Lalabi W/O Mankhan vs Dhelullakhan Imamkhan Lodhi
2003 Latest Caselaw 571 Bom

JUDGMENT

V.M. Kanade, J.

1. The appellant is the original defendant and the respondent is the original plaintiff. For the sake of convenience, the parties shall be referred to as 'plaintiff and 'defendant'.

2. Brief facts are as under :

The plaintiff is the owner of Municipal House No. 288 situated in ward No. 37. The case of the plaintiff was that he purchased that property by a registered sale deed dated 10-11-1980 from one Karimabi Bismillakhan. The defendant is the daughter of Karimabi and as such she was given one room for her residence. She was occupying the said room as a licensee. She did not pay any licence fee to Karimabi. The plaintiff purchased the property in the year 1980 but the defendant continued to reside in the said room as a licensee. The defendant did not pay any licence fee to the plaintiff. The plaintiff, therefore, asked the defendant to vacate the room and hand over the possession. The plaintiff issued notice to the defendant on 25-4-1984 and revoked the licence by the said notice. The defendant received the notice on 27-4-1984 but she refused to hand over the possession of the property. The plaintiff, therefore, filed a suit for ejectment and possession of the suit premises and for recovery of damages.

3. The defendant filed her written statement and denied that the plaintiff is the owner of the suit property. She denied that the plaintiff had purchased House No. 288 from Karimabi by sale deed dated 10-11-1980. The case of the defendant was that she being the only heir of Karimabi, she had become owner of that house property. It was her case that the sale deed was obtained by the plaintiff by practicing fraud and misrepresentation upon Karimabi. It was also contended that the plaintiff had not obtained any prior permission from the House Rent Controller for issuing notice and revoking the licence.

4. The trial court held that the plaintiff had proved that he was the owner of the house No. 288 under the sale deed dated 10-11-1980. Trial court further held that the defendant is a licensee and in possession of the suit room since 1977. Trial court further held that due to amendment Act of 1989, the licensee was also brought within the meaning of tenant and, therefore, held that since permission was not obtained from the Rent Controller, the suit was not maintainable. Trial Court on the sole ground dismissed the suit.

5. The plaintiff preferred an appeal against the said judgment and order passed by the trial Court. It was inter alia contended before the appellate court that permission of the Rent Controller was not required to revoke the licence. It was also contended that since the defendant had disclaimed the title of the plaintiff and had alleged that she was the owner of the premises, on that ground also, permission of the Rent Controller was not required. The lower appellate court, relying on judgment of this court reported in the case of Nababkhan Abdullakhan and Anr. v. Jamrubi w/o Abdullakhan, 1992 Mh.L.J. 260, held that the permission of the Rent Controller was not required in cases where the defendant was a licensee who did not pay any rent to the owner. The appeal was, therefore, allowed and the Judgment and Order of the trial court was set aside and the defendant was directed to hand over possession of the suit room of House No. 288 and damages was also awarded to the tune of Rs. 2,775/-.

6. Being aggrieved by the said Judgment and Order of the lower appellate court, the defendant has preferred this second appeal in this court, and on 24-3-1994 the second appeal was admitted on the grounds formulated at Ground Nos. 3, 4 and 7. The said grounds are reproduced herein below :

(3) Whether the learned Second Additional District Judge is right in reversing the judgment and decree passed by the trial Court and in concluding that the permission of the House Rent Controller under the provisions of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 is not necessary in the present case?

(4) Whether the learned Second Additional District Judge is right in coming to the conclusion that the notice issued by the respondent, revoking the licence of the appellant is according to the provisions of the Transfer of Property Act and is just and proper?

(7) Whether the Second Additional District Judge is right in granting a decree in favour of the respondent on the ground that the licence of the appellant in respect of the suit premises has been revoked when the case of the respondent is that the appellant is a trespasser in the suit premises?

7. Shri Z.A. Haq, learned counsel appearing on behalf of the appellant, submitted that the lower appellate court had committed an error in holding that prior permission of the Rent Controller was not required in a case of a licensee who did not pay rent. He submitted that the Rent Control Order was amended in 1989 and by the said amendment, even the licensee was included in the definition of premises. He submitted that the words in Sub-clause 4-A(a) and (b) let or given on licence' would also include a case of a licensee who did not pay rent. He submitted that this submission was not considered in the case reported in 7992 Mh.LJ. 260, Nababkhan Abdullakhan and Anr. v. Jamrubi w/o Abdullakhan, He submitted that while construing any provision in the statute, the wording in the section should be given the natural ordinary meaning. He submitted that therefore the word "licence" would include both a licensee paying rent and a licensee who is not paying the rent. He relied on the judgment of the Apex Court reported in the case of Davis v. Sebastian, , and also another judgment of the Apex Court reported in the case of Arul Nadar v. Authorised Officer, Land Reforms, . He also relied on the judgment of the Apex Court reported in the case of State of Punjab and Ors. v. Brigadier Sukhjit Singh, , wherein it has been held that the payment of licence fee was not an essential attribute for the subsistence of a licence.

