JUDGEMENT G. R. Udhwani, J. (1) This petition arises against an order dated 4th January, 2011 passed in P.S.R.P. No. 11 of 2009 instituted under Section 41 of the Presidency Small Causes Courts Act, 1882 (for short the Act ) by the respondent for possession of the suit property on termination of license granted by the respondent to the petitioner. (2) Learned trial Judge, after hearing the parties and considering the evidence on record, issued a possession warrant against the petitioner under Section 43 of the Act. Petitioner was also directed to pay Rs. 2000/- per month as usage charges to the applicant, till the possession is handed over to him. Aggrieved, the petitioner is before this Court. (3) An agreement was entered into between the parties on 4th September, 2007 for leave and license of the suit property, wherein admittedly, the petitioner was permitted to use the property for 11 months and 29 days. (4) A notice dated 5th May, 2008 requiring the possession of the suit property from the petitioner was given before expiry of period agreed in the agreement. This notice was in terms of the Clause 4 of the agreement which permitted each of the parties to issue one month notice for termination of the license. Another notice was also given on 15th May, 2008, which according to learned counsel for the petitioner, was never received by the petitioner. (5) Petitioner instituted a Civil Suit, after notice dated 5th May, 2008 and 30th August, 2008, in the City Civil Court, Ahmedabad being Civil Suit No. 2025 of 2008, wherein after pleading that petitioner was a licensee in the suit premises, sought injunction against its forcible, dispossession. Application at Exh. 6 and 7 were also moved. Admittedly, City Civil Court had issued an injunction restraining respondent from dispossessing the petitioner without due procedure of law. In the said order dated 4th May, 2009, petitioner was required to deposit an amount of Rs.2,000/- per month towards license fee regularly and he was also required to deposit Municipal tax in Municipal Corporation regularly till final decision of the suit. In the said order dated 4th May, 2009, petitioner was required to deposit an amount of Rs.2,000/- per month towards license fee regularly and he was also required to deposit Municipal tax in Municipal Corporation regularly till final decision of the suit. He was also required to deposit all the dues towards license fee and tax amount within three months from the date of the said order and liberty was reserved to the respondent to move the Court for vacation of the injunction order, in case of default by the petitioner in complying with the above condition. (6) To obtain possession, the respondent moved an application under Section 41 i.e. P.S.R.P. No. 11 of 2009 on 4th January, 2011 and before that the petitioner instituted another suit, being Civil Suit No.797 of 2010 on 6th January, 2010, claiming tenancy rights by holding out under Section 5 of the Bombay Rent Act. (7) Assailing the impugned order, learned counsel for the petitioner raised the following contentions: 7.1 That no order could have been passed in face of an injunction granted by the City Civil Court in a substantive suit i.e. Civil Suit No. 2025 of 2008. That, by an interim order, the City Civil Court had restrained the respondent from dispossession; except with due procedure, and as per submissions of the learned counsel, due procedure was not complied Section 41 application but a substantive suit. 7.2 That, after determination of lease, the petitioner continued to pay rent of Rs.2000/- per month, and therefore, he was a tenant by holding out as per Clause B of Section 5(11) of the Rent Act. Hence, the only legal procedure available to the respondent was under the Rent Act or under the relevant provision of the Transfer of Property Act. 7.3 In response to P.S.R.P. Application, the petitioner in terms of explanation to Section 43 of the Act established the fact that he was a tenant by holding out, and therefore, the Court of Small Cause had no jurisdiction to pass any order under Section 41 of the said Act. 7.4 In view of Section 19(1)(e) and (g), a suit for recovery of immovable property as also for determination of right or title, or interest in immovable property under the Act was barred, and therefore also, no jurisdiction was exercisable by the said Court in a Summary proceeding under Section 41 of that Act. 7.4 In view of Section 19(1)(e) and (g), a suit for recovery of immovable property as also for determination of right or title, or interest in immovable property under the Act was barred, and therefore also, no jurisdiction was exercisable by the said Court in a Summary proceeding under Section 41 of that Act. That, in view of above, the Court exercising the powers under Section 41 of the Act was not expected to act under Section 28 of the Rent Act. 7.5 That question of maintainability of the suit ought to have been addressed by the trial Court first i.e. before pronouncing the order under Section 41 of the Act. Reliance was placed on Madhavdas Dwarkadas Vs. Jugal Kishore Saraf, 1983 AIR(Bom) 20 & Mani Nariman Daruwala, Meharji K.K.Kajrkaria Vs. Phiroz N.Bhatena, 1991 AIR(SC) 1494 in support of his