Can the court grant interim relief U/S 9 of the Arbitration Act relating to possession of property given on leave and license?

As held by the Full Bench in Central Warehousing Corporation, Mumbai (supra) in the arbitration agreement in such cases is held to be invalid and inoperative on the principle that it would be against public policy to allow the parties, by a contract to oust the exclusive jurisdiction of the Small Causes Court by virtue of Section 41 of the PSCC Act.

41. Thus, in my opinion, the respondents are correct in their

contention that this Court would not have jurisdiction to entertain the Section 9 petition considering the nature of the reliefs, which in fact pertain to or are incidental to the possession of the licenced premises as asserted by the petitioners, subject matter of the leave and licence agreements. Hence, as held by the Court in the decisions as discussed above, jurisdiction to entertain any such proceedings would lie with the Small Causes Court under the provisions of Section 41 of the PSCC Act.

In view of such conclusion, it may not be possible for the Court to pass any orders on the present petition permitting the respondent to deposit in this Court liquidated damages which Mr. Shah had agreed to deposit even in the present proceedings. In view of the fact that the present proceedings are held as not maintainable and having reached such conclusion, it may not be permissible for the Court to bifurcate causes of action, the principles of law in that regard being well settled. Needless

to observe that it would be open to the petitioner to seek prayers in that regard in appropriate proceedings in the event the claims are pure monetary disputes falling within the realm of arbitrability of such disputes. All contentions of the parties in that regard are expressly kept open.

42. Resultantly, these petitions filed under Section 9 of the Arbitration and Conciliation Act,1996, cannot be entertained. The petitions are accordingly dismissed. The petitioners are at liberty to take recourse to other appropriate proceedings as may be available to the petitioners in law including to assert pure monetary claims in arbitral proceedings as discussed in paragraph 37 of this judgment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION PETITION (L.) NO. 22526 OF 2022

BXIN Office Parks India Pvt. Ltd. Vs  Kailasa Urja Pvt. Ltd. 

CORAM : G.S. KULKARNI, J.

Pronounced on : AUGUST 20, 2022.

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Questions and answers on law part 22

 Q 1:- Landlord has wrongfully dispossessed tenant from tenanted premises. Tenant has filed suit under S 6 of specific relief act for recovery of possession of tenanted premises. Whether suit is maintainable before city civil court or small cause court?

Ans: S 41 of Presidential Small cause court Act

"41. (1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

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Supreme Court: Landlord-Tenant Disputes Under Transfer Of Property Act Arbitrable Except When Covered By Rent Control Laws

  Landlord-tenant disputes governed by the Transfer of Property Act are arbitrable as they are not actions in rem but pertain to subordinate rights in personam that arise from rights in rem. Such actions normally would not affect third-party rights or have erga omnes affect or require centralized adjudication. An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court. Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State. The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration. Transfer of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants.{Para 48}

49. In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises and hold that landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2402 of 2019, 

Decided On: 14.12.2020

 Vidya Drolia and Ors. Vs.  Durga Trading Corporation and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, Sanjiv Khanna and Krishna Murari, JJ.

Citation: MANU/SC/0939/2020

Read full judgment here: Click here

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Whether Small cause court has jurisdiction to try suit between licensor and ex-licensee?

He relies on the judgment of a Division Bench of our Court in the cases of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel MANU/MH/0179/1980 : AIR 1980 Bombay 123.

5. As held by our Court in the case of Nagin Mansukhlal Dagli (supra), a suit for recovery of immovable property held by the licensee as well as for recovery of licence fee or charges may very well lie under Section 41 after such licence has come to an end; it is nonetheless a suit between a licensor and a licensee; and the argument that Section 41 must be confined only to suits where the licence has not been terminated earlier by the licensor, is fallacious. The expression 'licensees' used in Section 41 of the Presidency Small Causes Courts Act not only includes licensees whose licence is subsisting but also licensees whose licence has been terminated by the licensor prior to the filing of the suit. After the decision of the Division Bench in the case of Nagin Mansukhlal Dagli, the argument that the suit for recovery of possession could be filed by a licensor against a licensee only in a case where the relationship of licensor and licensee subsists as on the date of the suit, is no more res integra.

7. Accordingly, on the averments made in the plaint itself, it is clear that the present suit is between a licensor and a licensee and it relates to recovery of possession of premises which are the subject matter of licence and also for recovery of licence fee. This suit is exclusively within the jurisdiction of the Courts of Small Causes under Section 41 of the Presidency Small Causes Courts Act.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 3139 of 2010 in Suit No. 886 of 2010 and Suit No. 886 of 2010

Decided On: 24.11.2015

Kirti Sohan Modi  Vs.  Creation

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/3282/2015

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How to decide the issue of jurisdiction if the defendant takes plea before City civil court that he is a tenant in respect of suit premises?

