Bombay High Court
Nelson Domnic Dsouza vs The State Of Maharashtra And Ors on 24 August, 2022
Bench: Nitin W. Sambre
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Digitally signed by
ANANT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANANT KRISHNA
KRISHNA NAIK
Date: 2022.08.26
NAIK 14:51:46 +0530
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7771 OF 2021
WITH
INTERIM APPLICATION NO. 2700 OF 2022
IN
WRIT PETITION NO. 7771 OF 2021
Usha Ramesh Thakre (since deceased)
Through Lrs. ... Petitioners
Versus
The State Of Maharashtra & Ors ...Respondents
Mr. Priyal G. Sarda i/b. Adv. Laxmi Bhanushali for the petitioners
Mr. Chandrakant P. Deogirikar for the respondents
Mrs. V. S. Nimbalkar, AGP for the Respondent Nos. 1 to 3
CORAM : NITIN W. SAMBRE, J.
DATED : 24th AUGUST, 2022
P.C.:
1. This petition is by the alleged licensees questioning the
legality and validity of the impugned order dated 24/03/2021 so
also the impugned order dated 24/02/2020 passed in exercise of
powers under Sections 24 and 44 of the Maharashtra Rent Control
Act, 1999 (for short "the said Act").
2. The facts necessary for deciding the present petition are as
under.
3. The claim of the petitioners is, non-applicants/owners have
executed a tenancy agreement in favour of their mother-Usha
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Thakre. The respondents claim that leave and license agreement
was entered into on 21/07/1995 for a period of 11 months which
subsequently renewed on 11/06/1996. After the expiry of
aforesaid leave and license agreement, the petitioners claiming to
be the legal heirs of licensee illegally continued in possession.
Claiming that under leave and license agreement the legal heirs
cannot inherent the license, proceedings were initiated under
section 24 of the Maharashtra Rent Control Act, 1999.
4. The respondents-landlords initiated proceedings under old
Rent Act which led to filing of Revision Application being CRA No.
256 of 2002 against the order adverse to their interest. Such
revision after contest was disposed of by this Court vide order
dated 25/10/2002. The said order reads thus:
"1. Heard Shri Devgirikar for the appellant and Shri
Bajpal for the respondent no.1.
2. The learned counsel for the respondent no.1
raised a preliminary objection that the original
proceedings itself were not maintainable in as much as
the suit property originally belong to Dominic D'Souza
who had died leaving behind & will and the
proceedings were filed without obtaining probate to the
will. He submitted that the petition for grant of a
probate of the will is still pending in this High Court on
the Original Side. He therefore, submitted that there
was technical defect in the institution of the
proceedings itself and the proceedings were not
maintainable. In view of this preliminary objection the
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learned counsel for the revision applicant sought leave
to withdraw the original proceedings under sub-rule (3)
of rule 1 of order XXIII of the Code of Civil Procedure
with liberty to file fresh proceedings. I find merit in the
submission.
3. Accordingly, original application no.34/98 filed by
the applicant is allowed to be withdrawn with liberty to
file fresh proceedings."
5. As non-applicants/landlords were granted permission to
initiate fresh proceeding after obtaining probate, fresh
proceedings were taken out vide Eviction Application No. 18 of
2013 u/s. 24 the said Act. In the said proceedings after the
petitioners were put to notice, the claims were contested on
merits. In the Writ Petition preferred by the respondents/landlords
being Writ Petition No. 1444 of 2017 on 19/08/2019 this Court
passed an order of remand, which reads thus:
" After the matter is heard at some length, it is
agreed between learned Counsel for the parties that the
impugned order of the Additional Commissioner, Konkan
Division in Civil Revision Application No.487 of 2013 as
well as the order of the Competent Authority in Original
Application No.18 of 2013 passed under Section 24 of
the Maharashtra Rent Control Act may be set side and
the original application be remanded to the Competent
Authority, Konkan Division, Bandra, Mumbai for a fresh
hearing in accordance with law. It is ordered accordingly.
The Appellant herein, being a legal heir of the deceased
original Applicant, shall be entitled to raise such
additional grounds in support of his claim application
under Section 24 of the Act, as may be permissible in
law. The Respondents (original Respondents to the
application) shall be permitted to file their reply to the
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additional grounds. The original application shall be
heard by the Competent Authority on merits after
considering the pleadings of the parties and evidence, if
any, produced by them. It is made clear that the
Respondents' defence or application for leave to defend
shall be considered by the Competent Authority only on
the condition of their payment of Rs.3000/- per month
from today onwards to the Applicant. The Competent
Authority shall also consider the effect of the
Respondents not having complied with the interim order
of payment of compensation passed by this court on 1
October 2015. It is made clear that whilst considering
the original application in the light of the Respondents'
defence to it, the Competent Authority must apply the
special procedure for disposal of applications provided
for in Section 43 of the Maharashtra Rent Control Act.
