Neeta Sawant WP 7067 and 7068 of 2003

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.7067 OF 2003

Navina Dinesh Shetty ...Petitioner

V/s.

Shaikh Ayub Rehman ...Respondent

WITH

WRIT PETITION NO.7068 OF 2003

Navina Dinesh Shetty ...Petitioner

V/s.

Shaikh Ayub Rehman and Anr. ...Respondents

________________

Mr. Rohit D. Joshi for the Petitioner.

Mr. Pradeep Thorat i/b Ms. Anu R. Khanna for Respondent No.1.

________________

CORAM: SANDEEP V. MARNE, J.

RESERVED ON: 28 AUGUST 2026

PRONOUNCED ON: 10 SEPTEMBER 2026

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Neeta Sawant WP 7067 and 7068 of 2003

Judgment:

1) These two Petitions are filed by the Petitioner challenging

the judgment and decree dated 10 September 2003 passed by the

Additional District Judge, Thane, allowing Appeal Nos.51 and 52 of 2002

and setting aside two judgments and orders of the Trial Court, both

dated 22 January 2002 passed in cross suits filed by parties bearing

Regular Civil Suit No.553 of 1997 and Regular Civil Suit No.61 of 1998.

2) Regular Civil Suit No.553 of 1997 was filed by the Petitioner

seeking declaration of tenancy in respect of the suit premises, which was

decreed by the Trial Court. Regular Civil Suit No.61 of 1998 was filed by

the Respondent seeking recovery of possession of the suit premises

terming Petitioner/Plaintiff as mere licensee in respect of the suit

premises. The Trial Court had dismissed Regular Civil Suit No.61 of 1998.

The Respondent filed Appeal Nos. 51 and 52 of 2002 before the District

Court and by the impugned common judgment and order dated 10

September 2003, the Appellate Court had allowed both the Appeals of

the Respondent and has dismissed Petitioner’s Suit while decreeing the

Suit of the Respondent. Accordingly, the Petitioner is directed to

handover possession of the suit premises to the Respondent with further

direction to pay Rs. 2,000/- per month from 14 August 1996 till delivery

of possession. Aggrieved by the common judgment and order dated 10

September 2003 passed by the Appellate Court, Petitioner has filed the

present Petitions.

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3) Gala No.9, Plot No.50, APMC Market Sector 19, Vashi, Navi

Mumbai (suit premises), is owned by the Respondent-Mr. Shaikh Ayub

Rehman. A Caretaker Agreement dated 12 October 1994 was executed by

the Respondent in the name of Petitioner’s husband- K. Dinesh J. Shetty,

inducting him in the suit premises for a tenure of 11 months from 15

October 1994 to 14 September 1995. Second Agreement dated 15

September 1995 was executed in favour of the Petitioner putting her in

possession of the suit premises for a tenure of 11 months from 15

September 1995 to 14 August 1996. The Petitioner claims that what is

created in her favour is tenancy rights in respect of the suit premises.

4) The Petitioner filed Regular Civil Suit No.553 of 1997 before

the Civil Judge Junior Division, Vashi, seeking a declaration that she is a

tenant in respect of the suit premises and seeking injunction against the

Respondent from dispossessing her without following due process of law.

On the other hand, the Respondent filed Regular Civil Suit No.61 of 1998

in the Court of Civil Judge Junior Division, Vashi, seeking recovery of

possession of suit premises on the ground that the licence period had

expired. The Trial Court decided both the Suits on 22 January 2002, but

by two separate judgments. The Petitioner’s Suit No.553 of 1997 was

decreed declaring that she is a tenant in respect of the suit premises and

granting perpetual injunction against the Respondent from

dispossessing her without following due process of law. Consequently,

Regular Civil Suit No.61 of 1998 filed by the Respondent seeking recovery

of suit premises was dismissed.