 What is it, therefore, that the Defendants have placed on record to establish their claim of tenancy? That, as I have noted, was the only case pleaded by the Defendants: not a license, not prescription, but only a tenancy. First, Mr. Sathaye for the Respondents-Defendants submits that the City Civil Court has no power to issue a declaration of tenancy. That is correct; but in this context it is misconceived. The preliminary objection raised under CPC Section 9A does not envisage the grant of any kind of declaration. That is not the purpose or ambit of the section. In deciding a jurisdictional issue under CPC Section 9A, no declaratory decree is ever contemplated. But when a jurisdictional ouster is being tested, this cannot be done on speculation, surmise, or conjecture, and these cannot be allowed to take the place of the evidence. The Court must determine whether there is a tenancy or a license. If it finds this is established, its jurisdiction ends. It does not then go on to grant a declaration. It passes no decree. It only says that because of the nature of the juridical landlord-tenant relationship established by cogent evidence, its jurisdiction stands is ousted. In fact, the argument is self-defeating. Once the City Civil Court finds that there is a landlord-tenant or licensor-licensee relationship, it divests itself of jurisdiction. It cannot grant the declaration. Any such declaration would be a nullity for want of jurisdiction in the first place. But this does not mean that the Court is not to determine whether the jurisdiction is ousted on account of such a relationship being proved in the first place. It is not the defence taken that determines or changes the forum. The special jurisdiction of the Small Causes Court does not grant exclusive jurisdiction to try questions of title. Where a plaintiff does not admit the landlord-tenant relationship (this being the only case pleaded here), the defendant's plea cannot force the plaintiff to go to the Small Causes Court.1

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 466 of 2017

Decided On: 12.07.2017

 Arun Kumar Vs. Aktar Quershi and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: MANU/MH/3286/2017

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Whether City civil court should return plaint if there are issues relating to title to property and tenancy in the suit?

 Straightaway, therefore, the order of 'return of the plaint' cannot be sustained. This was not a case of jurisdiction relating to territorial or pecuniary limits; had it been, an order of return of the plaint was correct. It was a finding that the suit as instituted was not cognizable by the civil court at all. That had to result in a dismissal of the suit - assuming that the entire suit could be so dismissed.[2]

20. There remains the question of whether the whole suit could have been dismissed, given the frame of prayer clause (a). Here again, I believe Mr. Godbole is correct, and the Small Causes Court could not ever have granted a declaration of title Ramji Gupta & Anr. v. Gopi Krishan Agrawal & Ors., MANU/SC/0365/2013 : (2013) 9 SCC 438. Interestingly, on the issue of a title declaration, the Small Causes Court could have returned the plaint for presentation to the appropriate court, but the converse is not true. This is inter alia because Section 23 of the Provincial Small Causes Court specifically provides for a return of a plaint for determination of questions of title.[3]

22. The decision of the Division Bench of this Court in Smita Rajeev Sah v. Roop Narain Sah MANU/MH/0269/2013 : (2013) 5 Mah LJ 211 : (2013) 6 Bom CR 193 is apposite. Dr. Chandrachud J (as he then was) speaking for the Division Bench said:

1. This appeal arises from an order of a learned Single Judge dated 16 March, 2012 deciding a preliminary issue of jurisdiction.

2. The first Appellant is the widowed daughter-in-law of the first and second Respondents. The second Appellant is the daughter of the first Appellant. The Respondents were 68 and 63 years of age respectively when the suit was instituted in 1995. The suit is for a declaration that the First Respondent is the lawful and rightful owner of flat A-51 together with a garage in a building known as Meherina, situate at Plot No. C-51, Napean Sea Road, Mumbai 400 026. The Respondents seek a declaration that the Appellants are trespassers and have no right, title or interest in the flat. Among the prayers is a prayer for possession, styled as a mandatory order and decree requiring the Appellants to remove themselves from the flat. The suit proceeds on the basis that the flat was purchased under an agreement for sale dated 11 June, 1965 by the First Respondent for a consideration of Rs. 1.80 lakhs and that the share certificate stands in the name of the First Respondent. The First Appellant and her spouse, who was the son of the Respondents, got married in 1982 and it has been stated that the Respondents permitted their son to reside with them as a member of the family. After he died in an accident on 29 October, 1994 it has been stated that the First Appellant "is now wrongfully claiming ownership/or share" in the said flat belonging to the First Respondent. For the purpose of these proceedings, it is not necessary to refer to the genesis or details of the dispute or the allegations of harassment made by the Respondents.

3. Issues were framed in the suit on 10 January, 2011. On 22 February, 2012 when the suit reached hearing, the Appellants asserted that in view of the decision of a Full Bench of this Court in Prabhudas D. Kotecha v. Manharbala J. Damodar , MANU/MH/0692/2007 : 2007 (5) Mh.L.J. (F.B.) 341 : 2007 (5) Bom. C.R. 1 the Court of Small Causes has exclusive jurisdiction to entertain and decide a suit against a gratuitous licensee. Hence, it was urged that the jurisdiction of this Court would be barred. In view of this defence, the following issue was framed as a preliminary issue:

"Whether this Court's inherent jurisdiction is barred".