2. The writ petition is disposed of in the above terms."
6. After the aforesaid order of remand, Petitioners have taken
out proceedings claiming to be u/s. 43 of the said Act seeking
grant of leave to defend. Such proceedings were based on the
claim of the petitioners that the leave and license agreement is
sham and bogus document. The prayer of the petitioners for grant
of leave to defend came to be rejected and the proceedings taken
out by the respondents/licensors were decided against the
petitioners on 24/02/2020.
7. The petitioners feeling aggrieved preferred an appeal u/s. 44
of the Act. The said appeal came to be dismissed on 24/03/2021
by the Additional Commissioner Kokan Division, Kokan. As such,
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this writ petition.
8. Mr. Sarda, learned counsel appearing for the
petitioners/tenants would urge that both the orders impugned are
not sustainable in law as the same goes contrary to the very
scheme of the Act. He would urge that there is enough material
with the petitioners to be brought to the notice of the Competent
Authority in the matter of exercise of powers u/s. 24 of the said
Act. In this background prayer for grant of leave to defend was
illegally rejected by the Competent Authority by ignoring the law
laid down by this Court in the Matter of Vijay S. Machindar VS
Puneet Jitendra Sejpal and others reported in 2018 1 AIR (Bom)(R)
426. He would draw support from the observations made in
paragraph 12 of the said judgment, which reads thus:
"12. At the stage of deciding whether leave to
contest in terms of Section 43(4)(b) of the MRC Act
is required to be granted or not, the competent
authority, is required to consider whether the
affidavit filed by the respondents discloses such
facts has not disentitled the landlord from obtaining
any order for recovery of possession of the premises
on the grounds specified in Section 22 or 23 or 24.
This means that, at this stage, the competent
authority is required to apply its mind to determine
whether the respondents have raised arguable
issues in the affidavit filed by the respondents
seeking leave to contest the application under
Section 24 of the MRC Act. At this stage, the
competent authority is neither required nor
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expected to adjudicate upon the merits of the claim
of the applicant or the merits of the defence raised
by the respondents. At this stage, the competent
authority is required to examine whether the
defence raised by the respondents is an arguable
and plausible defence, or whether the defence is
totally frivolous and in the nature of a moonshine. At
this stage, the competent authority is required to
also examine whether the defence raised, is at all a
defence which can be gone into by the competent
authority in the summary proceedings under Section
24 of the MRC Act or whether, the defence raised is
quite alien to the scope of the said provision. As long
as affidavit filed by the respondents discloses such
facts as would disentitle the landlord from obtaining
an order for recovery of possession of the premises
on the grounds specified in Section 24 of the MRC
Act, leave to contest is required to be granted.
However, one thing is clear that the competent
authority, at the stage of deciding whether leave to
contest should be granted or not, is not entitled to
delve into or adjudicate upon the merits or demerits
of the defence or to proceed to decide upon the
merits and demerits of the respective cases putforth
by the rival parties. In this case, this is what
competent authority appears to have done and to
that extent, the order of the competent authority
does appear to be in excess of jurisdiction vested in
it."
9. According to him, the material which was placed on record
so as to seek leave to defend was in the nature of the proceedings
which were inter se initiated/decided/pending between the parties.
He would then urge that the plea of the leave and license
agreement being sham and bogus, the existence of the tenancy
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agreement was also pleaded. As such, according to him the said
facts ought to have been permitted to be brought by the licensors
on the record of the Competent Authority, through affidavit. That
being so the authority committed an error in rejecting the prayer
for grant of leave to defend. His contentions are the order of
rejection of prayer for grant of leave to defend under section 43
sub-section (4) clause (B) is contrary to the very scheme of the
said provisions.
10. The next contention of Mr. Sarda is once a plea in defense
was brought to the notice of the authority about denial of leave
and license agreement, the authorities below committed error in
recording finding that there exists leave and license agreement
and that being so, the orders impugned are not sustainable. He
would further urge that the alleged leave and license agreement is
not registered and in such an eventuality leave and license
agreement has no evidentiary value. In the wake of above, the
agreement ought not to have been considered and accepted by
the authority for passing the order of impugned.
