IMPORTANT POINT
Licensee includes gratuitous licensee.

Judgment :-

K.S. Radhakrishnan, J

Leave granted.

2. We are, in these appeals, concerned with the question whether a suit filed by a licensor against a gratuitous licensee under Section 41(1) of the Presidency Small Causes Courts Act, 1882 (for short “the PSCC Act”), as amended by the Maharashtra Act No.XIX of 1976 (for short “1976 Amendment Act”) is maintainable before a Small Causes Court, Mumbai.

3. The Division Bench of the Bombay High Court in Ramesh Dwarikadas Mehra v. Indirawati Dwarika Das Mehra (AIR 2001 Bombay 470) held that a suit by a licensor against a gratuitous licensee is not tenable before the Presidency Small Causes Court under Section 41 (1) of the PSCC Act, and it should be filed before the City Civil Court or the High Court depending upon the valuation. The Division Bench held that the expression “licensee” used in Section 41(1) of the PSCC Act has the same meaning as in Section 5 (4A) of the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 (in short “the Rent Act”). Further it was held that the expression “licensee” as used in Section 5(4A) does not cover a gratuitous licensee. The Division Bench in that case rejected the ejectment application holding that the Small Causes Court at Bombay lacked jurisdiction.

4. In Bhagirathi Lingawade and others v. Laxmi Silk Mills, in an unreported judgment of the Bombay High Court dated 03.09.1993, another Division Bench of the Bombay High Court expressed the view that Section 5(4A) and Section 13(1) of the Rent Act, 1947 are not at all relevant in interpreting the scope and ambit of Section 41 of the PSCC Act, under which suit was filed.

5. The Full Bench of the Bombay High Court, which is the Judgment under appeal, reported in 2007 (5) Maharashtra Law Journal 341, answered the question in the affirmative overruling the Ramesh Dwarikadas Mehra case (supra), the legality of which is the question, that falls for our consideration.

FACTUAL MATRIX

6. Respondent Nos.1 and 2 along with other plaintiffs (who are now deceased) filed a suit L.E. and C. No.430/582 of 1978 under Section 41 of the PSCC Act before the Small Causes Court, Bombay against the appellants (original defendants) for recovery and vacant possession of one bed room in Flat No.16, Ram Mahal, Churchgate, Mumbai and also for other consequential reliefs. Plaintiffs submitted that the defendants were in use and in occupation of the above premises as their guest-house and so far as hall and kitchen are concerned, family members of the plaintiff and defendants were using it as common amenities. The plaintiffs also claim that they are in occupation of another bed-room in the suit flat and no monetary consideration was charged by them from the defendants for exclusive use and occupation of one bed-room and joint use of the hall and kitchen as common amenities. Permission granted to the defendants to use the premises was later revoked and since they did not vacate the suit flat and continued to hold possession wrongfully and illegally, suit was filed for eviction.

7. The Small Causes Court decreed the suit on 07.02.1997 and ordered eviction of the appellants with a specific finding that they are gratuitous licensee. The appellants preferred an appeal before the Appellate Bench of Small Causes Court, which was dismissed on 05.04.2003. Against that order both the appellants and respondents filed writ petitions before the High Court, Bombay and the respondents’ writ petition was for claiming mesne profits.

8. The Defendants questioned the jurisdiction of the Small Causes Court, Mumbai to entertain and try the suit before the learned Single Judge of the High Court of Bombay, placing reliance on the judgment of the Division Bench in Ramesh Dwarkadas Mehra’s case (supra) contending that the licence created by the plaintiffs in favour of the defendants was gratuitous, i.e. without consideration, hence the suit is not maintainable in that Court. Learned Single Judge vide his order dated 16.01.2006 referred the matt