ORDER :- The present petition is filed by the petitioner who is the owner of the suit premises which consist of a flat in a building at Walkeshwar. The application for defendant's ejectment filed under Section 41 of the Presidency Small Cause Courts Act has been rejected by the Trial Court on the ground that the Court had no jurisdiction to grant such application in view of an order in certain previous proceedings between the parties. The correctness of the said view is challenged in these proceedings.

2. The facts relevant for the purpose of this judgment are the following :-

The flat in question belongs to the present petitioner and admittedly he gave the same on leave and licence to the defendant in the year 1959. The amount of compensation fixed was Rs. 531/-. It has been contended before me that the said amount of Rs. 531/- was not only for the promises but also for furniture because it was furnished flat which was given on leave and licence basis to the defendant. This fact is stoutly denied before me by Mr. Pandey, the learned Advocate for the defendant. I am keeping this question open for the decision of the Trial Court after the re-appreciation of the entire evidence.

3. The leave and licence arrangement continued till the year 1965. The last leave and licence agreement in that behalf was executed on 21-6-1964 and it was to expire on 31-3-1965. On 12-4-1965 the plaintiff gave a notice to the defendant informing him about the expiry of the agreement of licence and calling upon him to vacate the premises. Due to the failure on the part of the defendant to comply with the requisition, an ejectment application was filed by the plaintiff against the defendant under Section 41 of the Presidency Small Cause Courts Act (hereafter, the Act). For the sake of convenience, the said ejectment application shall be hereinafter referred as 1st ejectment application. In the said 1st ejectment application the parties arrived at some kind of compromise and a consent order in that behalf was passed on 17-6-1968. As per the consent order the defendant was directed to give vacant possession of the suit premises to the plaintiff unless he paid the entire arrears of compensation due till 31st May, 1968 in stated instalments. The last instalment of Rs. 800/- was to be paid on 27-3-1969. The consent order clearly shows that if any default was made in such payment the consent order was to become executable and the plaintiff would have been entitled to possession of the suit premises by executing the consent order. It appears that according to the plaintiff the defendant had committed some default and hence in the year 1969 be filed an application for execution of the above mentioned consent order. The Trial Court, it appears, directed the execution to proceed, holding that the default was proved. As against the said order, Special Civil Application No. 1053 of 1969 was filed by the defendant in this Court and the same was allowed by the learned single Judge (Vaidya J.) of this Court on 27-3-1973. The Court held that there was no default committed by the defendant and hence no question of execution arose.

4. We present ejectment application (which will be referred to hereinafter as the second ejectment application) was filed by the plaintiff on 24-7-1973. In the said application the relevant facts out of the above mentioned facts have been mentioned. But in para 6 of the application some unhappy averments were made by stating that the agreement of leave and licence dated 21-6-1964 expired by efflux of time, that the licence was never renewed thereafter, that in any event the licence stood revoked by the filing of the first ejectment application, that there existed no subsisting agreement between the parties thereafter and that the respondent was wrongfully in possession of the premises. The reason why I describe this averment to be somewhat unhappy averment will be mentioned by me presently. The prayer that was made in the said application was that

Click Here to Read the rest of this document