11. Mr. Sarda, would further urge that the leave and license
agreement ought not to have been considered as a conclusive
proof of existence of such a relationship. According to him, the
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petitioner continued in possession of the suit premises in the
capacity of tenant being legal heirs of original tenant - Usha
Thakre and that being so, the orders impugned are not
sustainable. Apart from above, he invited attention of this Court to
the certain findings recorded in earlier round of litigation which
according to him, fortifies the claim of the petitioners that there
exist a tenancy agreement and not leave and license agreement.
12. While countering the aforesaid submissions the counsel for
the respondent No.4 (a) Mr. Deogirikar would urge that the law on
the issue of the existence and acceptance of leave and license
agreement is well settled. According to him, the authority under
the Rent Act cannot traveled beyond the scope of section 24 of
the Act. By inviting attention of this Court to provisions of sub-
section 3 of Section 24 of the Act, he would urge that the leave
and license agreement is conclusive proof of existence of such
relationship and fact. As such, the authority u/s. 24 so also section
44 was justified in granting the relief by passing orders impugned,
which is in tune with the said provisions.
13. So as to substantiate his contentions he has drawn support
from the judgment of this Court in the matter of SAILS India V/s
Rita M. Rupani reported in 1997 (2) Mh.L.J. 269. His further
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contentions are the leave and license agreement was admittedly
entered into before 1999 Act came into existence. At the relevant
time there was no mandatory provisions to register the leave and
license agreement. That being so, the leave and license
agreement has to be accepted as it is and not to be the detriment
of the interest of the respondents. So as to substantiate his claim,
he has drawn support from the judgment of this Court in the
matter of Raj P. Kondur vs Arif T. Khan reported in 2005(4) Bom.
C.R. 383.
14. He would further claim that if the petitioners are coming out
with the defense of existence of a forged/bogus/sham leave and
license agreement the remedy lies elsewhere of filing a suit
seeking such declaration. He would further urge that the
petitioners in fact have initiated RAD Suit No.770 of 1998 for
declaration of tenancy. However, such suit was dismissed for want
of prosecution as the counsel was absent by the order of the Small
Causes Court at Bombay on 02/07/2005.
15. The Counsel for the petitioners has disputed the aforesaid
factual position.
16. I have appreciated the aforesaid submissions.
17. The fact remains that, this is a 3 rd round of litigation in which
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respondents/ licensors prayer for the eviction of the petitioners
who happens to be the legal heirs of original licensee. I have
perused the recitals in the deed of license of 11/06/1996. The said
document is inter se between the respondent-land owner and Ms.
Usha Thakre. The fact remains that the petitioners are the legal
heirs of Usha Thakre and claiming tenancy right over the suit
property by virtue of the provisions of sub-section 15 of Section 7
of the said Act as it is the contentions of Mr. Sarda that they are
residing in the suit premises in the capacity of legal heirs of Usha
Thakre. The fact remains that the petitioners has failed to bring on
record any documentary evidence so as to demonstrate such
claim that they are tenants in the suit premises. The petitioners
have even failed to approach before the Civil Court seeking a
declaration that either they are tenant in the suit property or the
leave and license agreement is sham and bogus document.
18. If we appreciate the position of law as contemplated under
sub-section 3 of Section 24 of the said Act which is pari materia
with the provisions of Section 13A2(3)(b) the of Bombay Rents,
Hotel and Lodging House Rates Control Act. Explanation (b) to
section 24 provides that the agreement of license in writing shall
be conclusive evidence of the fact stated therein.
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19. As such, it was for the petitioner to prove to the contrary,
that there exists agreement of tenancy which the petitioners could
have done in an independent proceedings and not in the present
proceedings. The petitioners such plea cannot be appreciated in
the proceedings under Section 24 based on the plain
interpretation of provisions of Section 24.
20. Mr. Deogirikar was justified in relying on the judgment of this
Court in the matter of SAILS India (cited supra). Paragraph nos. 9
and 10 of the judgment reads thus:
"9. Section 13A2 of the Bombay Rent Control Act reads thus:-
13A2. Landlord entitled to recover possession of premises
given on licence on expiry of license - (1) Notwithstanding
anything contained in this Act, a licensee in possession on
occupation of premises given to him on licensee for
residence shall deliver possession of such premises to the
landlord on expiry of the period of licence; and on the failure
of the licensee to so deliver the possession of the licensed
premises, a landlord shall be entitled to recover possession
of such premises from a licensee, on the expiry of the period
of licence by making an application to the Competent
Authority; and the Competent Authority, on being satisfied
that the period of licence has expired, shall pass an order for
eviction of a licensee.
