JUDGMENT - R.A. JAHAGIRDAR, J.:---The petitioner in this petition is defendant No. 2 in a suit, being R.A.E. Suit No. 300/2083 of 1970, filed by the first respondent against him and the second respondent for possession of a shop, hereinafter referred to as "the suit premises", situated in a building called "Pushpa Bhavan" in Colaba at Bombay. The first respondent is the owner of the suit premises which is situated in a building owned by a Co-operative Society. In some previous proceedings, which need not be mentioned in detail, the second respondent has been to be the tenant of the suit premises, though originally it had been contended by the first respondent that the second respondent was a licensee and not the tenant of the suit premises. After the second respondent was held to be the tenant of the suit premises the first respondent served a notice dated 25th of May, 1968 on him determining his tenancy in respect of the suit premises. Thereafter, the second respondent continued to be in occupation of the suit premises as a statutory tenant. 2. In the year 1970 the suit, mention of which has been made above, was filed by the first respondent seeking eviction of the second respondent on the ground that he was in arrears of rent and that he had illegally sub-let the suit premises in favour of someone who was carrying on the business of tailoring under the name and style of "Dina Gents Tailors". Subsequently the present petitioner was added as defendant No. 2 in that suit when the first respondent came to know about his name. This was done on 17th of April, 1976. Prior to that the second respondent had already filed his written statement on 9th of September, 1970. In paragraph 8 of plaint, the first respondent had mentioned that the second respondent had parted with the possession of the suit premises in favour of another person to whom it had been sub-let after the coming into operation of Maharashtra Ordinance 3 of 1959. It was then specifically averred in the said paragraph of the plaint that the said unlawful tenant has been carrying on the tailoring business in the suit premises. It was then specifically averred in the said paragraph of the plaint that the said unlawful tenant has been carrying on the tailoring business in the suit premises. In the paragraph added by amendment it was specifically mentioned that defendant No. 2, namely the petitioner, has been joined as a party defendant as he was in actual possession of the suit premises and it was also mentioned that he was not protected under the provisions of the Bombay Rent Act. 3. On 24th of March, 1977 the petitioner filed his points of defence. With reference to the averments made in paragraph 8 of the plaint, the petitioner mentioned that he has been in possession of the suit premises with the knowledge of the plaintiff since the year 1965 and has been carrying on his business as tailor in the name and style of "Dina Gents Tailors" He has also mentioned that he was protected under the provisions of the Bombay Rent Act. The averments in paragraph 8 of the plaint to the effect that he was an illegal sub-tenant was not even faintly denied in the points of defence. It was mentioned in a subsequent paragraph of the points of defence that the unlawful sub-letting, if any, as alleged had been legalised under the amendment to the Bombay Rent Act. In what manner that was legalised was not mentioned at all. Reading most liberally the petitioner seems to have taken the contention that he has been in occupation of the suit premises with the knowledge of the landlord, the first respondent, and, therefore, if the sub-tenancy was illegal to begin with, it became legal. 4. Thereafter, the hearing of the suit was taken up sometime in the year 1979 and the plaintiff actually completed evidence on his part. It is at this stage that the petitioner filed an application on 2nd of August, 1979 for amending his points of defence. By the amendment which was proposed by this application the petitioner wanted to contend that he was a licensee in respect of the suit premises since February 1970. It is at this stage that the petitioner filed an application on 2nd of August, 1979 for amending his points of defence. By the amendment which was proposed by this application the petitioner wanted to contend that he was a licensee in respect of the suit premises since February 1970. It would be appropriate to reproduce the entire paragraph, which is paragraph 4 in the said application : "I say that I am a licensee in respect of the suit premises since February 1970 and defendant No. 1 never revoked the licence granted to me and the said leave and licence is still subsisting since the year 1973. I say that being the licence subsisted as on 1st February, 1970. I am a protected licensee under the provisions of the amended Bombay Rent Act." From what has been extracted above from the application of the petitioner it is clear that he intends to say that he has been inducted as a licensee in the suit premises in the year 1970, that the licence was subsisting on 1st of February, 1973 and that, therefore, he is a protected licensee within the provisions of section 15-A of the Bombay Rent Act. 5. The learned trial Judge by his judgment and order dated 21st of September, 1979 rejected this application for amendment on two counts. He held in the first place that the amendment is being brought forth belatedly after the plaintiff had already closed his evidence and secondly that the claim which he is now setting up is wholly inconsistent with the averments made in the points if defence. It is this order of the learned trial Judge that is the subject-matter of challenge in this petition. 6. Mr. Abhyankar, the learned Advocate appearing for the petitioner has criticised the judgment of the Court below by contending that the Court below has discharged the well-established rule that all amendments which are necessary for determining the real controversy between the parties ought to be allowed by the Court and such amendment should not be refused merely on the ground that there is delay in bringing forth those amendments. Mr. Mr. Abhyankar also contended that the contention which is now being sought to be raised by the petitioner by way of amendment is already there in the original points of defence in an emlryonic form and what is being sought to be done is to bring it out in a proper shape. After hearing Mr. Abhyankar I am satisfied that the amendment which is sought to be made was rightly disallowed by the trial Court. On the question of delay there is considerable substance in what Mr. Abhyankar has to say. However, I am not satisfied that there was already present in the original points of defence the contention now sought to be raised by the amendment. What was originally pleaded was that the petitioner was a sub-tenant and that sub-tenant, if it was illegal, had been legalised under the provisions of the Bombay Rent Act as well as by the fact that the first respondent, namely the landlord, had full knowledge of the illegal sub-tenancy. There was no whisper of an averment in the original point of defence that the petitioner was occupying the suit premises as a licensee of the second respondent. To say that he is a licensee is totally inconsistent with saying that he is the sub-tenant. The Court below was thus fully justified in rejecting the amendment sought to be introduced by the petitioner. 