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2003 DIGILAW 90 (CAL)

KALYANI DEVI (DAS) v. TARAPADA DAS

2003-02-27

PRANAB KUMAR CHATTOPADHYAY

body2003
PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THIS revisional application is directed against the judgment and order dated 25th April, 2002 passed by the learned Chief Judge, Small Causes Court at Calcutta. An application under Section 41 of the Presidency Small Cause Courts Act was filed by the plaintiff (who is the petitioner herein) for eviction of the defendant, Tarapada Das, as a licensee and recovery of Khas possession of the suit premises. The plaintiff's case is that she is the owner of the structures standing on a plot of land being 24/c, Jeliapara Land, Calcutta 12 and she is the thika tenant in respect of the land under the said structure. One Kalipada Das, the husband of the plaintiff since deceased, was the original tenant and during his lifetime he granted leave and licence in respect of the suit premises in favour of the defendant to stay there for a temporary period. ( 2 ) AFTER his death, for defendant approached the plaintiff and requested her to grant licence to stay in the suit premises for sometime more until the said defendant finds reasonable and suitable, accommodation elsewhere. According to the plaintiff, such licence was granted in favour of the defendant without any licence fees. The plaintiff afterwards revoked the said licence and directed the defendant to quit and vacate the suit premises but in spite of revocation of the licence, the defendant did not vacate the same for which the plaintiff issued notice through her Advocate upon the defendant but in spite of service of notice the defendant did not vacate the suit premises. ( 3 ) ACCORDINGLY, the suit was filed by the plaintiff before the learned Court of Small Causes at Calcutta. The defendant entered appearance in the proceeding and contested the case and filed the written statement denying all the material allegations. The learned Judge of the Court below framed the issues for deciding the suit which include the issue relating to maintainability of the proceeding before the Small Causes Court at Calcutta. The defendant entered appearance in the proceeding and contested the case and filed the written statement denying all the material allegations. The learned Judge of the Court below framed the issues for deciding the suit which include the issue relating to maintainability of the proceeding before the Small Causes Court at Calcutta. Going through the impugned judgment passed by the learned Chief Judge, Small Causes Court at Calcutta, I find that the learned Chief Judge on the basis of the decision of the Bombay High Court reported in AIR 2001 Bombay 470, came to the conclusion that the application filed by the plaintiff under Section 41 of the Presidency Small Cause Courts Act cannot be entertained by the said Small Causes Court. The learned Judge also on merit held against the plaintiff. ( 4 ) SO far as the maintainability of the application under Section 41 before the Small Causes Court, I find that the learned Chief Judge failed to appreciate the provision of the said Section 41 as applicable in the State of West Bengal. The Division Bench of the Bombay High Court in the aforesaid judgment reported in AIR 2001 Bombay 470 held that suit by a licensor against gratuitous licensee is not tenable before the Presidency Small Causes Court under Section 41 after taking note of the provisions of Section 41 as applicable in the State of Maharashtra. ( 5 ) IN the State of West Bengal, however, the provision of Section 41 is different which includes not only the tenant but also the person occupying the premises under permission. Although the Bombay High Court held that the suit could not be filed on the basis of a tenancy if the licence was gratuitous but provision of Section 41 of the Presidency Small Cause Courts Act as applicable in West Bengal is different and any person occupying property within the local limits of the Small Causes Court on the basis of permission can be evicted after the determination or withdrawal of the said permission. The view expressed by the learned Chief Judge, Small Causes Court, Calcutta relying on the aforesaid judgment of the Bombay High Court reported in AIR 2001 Bombay 470 is not correct as the said judgment of the Bombay High Court is based on Maharashtra Amendment of the said Section 41 which admittedly does not include the gratuitous licence. The view expressed by the learned Chief Judge, Small Causes Court, Calcutta relying on the aforesaid judgment of the Bombay High Court reported in AIR 2001 Bombay 470 is not correct as the said judgment of the Bombay High Court is based on Maharashtra Amendment of the said Section 41 which admittedly does not include the gratuitous licence. In the State of West Bengal the provision of the said Section 41 however, includes the person occupying the premises on the basis of permission. ( 6 ) HOWEVER, Bombay