The learned Single Judge has answered the preliminary issue by holding that the jurisdiction of this Court is not barred.

4. Counsel appearing on behalf of the Appellants submits that: (i) If the Appellants were to seek to establish a right to the premises, they would undoubtedly have to file a suit in the competent civil court; but in the present case, if the plaint is read in its entirety, it would be apparent that what the Respondents seek is possession of the premises from the Appellants; (ii) A suit for possession even against a gratuitous licensee is maintainable only before the Small Causes Court in view of the judgment of the Full Bench in Prabhudas D. Kotecha's case (supra); and (iii) In any case, even before the Small Causes Court, where a suit for eviction is filed, the question of title would have to be determined.

5. On the other hand, it was contended on behalf of the Respondents that: (i) A suit for a declaration under section 34 of the Specific Relief Act, 1963 would lie before this Court. The Respondents are required to seek such a declaration since the Appellants have asserted a claim and interest in respect of the premises on the ground that it is H.U.F. property; (ii) Once the Appellants have sought to interfere with or deny the title of the First Respondent in respect of the residential flat, the Respondents would necessarily have to seek and have sought a declaration before this Court on title and consequent to that, a decree for possession; (iii) The Small Causes Court would have no jurisdiction to adjudicate upon a question of title in view of the provisions of section 19(s) of the Presidency Small Causes Courts Act, 1882. Moreover, section 45 stipulates that nothing contained in Chapter VII (which would include section 41) shall be deemed to bar a party to a suit in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property.

6. A reading of the plaint in the suit instituted by the Respondents would indicate that they seek first and foremost a declaration of title to the residential flat as vesting in the First Respondent in view of the fact that the flat was purchased by him on 11 June, 1965 for a consideration of Rs. 1.80 lakhs. According to the Respondents, the deceased spouse of the First Appellant was a young child when the residential flat was purchased. The declaration has been sought in view of the fact that it has been averred in paragraph 3(d) of the plaint that the First Appellant is claiming ownership and/or a share in the residential flat. The suit is a declaratory suit within the meaning of section 34 of the Specific Relief Act, 1963. Under the proviso to section 34, no Court shall make any declaration where the Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The Respondents claim that they are entitled to possession and seek a mandatory injunction calling upon the Appellants to remove themselves from the residential flat.

7. The objection of the Appellants to the jurisdiction of this Court is founded on the provisions of section 41 of the Presidency Small Causes Courts Act, 1882 under which notwithstanding anything contained elsewhere in the Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings. The Full Bench has held in Kotecha that this would cover a suit against a gratuitous licensee. Section 41 forms a part of Chapter VII of the Act of 1882. Section 45, however, stipulates as follows:-

"45. Nothing contained in this Chapter shall be deemed to bar a party to a suit, appeal or proceeding mentioned therein in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property."

Consequently, notwithstanding anything contained in any other provisions of that Chapter, including section 41, there is no bar to a party to a suit in which a question of title to any immovable property arises from suing in a competent court to establish his title to such property. Apart from this, section 19(s) of the Act of 1882 specifically stipulates that the Small Causes Court shall have no jurisdiction inter alia in suits for declaratory decrees. From these provisions, it is clear that a suit seeking a declaration of title and in consequence a decree for possession of the nature that has been sought would be maintainable before this Court and the jurisdiction would not be barred by the provisions of section 41 of the Presidency Small Causes Courts Act, 1882. The question of title cannot be decided by the Court of Small Causes. Whether the First Respondent has an absolute right of ownership as claimed is an issue which has to be decided in the suit before this Court in which a declaration of title is sought. The view of the learned Single Judge cannot, therefore, be held to be in error.

(Emphasis added)

23. The present case differs from Smita Rajeev Sah only in this particular, viz., that there is an admission of a gratuitous license, and there is a finding of the existence of a tenancy. Consequently, the relief of possession vis-à-vis a tenant could not be granted by the City Civil Court. However, the question of declaration of title and ownership is not one that the Small Causes Court could ever grant. Even if the title is admitted, a decree on admission could only be granted by the City Civil Court and never the Small Causes Court. The provisions of Section 45 of the Presidency Small Causes Court would bar the Small Causes Court from ever issuing any such declaration.

24. For this reason, prayers (a) and (b) of the suit can only be within the remit of the City Civil Court. Only prayer clause (c), seeking a decree of possession against the defendants would be outside the jurisdiction of the City Civil Court and within the exclusive jurisdiction of the Small Causes Court, now that there is a finding, after evidence, of the existence of a tenancy in favour of those defendants against whom the decree of possession in sought.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 291 of 2014 in Suit No. 6319 of 2005

Decided On: 31.07.2017

M.S. Shetty Vs.  Anoop Vyas 

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation:  MANU/MH/4533/2017 

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Whether small cause court has jurisdiction to entertain the suit for specific performance of an agreement for the renewal of a lease deed?

