264/2004 : 2005(4)BomCR383 wherein the Court was dealing with the provisions of Section 24 of the Maharashtra Rent Control Act, 1999 which is similar to Section 13A(2) of the Bombay Rent Act and, in fact, the learned Single Judge in that case explained that the law before Section 55 of the Maharashtra Rent Control Act was amended, it was not necessary that leave and license agreement should be in writing, but if it is in writing, it provides the conclusive evidence of that fact. In view of the legal position settled by this Court in number of cases, it becomes clear that once it is held that there is a written agreement of license, it becomes conclusive evidence of the facts stated therein and the licensee is shut out from leading any evidence contrary to the terms of the contract.

18. Taking into consideration the evidence on record, it must be held that there was a written agreement of leave and license between the parties and the respondent was inducted as a licensee and not as a tenant. The respondent could not lead any evidence to the contrary in view of the Explanation (b) to Section 13-A(2) as the agreement is a conclusive evidence of facts stated therein. The period of license had come to an end and he was given notice to vacate the premises. Therefore, the application under Section 13-A(2) was tenable and, in fact, the Competent Authority had no option but to pass an order of eviction and possession.

19. Before concluding, certain objections raised by the learned Counsel for the respondent may be taken into consideration. It is vehemently contended by the learned Counsel for the respondent that the plaint/ application was not signed by all or any of the trustees and therefore the plaint itself is defective and was liable to be rejected. He contended that before filing such an application, it was necessary for the trustees to pass a resolution to that effect. He placed reliance upon (Shri Cutchi Visa Oswal Derawasi Jain Pathshala v. Shri Cutchi Visha Oswal Derawasi Jain Mahajan and Anr.) MANU/MH/0776/2004 : 2005(1)BomCR105 . He referred specifically to paras 44 and 45 of the said judgment. They read as follows:

44. This Court in the case of (Shrikrishna v. Ramnarayanf 1983 B.C.I. 27 (soft) : MANU/MH/0270/1982 : 1983 Mh.L.J. 248 followed the law laid down in the case of (Vedakannu v. Annadana Chatram) A.I.R. 1938 Mad 982 wherein it was observed thus:

The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the Court either as plaintiffs or even as defendants.
45. As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the managing committee of the Trust. It is only through such resolution the trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint, to appoint or engage pleader to represent the interest of the Trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the managing committee of the appellant - Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the Trust. Thus, prima facie, suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

From the facts of the said case, it is clear that only one of the trustees had filed the suit and neither there was any pleading nor there was any evidence that the trustees had passed a resolution to, file a suit against the defendant and that the said trustee, who had filed the suit was authorised by all of the trustees to represent the Trust. If one or some of the trustees only filed the suit or such an application, this authority would be applicable, but where all the trustees have joined as the applicants in the application, that itself indicates that all the trustees had agreed and resolved to file the application for eviction. Therefore, it was not necessary to plead and prove that such a resolution was passed. In fact there was no question of authorisation of any particular trustee to file such an application because the application was filed by all the trustees jointly.

20. The learned Counsel for the respondent further contended that the application was verified by one Thakker claiming to be the constituted attorney for the Trust. It is contended that neither it was pleaded nor it was proved that the said Thakker was the constituted attorney and was authorised to verify the plaint. It is material to note that the verification clause of the application clearly states that the said Thakker was the constituted attorney of the applicants who are the trustees. It is material to note that in the written statement, nowhere any plea was taken that the plaint was not verified by the competent person. Had such a plea been taken, the applicants would be required to lead evidence to prove that the said Thakker was, in fact, the constituted attorney of all the trustees and was duly authorised to verify the application. It is material to note that on behalf of the applicants, Mrs. Binaifer Navaroze Avari was examined as a witness. In the cross-examination, some general questions were put to her about her knowledge about number of such constituted attorneys for the trust, but no question was put nor any suggestion was given to her that the said Thakker was not competent to verify the plaint. The Competent Authority also did not deal with this question. For the first time at the time of arguments in this Revision, this question has been raised. This is the mixed question of fact and law and in absence of any pleading challenging the authority of the said hakker to verify the application, of the respondent cannot be heard to say that the application was not properly verified.