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5) The Respondent filed Civil Appeal Nos. 51 and 52 of 2002

challenging both the decrees of the Trial Court dated 22 January 2002.

The Appellate Court has allowed both the Appeals of Respondent by

common judgment and order dated 10 September 2003. The Appellate

Court has dismissed Petitioner’s Suit being Regular Civil Suit No.553 of

1997 holding her to be a mere licensee in respect of the suit premises.

Consequently, declaration made by the Trial Court about she being a

tenant in respect of the suit premises is set aside. Since the Petitioner is

held to be a mere licensee, suit filed by the Respondent is decreed and

Petitioner is directed to handover possession of the suit premises to the

Respondent within a period of two months. Additionally, the Appellate

Court has also directed the Petitioner to pay to the Respondent an

amount of Rs.2,000/- per month from 14 August 1996 till delivery of

possession. Aggrieved by the common judgment and order dated 10

September 2003 passed by the Appellate Court, the Petitioner has filed

these two Petitions.

6) By order dated 6 November 2003, both the Petitions have

been admitted. In Writ Petition No.7067 of 2003, interim order is granted

thereby staying the decree of the Appellate Court in Civil Appeal No.51

of 2002. It appears that during pendency of the Petition, Petitioner has

deposited an amount of Rs.2,000/- per month for a period upto

September 2012 before the Trial Court. Thereafter the Petitioner has

apparently failed to make deposit of any amount. The Petitions are called

out for final hearing.

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7) Mr. Joshi, the learned counsel appearing for the Petitioner

submits that the Appellate Court has grossly erred in reversing the well-

considered judgments of the Trial Court. That perusal of the two

Agreements executed in favour of the Petitioner and her husband makes

it clear that intention of the parties was always to create tenancy in

respect of the suit premises. That clause 5 of both the Agreements clearly

provide that relationship between the parties would be that of landlord

and tenant. Additionally, the word ‘rent’ appears throughout the

Agreement on multiple occasions. That, therefore, it cannot be

contended by any stretch of imagination that there is any typographical

error in clause 5 of the Agreement. That both the Agreements have

receipts appended to them acknowledging payment of rent by the

Petitioner. That the Trial Court has correctly interpreted both the

Agreements as creation of tenancy rights in favour of the Petitioner.

8) Mr. Joshi further submits that under Section 105 of the

Transfer of Property Act, 1882, transfer of interest in premises amounts

to lease if three requirements are fulfilled viz. (i) transfer of right to

enjoy immovable property, (ii) transfer for specified time and (iii)

transfer for valuable consideration. In the present case, since all the

three conditions are fully satisfied, the Trial Court correctly interpreted

arrangement between the parties a lease and not a mere license. That the

Petitioner was put in possession of the premises and the Respondent

never demanded possession after expiry of tenure of arrangement with

the Petitioner. Thus, possession remained with the Petitioner and her

husband even after expiry of the first agreement.

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9) Mr. Joshi submits that the Respondent was conscious of the

fact that the Petitioner and her husband had intended to run a hotel in

the suit premises, which itself signifies use of the premises for longer

duration and belying the theory of license. He relies on judgment of this

Court in Sardar Pruthisingh vs. Kanchanlal Purshottamdas Desai

1

in

support of his contention that when premises are taken up for

establishment of a business, the arrangement becomes inconsistent with

a mere license. That in the present case, the Petitioner is the owner of

Gala No.10 which is located at back side of the suit premises and the suit

premises are taken over for expanding the business. He therefore submits

that in such a situation, parties could have never intended creation of a

mere license and there was always an intention for creation of tenancy

between the parties. He accordingly prays for setting aside the decree

passed by the Appellate Court.

10) Mr. Thorat, the learned counsel appearing for the

Respondent, opposes the Petition submitting that the Appellate Court

has rightly appreciated the arrangement of license between the parties.

