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2006 Supreme(Cal) 812
High Court Of Calcutta
Tapan Kumar Dutt, J.
PROSUN KUMAR DEY - Appellant
Versus
PROVASH KUMAR DEY - Respondent
C. O. 2077 Of 2005
Decided On : 12/20/2006
ARINDAM SEN, MADHUKRISHNA GAYEN, NAMITA DEY, P.B.BHOWMICK, PRADIP KR.CHAKRABORTY, SANJAY LAL MAL, SUKUMAR PAUL, TANMOY KUMAR GHOSH
A person occupying a property with the permission of another person, even if such permission is granted for the purpose of conducting a business, can be considered a licensee within the meaning of Section 41 of the Presidency Small Cause Courts Act, 1882, and can be evicted upon the determination or withdrawal of such permission.
Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41 - Suit for recovery of possession - Licensee without fees - Applicability of Section 41 - Interpretation of Section 41 - Permission to occupy property for business purposes - Whether constitutes a license within the meaning of Section 41 - Legal effect of decree in a regular suit on an order passed under Section 43 of the Act.
Fact of the Case:
Father (plaintiff) filed an application under Section 41 of the Presidency Small Cause Courts Act for recovery of possession of the suit property from his son (defendant), who was occupying the property as a licensee without any fees. The defendant contended that he had acquired a special right, title, and interest in the property by virtue of being born in the premises and that the plaintiff could not evict him as a licensee.
Finding of the Court:
The court held that the permission granted by the plaintiff to the defendant to occupy the property for business purposes constituted a license within the meaning of Section 41 of the Act and that the plaintiff was entitled to recover possession of the property upon the determination of the license. The court also held that the decree in the regular suit filed by the defendant, which restrained the plaintiff from disturbing the defendant's possession without recourse to law, did not bar the plaintiff from obtaining an order for recovery of possession under Section 41 of the Act.
Issues: 1. Whether the permission granted by the plaintiff to the defendant to occupy the property for business purposes constituted a license within the meaning of Section 41 of the Presidency Small Cause Courts Act, 1882? 2. Whether the decree in the regular suit filed by the defendant, which restrained the plaintiff from disturbing the defendant's possession without recourse to law, barred the plaintiff from obtaining an order for recovery of possession under Section 41 of the Act?
Ratio Decidendi: 1. Section 41 of the Presidency Small Cause Courts Act, 1882, as applicable in West Bengal, includes not only tenants but also persons occupying the premises under permission. 2. The permission granted by the plaintiff to the defendant to occupy the property for business purposes included the permission to occupy the property itself, and therefore came within the ambit of Section 41 of the Act. 3. An order passed under Section 43 of the Act is not a decree and is subject to any contrary order or decree passed in a regular suit between the parties. However, in the absence of such a contrary order or decree, an appropriate order under Section 43 of the Act can be passed.
Final Decision: The court dismissed the defendant's application under Article 227 of the Constitution of India and allowed the plaintiff's application for recovery of possession under Section 41 of the Presidency Small Cause Courts Act, 1882.
( 2 ) IT appears that the petitioner contested the said application by taking a stand that the petitioner was given possession of the suit property by the opposite party but since the premises in question belonged to the grandfather of the petitioner, the petitioner has acquired special right, title and interest therein and that the opposite party has no right to evict the petitioner from the suit property.
( 3 ) IT appears from the impugned order that it was argued on behalf of the defendant/petitioner before the learned Court below that since the petitioner was born in the premises in question which is the paternal property of the plaintiff/opposite party, the defendant/petitioner has acquired a special right in such property and the plaintiff/opposite party cannot pray for recovery of possession treating the defendant/petitioner as a licensee. Another point that was argued before the learned Court below on behalf of the defendant/petitioner was that the defendant/petitioner is a licensee without any fees and such licence without any fees cannot be treated as a licence in the strict sense of the term. The learned Court below found that the notice to quit was legal and valid and it was duly served upon the defendant/petitioner.
( 4 ) IT appears that the defendant/ petitioner had raised the question of applicability of section 41 of the Presidency Small Cause Courts Act (hereinafter referred to as the said Act ). The decision of this Hon'ble Court reported at 2003 (1) CLJ 337 (Smt. Kalyani Devi (Das) vs. Sri Tarapada Das) was referred to by the learned Court below. In paragraph 5 of the said reported case this Hon'ble Court was pleased to observe as follows: "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 the State of West Bengal the provision of the said section 41, however, includes the person occupying the premises on the basis of permission. "
( 5 ) THEREFORE, there cannot be any dispute about the applicability of section 41 of the said Act to the facts of the instant case. A plain reading of section 41 of the said Act, as it stands applicable in
