ORDER :- The present petition is filed by the petitioner who is the owner of the suit premises which consist of a flat in a building at Walkeshwar. The application for defendant's ejectment filed under Section 41 of the Presidency Small Cause Courts Act has been rejected by the Trial Court on the ground that the Court had no jurisdiction to grant such application in view of an order in certain previous proceedings between the parties. The correctness of the said view is challenged in these proceedings. 2. The facts relevant for the purpose of this judgment are the following :- The flat in question belongs to the present petitioner and admittedly he gave the same on leave and licence to the defendant in the year 1959. The amount of compensation fixed was Rs. 531/-. It has been contended before me that the said amount of Rs. 531/- was not only for the promises but also for furniture because it was furnished flat which was given on leave and licence basis to the defendant. This fact is stoutly denied before me by Mr. Pandey, the learned Advocate for the defendant. I am keeping this question open for the decision of the Trial Court after the re-appreciation of the entire evidence. 3. The leave and licence arrangement continued till the year 1965. The last leave and licence agreement in that behalf was executed on 21-6-1964 and it was to expire on 31-3-1965. On 12-4-1965 the plaintiff gave a notice to the defendant informing him about the expiry of the agreement of licence and calling upon him to vacate the premises. Due to the failure on the part of the defendant to comply with the requisition, an ejectment application was filed by the plaintiff against the defendant under Section 41 of the Presidency Small Cause Courts Act (hereafter, the Act). For the sake of convenience, the said ejectment application shall be hereinafter referred as 1st ejectment application. In the said 1st ejectment application the parties arrived at some kind of compromise and a consent order in that behalf was passed on 17-6-1968. As per the consent order the defendant was directed to give vacant possession of the suit premises to the plaintiff unless he paid the entire arrears of compensation due till 31st May, 1968 in stated instalments. The last instalment of Rs. 800/- was to be paid on 27-3-1969. As per the consent order the defendant was directed to give vacant possession of the suit premises to the plaintiff unless he paid the entire arrears of compensation due till 31st May, 1968 in stated instalments. The last instalment of Rs. 800/- was to be paid on 27-3-1969. The consent order clearly shows that if any default was made in such payment the consent order was to become executable and the plaintiff would have been entitled to possession of the suit premises by executing the consent order. It appears that according to the plaintiff the defendant had committed some default and hence in the year 1969 be filed an application for execution of the above mentioned consent order. The Trial Court, it appears, directed the execution to proceed, holding that the default was proved. As against the said order, Special Civil Application No. 1053 of 1969 was filed by the defendant in this Court and the same was allowed by the learned single Judge (Vaidya J.) of this Court on 27-3-1973. The Court held that there was no default committed by the defendant and hence no question of execution arose. 4. We present ejectment application (which will be referred to hereinafter as the second ejectment application) was filed by the plaintiff on 24-7-1973. In the said application the relevant facts out of the above mentioned facts have been mentioned. But in para 6 of the application some unhappy averments were made by stating that the agreement of leave and licence dated 21-6-1964 expired by efflux of time, that the licence was never renewed thereafter, that in any event the licence stood revoked by the filing of the first ejectment application, that there existed no subsisting agreement between the parties thereafter and that the respondent was wrongfully in possession of the premises. The reason why I describe this averment to be somewhat unhappy averment will be mentioned by me presently. The prayer that was made in the said application was that the defendant should be directed to vacate the suit premises. It is somewhat significant that there is no reference whatsoever to the fact that the defendant was in possession also of furniture and there is no prayer that the defendant should be directed to hand over the furniture also to the plaintiff. The significance of this aspect of the prayer clause will also be mentioned presently. 5. It is somewhat significant that there is no reference whatsoever to the fact that the defendant was in possession also of furniture and there is no prayer that the defendant should be directed to hand over the furniture also to the plaintiff. The significance of this aspect of the prayer clause will also be mentioned presently. 5. Various defences were raised by the defendant. His first defence, however, was that the present application was not maintainable in view of the order dated 17-6-1968. It was also contended that in view of the fact that the yearly compensation payable in respect of the suit premises exceeded the sum of Rs. 3,000/- referred to in Section 41 (as it stood before the present amendment) of the Act the ejectment application was not maintainable. The other relevant defence of the defendant was that he was the tenant in respect of the suit premises and as such was entitled to protection of the Rent Act. 6. The first two questions relating to the jurisdiction of the Court were examined by the learned Judge in the first instance without considering the other issue relating to tenancy and the learned Judge held that the consent order passed in the first ejectment application resulted in a bar to the second ejectment application. He also held that the plaintiff had failed to prove the defendant to be his licensee, or that the licence was revoked. However, he negatived the defendant's contention that the application was not maintainable on the ground that the compensation payable in respect of the premises exceeded Rs. 3,000/- per year. In view of his decision on the other point referred to above however, he dismissed the plaintiffs ejectment application with costs. The present writ petition is filed against the said order of the learned Judge. 