The Small Causes Court in West Bengal has jurisdiction to entertain an application for eviction of a licensee under Section 41 of the Presidency Small Cause Courts Act, 1882, as the section includes any person occupying property with permission, including gratuitous licensees.

( 1 ) THIS revisional application is directed against the judgment and order dated 25th April, 2002 passed by the learned Chief Judge, Small Causes Court at Calcutta. An application under Section 41 of the Presidency Small Cause Courts Act was filed by the plaintiff (who is the petitioner herein) for eviction of the defendant, Tarapada Das, as a licensee and recovery of Khas possession of the suit premises. The plaintiff's case is that she is the owner of the structures standing on a plot of land being 24/c, Jeliapara Land, Calcutta 12 and she is the thika tenant in respect of the land under the said structure. One Kalipada Das, the husband of the plaintiff since deceased, was the original tenant and during his lifetime he granted leave and licence in respect of the suit premises in favour of the defendant to stay there for a temporary period.

( 2 ) AFTER his death, for defendant approached the plaintiff and requested her to grant licence to stay in the suit premises for sometime more until the said defendant finds reasonable and suitable, accommodation elsewhere. According to the plaintiff, such licence was granted in favour of the defendant without any licence fees. The plaintiff afterwards revoked the said licence and directed the defendant to quit and vacate the suit premises but in spite of revocation of the licence, the defendant did not vacate the same for which the plaintiff issued notice through her Advocate upon the defendant but in spite of service of notice the defendant did not vacate the suit premises.

( 3 ) ACCORDINGLY, the suit was filed by the plaintiff before the learned Court of Small Causes at Calcutta. The defendant entered appearance in the proceeding and contested the case and filed the written statement denying all the material allegations. The learned Judge of the Court below framed the issues for deciding the suit which include the issue relating to maintainability of the proceeding before the Small Causes Court at Calcutta. Going through the impugned judgment passed by the learned Chief Judge, Small Causes Court at Calcutta, I find that the learned Chief Judge on the basis of the decision of the Bombay High Court reported in AIR 2001 Bombay 470, came to the conclusion that the application filed by the plaintiff under Section 41 of the Presidency Small Cause Courts Act cannot be entertained by the said Small Causes Court. The learned Judge also on merit held against the plaintiff.

( 4 ) SO far as the maintainability of the application under Section 41 before the Small Causes Court, I find that the learned Chief Judge failed to appreciate the provision of the said Section 41 as applicable in the State of West Bengal. The Division Bench of the Bombay High Court in the aforesaid judgment reported in AIR 2001 Bombay 470 held that suit by a licensor against gratuitous licensee is not tenable before the Presidency Small Causes Court under Section 41 after taking note of the provisions of Section 41 as applicable in the State of Maharashtra.

( 5 ) IN the State of West Bengal, however, the provision of Section 41 is different which includes not only the tenant but also the person occupying the premises under permission. Although the Bombay High Court held that the suit could not be filed on the basis of a tenancy if the licence was gratuitous but provision of Section 41 of the Presidency Small Cause Courts Act as applicable in West Bengal is different and any person occupying property within the local limits of the Small Causes Court on the basis of permission can be evicted after the determination or withdrawal of the said permission. The view expressed by the learned Chief Judge, Small Causes Court, Calcutta relying on the aforesaid judgment of the Bombay High Court reported in AIR 2001 Bombay 470 is not correct as the said judgment of the Bombay High Court is based on Maharashtra Amendment of the said Section 41 which admittedly does not include the gratuitous licence. In