The appeal upheld that expired leave and license agreements do not confer tenant rights; occupancy post-expiration was considered trespassing.

JUDGMENT :

M.M. Sathaye, J.

1. This petition is filed under Article 226 and 227 of the Constitution of India, challenging the judgment and order dated 25.06.2003 passed by the Appellate Bench of Small Causes Court at Mumbai in Appeal No.283 of 2000. By the said impugned order, the judgment and order dated 29.10.1999 passed by the Judge of Small Causes Court at Mumbai in L.E. & C. Suit No.112/134 of 1991 is set aside and the said suit is dismissed. By the impugned order the Petitioner’s suit, seeking eviction of Respondents from the suit premises, is dismissed. Flat No.19, Vimala Mahal, Pedder Road, Mumbai 4000 026 is the subject matter of the present petition and same is hereinafter referred to as ‘suit premises’ for short.

2. The Petitioner is original Plaintiff and Respondents are original Defendants and/or their legal representatives.

3. The case of the Petitioner in short is as under. That the Petitioner is owner/licensor of the suit premises, which was given on license to one Mr. Dayal Swaroop Mathur (hereinafter referred to as ‘the said Mr. Mathur’ for short) under leave and license agreement dated 15.02.1971. The said agreement was for a period of 11 months commencing from 15.02.1971 and expiring on 14.01.1972. Monthly compensation was agreed at Rs.1000/- per month. The said Mr. Mathur expired on 31.08.1971, as a result of which, the leave and license agreement stood revoked. In any case, the agreement was to expire on 14.01.1972 by efflux of time. The Petitioner called upon original Defendants (widow, son and daughter of said Mr. Mathur) to vacate the suit premises, however, they avoided to comply. Defendant No.1 - Smt. Mehzabeen filed first application for fixation of standard rent in respect of the suit premises in the year 1973. This application was withdrawn. Thereafter, she again filed second application for fixation of standard rent in the year 1977 contending inter alia that the Defendants are tenants in respect of suit premises. According to the Petitioner, the second standard rent application was barred by res judicata. According to the Petitioner, after the death of said Mr. Mathur, and also by efflux of time, leave and license agreement has come to an end and therefore the Defendants have no right, title and interest to retain the possession. According to the Petitioner, the Defendants are trespassers. The Petitioner filed the said suit seeking eviction of the Defendants from suit premises under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as ‘the PSCC Act’ for short).

4. The Defendants filed written statement contending inter alia that said Mr. Mathur was in need of residential accommodation for his family and in order to circumvent the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (‘Bombay Rent Act’ for short), the parties executed the agreement titled as ‘leave and license’, however, it was understood that the agreement was only for name-sake and in substance, the transaction was of creating tenancy. Since said Mr. Mathur was in need of premises urgently, he signed on leave and license agreement. It was contended that monthly compensation of Rs.1000/- was in fact rent. It was contended that since the agreement was never intended to be acted upon, there is no question of termination of leave and license agreement, either on the death of said Mr. Mathur or by efflux of time. Also case of continuation of license by oral agreement or by necessary implication, from time to time and on same terms and conditions, is pleaded. It was contended that the Defendants are protected licensee/deemed tenants being in po