The Apex Court in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale MANU/SC/0633/1995 : 1995(2) SCC 665, while considering the provisions of Section 41(1) of the Presidency Small Causes Courts Act, 1882 which was pari materia with Section 26 of the Provincial Small Causes Courts Act, 1887 held that in a suit instituted by a person claiming to be a licensee of the premises for an injunction restraining the licensor from dispossessing the licensee or interfering with the possession or enjoyment of the property by the licensee would relate to the recovery of possession and fell within the exclusive jurisdiction of the Small Causes Court. 

11. Having considered the documents annexed to the Petition and the reply and having heard the counsel, indisputably the parties had a preexisting relationship of lessor and lessee and that in pursuance of a provision for renewal contained in the Lease Deed, Petitioner was seeking a continuation of that relationship. Even though Petitioner states that they are only seeking specific performance, when a Court hears such a matter, the Court must find out what does the suit in substance and in essence says and whether it is relating to the recovery of possession or the recovery of licence fee, rent or other charges between a landlord and tenant or a licensor and licensee. The Court will decide the issue by looking at the kernel and disregarding the chaff, the nature of the cause of action; the character of the reliefs sought and whether the claim of the Petitioner arises from and out of the obligations of the parties as licensor and licensee or landlord and tenant. The garb or cloak which is wrapped around the pleadings by an astute draftsman must be kept aside to deduce the pith and substance of the pleadings.

12. In my view, considering the averments in the Petition, prayers sought in this Petition and the averments contained in Paragraph 11 of the rejoinder, this dispute certainly relates to recovery of possession and it is a matter to which Section 26 of Provincial Small Causes Court Act, 1887 applies notwithstanding the fact that some of the reliefs or a portion of the cause of action is structured around a claim for specific performance.

13. The petition, therefore, stands dismissed. Interim relief granted on 13th June 2017 stands vacated.

IN THE HIGH COURT OF BOMBAY

Arbitration Petition (Lodg.) 513 of 2017

Decided On: 01.08.2017

Trent Limited Vs. Nanasaheb Govindrao Aher and Ors.

Hon'ble Judges/Coram:

K.R. Shriram, J.
Citation: MANU/MH/1720/2017

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How to appreciate evidence in the suit between the licensor and gratuitous licensees?

From the aforesaid averments, it can be seen that it is the case of the plaintiff that the defendants being related to him were permitted to reside in the suit premises as there was a difficulty in finding a residential accommodation. It is not the case of the plaintiff that any rent was being paid by the defendants as consideration for permitting them to reside in the said premises. The pleadings in the plaint when considered as a whole indicate that in view of the permission granted by the plaintiff to the defendants to reside in the suit premises, the defendants came in its occupation. In other words, the plaintiff was the licensor and the defendants were licensees. Under section 41 of the said Act a suit between a licensor and licensee relating to recovery of possession of any immovable property can be tried only by the Court of Small Causes. The Honourable Supreme Court in Prabhudas Damodar Kotecha and Ors. (supra) considered the question as to whether a suit filed against' a gratuitous licensee would also lie before the Court of Small Causes under section 41 of the said Act. It was held that the term license would include a gratuitous license. It was held that in a suit between licensee and licensor relating to recovery of possession of any property situated in Mumbai, it is only the Small Causes Court that would have the jurisdiction. A licensee could also be a gratuitous licensee. In the light of this decision it becomes clear that a suit of the present nature can be entertained only by the Small Causes Court and not by the Civil Court.

10. As noted above the plaint averments clearly indicate that the defendants were permitted to reside in the suit premises gratuitously and in view of the permission granted by the plaintiff. It is on account of such license that the defendants came in possession. Thus the requirements of section 41 of the said Act stand satisfied in view of the fact that the suit as filed is between the licensor-plain tiff and licensee-defendants and a prayer is also made for possession of the suit premises by evicting the licensee.

The trial Court in paragraph 10 of its judgment has observed that despite the license in favour of the defendants being terminated, the defendants continued in possession. Infact they had no right to occupy the suit house and they were rank trespassers. Once it is found that the plaintiff had determined the license in question, the suit would be one between the licensor and licensee. Its cognizance in view of section 41 of the said Act could only be taken by the Small Causes Court. The civil Court had no jurisdiction to entertain the same. In the light of the aforesaid decision of the Honourable Supreme Court in Prabhudas Damodar Kotecha (supra), the decisions relied upon by the learned Counsel for the respondent do not support his contentions. Point (a) is answered by holding that the Civil Court had no jurisdiction to entertain the suit.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1888 of 2007

Decided On: 28.11.2018

 Rajani Ramchandra Shinde  Vs. Moreshwar Vasant Chavan

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

 Citation: MANU/MH/3697/2018 

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Whether suit for refund of a security deposit under leave and licence agreement is tenable U/S 41 of small Causes Court Act?