(2) Any licensee who does not deliver possession of the
premises to the landlord on expiry of the period of licence
and continues to be in possession of the licensed premises
till he is dispossessed by the Competent Authority shall be
liable to pay damages at double the rate of the licence fee or
charge of the premises fixed under the agreement of licence.
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(3) The Competent authority shall not entertain any claim of
whatever nature from any other person who is not a licensee
according to the agreement of licence.
Explanation.-For the purposes of this section,-
(a) the expression "landlord" does not include a tenant or
a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive
evidence of the fact stated therein."
"Fact" under the Evidence Act means and includes:-
"(1) any thing, state of things, or relation of things,
capable of being perceived by the senses;
(2) any mental condition of which any person is
conscious."
"Evidence" under Section 3 of the Evidence Act means and
includes:-
(1) all statement which the Court permits or requires to
be made before it by witnesses, in relation to matters of
fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection of the
Court;
such documents are called documentary evidence."
According to Section 4 of the Evidence Act, "Conclusive
proof" has been defined as:-
"When one fact is declared by this Act to be conclusive
proof of another, the Court shall, on proof of the one
fact, regard the other as proved, and shall not allow
evidence to be given for the purpose of disproving it."
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A close scrutiny of the definition of "fact", "evidence" and
"conclusive proof" occurring in Indian Evidence Act would
show that the said expressions and words have been defined
for the purposes whenever such words and expressions are
used in the Indian Evidence Act. [Explanation in Section
13A2 provides a special rule of evidence for the purposes of
Section 13A2 and that special rule of evidence prevails for
the purposes of the proceedings under Section 13A2 of the
Bombay Rent Control Act.] Explanation (b) occurring in
Section 13A2(2) which provides that for the purposes of this
section an agreement of licence in writing shall be
conclusive evidence of the fact stated therein is
unambiguous in its term and makes it clear that an
agreement of licence in writing proves conclusively all the
facts stated therein. When an agreement of licence which is
in writing is made conclusive evidence of the facts stated
therein, obviously the Legislature has not intended to permit
any other evidence to be led by the parties to disprove the
facts stated in written agreement of licence. There is no
merit in the contention of the learned counsel for the
petitioner that since the Legislature has not deliberately
used the expression "conclusive proof" in explanation (b)
and has used the expression "conclusive evidence of the fact
stated therein", the said agreement of licence which is in
writing, cannot be said to conclusive proof of the facts stated
therein. The distinction drawn by the learned counsel for the
petitioner in fact is no distinction in eye of law and the
expression used by the Legislature that an agreement of
licence in writing shall be conclusive evidence of fact stated
therein indicates that the Legislature by providing the
special mode of evidence has not permitted any party to
disprove the fact stated in an agreement of licence which is
in writing.
10. In Automatic Electric Ltd., Wadala, Bombay v.
Sharadchandra Vinayak Tipnis (cited supra), the learned
single Judge of this Court while referring to explanation (b) to
Section 13A2 observed that the phrase used is conclusive
evidence of the fact stated therein and in view of this
explanation it is not possible to go behind it and spell out
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some other agreement. The same view is expressed in
Amarjit Singh v. R.N. Gupta's case (cited supra) wherein it is
observed that a special rule of evidence is prescribed in
Section 13A2 which provides that an agreement of licence
shall be conclusive proof of facts stated therein and in view
of this special rule of evidence the Court cannot go beyond
the document. It is true that in none of the aforesaid
decisions the Court has considered the expression
"conclusive evidence of the fact stated therein" in
contradistinction to the expression "conclusive proof" as
argued by the learned counsel for the petitioner but in my
view the argument is superfluous and the difference is no
difference. The expression "conclusive evidence of the fact
stated therein " only means that no other evidence can be
allowed to be given for the purposes of disproving the facts
stated in the leave and licence agreement which is in
writing. In other words under Section 13-A2(3)(b) an
agreement of licence in writing is conclusive proof of the
facts stated therein. The first contention raised by the
learned counsel for the petitioner has, therefore, no merit
and is accordingly negatived."
