ORAL ORDER

1. The order below Exhibit-26 in Special Civil Suit No.699 of 2018 passed by the learned City Civil Court, Court No.7 is under challenge in this petition.

2. The following facts are necessary for deciding this petition.

2.1 The petitioners are original plaintiffs of Regular Civil Suit No.699 of 2018. The respondent opposed the said suit by filing reply. The petitioners filed application at Exhibit-26 for recovery of the outstanding licence fees along with municipal tax from the defendant. The defendant filed reply on 03.12.2022 at Exhibit-28 to which the petitioners filed rejoinder on 02.01.2023 at Exhibit- 30. The learned City Civil Court vide impugner order dated 25.04.2023 passed below Exhibit-26 in Civil Suit No.699 of 2018 rejected the application on the ground that said application is subject to outcome of evidence which will be recorded as per the law. Hence, the present petition.

3. Heard learned advocate Mr.Hardik Soni appearing for the petitioners. Though served none remained present for the other side.

4. The application at Exhibit-26 is filed by the petitioners who are landlord directing the defendant of the suit to deposit amount equal to the licence fee as damages from 01.05.2017 and also to direct the defendant of the suit to pay municipal tax of Rs.2,96,393/- based on Clause (3) of the Leave and Licence Agreement executed between the parties which is produced at Annexure-G.

5. Learned advocate Mr.Soni took this Court through the written statement filed by the other side on page-58 (internal page 5 of the written statement) to submit that the defendant has also accepted the licence fees fixed at Rs.15,000/-. Therefore, he submits that in view of the above learned City Civil Court has committed serious mistake in believing that the plaintiffs are asking for mesne profit. He would further submit that the defendant in whose favour the Leave and Licence Agreement has expired has now no locus standi to live in the suit property and therefore the suit was filed to recover peaceful and vacant possession along with other reliefs. The plaintiffs have filed the application to get the amount equal to the licence fees as damage for the purpose of using the demise premises during the pendency of the suit but the learned Trial Court on foundation that the plaintiffs have asked for the mesne profit and it requires recording of evidence, has rejected the application. The finding is totally erroneous. He would further submit that the learned Trial Court has also dismissed the application for paying of the taxes of Rs.2,96,393/-. The order is erroneous on the ground that the learned Trial Court believed that this can be decided at the stage of deciding the evidence. According to this Court, learned Trial Court fell in error while rejecting the application at Exhibit-26. The plaintiffs – petitioners were not asking anything excess than the licence fees agreed between the parties. The defendant who holds the possession of the demise premises even after expiry of the Leave and Licence Agreement is bound to pay the said amount, so also the local taxes.

6. Having gone through the facts and circumstances as well as on going through the written statement whereby admission is made by the defendant and the agreement between the parties, this Court is of the considered opinion that the petition deserves consideration and is required to be allowed. The defendant who is using the disputed property even after expiry of the Leave and Licence Agreement is bound to pay the amount equal to the licence fees towards damage even at the interlocutory stage. He is also bound to pay the amount of local tax as well.

7. In view of the above, the petition is allowed. The impugned order is quashed and set aside. The application at Exhibit-26 is allowed. The defendant of the suit is directed to deposit the amount claimed in Exhibit-26 within six weeks from the date of receipt of this order and also the arrears of local tax and to place receipt thereof i