In my view, even if such amount would have been demanded by the petitioners under clause (3) of the leave and licence agreement, the said dispute also could not have attracted section 41 of the Presidency Small Cause Courts Act, 1882. Such demand of licence fees at the enhanced rate which could be adjusted against the security deposit would not relate to the dispute falling under the expression "dispute relating to recovery of possession" attracting section 41 of the Presidency Small Cause Courts Act, 1882.

IN THE HIGH COURT OF BOMBAY

Commercial Arbitration Petition No. 452 of 2019 and Notice of Motion No. 911 of 2019

Decided On: 23.07.2019

 A.S. Patel Trust  Vs.  Wall Street Finance Limited

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation:  MANU/MH/1959/2019 

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Supreme Court: Eviction proceeding against a licensee will not abate on his death

When a licensor seeks possession from the alleged licensee though in a summary manner, he seeks restoration of the estate of immovable property which was permitted to be utilised by the licensee during the currency of the licence. Once the licence is put to an end, the right of reversion obviously survives for the licensor and whoever intermeddles with the property after the death of the licensee would obviously be liable to answer the claim of the licensor and in these proceedings it cannot be said that such a cause of action is personal against the licensee and dies with him.

2. In our view, therefore, the decision of learned Single Judge of Madras High Court cannot be sustained on the scheme of the Act and on the contrary, the view propounded by the Calcutta High Court in the aforesaid decision is the correct view. This very question was examined by a Division Bench of the Bombay High Court in its decision in the case of Mrs. Sakinbai v. Salebhai Hasanali MANU/MH/0146/1967 : AIR1967Bom9 . K.K. Desai, J., speaking for the Division Bench Held:

Ejectment proceedings under Section 41 of the Presidency small Cause Courts Act are for enforcing property rights and for recovery of properties. These are not proceedings relating to personal causes of action and they do not die with the death of a party to the proceedings whether he be an applicator opponent.

3. The High Court also in this connection placed strong reliance on the express language of Section 306 of the Indian Succession Act. In our view, the aforesaid decision of the Bombay High Court correctly analyses the scope and ambit of Section 41. 

IN THE SUPREME COURT OF INDIA

SLP (C) No. 17918 of 1997

Decided On: 30.09.1997

 Ha Malbari (Dead) by Lrs. Vs.  Nasiruddin Pirmohmad and Ors.

Hon'ble Judges/Coram:

S.B. Majmudar and M. Jagannadha Rao, JJ.

Citation: MANU/SC/1355/1997

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Who is competent to decide issue of refund of security deposit by licensor to licensee either Arbitrator or small cause court?

 This court in case of RMC Readymix (I) P. Ltd. (supra) held that the suit for refund of security deposit is not covered by section 41 of the Presidency Small Cause Courts Act. It is held that the contention could be tenable if suit was for possession of the premises. This court specifically rejected the contention of the defendant that the deposit being related to premises on leave and licence basis and thus, it would be covered by section 41 of the Presidency Small Cause Courts Act.

31. This court in case of BNP Paribas Securities India Pvt. Ltd. (supra) while deciding an application under section 9 of the Arbitration Act held that the petition for refund of security deposit not refunded by the licensor would not fall under section 41 of the Presidency Small Cause Courts Act, 1882. It is held that since the reliefs of possession of the property and recovery of licence fee and damages already prayed by the licensor against the licencee in the Small Causes Court, the claim for refund of security deposit made by the licencee in the arbitral proceedings was maintainable.

37. In my view, even if such amount would have been demanded by the petitioners under clause (3) of the leave and licence agreement, the said dispute also could not have attracted section 41 of the Presidency Small Cause Courts Act, 1882. Such demand of licence fees at the enhanced rate which could be adjusted against the security deposit would not relate to the dispute falling under the expression "dispute relating to recovery of possession" attracting section 41 of the Presidency Small Cause Courts Act, 1882.

IN THE HIGH COURT OF BOMBAY

Commercial Arbitration Petition No. 452 of 2019 and Notice of Motion No. 911 of 2019

Decided On: 23.07.2019

A.S. Patel Trust Vs.  Wall Street Finance Limited

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2020(1) MHLJ 381

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Under which law eviction suit is to be filed if open plot was let out on which saw mill was constructed?

