1. This is a revisional application from the Small Causes Court at Bombay under the following circumstances. The respondents are the owners of a property known as 'Balkrishna Niwas' 2nd Road, Khar, Bombay. They filed an application in ejectment under Section 41 of the Presidency Small Cause Courts Act, against (1) Sukunraj Sagarmal Jhaveri, (2) Gajraj Sagarmal Jhaveri, (3) S.S. Mule and (4) M.A. Moidu, contending that Sukunraj Sagarmal Jhaveri and Gajraj Sagarmal Jhaveri were their licensees and that the licence was terminated. As to S.S. Mule and M.A. Moidu, it was alleged that as they were in possession under the licensee, they were joined as parties to the proceeding. It appears that the original defendants Nos. 1 to 4 did not file any defences whatsoever to this proceeding. In June of 1961, the petitioner filed an application before the Court in that proceeding, contending that he was in possession of the premises and M.A. Moidu was only his servant, that he was vitally interested in that proceeding and, therefore, he should be added as a party. This application was heard on merits after issuing of notice to the original applicants and thereafter allowed. The petitioner after becoming a party to that application raised a contention that he was the direct tenant of the owners and that he was entitled to the protection of the Rent Act. The original applicants denied that he was their tenant. On these contentions, an issue was cast as required by amended Section 42A of the Presidency Small Cause Courts Act, the amendment having been effected by the Maharashtra Act, L of 1968, which applied to all proceedings, pending as well as to those to be filed in future.
2. The issue was 'whether respondent No. 5 shows that he is a tenant'. The learned trial Judge answered the issue against the petitioner holding that he had not established that he was a tenant. The petitioner, therefore, filed an appeal to the Bench of Judges under Section 42A(2) of the Act. The appeal Bench, however held that the appeal was not competent.
3. The reasoning of the learned Judges was that Section 42A was applicable to such applications as are filed under Section 41, and no others. Since that was not the position, Section 42A would not be applicable. In this connection in para. 4 of their judgment, they say:
It must be remembered that it was never the case of occupant No. 5 that he was a licensee of the applicants. Even before us in this appeal, Mr. Pardasani, the learned Advocate for occupant No. 5 says that occupant No. 5 was not a licensee of the applicants. The case of the applicants also was not that occupant No. 5 was their licensee.
They, therefore, held that the position was that the plea of the petitioner that he was a tenant did not arise in an application which fell within Section 41. I find it impossible to agree with the conclusion of the appellate Bench for the reasons to follow.
4. Section 41 enables the owner of the premises to file an application for eviction of a person (i) when he has had possession of immovable property as a tenant, (ii) or by permission of another person or (iii) of some person through whom such other person claims and such tenancy or permission has been determined or withdrawn and if he refuses to deliver possession. It is obvious that in order to be able to file an application under Section 41 of the said Act, it is not necessary that the- person against whom the application is filed must accept that he is a licensee. Even if the person is in occupation of the premises through a tenant or through a licensee, an application would lie against him under Section 41 of the Act. If the applicants allege that the person in occupation is a trespasser, then the application would not be competent.
5. In the present case, when the petitioner made the application for being added as a party, it was on the footing that he was really in occupation of the premises as he had taken the shop and opponent No. 4 was only his servant. His allegation, therefore, was that he came in the premises through the earlier occupant who was either a licensee or a tenant. Whether the respondents accept him as a licensee or a tenant is not a matter of moment. As soon as they say and allege that the occupant original opponent No. 4, came in the premises through their tenant or licensee, the case must fall within Section 41. Their original application implies that the premises were given to respondents Nos. 1 and 2 as licensees and respondents Nos. 3 and 4 were on the premises through the first two. It is also incorrect to say, as the learned Judges have said, that Section 41 necessarily requires that the original applicant must admit in so many words that the occupant whom he seeks to evict is his licensee. He may either allege that the occupant is his licensee or that he has come through his licensee. Apart from this, it would not be in the interest of an applicant who makes an application under Section 41 of the Act to allege that the occupant is an independent trespasser, because then the application itself would be thrown out and he would be driven to a regular Court and be required to file a suit on title. Once this position is reached, there could be no question that Section 42A is applicable and the trial Court having decided the issue against the petitioner, he was entitled to appeal under Section 42A(2) of the Act.
6. In my view, therefore, the learned Judges were clearly wrong in rejecting the appeal. I, therefore, set aside their order and direct that the appeal be heard on merits, I find that the ejectment application was filed in 1961. The appeal was filed in 1964 and it was rejected on August 12, 1965. This revisional application has practically taken two years to reach in this Court. Under the circumstances, I direct that the learned Judges will hear and decide this appeal within two weeks of the record reaching it.
7. As directed by me earlier, on behalf of the petitioner the amount of compensation due to the two respondents has been deposited in the trial Court almost upto July end. The respondents shall be entitled to withdraw the said amount from the trial Court, which the Small Causes Court will pay to them or to their counsel. The amount of taxes due has already been paid. No further order is necessary. Costs costs in the cause.