8. Shri K.R. Lambat, learned counsel appearing on behalf of the respondent submitted that the lower appellate court had rightly relied on the judgment of this court reported in 1992 Mh.L.J. 260 (supra). He further submitted that in the present case even otherwise the permission of the Rent Controller was not required, as the defendant had admittedly in her written statement disclaimed the title of the plaintiff, and on the contrary had alleged that she was the owner of the property. He submitted that in such a case also a permission of the Rent Controller was not required. In support of the said submission, he relied on the judgment of this court reported in the case of Ashwinikumar Govardhandas Gandhi and Anr. v. Gangadhar Dattatraya Gadgil, 1990 Mh.LJ. 18. He further relied on the judgment of this court reported in the case of Ramesh Dwarkadas Mehra v. Indravati Dwarkadas Mehra, 2001(4) Mh.L.J. 483, wherein a Division Bench of this court had an occasion to consider the terms 'licensee' which is used in Section 41 of the Presidency Small Cause Courts Act, 1882 and the Division Bench had held that the word 'licensee' did not contemplate a gratuitous licensee, but on the contrary it included only a license which is supported by material consideration. He submitted that though the word 'licensee' was used in another statute the provision was pari materia with the statute in question.

9. In my view, the submission made by the learned counsel appearing on behalf of the appellant cannot be accepted. This question is squarely covered by the judgment of this Court reported in 1992 Mh.LJ. 260 (supra). In my view , the lower appellate court has rightly relied on this judgment and held that the prior permission of the Rent Controller was not required in the case of the licensee who is not paying rent. In the present case, it is an admitted position that the defendant was the licensee who was not paying rent to the plaintiff. A Division Bench of this court also had an occasion to consider the expression 'licensee' used in Section 41 of the Presidency Small Cause Courts Act, 1882. The question which was required to be decided by the Division Bench was whether a suit by a licensor against a gratuitous licensee is tenable before the Presidency Small Causes Court under Section 41 of the Presidency Small Cause Courts Act, 1882 or should such a suit be filed before the Civil Court? The Division Bench, after considering various contradictory decisions given by this court, had held that the suit by a licensee against a gratuitous licensee was not tenable before the Presidency Small Causes Court and under Section 41 of the Presidency Small Cause Courts Act, 1882 and that such a suit should be filed before the Civil Court or the High Court depending on the valuation. While deciding this issue, the Division Bench has observed as follows in paras 38 and 39 :

38. An accepted canon of interpretation is that the meaning of expressions not defined in statute can be derived from a cognate pari materia statute, whether earlier or later. (See in this connection Attorney General v. HRH Prince Ernest Augustus of Hanover, (1957) 1 All ER 49 (H.L), R. Loxdale, (1958)97 ER 394 and J. K. Steel Ltd. v. Union of India, . This fortifies the view that the expression "licensor" and "licensee" used in Section 41 of the 1882 PSSC Act, have the same meaning as in Section 5(4A) of the Bombay Rent Act. That the Bombay Rent Act and Chapter VII of the Presidency Small Cause Courts Act, 1882, are pari materia, is incontrovertible in view of the specific provision made in Section 51 of the Bombay Rent Act. The expression 'licence' not having been defined in the Presidency Small Cause Courts Act, 1882 must, therefore, derive its meaning from the expression "licensee" as used in Section 5(4A) of the Bombay Rent Act.

39. There is another consideration on which we are inclined to take the view that the "licensee" contemplated under Section 41 is not a bare gratuitous licensee, but must be licensee whose licence is supported by material consideration. The principle Noscitur a sociis demands that words must take colour from words with which they are associated. Reading of Section 41 of the Presidency Small Cause Courts Act, 1882 shows that it is equally applicable to proceeding between "a licensor and a licensee" or "a landlord and a tenant" relating to the recovery of possession of any immovable property situated in Greater Bombay or relating to the recovery of "licence fee or charge or rent therefor". We are of the view, that clubbing of "licensor and licensee" with "landlord and tenant", and the clubbing of causes relating to recovery of possession with recovery of licence fees or charge or rent, is not merely accidental. There is close association and this is a case where the principle Noscitur a sociis would clearly be applicable. We are, therefore, of the view that the expressions "licensor and licensee" used in Section 41 derive their colour from the expression "landlord and tenant". The latter is a relationship based on material consideration; the same concept must, therefore, colour and permeate the expression "licensor and licensee". Further, the use of the expression "licence fee, charge or rent" in close juxtaposition is also not without reason, and must colour the expression "licensor and licensee" used in the section. The observations of Supreme Court in the State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors., and in M.K. Ranganathan and Anr. v. Government of Madras and Ors., , (vide paragraphs 21 and 22) and (in Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, Baroda, support this canon of interpretation of the statute."