It is pertinent to note that the definition of expression 'premises' given in the Act clearly indicates that the Act is not applicable to open lands and it applies to the buildings and structures and parts thereof used as separate premises for residence, education, business, trade or storage. However, the Rent Control Order applied to open lands also but by virtue of provisions of Section 58 of the Act, the said Rent Control Order has been repealed and by virtue of the provisions of Section 46 of the Act, the Rent Control Order is applicable only to the suits or proceedings pending on the date of commencement of the Act. Admittedly, on the date of commencement of the Act, no suit or proceeding for eviction of the defendant from the suit premises was pending and, therefore, in my opinion, it is the Transfer of Property Act which would govern the field and would be applicable to the matter in question and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of Transfer of Property Act determining his tenancy without obtaining prior permission of the Rent Controller cannot be said to be illegal or invalid and, therefore, in my opinion, the learned trial Judge has rightly held so. I, therefore, find no substance in the contentions canvassed by the learned Counsel for the applicant in this regard.

Bombay High Court

Gangdas S/O Moujibhai Patel vs Harshvardhan S/O Balkrushna ... on 14 October, 2002

Equivalent citations: 2003 (4) BomCR 712, 2003 (1) MhLj 203

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Whether transferee landlord can seek eviction of tenant if tenanted property is transferred to it by operation of law?

It is no doubt true that per se Section 109 and 507 of T.P. Act does not apply to the facts of this case. It contemplates transfer of lessor's right inter vivos. But when right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 per force would apply and successor in interest would be entitled to the rights of the predecessor. This is what the learned single Judge of the High Court in the impugned judgment has held and we approve of the view as correct. We, accordingly, hold that the notice terminating the tenancy of Vasantkumar would enure to the benefit of the respondent and it could be availed of by the respondent to lay the suit for ejectment.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1348 of 1990

Decided On: 21.08.1990

Vasantkumar Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay

Hon'ble Judges/Coram:

K.N. Saikia and K. Ramaswamy, JJ.

Citation:  AIR 1991 SC 14.

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How defect in Notice U/S 106 of Transfer of property Act regarding title of landlord in eviction suit is cured?

 A perusal of the above extracted portion clearly shows that the vendors agreed and confirmed that they had on 26.09.1998 duly executed the Deed of Conveyance in favour of the purchaser. The original Deed of Conveyance was annexed and marked Exhibit-A. The vendors further agreed and confirmed that for all practical purposes, the said land and the premises described in the Second Schedule written thereunder shall be deemed to have been conveyed to the purchaser (plaintiff) as from 26.09.1998 and that they have done no act, deed, matter or things whereby they prevented from executing or granting or conveying the said land and the premises. Applying the principles laid down by the Apex Court in the case of Official Trustees of W.B. (supra) to the facts of the present case, it is clear that the vendors admitted and acknowledged the fact of conveying the land and the premises, more particularly described in the Second Schedule, to the plaintiff. It is not in dispute that the suit premises forms part of the Second Schedule. The plaintiff, therefore, for all intent and purport became owner. As mentioned earlier, the Deed of Confirmation was executed and lodged for registration on 03.08.1999 and was duly registered on 03.01.2005. In view of Section 47 of the Registration Act, the Deed of Confirmation is operative from 03.08.1999. As mentioned earlier, plaintiff had issued notice of termination on 27.08.2000 and 28.08.2000. The Suit is instituted in the year 2002. Thus, when the plaintiff had issued termination notice and instituted Suit, he was owner of the suit premises. The defect of non-registration of Deed of Conveyance was cured by execution of Deed of Confirmation. In view thereof, I do not find any merit in the submission of Mr. Shah that the finding recorded by the Appellate Court in paragraph 28 is legally incorrect.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 180 of 2010

Decided On: 05.04.2019

Mahendra Valji Rathod  Vs.  National Radio and Electronics Company

Hon'ble Judges/Coram:

R.G. Ketkar, J.

Citation: 2019(5) MHLJ 795

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Whether licensee can claim injunction against licensor to restrain him from dispossessing him?

If we examine the Easements Act, Section 63 speaks of the licensee's rights on revocation; it is profitable to extract it:

"63. Licensee's rights on revocation.--Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property."

50. From the above statutory extract, it is clear that a licensee, on revocation of license, is entitled to a reasonable time to leave the property. It does not contemplate eviction by due process. And, in fact, that waiting period is the due process, so to speak. The reason for this proposition, even de hors the statutory support, is not far to seek: a license creates no interest in the property; the seisin remains with the owner. In other words, the licensee only may use the immovable property, with no actual transfer of the very property.

51. Then, Sakkeer quoted with approval Chandu Lal v. MCD MANU/DE/0024/1978 : AIR 1978 Delhi 174 (FB), a Full Bench decision of Delhi High Court. In fact, Chandu Lal, as noted by Sakkeer, has held that a bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property, but is only a personal privilege. The license terminated, the licensor may deal with the property as he likes. This right he gets as the owner in possession of his property. He need not secure a decree of the Court to obtain this right.

