The main legal point established in the judgment is the jurisdiction of the Small Cause Court under Section 41 of the Presidency Small Causes Courts Act to address the refusal to deliver the property after the termination of the license, and the inapplicability of the Rent Act to the premises in question.

JUDGEMENT

G. R. Udhwani, J.

(1) This petition arises against an order dated 4th January, 2011 passed in P.S.R.P. No. 11 of 2009 instituted under Section 41 of the Presidency Small Causes Courts Act, 1882 (for short the Act ) by the respondent for possession of the suit property on termination of license granted by the respondent to the petitioner.

(2) Learned trial Judge, after hearing the parties and considering the evidence on record, issued a possession warrant against the petitioner under Section 43 of the Act. Petitioner was also directed to pay Rs. 2000/- per month as usage charges to the applicant, till the possession is handed over to him. Aggrieved, the petitioner is before this Court.

(3) An agreement was entered into between the parties on 4th September, 2007 for leave and license of the suit property, wherein admittedly, the petitioner was permitted to use the property for 11 months and 29 days.

(4) A notice dated 5th May, 2008 requiring the possession of the suit property from the petitioner was given before expiry of period agreed in the agreement. This notice was in terms of the Clause 4 of the agreement which permitted each of the parties to issue one month notice for termination of the license. Another notice was also given on 15th May, 2008, which according to learned counsel for the petitioner, was never received by the petitioner.

(5) Petitioner instituted a Civil Suit, after notice dated 5th May, 2008 and 30th August, 2008, in the City Civil Court, Ahmedabad being Civil Suit No. 2025 of 2008, wherein after pleading that petitioner was a licensee in the suit premises, sought injunction against its forcible, dispossession. Application at Exh. 6 and 7 were also moved. Admittedly, City Civil Court had issued an injunction restraining respondent from dispossessing the petitioner without due procedure of law. In the said order dated 4th May, 2009, petitioner was required to deposit an amount of Rs.2,000/- per month towards license fee regularly and he was also required to deposit Municipal tax in Municipal Corporation regularly till final decision of the suit. He was also required to deposit all the dues towards license fee and tax amount within three months from the date of the said order and liberty was reserved to the respondent to move the Court for vacation of the injunction order, in case of default by the petitioner in complying with the above condition.

(6) To obtain possession, the respondent moved an application under Section 41 i.e. P.S.R.P. No. 11 of 2009 on 4th January, 2011 and before that the petitioner instituted another suit, being Civil Suit No.797 of 2010 on 6th January, 2010, claiming tenancy rights by holding out under Section 5 of the Bombay Rent Act.

(7) Assailing the impugned order, learned counsel for the petitioner raised the following contentions:

7.1 That no order could have been passed in face of an injunction granted by the City Civil Court in a substantive suit i.e. Civil Suit No. 2025 of 2008. That, by an interim order, the City Civil Court had restrained the respondent from dispossession; except with due procedure, and as per submissions of the learned counsel, due procedure was not complied Section 41 application but a substantive suit.

7.2 That, after determination of lease, the petitioner continued to pay rent of Rs.2000/- per month, and therefore, he was a tenant by holding out as per Clause B of Section 5(11) of the Rent Act. Hence, the only legal procedure available to the respondent was under the Rent Act or under the relevant provision of the Transfer of Property Act.

7.3 In response to P.S.R.P. Application, the petitioner in terms of explanation to Section 43 of the Act established the fact that he was a tenant by holding out, and therefore, the Court of Small Cause had no jurisdiction to pass any order under Section 41 of the said Act.

7.4 In view of Section 19(1)(e) and (g), a suit for recovery of immovable property as also for determination of right or title, or interest in immo