In my view, the ratio of these two judgments would be squarely applicable to the facts of the present case.

10. The defendant had claimed that she was the owner of the suit premises and had further challenged the sale deed dated 10-11-1980 executed by Karimabi. The plaintiff proved the said sale deed by examining the attesting witnesses and the scribe of the document. Both the courts have given a concurrent finding that the sale deed has been proved. The defendant admitted that she did not know whether the plaintiff used to make any payment to Karimabi or not. Both the courts below have given a concurrent finding that the defendant was not paying any rent either to Karimabi or to the plaintiff. The defendant in her written statement also taken an alternative plea that if she is treated as a licensee, plaintiff could not evict her by issuing notice without prior permission from the Rent Controller. The submission made by the learned counsel appearing on behalf of the appellant, therefore, cannot be accepted.

11. So far as the judgment of the Apex Court reported in the case of State of Punjab and Ors. v. Brigadier Sukhjit Singh, is concerned, the ratio of the said judgment would not apply to the facts of the present case. One of the question before the Apex Court in the said case was whether the payment of licence fee was essential in the subsistence of a licence and in the said context, the Apex Court has observed that the payment of licence fee was not an essential attribute for the subsistence of a licence. The observation of the Apex Court is as follows:

".....Payment of licence fee is not an essential attribute for the subsistence of a licence. The mere fact that the licence is of long duration dating back to the year 1925, as suggested by some of the plaintiffs witnesses, or of 1947 as said by the witnesses of the State, is of no consequence. Permissive possession, however long, cannot by itself be said to have become hostile by a "long lapse of time", more so, on property, the nature and character of which is unique and singular, having attributes of being impersonal....."

Thus, it is clear that the facts of the said case before the Apex Court were entirely different.

12. Learned counsel appearing on behalf of the appellant further relied on judgment of the Apex Court reported in the case of Davis v. Sebastian, on the question of interpretation of words. In my view, the ratio of the said judgment also would not be applicable to the facts of the present case. In the said case before the Apex Court the question is for consideration was regarding two comprehensive expressions "additional accommodation" and "personal use" which were found in Sub-section (3) of Section 11 of the Kerala Building (Lease and Rent Control) Act, 1965. The Apex Court while interpreting the said expression observed as follows in para 8 :

Para 8 : "Now, what is the meaning of the expression "personal use" in Sub-section (8) ? It is a well-settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning ; nothing should be added to them nor should any word be treated as otiose. Two comprehensive expressions "additional accommodation" and "personal use" are employed in Sub-section (8). The expression "additional accommodation" takes in both residential as well as non-residential buildings. "Personal use" is also an expression of wide amplitude. There is nothing in the sub-section which restricts the import of that expression. The said requirement of Sub-section (8) will be complied with on the satisfaction of the Controller about bona fide need of the additional accommodation for personal use of the landlord. To what use the additional accommodation should be put, is the choice of the landlord. In the case of a non-residential building whether a new business should be set up in the additional accommodation or whether it should be used for expansion of the existing business, is left entirely to the option of the landlord. This, being the intendment of the legislature, the court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought."

In my view, in fact, the ratio of the said ruling would go against the appellant because the Supreme Court has observed that the court could not impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant was sought. Thus, the words in a statute should be given their natural, ordinary meaning and nothing should be added to them nor should any word be treated as otiose.

13. Learned counsel appearing on behalf of the appellant also relied on judgment of the Apex Court reported in the case of Arul Nadar v. Authorised Officer, Land Reforms, . In my view, the ratio of the said judgment also would not be any assistance to the appellant- The question which fell for consideration before the Apex Court was whether the provisions of Section 21-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, would apply to the facts and circumstances of the case and whether the appellant in the said case would derive any benefit of the same. The Apex Court held that Section 21-A does apply to a proceeding which was pending on the date that the aforesaid provision was inserted in the parent Act even though the proceeding may have been initiated under the parent Act itself. Under these circumstances, the Apex Court held that there was no justification for giving any restrictive meaning to the provision of Section 21-A of the said Act. In my view, the ratio of the said judgment would not be applicable to the facts of the case, because if the legislature had intended to include the case of a gratuitous licensee, it could have so indicated specifically in Section 4-A itself.

14. Even otherwise, the second submission of the learned counsel appearing on behalf of the respondent also will have to be accepted. In the present case, the defendant in her written statement has come out with a plea that she was the owner of the premises and she had also renounced the title of the plaintiff and it was her specific case that the plaintiff was not the owner. A Division Bench of this court has held that in such a case the permission of the Rent Controller was not required. The said case is Askwinikumar Govardhandas Gandhi and Anr. v. Gangadhar Dattatraya Gangil, 1990 Mh.LJ. 18. In my view, the ratio of the said judgment also would be applicable to the facts of the present case.

15. The second appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.