contentions. (8) As against that, learned counsel for the respondent, while relying upon the impugned order, would submit that the license was terminable. Notice of one month, as per the agreement was issued and such notice dated 5th May, 2008 was admittedly served upon the petitioner and that even another notice dated 30th August, 2008 was also served upon him. It was contended that the legal proceedings taken out by the petitioner were not bonafide in as much as, in reply to the notice, petitioner made his intention of purchasing the property in question against the respondent s wish very clear and it is only with a view to exert pressure upon the respondent that the suits were filed. (9) Learned counsel would also contended that on issuance of one month notice as above, possession of the property with the petitioner became illegal and summary proceedings under Section 41 of the Act was rightly availed and requires no interference by this Court under Article 227 of the Constitution of India. (10) It was next contended that in Civil Suit No. 2025 of 2008, the petitioner admitted his character as licensee and sought relief of mere injunction without any substantial relief. It was not permissible for him to contend, in a subsequent suit that he was a tenant. Thus, in his submissions, the contention raised in the second suit is not bonafide. It was not permissible for him to contend, in a subsequent suit that he was a tenant. Thus, in his submissions, the contention raised in the second suit is not bonafide. (11) Having considered the rival contentions and record of the case, it transpires that the relation between the parties by virtue of agreement, as above, being that of a licensor and licensee is not disputed. In the interim order passed below Exhs. 6 and 7 in Civil Suit No. 2025 of 2008, only restriction imposed upon the respondent was of forcible or unlawful dispossession of the suit property from the petitioner. Therefore, it was permissible for the respondent to dispossess the petitioner by following appropriate legal procedure. The said procedure was due procedure as can be ascertained from the admitted relation of the parties. There is no dispute that the agreement was for leave and license. There is also no dispute that the license was prone to termination with one month s notice. It is also not dispute that notice was given and petitioner s license was terminated. In view of this admitted position, Section 41 of the Act is required to be appreciated, which is reproduced hereunder :- Section 41 :- 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 lacs rupees). As the tenant, or by permission, of another person, or of some 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 toshow cause, on a day therein appointed, why he should not be compelled to deliver up the property. This provision confer jurisdiction upon the Small Cause Court in reference to the property of which the annual value at a rack-rent does not exceed two lacs rupees, and admittedly, in the present case such value of Rs.24,000/- . This provision confer jurisdiction upon the Small Cause Court in reference to the property of which the annual value at a rack-rent does not exceed two lacs rupees, and admittedly, in the present case such value of Rs.24,000/- . Admittedly, the petitioner is in possession of immovable property within the jurisdiction of the Small Causes Court, Ahmedabad. Admittedly, the possession was meant for permissive use and such use was determined by the respondent by giving a notice; as aforesaid. Petitioner did not deliver the possession, as per the notice and therefore, it can be disputed that it amounted to refusal to deliver such property, as contemplated under Section 41 of the said Act. Thus, as such the application was tenable under Section 41 of this Act and it cannot be contended that Section 41 procedure was not a due procedure. (12) Arguments advanced by the learned counsel for the petitioner, while relying upon the Rent Act, are not tenable in view of Section 4(1A) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which reads as under :- Section 4 (1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority . (1A) This Act shall not apply to - (a) any premises constructed on or after the commencement of the Bombay Rent, Hotel and Lodging House rates Control (Gujarat Second Amendment) Act, 2001 (hereinafter referred to as the amending Act ); (b) any existing premises which is self-occupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement. Later part came to be amended by deleting the phrase for a period of ten years from the date of commencement of the amending Act ( No. 6 of 2011- Gujarat Amendment Act, 2011.) (13) In the instant case, the agreement was entered into on 5th May, 2007, which is after the commencement of the amendment Act. The Act was not applicable on the said date and therefore, benefit of Section 5 was not available to the petitioner. The Act was not applicable on the said date and therefore, benefit of Section 5 was not available to the petitioner. (14) Secondly, Hon'ble Supreme Court in Malpe Vishwanath Acharya & Ors. Vs. State of Maharashtra & Ors., 1998 1 GLH 225 declared Sections 5, 11 and 12 of the Bombay