21. The plain reading of section 24 of the Maharashtra Rent
Control Act particularly explanation (b) provides for agreement of
license in writing to be conclusive evidence of the facts stated
therein. The aforesaid provision is unambiguous and abundantly
makes it clear that the recital in agreement of license is to be
conclusively accepted in the proceedings like present one. Once
such agreement of license is made conclusive evidence of the
recitals/terms mentioned therein, the only evidence which can be
inferred by the Court irrespective of the contentions of the parties,
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is to accept the same. As such from the bear perusal of the license
agreement referred above, it is apparent that the premises in
question was given on license to the mother of the petitioners on
leave and license basis.
22. In the aforesaid background, both the authorities below were
justified in not only rejecting the prayer of the petitioners for grant
of leave to defend but also in the matter of rejecting the prayer of
the petitioners on maintainability of the proceeding initiated under
Section 24 of the Act.
23. Apart from above, about leave and license agreement, it is
pleaded by respondents/applicants before the Competent
Authority that same was executed in 1995/1996 i.e before the Act
of 1999 came into existence. The fact remains that, the earlier
Rent Act has not made mandatory to have the leave and license
agreement to be a registered document. It is post 1999 Act, a
provision is brought into existence which has made it mandatory
to have leave and license agreement a registered.
24. In the aforesaid background, the claim put forth by Mr.
Sarda, that the proceedings under Section 24 are granted based
on unregistered leave and license agreement cannot be accepted.
In support of the aforesaid findings this court can rely on the
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judgment of this Court in the matter of Raj Prasanna Kondur (cited
supra). The Leave and license agreement relating to a particular
premises entered between the licensor and licensee on or after
10/03/2000 is mandatorily required to be in writing and also
registered under the provisions of the Registration Act, 1908. This
Court is sensitive to the fact that there was a written leave and
license agreement between the respondents-landlords and
deceased mother of petitioners. Even if such leave and license
agreement is unregistered, still the same is covered under
explanation (b) of section 24 of the Act in relation to the
conditions stated in such written agreement. The paragraph nos.
15, 16 & 17 of the judgment in the matter of Raj Prasanna Kondur
(cited supra) reads thus:
"15. The contention of the learned Advocate for the
petitioner that the absence of registered written
agreement would render the license to be invalid and
therefore, it would result in the absence of
jurisdictional fact to enable the competent authority to
entertain the application under Section 24 of the said
Act, cannot be accepted. The jurisdictional fact which
is required for the competent authority to entertain
the application for eviction under Section 24 of the
said Act is the expiry of license for residence in favour
of the person occupying the premises and moment the
same is disclosed based on whatever material placed
before the competent authority, it will empower the
competent authority to take cognizance of such
application and to proceed to deal with the matter.
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Absence of registration or even the agreement being
not in writing, that would not render the license to be
invalid. Undoubtedly, expiry of licence presupposes
existence of licence prior to its expiry. However, the
existence of licence does not depend upon its record in
writing or registration thereof. It depends upon the
availability of permission by the landlord to another
person to use the landlord's premises for consideration
and moment those factors are established, the person
using the premises would be the licencee within the
meaning of the said expression under the said Act.
Obviously, the written record in relation to the
agreement of licence would be the conclusive proof
about the terms of licence and in case of registration
of such agreement would help the landlord to avoid
the consequences stipulated under Section 55(2) and
(3) of the said Act. This is apparent from the definition
of the term "Licensee" under Section 7(5) of the said
Act which nowhere requires the license granted to
occupy the premises for license fee or charge to be
necessarily in writing or the agreement to have been
registered. If the contention of the learned advocate
for the petitioner is accepted, the provisions of sub-
section (2) of Section 55 of the said Act as well as the
Clause (b) to the explanation of Section 24 would be
rendered otiose. No provision of law can be interpreted
to nullify the effect thereof or to render the provision
to be nugatory.
