Case Note & Summary
This writ petition under Articles 226 and 227 of the Constitution of India challenged the judgment and order dated 25.06.2003 passed by the Appellate Bench of the Small Causes Court at Mumbai, which set aside the ex-parte decree dated 29.10.1999 in L.E. & C. Suit No.112/134 of 1991 and dismissed the eviction suit filed by the petitioner (original plaintiff) against the respondents (original defendants), who are the legal heirs of the original licensee. The petitioner, owner/licensor of Flat No.19, Vimala Mahal, Pedder Road, Mumbai, had granted a leave and license agreement dated 15.02.1971 for 11 months to one Dayal Swaroop Mathur, who died on 31.08.1971. The agreement expired on 14.01.1972. The respondents continued in possession without authority, prompting the petitioner to seek eviction under Section 41 of the Presidency Small Cause Courts Act, 1882, contending that the respondents were trespassers. The respondents claimed that the agreement was a sham and that they were tenants or protected licensees under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as they were in possession on 01.02.1973. The trial court decreed the suit ex-parte after the respondents failed to appear and cross-examine the petitioner's witness. Instead of filing an application under Order IX Rule 13 CPC, the respondents preferred an appeal. The Appellate Bench allowed the appeal, holding that the suit was barred by limitation under Articles 65 and 67 of the Limitation Act, 1963, and that the respondents were protected licensees. The High Court, after hearing both sides, found the Appellate Bench's reasoning perverse. The Court noted that the respondents had not proved their defence of tenancy by any evidence, and the Appellate Court itself acknowledged this lack of evidence yet drew an inference of permissive possession. The High Court held that Article 67 of the Limitation Act could apply only after establishing a landlord-tenant relationship, which was never done. The burden to prove protected licensee status under Section 15A was on the respondents, and mere permissive user after expiry of license did not amount to continuation of license. The Appellate Court's conclusion that the suit was barred by limitation was therefore without basis. The High Court accordingly allowed the writ petition, set aside the impugned judgment and order, and remanded Appeal No.283 of 2000 to the Appellate Bench for fresh hearing on merits, with the direction that all issues except limitation be decided afresh in accordance with law. The Court reiterated that the respondents had not proved any tenancy or subsisting license, and the ex-parte decree could not be overturned on such unfounded inferences.
Headnote
A) Limitation Act - Suit for eviction of licensee - Article 67 Limitation Act, 1963 - The Appellate Court erroneously applied Articles 65 and 67 without proof of landlord-tenant relationship - Held that Article 67 applies only after establishing tenancy; in absence of tenancy, suit for eviction of trespasser not barred by limitation (Paras 14.2-14.3). B) Bombay Rent Act - Protected licensee/deemed tenant - Section 15A, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Claim of deemed tenancy - Defendants claimed protection as deemed tenants under Section 15A being in possession on 01.02.1973 - Held that the burden is on defendants to prove subsisting license on that date; mere permissive user after expiry of license does not establish continuation of license (Paras 14.4, 19). C) Evidence - Burden of proof - Tenancy claim - Defendants' plea of tenancy not proved by evidence - Appeal Court acknowledged lack of evidence yet inferred permissive possession - Held that without positive evidence tenancy cannot be presumed; the inference was perverse (Paras 14.1, 14.5). D) Civil Procedure Code - Ex-parte decree and appeal - Order IX Rule 13 CPC - Remedy against ex-parte decree - Defendants chose not to file application under Order IX Rule 13 but directly filed appeal, so aspect of sufficient cause not relevant; appeal to be decided on merits (Para 13). E) Limitation Act - Continuing wrong - Section 22 Limitation Act, 1963 - Suit for eviction of trespasser - Petitioner argued that possession without authority is a continuing wrong, fresh limitation runs every moment - In absence of tenancy, suit not barred by limitation (Para 11).
Issue of Consideration
Whether the Appellate Bench of the Small Causes Court erred in dismissing the suit for eviction on the grounds of limitation and by holding that the defendants were tenants/protected licensees under Section 15A of the Bombay Rent Act, despite lack of evidence.
Final Decision
The High Court allowed the writ petition, set aside the impugned judgment and order dated 25.06.2003 passed by the Appellate Bench of Small Causes Court in Appeal No.283 of 2000, and remanded the appeal back to the said Appellate Bench for fresh hearing on merits in accordance with law, except on the issue of limitation which was held not barred.
Law Points
- Suit for eviction under Section 41 of PSCC Act
- nature of leave and license agreement
- protection under Section 15A of Bombay Rent Act
- limitation for eviction of licensee after termination
- distinction between licence and tenancy
- burden of proof on defendant claiming tenancy
- res judicata for successive standard rent applications
- perversity in appellate order