7. Mr. Tunara for the petitioner contends that when there was a plea set up by the defendant that he was a tenant in respect of the suit premises it was the bounden duty of the Trial Court in the first instance to frame that issue and only if the defendant failed to make good his case of tenancy that the other issues could be tried by the Trial Court. In support of his contention he relied upon the provisions of amended Section 42-A of the Act as also to the judgment of the learned single Judge of this Court (Jahagirdar, J.) in the case of Abdul Rashid Adam v. Ebrahim Kassam reported in 1981 Bom Ren Cas 1. I am afraid this contention cannot be accepted at all. I find nothing in Section 42-A of the Act or in the judgment of Jahagirdar J. to justify the view that if there are other jurisdictional questions involved which also could be tried as preliminary issues, they could not be tried by the learned Judge before examining the question of the alleged tenancy. The judgment of Jahagirdar, J. relied upon by Mr. Tunara only mentions that if a plea is raised by the tenant that he is a tenant of the Suit premises the Court need not consider any other question but can try that issue as a preliminary issue. But Jahagirdar, J., was never called upon to decide the question as to whether if other jurisdictional issues were involved they could not be decided before the issue relating to tenancy was decided. To my mind the question regarding the very maintainability of the application has to be decided at the threshold and no mistake was committed by the learned Judge in applying his mind to the question in the first instance. If I was able to uphold his view that the second ejectment application was maintainable by virtue of the consent order in the first ejectment application, the present writ petition would have to be rejected on that ground itself, and in that event no question would have arisen as to whether the defendant was a tenant or not. 8. Fortunately for Mr. Tunara I am inclined to accept his second contention viz. that in the instant case the consent order in the first ejectment application cannot have the effect of a bar to the second ejectment application. It is, therefore, necessary to examine this aspect of the matter. The question as to whether the consent order would bar a second ejectment application or not would depend upon the condition embodied in the consent order itself. Coming to the consent order, therefore, I am completely at a loss to understand as to how whatever is stated in the consent order resulted in any bar to a second ejectment application. The question as to whether the consent order would bar a second ejectment application or not would depend upon the condition embodied in the consent order itself. Coming to the consent order, therefore, I am completely at a loss to understand as to how whatever is stated in the consent order resulted in any bar to a second ejectment application. In this connection Mr. Tunara very rightly and elaborately analysed the entire consent order and pointed out that the consent order itself did not bring about any new rights for the defendant. All that was done was that a decree for possession was passed against the defendant but that decree was not to be executed if the arrears of compensation due till 31st May, 1968 were paid in stated instalments. A careful examination of the consent order would show that if the amount of all the arrears was paid by the defendant within the stipulated time, expectation was that he would continue to be in possession. In any event there was no provision by virtue of which the possession could be taken away from the defendant by execution of that consent order if all the arrears due till 31-5-1968 were paid. There is not even any mention about the quantum of compensation or rent (if it was tenancy) which was to be paid for the period subsequent to 1-6-1968. A reasonable interpretation of the consent order, therefore, would be that the defendant was to continue in the same capacity as before upon payment of same amount of compensation with effect from 1-6-1968 onwards provided he went on paying the said amount regularly. It therefore follows that as per the consent terms the same licence (if it was licence) which was revoked by the plaintiff by his notice dated 12-4-1965 continued. In other words the revocation of licence dated 12-4-1965 was itself revoked and the previous licence was deemed to be continued as if it was never revoked. 9. But it also follows that if the defendant continued as a licensee then the licence was capable of being revoked by a second notice of revocation. This is so because there is nothing in the consent order by virtue of which it could be said that what was continued in favour of the defendant was an irrevocable licence. 