52. Chandu Lal notes that a licensor can use reasonable force to secure or protect his possession. If he, however, uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. Then, it acknowledges that a person in exclusive possession of the property, no doubt, is prima facie considered a tenant, but he would not be held to be so if the circumstances negative any intention to create a tenancy.

53. Settled as the above proposition of law has been, if we further examine, Section 64 of the Easements Act provides for the consequences that follow forceful eviction. It is profitable to extract Section 64:

"64. Licensee's rights on eviction. - Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor."

54. It is explicit from Section 64 of the Easements Act that if a licensee has been evicted by the grantor for no fault of his, the remedy of the licensee is not restoration, but only restitution. Thus, the common law cannon of restoration ends in the face of statutory stipulation.

 Prima facie, I reckon the LL Agreement, dated 28th February 2010, is a license; it has come to an end; and the licensee's possession is permissive. The licensee's claim that it has exercised its option of renewal is a matter for trial. The property belongs to a society, which pleads that it has gone for the best, most lucrative offer of license from a third party and that is in the interest of the society, whose structures need, as it puts, much upkeep. Thus, the balance of convenience, too, lies in the licensor's favour. About the irreparable loss, first the licensee cannot be said to be possessing the property; in fact, it has not even alleged that the licensor has tried to dispossess it. And any loss it may sustain without its having the injunctive relief is a matter of reparation: it can be compensated. That is, it is no irreparable loss.

61. Thus, all the three cardinal principles of injunctive relief--prima facie case, balance of convenience, and irreparable loss or hardship--are not in the licensee's favour.

So I reverse the findings of the Appellate Bench of the Small Cause Court and set aside the Order, dated 21st September 2018. As a result, the licensee's application for injunction stands rejected.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12033 of 2018

Decided On: 03.07.2019

New Shivam Co-op. Hsg. Society Ltd. Vs.  Raj Publicity, Bandra (W)

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation:   MANU/MH/1803/2019 

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Notes on Presidency Small Cause court Act 1882

https://drive.google.com/file/d/1B9ta-TijBfXqDBJ4cCvkZ9jOnYDsW1wv/view?usp=sharing

27. Decree-holder to accompany officer executing warrant.—Whenever the Small Cause Court issues a warrant for the arrest of a judgment-debtor or the attachment of his property, the decree-holder, or some other person on his behalf, shall accompany the officer of the Court entrusted with the execution of such warrant, and shall point out to such officer the judgment-debtor or the property to be attached, as the case may be.

31. Execution of decree of Small Cause Court by other Courts.—If the judgment-debtor under any decree of the Small Cause Court has not, within the local limits of its jurisdiction, movable property sufficient to satisfy the decree, the Court may, on the application of the decree-holder, send the decree for execution—

(a) in the case of execution against immovable property situate within such local limits— [to the Madras City Civil Court or the High Court of Judicature at Fort William or Bombay, as the case may be];

(b) in all other cases—to any Civil Court within the local limits of whose jurisdiction such judgment-debtor, or any movable or immovable property of such judgment-debtor, may be found.

Procedure when decree transferred.—The procedure prescribed by the Code of Civil Procedure (14 of 1882) for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases.

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Whether small cause court has jurisdiction to try suit relating to possession of premises?

The words used are "relating to recovery of rent or possession" and not "for recovery of rent or possession". The words "relating to" are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this section. Thus a suit, in which the plaintiff seeks to get rid of an order of his eviction by an injunction restraining the defendant from interfering with his possession, will also be covered by this section.

(8) Section 28 confers jurisdiction upon the special Court not only to decide questions referred to in the section, but also all matters which are incidental or ancillary to the determination of these questions, see Meharsingh Sethi v. Khurshed Nadirshaw Satarwala 56 Bom. LR 540 and Importers and Manufacturers Ltd. v. Pheroze F. Taraporewala MANU/SC/0071/1952 : [1953]4SCR226 in which the Supreme Court observed :

"Once there is a suit between the landlord and a tenant relating to the recovery of rent or possession of the premises, the Small Cause Court acquires the jurisdiction not only to entertain that suit but also to deal with any claim or question arising out of the Act or any of its provisions which may properly be raised in such a suit."

It was held in this case that the Court of Small Causes has jurisdiction not only to decide the dispute between the plaintiff landlord and the tenant but also a question raised between the plaintiff and the sub-lessee.

IN THE HIGH COURT OF BOMBAY

A.F.O.D. No. 434 of 1963 with C.A. Nos. 1592 and 1799 of 1963 and 416 of 1964 and A.O. Nos. 166, 170 and 1560 of 1963

Decided On: 04.09.1964

 Dattatraya Krishna Jangam Vs.  Jairam Ganesh Gore

Hon'ble Judges/Coram:

H.K. Chainani, C.J., Y.S. Tambe and Y.V. Chandrachud, JJ.