7. I am also inclined to uphold the order of the Court below on the ground that even if this amendment is allowed it will result in an exercise in futility because the petitioner having been, according to his new-application, inducted as a licensee in the year 1970 long after the determination of the tenancy of the second respondent, cannot get the protection of section 15-A of the Bombay Rent Act. It must be noted that in order to claim the benefit of section 15-A of the Bombay Rent Act the licence must have been a legal licence and it must have been subsisting on 1st February, 1973. 8. The petitioner himself alleges that he was induced as a licensee in the year 1970. I have mentioned above that the tenancy of the second respondent had been terminated on 25th of May, 1968. 8. The petitioner himself alleges that he was induced as a licensee in the year 1970. I have mentioned above that the tenancy of the second respondent had been terminated on 25th of May, 1968. If this is so the second respondent could not have created any licence after that date when he became what for brevitys sake has been called "the statutory tenant". When the contractual tenancy of a tenant is determined all the incidents of that contractual tenancy must come to an end and the erstwhile tenant continues to remain as a tenant under the Rent Act only for the purpose of protecting his possession. Such a tenant cannot transfer or assign his interest in the premises which were the subject matter of the contractual tenancy. His status is one of a tenant who is irremovable except under the provisions of the Bombay Rent Act. This status has been described as a status of irremovability though such a tenant has been for lack of a better expression called statutory tenant. Apart from retaining his possession under the benevolent provisions of the Rent Act such a tenant, namely a tenant whose contractual tenancy has been determined, cannot exercise any other right over the demised premises. He could not have, therefore, created a licence in favour of a third person just as he could not transfer or assign his interest in the said premises. 9. Mr. Abhyankar, however, contends that the distinction between a statutory tenant and a contractual tenant has now been obliterated by the decision of the Supreme Court in (V. Dhanapal Chettiar v. Yesodai Ammal)1, A.I.R. 1979 Supreme Court, 1745. He relied upon paragraph 9 of the said judgment wherein it has been mentioned that : "Under the State Rent Control Acts the concept of the contractual tenancy has lost must of its significance and force". What has been held in V. Dhanpals case is that before filing the suit it is not obligatory unless it is otherwise provided in the relevant rent law to determine the tenancy under section 106 of the Transfer of Property Act. In view of this position the Supreme Court proceeded to say that the concept of contractual tenancy has lost much of its significance. In view of this position the Supreme Court proceeded to say that the concept of contractual tenancy has lost much of its significance. It has not been laid down by the Supreme Court that the concept of contractual tenancy has been thrown overboard by any of the Rent Act, nor has it lost all its significance. In my opinion, therefore, the Supreme Court in V. Dhanpals case has not said that there will be no change in the character of the tenant if his contractual tenancy is determined. 10. Mr. Abhyankar also made reference to (Damadilal v. Parashram)2 A.I.R. 1976 Supreme Court, 2229, for the purpose of emphasising that the legal incident of a statutory tenancy are not different from those of a contractual tenancy. I, however, did not deem it necessary to discuss in detail the law laid down in Damadilals case because it has been the subject matter of a detailed and authoritative discussion at the hands of a Division Bench of this Court in (Tatoba Krishna v. Dikkayya Mattaya)3, 1979 Bom.C.R. 1: 1980 Maharashtra Law Journal, 229. It has been laid down in this case that despite what is mentioned in Damadilals case A.I.R. 1965 Supreme Court, 414, the statutory tenant cannot transfer his interest under section 15 of the Bombay Rent Act in the premises tenanted by him. It was reaffirmed that the interest of the statutory tenant has not become irrelevant for all purposes. A person can create a licence to the extent of his interest in the property. A statutory tenant has no interest in the property which will enable him to create a licence. The licence created by the statutory tenant in favour of the petitioner, therefore, was not in accordance with law and, therefore, it cannot be said that licence was subsisting on 1st of February 1973. 11. Mr. Abhyankar then referred to two judgments of this Court. The first of them is by Chagla C.J. in (Balmukund Co. v. Mangaldas)5, 55 Bom. L.R., 50. The second one is by Chagla C.J. with Dixit J. in (First Appeal No. 730 of 1954)6. That judgment was delivered on 16th July, 1956. I find it unnecessary to mention the detailed facts involved in these two decisions. The first of them is by Chagla C.J. in (Balmukund Co. v. Mangaldas)5, 55 Bom. L.R., 50. The second one is by Chagla C.J. with Dixit J. in (First Appeal No. 730 of 1954)6. That judgment was delivered on 16th July, 1956. I find it unnecessary to mention the detailed facts involved in these two decisions. It is sufficient to note that in both these decisions the short question which arose was whether the statutory tenant by creating a licence had parted with the possession of the premises of which he was the tenant. The answer given was in the negative in both the decisions. It was held that a person who create a licence in favour of another does not loose control or dominion over the demised premises and, therefore, it cannot be said that he has parted with the possession of the premises which are the subject matter of a licence. The question whether a statutory tenant could create a licence or not did not arise at all in those two cases and, therefore, was not answered. The order of the learned trial Judge disallowing the amendment sought to be made by the petitioner is thus supportable on more than one ground. 12. In the result this petition must fail. Rule is accordingly discharged with no order as to costs. -----