21. Learned Counsel for the respondent placed reliance upon (Sardar Pruthisingh v. Kanchanlal Purushottamdas Desai) MANU/MH/0209/2001 : AIR2001Bom255 in support of his contention that even if the document purports to be document of leave and license, the Court may come to conclusion that it was, in fact, an agreement of lease and not of license. There can be no dispute about proposition of law, but at the same time, it may be noted that in that case on the basis of the specific terms of the contract in respect of business premises, the Court had come to conclusion that it was an agreement of tenancy and not of leave and license. The facts of the present case are totally different.

22. Taking into consideration the facts, oral and documentary evidence and the legal position discussed above, it is clear that the Competent Authority misdirected itself and came to wrong conclusion that the agreement of leave and license was not proved and that the said document was only an application. He was also wrong in coming to the conclusion that respondent was a tenant and not a licensor. Therefore, the Revision Application deserves to be allowed and the applicants are entitled to an order for eviction and possession. Sub-section (2) of Section 13-A(2) of the Bombay Rent Act provides that if the licensee does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession till he is dispossessed by the Competent Authority, he shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

23. Now coming to other two Revision Applications, as stated above, the Application No. 81/1995 and Application No. 56/1995 were disposed of and rejected by the Competent Authority holding that he had no jurisdiction. In fact, he decided this question without going into the evidence of the parties. He clearly observed that in view of the evidence led in Application No. 80/1995 and in view of his finding that the said agreement was not an agreement of leave and licence and as the agreements in these matters are similar in nature, he did not think it necessary to take any evidence in these matters. I have held that the Competent Authority was wrong in coming to the conclusion in Application No. 80/1995 and that in fact that agreement is an agreement of leave and license and is a conclusive evidence of the facts stated therein. Therefore, it must be held that in these two matters also, the Competent Authority committed error in dismissing the applications. As the Competent Authority had dismissed these applications without giving opportunity to both parties to lead evidence, oral as well as documentary, it will be necessary to set aside the impugned order of dismissal of the Applications and to remand the matters back to the trial Court for hearing and disposal afresh after giving opportunity to both parties to lead evidence.

24. For the aforesaid reasons, the Revision Application No. 1254 of 2001 is hereby allowed and the impugned judgment and order in Application No. 80 of 1995 is hereby set aside. The respondent is hereby directed to vacate the premises and hand over possession to the applicants. The respondent shall also pay compensation at the rate of Rs. 800/- per month in addition to the other charges as leviable from him as per the agreement, from the date of termination of the license till he vacates the premises.

At this stage, the learned Counsel for the respondent makes a request that the respondent may be granted four months' time to vacate the premises. To this, the learned Counsel for the applicant has no objection. Subject to the respondent filing an undertaking within two weeks from today to the effect that he shall vacate the premises and put the applicants in peaceful possession without any objection or obstruction within four months from this day, the order of eviction shall not be executed for four months from this day. He shall also deposit all the arrears within two months from this day. In case of his. failure to file undertaking or to pay the arrears of the compensation within the stipulated period, the applicants shall be at liberty to execute the order for eviction and possession.

25. Revision Application Nos. 1255 of 2001 and 1256 of 2001 are hereby allowed and the impugned orders passed by the Competent Authority in Application No. 81/1995 and Application No. 56/1995 are hereby set aside. The matters are remanded back to the Competent Authority to hear the parties and dispose of the same afresh after giving opportunity to both parties to lead evidence. The parties shall appear before the Competent Authority on 10th April, 2008 and the Competent Authority shall dispose of the said Applications within three months thereafter.




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