Citation: 1964 MHLJ 750(FB),AIR 1965 Bom 177

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Whether small cause court has jurisdiction to try eviction suit filed by employer by his employee?

To appreciate the controversy, it will be useful to state the pleadings of the parties in brief. According to the plaintiffs, the defendant, who is the revision applicant before this Court, was in service of the Trust. He was allotted the suit premises as a gratuitous/service licensee without payment of rent or charges. As the services of the defendant were no more required, the plaintiffs terminated the services of the defendant on 18.11.2004 with the immediate effect and requested him to vacate the premises and hand over the possession to the plaintiffs.  In view of these circumstances, the plaintiff filed the suit before the Small Cause Court for eviction and possession and sought the direction from the Small Cause Court to the defendant to deposit royalty amount of Rs. 5,000/ - per month. The defendant denied that he was provided the premises as service accommodation. According to him, he was inducted as a tenant independently of his service with the plaintiffs. According to him, in view of the plea taken by the plaintiffs, there was a relationship of the licensor and licensee and, therefore, the proceedings could be filed only before the competent authority under Chapter VIII of the Maharashtra Rent Control Act, 1999 and not before the Small Cause Court under the Presidency Small Cause Courts Act, 1882. After hearing the parties, the trial Court rejected the contention of the defendant and held that he had jurisdiction to entertain the suit and he also directed the defendant to deposit the arrears of compensation as claimed and also to continue to pay amount of Rs. 5,000/- per month till the final disposal of the suit. That order is challenged by the defendant in the present Revision Application.

As noted above, according to the pleadings of the plaintiff, the defendant was not paying either license fee or charge or any rent and therefore he was neither a licensee as defined in Section 7(5) nor he was a tenant under Section 71(15) of the Rent Act and therefore his case would not be covered either under Section 22 or 24 of the Rent Act. Therefore, the landlord could not have made an application before the competent authority and the provisions as contained in Chapter VIII would not be applicable. Therefore, the competent authority does not have jurisdiction to entertain application of the plaintiff and as a result of this, the jurisdiction of Small Cause court under Section 41 of the Presidency Small Cause Court Act is not ousted. In view of these facts and legal position, it must be held that the Small Cause Court is competent to entertain the suit of the plaintiff under Section 41 of the Presidency Small Cause Court Act. Therefore, I do not find any illegality or irregularity in the findings of the trial Court in respect of its finding about jurisdiction.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 181 of 2010

Decided On: 09.09.2010

Viraf G. Ichhaporia  Vs. Mancherji Jamshedji Cama and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2010(6) MHLJ 386

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What reliefs can be claimed before small cause court?

 Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of Rs. 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of Rs. 375 per month and for a sum of Rs. 375 per month from the date of the suit till possession of the said flat is handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensation for wrongful use and occupation of the property or mesne profits. This argument by Mr. Sanghavi overlooks the language used in the said Section 41. The said Section 41 speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". It is significant that the words used in the said Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Rule 12 of Order 20 of the Civil P. C., 1908, provides as to how a Court is to proceed "Where a suit is for the recovery of possession of immovable property and for rent or mesne profits." The contrast between the language used in Order 20, Rule 12 and the said Section 41 immediately strikes one. The phrase "relating to the possession of any immovable property" is wider than the phrase "for the recovery of possession of any Immovable property." The words "relating to" are intentionally and designedly used in the said Section 41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy.

IN THE HIGH COURT OF BOMBAY

Short Cause Suit No. 890 of 1978

Decided On: 08.02.1979

Nagin Mansukhlal Dagli  Vs. Haribhai Manibhai Patel

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh, C.J. and D.P. Madon, J.

Citation: AIR 1980 Bombay 123.

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Whether small cause court has jurisdiction to try suit if tenancy is determined?

 In other words, whether it is a suit between the
licensor and the licensee or between the landlord
and the tenant, such types of suits fall under
Section 41 of the Small Cause Courts Act and are,

therefore, cognizable by the Courts of Small Causes,
Bombay.
30) This takes us to deal with the next argument
of Mr. Naphade, learned senior counsel for the
appellants that once the tenancy is determined such
suits would not come within the purview of Section
41 of the Small Cause Courts Act. This argument
was rejected by the Division Bench and, in our view,
rightly by placing reliance on the law laid down by
the Bombay High Court in the case of Nagin
Mansukhlal Dagli vs. Haribhai Manibhai Patel
(AIR 1980 Bombay 123) (Para 8 of the said decision
quoted in the impugned order). We approve the law
laid down by the Bombay High Court in the case of
Nagin Mansukhlal Dagli (supra) as laying down the
correct principle of law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.57535754
OF 2011

Mahadev P Kambekar Vs Shree Krishna Woolen Mills Pvt. Ltd. 
Dated:January 31, 2019

Abhay Manohar Sapre, J.
Citation: 2019(1) RCR(Rent) 273 SC,2020(1) MHLJ 157

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