Rents Hotel & Lodging House Rents Control Act, 1947 as unreasonable and arbitrary. It refrained from striking down the said provisions only because the State of Maharashtra, wherefrom the aforesaid cases arose, was contemplating a new legislation on the subject. Thus, for all purposes above, the said provisions were unreasonable and arbitrary and once that is so, Court can not invoke such provision. Although, case on hand was not the case from Maharashtra, however, the Act has been adopted by the State of Gujarat as well and therefore, ratio laid down by Hon'ble Supreme Court shall apply to the cases arising in the State of Gujarat also, with equal force. (15) Thirdly, it can be noticed that it was only by virtue of interim order of the City Civil court in above said suit that the petitioner was under obligation to deposit Rs. 2,000/- per month as license fee and other charges like Municipal Tax etc. Court had cautiously used the words license fee . By no stretch of imagination such deposit can constitute a tenancy under Section 5(11) of the Rent Act, even if, it is assumed that the said provision could have been invoked by the petitioner. Under the above circumstances, it cannot be said that petitioner had made out a case under Explanation to Section 41 of the Act that he was a tenant by holding out or within the meaning of Section 5(11) of the Act. (16) Admittedly, the license was terminable by one month s notice and as indicated above, in the event of refusal to deliver the possession of the licenseed property, only appropriate remedy available to the respondent was under Section 41 of the Act and that was rightly resorted to. (17) The P.S.R.P application cannot be said to be a suit for recovery of immovable property, or for determination of right, title or interest in the immovable property within the meaning of Section 19 (e)and (g) of the Act respectively. (17) The P.S.R.P application cannot be said to be a suit for recovery of immovable property, or for determination of right, title or interest in the immovable property within the meaning of Section 19 (e)and (g) of the Act respectively. While Section 19 of the Act bars the suit for recovery of immovable property, section 41 of the Act provides remedy, when there is refusal to return the possession by a licensee Section 41 of the Act, therefore, deal with a specific situation in contradiction to Section 19 which proposes to bar certain remedies. It is fallacious to say that HRP Suit was either for recovery of immovable property or for determination of right, title or interest in the immovable property. The right of the petitioner as a licensee was determinable under the agreement, and accordingly, the respondent had invoked jurisdiction of the Court under Section 41 of the Act. Therefore, under Section 41 of the Act, what fell for determination for the Court was as to whether there was lawful termination of license and whether possession retained by the licensee for the period subsequent to such termination was legal. As such therefore, the Small Cause Court was not determining the recovery of immovable property or any right, title or interest in the immovable property within the meaning of Section 19(e) and (g) of the Act. Arguments advanced by learned counsel for the petitioner on this count are therefore required to be mentioned for rejection. (18) Reliance placed upon on Madhavdas Dwarkadas is misconceived for various reasons. Firstly the Bombay High Court was considering Section 42(A) of the Presidency Small Causes Court Act,1882 which is not applicable to the State of Gujarat. Secondly, what the Court was deciding is apparent from the observations quoted hereunder :- I am afraid this contention cannot be accepted at all. I find nothing in Section 42-A of the Act or in the judgement of Jahangirdar 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 questions of the alleged tenancy. I find nothing in Section 42-A of the Act or in the judgement of Jahangirdar 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 questions of the alleged tenancy. The Judgement of Jahangirdar, 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, Jahangirdar, 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. ............ (19) Thus, it appears that the Court was not laying down the proposition of law as propounded by the learned counsel for the petitioner. It merely approved what was done by the Court below and that cannot be treated as a ratio laid down by the higher forum . (20) Under any case, in view of admission of the petitioner in the first Civil Suit and in view of guarded relief particularly requiring the petitioner to pay license fee , on facts, it was not necessary for the trial Court to attend to the question of jurisdiction first. (21) In view of above, this Court is unable to find any substance in any of the arguments advanced by learned counsel for the petitioner. Accordingly, petition deserves to be dismissed. Rule is discharged. Inter relief if any, shall stand vacated. There shall be no order as to cost. (22) Considering the facts and circumstances of the case, time of two weeks to vacate the suit premises is required to be granted. Ordered accordingly. Direct service is permitted.