9. But it also follows that if the defendant continued as a licensee then the licence was capable of being revoked by a second notice of revocation. This is so because there is nothing in the consent order by virtue of which it could be said that what was continued in favour of the defendant was an irrevocable licence. No circumstance impelling an inference of an irrevocable licence has either pleaded or brought on record. If that is the position, the plaintiff was perfectly within his rights when he revoked the said licence for the second time. I make it clear that the above view assumes that the original relationship was of licensor and licensee. If it was one of tenancy the resultant situation would evidently be different in that it would be the tenancy which would continue. Shri Tunara further contended that if the licence was revocable subsequently it must be deemed to have been revoked by virtue of the execution, application or in any event by virtue of the second ejectment application and upon such revocation the Court would get jurisdiction under Section 41 of the Act for ejectment of the defendant unless of course the Court held that the defendant was a tenant in respect of the suit premises. Shri Tunara contended that it was incumbent upon the Court to frame that issue and to try that issue and the Court was not justified in non-suiting the plaintiff on the ground that the ejectment application was incompetent. To my mind Shri Tunara's contention in this connection has got to be upheld. But before I pass the order in that behalf I must mention the arguments advanced by Mr. Pandey, the learned Advocate appearing for the defendant, in support of the view taken by the Trial Court. 10. I must state at the outset that Mr. Pandey was not in a position to satisfy me that the ejectment application itself contains any provisions by virtue of which the second ejectment application would be barred. But his contention in support of the lower Court's ultimate order was that the previous cause of action of the plaintiff which had arisen by virtue of the notice of the revocation dated 12-4-1965 had merged in the consent order. He pointed out that the present ejectment application was filed by the plaintiff on the identical previous cause of action dated 12-4-1965. He pointed out that the present ejectment application was filed by the plaintiff on the identical previous cause of action dated 12-4-1965. He contended that the previous cause of action had vanished on account of the fact that it had merged in the consent order. He also pointed out that according to the plaintiff no licence had been given by the plaintiff to the defendant after the revocation of the licence dated 12-4-1965. If that was so, points out Mr. Pandey, there is no cause of action which the plaintiff can avail of and hence the present application under Section 41 is not maintainable. 11. Mr. Pandey's argument is no doubt somewhat attractive. But to my mind, in the ultimate analysis, it will have to be rejected on the ground that it is too technical a plea. As stated above, the averment made by the plaintiff in para 6 of the application is not very happily made. Mr. Pandey is right in contending that so far as the cause of action arising out of the revocation dated 12-4-1965 was concerned, the same is no longer available to the plaintiff because that cause of action certainly had merged in the consent order dated 17-6-1968. Since I am taking this view it is unnecessary for me to refer to the Authorities relied upon by Mr. Pandey in support of his contention that the previous cause of action had merged in the consent order. But I may just refer to the said Authorities. The first Authority was AIR 1956 SC 346 , in the case of Sailendra Narayan Bhanja Deo v. State of Orissa. What has been decided in the said case was that the compromise decree in the facts of the case before the Court resulted in an estoppel against the plaintiff from filing a second suit. I do not think that this Authority can support the contention that the previous cause of action merged in the consent order. Mr. Pandey has also relied upon the judgment of Rajasthan High Court, reported in AIR 1970 Raj 104 , Bhanwarlal v. Raja Babu. But even the principle decided in that case related to the estoppel of the plaintiff in view of the previous consent decree between the parties. But these Authorities do not lay down any principle relating to merger. Mr. Pandey has also relied upon the judgment of Rajasthan High Court, reported in AIR 1970 Raj 104 , Bhanwarlal v. Raja Babu. But even the principle decided in that case related to the estoppel of the plaintiff in view of the previous consent decree between the parties. But these Authorities do not lay down any principle relating to merger. However, as stated above, to my mind the principle of merger formulated by Mr. Pandey is a correct principle and if the facts of the present case were different I would have no hesitation in holding that the cause of action dated 12-4-1965 had merged in the consent order dated 17-6-1968 and hence the second ejectment application on the same cause of action was not maintainable. But the difficulty for Mr. Pandey is that in the instant case in fact there has been a subsequent cause of action accruing for the plaintiff. I have already mentioned above that as per the consent order whatever was the legal character of the defendant's possession before the 1st revocation continued even thereafter by virtue of the consent order. If defendant No. 1 was a former licensee he continued to be a licensee; but if he was a former tenant, he continued to be a tenant. The plaintiff is interested in saying that he continued to be a licensee. No doubt, he has also stated that the license came to an end by virtue of notice of revocation dated 12-4-1965, but that averment did not make him less of a licensee if he was a licensee and if the license did continue then the very filing of the execution application or even of the second ejectment application resulted in its revocation. This means that there did exist a fresh cause of action for the plaintiff for the second ejectment application though it was not mentioned in the relevant para of the plaint. This fresh cause of action is in no way affected by the previous consent order dated 17-6-1968. The doctrine of merger has no relevance whatsoever so far as this fresh cause of action is concerned. 