High Court has pointed out at Paragraph 18 of the aforesaid judgment that entire Chapter VII containing Sections 41 to 49 was replaced by Sections 41 to 45. For the sake of convenience Section 41 of the Presidency Small Cause Courts Act, 1882 as applicable in West Bengal and Section 41 as applicable in Maharashtra are set out hereinbelow :"sec. 41. Summons against person occupying property without leave - When any person has had possession of any immovable property situate within the local limits of the Small Cause Court's jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property. "west Bengal Amendment"in its application to the Presidency Small Cause Court. Calcutta in Section 41, for the words 'two thousand' the words 'five thousand' were substituted by Section 5 of the West Bengal Act 32 of 1969. Now, for the words 'five thousand rupees', the words 'ten thousand rupees' have been substituted by Section 4 of West Bengal Act 60 of 1978. Calcutta in Section 41, for the words 'two thousand' the words 'five thousand' were substituted by Section 5 of the West Bengal Act 32 of 1969. Now, for the words 'five thousand rupees', the words 'ten thousand rupees' have been substituted by Section 4 of West Bengal Act 60 of 1978. "maharashtra Amendment"by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Maharashtra Act 19 of 1976) Chapter VII of the Presidency Small Cause Courts Act, 1882 was substituted by a new chapter consisting of Sections 41 to 46. The substituted Section 41 reads as follows : "41. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Act apply to lis in Small Cause Court. (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, 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. (2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force applies. " ( 7 ) ADMITTEDLY, Section 41 of the Presidency Small Cause Courts Act, 1882 as applicable in West Bengal does not use the words 'licensor' or 'licensee' and only refers to (1) a person having possession of any immovable property situated within the local limits of the Small Causes Court's jurisdiction and which the annual rack-rent did not exceed Rs. 10,000. 00. 10,000. 00. (2) Such possession must be as the tenant or by permission of another person and such tenancy or permission had been determined or withdrawn and the tenant or occupier refuses to deliver up such property in compliance with the request made in that behalf. ( 8 ) THE identical view has also been expressed by Bombay High Court in the aforesaid decision reported in AIR 2001 Bombay 470 at Paragraph 33. ( 9 ) BOMBAY High Court has also held that substitution of the word 'licensor' by the expressions 'licensee' and 'licensor' was made with the purpose for giving protection to the 'licensees'. It was further held that since the expressions 'licensor' and 'licensees' used in Section 41 of the Act as amended in Maharashtra has not been defined in the said statute, the Court imported the meaning of the aforesaid words from Section 5 (4a) of the Bombay Rent Act. ( 10 ) THE aforesaid judgment of the Bombay High Court was concerned in the interpretation of the words 'licensor' and 'licensee' as contained in the Maharashtra Amendment. The said words do not appear in Section 41 as applicable in West Bengal. Therefore, the said judgment of the Bombay High Court has no manner of application in the present case. ( 11 ) ACCORDINGLY, I am of the view that the learned Chief Judge, Small Causes Court at Calcutta had and has jurisdiction to entertain the application filed on behalf of the plaintiff/petitioner herein and the application filed by the petitioner before the Small Causes Court at Calcutta under Section 41 should be held as maintainable. ( 12 ) THE learned Chief Judge also after considering the evidence on record held that facts of the instant case indicate that the parties are joint tenants of the property and one room is now under the possession of the defendant and as such he cannot be evicted therefrom since he is not a licensee. The learned Chief Judge therefore, held that on merits also the plaintiff failed to establish her claim. I find no illegality and/or irregularity on the aforesaid findings of the learned Chief Judge and the said decision of the learned Chief Judge on merits therefore, cannot be disturbed and/or upset by this Court in the present revisional application. ( 13 ) WITH the aforesaid observations, this revisional application stands disposed of. I find no illegality and/or irregularity on the aforesaid findings of the learned Chief Judge and the said decision of the learned Chief Judge on merits therefore, cannot be disturbed and/or upset by this Court in the present revisional application. ( 13 ) WITH the aforesaid observations, this revisional application stands disposed of. ( 14 ) THERE will be, however, no order as to costs. ( 15 ) URGENT xerox certified copy of this order be handed over to the learned Advocates of the parties, if applied for. Order accordingly.