Whether plaintiff can raise alternate pleas in eviction suit?


Civil Revision Application No. 755 of 1982

Decided On: 21.03.1984

Kamruddin Shabuddin Tamboli
Allauddin Fattemohamed Malik and Ors.

Hon’ble Judges/Coram:
S.G. Manohar, J.

Citation: 1984 MHLJ750,1985(1) BOMCR,1985 BomRC108

1. A meaningless objection was raised by the defendants to the suit filed by the plaintiffs for possession of the suit premises from the defendants and when the Court negatived the contention this revision application was filed against that order in the year 1982 and the same has been allowed to remain cooling its heals in this Court for a good part of two years. The plaintiffs suit for recovery of possession, inter alia on the ground on bona fide requirements, is being kept in the cold storage during all that period.

2. The plaintiffs are admittedly the owners of the suit premises. Defendant No. 1 is in occupation of the same. The plaintiff’s contention is that the said defendant is only a licensee: but fearing that the defendant might contend that he is a tenant, a notice was given by the plaintiffs on 12-6-1980 to him, by way of abundant caution terminating the tenancy and demanding the possession of the suit premises. When the defendant did not oblige, the suit had to be filed by the plaintiffs for recovery of possession of the suit premises from the defendant.

3. In the suit there were alternative contentions raised by the plaintiffs. In the first place, the contention was that the defendant was only licensee and that his license was revoked on 12-6-1980. In the alternative, it was contended that assuming that he was a tenant, the plaintiffs were entitled to possession on the ground that they required the premises for their bona fide occupation. In his written statement, the defendant came out with a plea, which was sought to be agitated as a preliminary objection, that the plaintiffs suit on the basis that the defendant was only a licensee was a suit against trespasser and hence that part of the suit will have to be filed in the Regular Civil Court whereas the suit against a tenant will have to be filed in a Court having special jurisdiction to try the cases under section 28 of the Rent Act. This contention has been negatived by the trial Court and hence this revision application.

4. To my mind, the plea raised by the defendant is a meaningless plea for more than one reasons. Firstly, it is futile contention now to contend that the suit will have to be filed in two different courts. A licensee is equally entitled to protection under the Rent Act as a tenant. The fact that the defendant would be a licensee governed by the amended definition of the word “tenant” and especially a “deemed tenant” or a ‘protected licensee” within the meaning of the Rent Act has not been disputed and cannot be disputed. If this is the position, then a suit against such deemed tenant or protected licensee has got to be filed in the same Court in which the suit against tenant can be filed. As a matter of fact the alternative contention based on the plea of license raised by the plaintiff’s is of no consequence whatsoever; because even assuming that the defendant was inducted on the premises only as a licensee, still the protection that he gets from the Court is the same. The Court in which suit against a protected licensee can be filed is the same Court in which the suit against a tenant can be filed. The learned Judge who will be hearing the suit will be the same one, irrespective of the question whether the suit is filed against a licensee or against a tenant. The plea that there is some jurisdictional defect as regards the entertainment of the suit is, therefore, meaningless on the face of it. The revision application is, therefore, liable to be dismissed on this short ground itself.

5. The Rule earlier issued stands discharged.

By virtue of this trivial plea, the defendant has succeeded in stalling up the prosecution of the suit for a good part of three years, from the year 1981. To my mind this is a fit case where the defendant should be required to pay special costs to the respondent plaintiff which are taxed at Rs. 350/-.

Stay stands vacated.

The trial Court is hereby directed to dispose of the suit within three months from the receipt of the order of this Court.

Costs of Rs. 350/- shall be paid as condition precedent for defendant being allowed to defend the suit.

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