12. I cannot agree with Mr. Pandey when he wants me to dismiss the plaintiff's application merely because the correct cause of action is not mentioned or because a wrong cause of action is mentioned in the plaint. The doctrine of merger has no relevance whatsoever so far as this fresh cause of action is concerned. 12. I cannot agree with Mr. Pandey when he wants me to dismiss the plaintiff's application merely because the correct cause of action is not mentioned or because a wrong cause of action is mentioned in the plaint. If it came to that I could have directed Mr. Tunara to make an appropriate amendment in the cause of action clause contained in paragraph 6 of the application and thereby the entire contention would have vanished. It can be thus seen that this is a highly technical defence. The Court to my mind would not be justified in non-suiting the plaintiff merely because he has mentioned a wrong cause of action, if the Court finds that in fact there did exist another right cause of action in favour of the plaintiff. I am therefore not inclined to accept the argument advanced by Mr. Pandey on this point. 13. This brings me to the second defence of the defendant. The Trial Court has rejected the defendant's contention that the compensation was Rs. 531/- per month, meaning thereby it was much more than Rs. 3,000/-per year and that the Small Causes Court had no jurisdiction to entertain the application under Section 41 of the Act. One of the reasons given by the Trial Court for taking this view is that in the first ejectment application such a plea was not taken and hence there was estoppel against the defendants from raising such a plea. To my mind this view is totally unsupportable. There cannot exist an estoppel against a statute and jurisdiction cannot be conferred upon the Court by the inaction of parties or even by agreement of parties. If the original agreement intended to confer jurisdiction upon the Court, when it had none, the agreement would be bad, but no estoppel as such would result. But it is really unnecessary to evoke this principle of estoppel. In the instant case what the Trial Court had done in the first ejectment application was that by virtue of the consent order the same relationship was continued. No such thing as an ejectment order as such was passed by the Court and none become executable. Moreover this jurisdictional aspect was never put in issue in that Court. In the instant case what the Trial Court had done in the first ejectment application was that by virtue of the consent order the same relationship was continued. No such thing as an ejectment order as such was passed by the Court and none become executable. Moreover this jurisdictional aspect was never put in issue in that Court. If that was the position, then no damage was done by virtue of any conferral of jurisdiction upon the Court. However I must observe that I am not quite happy about the way in which the Trial Court has recorded the finding that the compensation of the premises was not Rs. 531/-. The justification given by Mr. Tunara for holding that compensation was Rs. 200/- and not Rs. 531/- was that what was given on leave and licence to the defendant was a furnished flat and that the amount of Rs. 531/- included the charges payable for use of the furniture. He also relied upon the fact that the Municipal Corporation had accepted the rent of the premises as such to be Rs. 200/-. But I also find that neither in the previous consent decree any order is taken from the Court for recovery of possession of the furniture nor in the present ejectment application any prayer is made that the defendant should be directed to hand over not only the premises but also the furniture. For ought I know there may be some good reasons for all this; but it does not appear that the Court has applied its mind to this aspect of the matter. 14. However, sitting in my writ jurisdiction, I do not propose to appreciate the entire evidence on this point. Since I am remanding the matter back to the Trial Court, I order that the finding recorded by the Trial Court on this point is set aside and the question will be examined by the Trial Court de novo after re-appreciating the evidence on record on that point and if the parties so desire by allowing them to lead additional evidence on the above point. Mr. Tunara wanted me to give him liberty to make an application for amendment of the plaint. Mr. Tunara wanted me to give him liberty to make an application for amendment of the plaint. I may state that it will be open for him to move the trial Court by an appropriate application in that behalf and if such an application is made the Trial Court will consider the same on its own merits. 14-A. The petition is therefore allowed. The rule earlier issued is made absolute. The judgment of the Trial Court is hereby quashed and set aside and the Trial Court is directed to dispose of the application in accordance with the provisions of law in the light of the observations made above. The costs of this petition will be the costs in the cause. In view of the fact that the proceedings are pending for nearly 9 years, the Trial Court is directed to hear the application expeditiously and to dispose of the same in any event before 31st Aug., 1982. Petition allowed.