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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.S. RAMESH, J.
M. Gunasekaran - Appellant
Versus
Jagadeesan - Respondent
CRP. (NPD) No. 4573 of 2015
Decided On : 28-11-2018
Civil Procedure Code,1908 - Sections 96(4) and 115 - Presidency Small Cause Courts Act, 1882 - Section 41(1) - Rent Act,1948 - Sections (4-A) and 5 - challenge - Suit for vacant possession - Suit properties are self acquired properties of respondent and that petitioner who is defendant in ejection suit was permitted to occupy same as a licensee till revocation of license - When respondent herein had issued a notice to petitioner calling upon him to quit and deliver vacant possession of suit property same came to be returned with an endorsement as refused - Hence suit - Respondent herein had filed six documents viz before trial Court to substantiate that property is his self acquired property and not a joint family property - Therein he had taken a specific plea that property was not a joint family property and that relationship of licenser and licensee alone existed between parties and as such suit filed under Section 41 of Presidency Small Cause Courts Act was maintainable - Though petitioner herein had examined himself as a witness no documents were filed on his side - Trial Court by relying upon title deeds in had come to conclusion that property was self acquired property of respondent/plaintiff and had disbelieved plea of petitioner herein that it was a joint family property - By relying upon notice Court had also come to conclusion that respondent/plaintiff had sent a notice to petitioner calling upon him to quit and deliver vacant possession and that notice was deemed to have been served on petitioner herein - By relying upon judgment of Honble Apex Court trial Court had that relationship between parties was that of a gratuitous license arrangement and therefore suit filed under Section 41 of Presidency Small Cause Courts Act was to be maintainable - Whether expression Licensee used in section 41(1) in Chapter of PSCC Act not having been defined therein would derive its meaning from expression licensee as used in sub-sectionof section 5 of Rent Act and whether expression licensee used in section 41(1) of PSCC Act is a term of wider import so as to mean and include a gratuitous licensee also? - Whether a suit by a licensor against a gratuitous licensee is tenable before Presidency Small Cause Court under section 41 of PSCC Act? - Held, Court of opinion that in present case where defendant who was permitted to use premises will have to be considered as a gratuitous licensee on basis of averments made in plaint itself - Once this conclusion is reached Small Cause Court being only court to try all such suits against gratuitous licensee civil court will not have jurisdiction - Preliminary issue which is framed will have to be answered in favour of defendant - Accordingly it is that defendant has proved that this court has no jurisdiction to try and dispose of suit - In view of decision on preliminary issue notice of motion filed by Plaintiffs cannot be taken up - Notice of Motion is accordingly rejected as not maintainable - In present case since petitioner herein had failed to prove that suit property was a joint family property and that there was no license arrangement between parties it can only be concluded that suit filed under Section 41 of Presidency Small Cause Courts Act was well maintainable - Insofar as second ground raised that there was no cause of action in filing suit since notice was not issued to petitioner herein is concerned respondent had filed legal demand notice before trial Court to show that such a notice to quit and deliver vacant possession was sent and same was refused by petitioner herein - Oral evidence also supports this aspect of notice being sent - As such trial Court was justified in coming to conclusion that notice was served on petitioner herein and consequently it follows that same gave rise to a cause of action for filing present suit - Civil Revision Petition Dismissed
JUDGMENT :
(Prayer: Civil Revision Petition filed under Section 115 of C.P.C., praying to set aside the judgment and decree dated 19.08.2015 passed in Ejt. S. No.9 of 2013 on the file of the learned III Judge, Small Causes Court, Chennai.)
1. The order under challenge, directs the petitioner/defendant to vacate and hand over the vacant possession of the 'B' schedule property within a period of two months. Though Section 41 of the Presidency Small Cause Courts Act, 1882 provides for an appeal against the order, the present civil revision has been filed, apparently, by invoking Section 96 (4) of the CPC., which debars appeal against judgment from the Small Causes Court.
2. Heard Mr. P.M. Bakthavatsalam, learned counsel for the petitioner.
3. The case of the respondent/plaintiff is that the suit properties are self acquired properties of the respondent herein and that the petitioner herein, who is the defendant in the ejection suit was permitted to occupy the same as a licensee, till the revocation of the license. When the respondent herein had issued a notice to the petitioner calling upon him to quit and deliver vacant possession of the suit property, the same came to be returned with an endorsement as "refused". Hence the suit.
4. The respondent herein had filed six documents viz., Exs.A1 to A6 before the trial Court to substantiate that the property is his self acquired property and not a joint family property. Therein, he had taken a specific plea that the property was not a joint family property and that the relationship of licenser and licensee alone existed between the parties and as such, the suit filed under Section 41 of the Presidency Small Cause Courts Act, 1882 was maintainable. Though the petitioner herein had examined himself as a witness, no documents were filed on his side.
5. The trial Court, by relying upon the title deeds in Exs.A1, A3 to A5 had come to the conclusion that the property was the self acquired property of the respondent/plaintiff and had disbelieved the plea of the petitioner herein that it was a joint family property. By relying upon Ex.A2 notice, the Court had also come to the conclusion that the respondent/plaintiff had sent a notice to the petitioner calling upon him to quit and deliver vacant possession and that the notice was deemed to have been served on the petitioner herein. By relying upon the judgment of the Hon'ble Apex Court, the trial Court had held that the relationship between the parties was that of a “gratuitous license” arrangement and therefore, the suit filed under Section 41 of the Presidency Small Cause Courts Act was held to be maintainable.
6. The learned counsel for the petitioner put forth his submissions mainly on two grounds:
(i) That the suit itself was not maintainable under Section 41 of the Presidency Small Cause Courts Act, since the property involved was a joint family property and that, there was no licenser and licensee relationship between the parties.
(ii) The second ground raised is that a notice to quit and deliver is mandatory and that though he had specifically pleaded in the written statement that the respondent herein never gave any notice for quit and deliver vacant possession, there is no cause of action for filing the suit.
7. The learned counsel for the respondent, on the other hand submitted that, he had filed sufficient documents viz., Exs.A1, A3 to A6 evidencing that the properties are the self acquired properties of the respondent/plaintiff and the recitals in those documents evidences that the settlements were properly executed. He further relied upon the Judgment of the Hon'ble Apex Court reported in Civil Appeal Nos.6726-6727 of 2013 [Prabhudas Damodar Kotecha and others Vs. Manhabala Jeram Damodar and another] dated 13.08.2013 and another Judgment of the Bombay High Court reported in Suit No.465 of 2011 [Premises Vs. Colin M Rebello of Mumbai Indian] dated 15.10.2013 and submitted that gratuitous permission would amount to a license and as such, the
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