16. Undoubtedly, as submitted by the learned
advocate for the petitioner, the Item No.6 of the
Concurrent List of the Seventh Schedule of the
Constitution of India deals with the subject of transfer
of property other than the agricultural lands,
registration deeds and documents. Apparently, the
subject of registration of the documents falls in the
Concurrent List, and the State as well as the Central
Government are empowered to enact the statutes in
respect of the said subject. However, merely referring
to the said item in the concurrent list, it is difficult to
accept the contention on behalf of the petitioner that
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though the Section 17 of the Registration Act, 1908
does not enumerate the agreement for leave and
license being one of the documents which is
compulsorily required to be registered, by virtue of the
provisions comprised under Section 55(1) of the said
Act, the said document would stand included in or
appended to the list of documents provided under
Section 17 of the Registration Act, 1908. The
contention that the provisions regarding compulsory
requirement of registration of the leave and license
agreement found in Section 55(1) of the said Act will
have to be read along with the list of compulsorily
registerable documents under Section 17 of the
Registration Act, 1908 cannot be accepted. In fact,
while providing for the consequences of failure on the
part of the landlord to get such agreement registered,
the provisions of law in the said Act nowhere exclude
unregistered agreement of leave and license to be
inadmissible in evidence. On the contrary, the said
agreement has been made specifically admissible
under clause (b) of the Explanation to Section 24 of
the said Act which is not in consonance with the
provision of law comprised under Section 49 of the
Registration Act, 1908. If it was the intention of the
legislature that the provision regarding the
requirement of registration of the leave and license
agreement has to be read along with Section 17 of the
Registration Act, 1908, nothing would have prevented
the legislature to introduce amendment to Section 17
itself or at least to make such agreement inadmissible
in the evidence rather than specifically providing for
admissibility of such document in evidence as being a
conclusive proof of the facts stated therein irrespective
of the fact that the agreement is not registered. This
fact clearly reveals that the provisions comprised
under Section 55(1) of the said Act cannot be read
with the provisions of Section 17 of the Registration
Act, 1908, and for the same reason, the provisions of
Section 49 of the Registration Act, 1908 would not be
attracted in relation to the agreement for leave and
license.
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17. It is also argued that the procedure provided under
Section 24 are of summary nature. There is no appeal
provided against the order to be passed in such
proceedings. The orders passed by the competent
authority under Section 24 are not appealable in view
of the provisions in that regard under Section 44(1).
However, they are revisable under sub-section (2) of
Section 44 provided that the application in that
regard has to be presented within 90 days of the date
of order sought to be revised. The jurisdiction of the
civil court to deal with such matters is barred under
Section 47. Any order passed under Section 24 in
favour of the landlord would result in dispossession of
the person in occupation of the premises. Being so,
the provisions are to be liberally construed bearing in
mind the drastic effect thereof. The contention is
devoid of substance. The competent authority created
under the said Act to order eviction of the licensee on
the expiry of the period of license in terms of Section
24 does not speak of eviction of a person in
occupation of the premises otherwise than as the
licensee and whose license has expired or terminated.
Mere absence of appeal remedy is of no
consequences. The appellate remedy is a statutory
remedy. There is no inherent right in a litigant to prefer
appeal against the order of every Court or quasi-
judicial authority of original jurisdiction. Besides, under
the guise of interpretation, it does not permit
interpolation or addition or substitution of the words in
or to or from the statutory provision. If the contention
of the petitioner is accepted, one will have to read the
expression "written and registered" in Section 24 in
relation to the agreement of license, which will
virtually amount to violence to the said statutory
provision. Besides, the law on the point as laid down
by the Apex Court in Prakash Jain's case (supra)
Prakash Jain's case (supra) Prakash Jain's case (supra)
does not prevent any such interpretation to the
provisions of law comprised under the said Act."
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25. Apart from above, during the course of hearing, the counsel
for respondent has invited my attention to the order dated
02/07/2005 passed in RAD No.770 of 1998 by the Small Causes
Court at Bombay. The said order reads thus:
"The parties and their Advocates are absent. The suit is
therefore dismissed for default."
26. It is claimed by the counsel for the respondents that the
aforesaid suit was initiated by the mother of the petitioners'
seeking declaration that she has tenancy right over the suit
property. The fact remains that such suit was dismissed in default
on 02/07/2005. Subsequently to above neither the petitioner nor
their mother has taken out proceedings either for restoration or
seeking fresh declaration in their favour about tenancy rights as
could have been done under the provisions of Specific Relief Act.
27. Apart from above, this Court is also sensitive to the position
of law that in case of existence of leave and license agreement,
the legal heirs of licensee cannot claim succession in interest and
their status is that of the trespasser.
28. In the aforesaid background, I hardly see any illegality in the
order impugned, which warrants interference. The petition as such
fails and stands dismissed.
akn 20/21
3.IA.2700.2022.doc
29. As a sequel of the pending application also stands dismissed.
30. The prayer of Mr. Sarda for continuation of interim relief
order passed by this Court for a period of 12 weeks, though
resisted, however, having regard to the long-standing possession
of the petitioners over the suit property, the same is extended by
twelve weeks, as prayed.
(NITIN W. SAMBRE, J.)
akn 21/21