He takes me through both the Caretaker Agreements to demonstrate as

to how there is repeated reference to creation of license. He submits that

intention of the parties to create a mere license and not to create

tenancy is more than apparent from the stipulations of the Agreement.

He submits that there is a specific covenant in the Agreement for non-

creation of tenancy. He submits that mere use of the term ‘rent’ in the

Agreements is inconsequential and the same does not mean that the

parties intended creation of tenancy. In support, he relies on judgment

1

2001 (2) MhLJ 948

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of the Apex Court in Suhas Yeshwant Chopde V/s. Sachhidanand D.

Purekar

2

and of this Court in Rajendra B. Nair V/s. Suresh D.

Dyanmothe and Anr.

3

Mr. Thorat accordingly submits that the decree of

the Appellate Court be upheld without interfering in the direction for

handing over possession of the suit premises. Mr. Thorat submits that

though the suit premises were granted on license for only 11+11=22

months, the Petitioner has been squatting on the same for the last 32

long years. Mr. Thorat submits that even the amount of Rs.2,000/-

determined by the Appellate Court is not deposited by the Petitioner

after September 2012. That the Petitioner is thus enjoying the premises

of the Respondent free of costs. He therefore submits that while

dismissing the Petition, the Respondent be awarded mesne profits for

illegally possessing the suit premises by the Petitioner. He submits that

it is not necessary for him to challenge the decree of the Appellate Court

for the purpose of claiming mesne profits. He submits that this Court is

empowered to grant the same under Order XLI Rule 33 of the Code of

Civil Procedure, 1908 (Code). He submits that whenever possession of

immovable property is held to be illegal, the higher Court must

necessarily make an order for payment of mesne profits. In support, he

relies on judgment of the Apex Court in Narayanrao (dead) through LRs

and Ors. Vs. Sudarshan

4

and of this Court in Sattarsha Dibarsha and

Ors. Vs. Ajizabi Dilbarsha and Ors.

5

2

(1999) 5 SCC 721

3

2002 (4) MhLJ 93

4

1995 Supp (4) SCC 463

5

2017 SCC OnLine Bom 6745

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11) Mr. Thorat further submits that this Court can exercise

powers under Order XLI Rule 33 even while exercising jurisdiction under

Article 227 of the Constitution of India. He submits that the present

Petition is required to be filed under Article 227 of the Constitution of

India on account of provisions of Section 7 of the Code, which makes

provisions of Section 115 of the Code inapplicable in relation to orders

passed by Provincial Small Cause Courts, 1887. Otherwise, according to

Mr. Thorat, the correct remedy for the Petitioner is to file a revision

under Section 115 of the Code, in which case this Court could easily

exercise powers under Order XLI Rule 33 of the Code. He, however,

submits that even though the Petition is filed under Article 227 of

Constitution of India, this Court can still exercise all powers under the

Code. In support of his contention, he relies on judgment of this Court in

M/s. Musaji Mohamadali Master and Sons & Anr. V/s. Gulamali

Dadabhai Amreliwala and Anr.

6

He relies on judgment of the Apex

Court in Puran Singh and Ors. Vs. State of Punjab and Ors.

7

in support

of his contention that powers under Order XX of the Code are held to be

exercisable by the High Court while dealing with Petition under Article

226 of the Constitution of India. Mr. Thorat also relies on judgment of

Division Bench of this Court in Prabhulal Chhogalal vs. Bastiram

Himatram and Anr.

8

in support of his contention that while interpreting

provisions of Section 15 of the Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947 (Bombay Rent Act) as amended by Maharashtra

Act XVIII of 1987 (Amending Act), this Court held that word

‘proceeding’ appearing in Section 25 of the Amending Act would also

6

2004 SCC OnLine Bom 1169

7

(1996) 2 SCC 205

8

1989 SCC OnLine Bom 213

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include a petition filed under Article 227 of the Constitution of India. He

therefore submits that present Petition be treated as ‘proceedings’ for

the purpose of application of provisions of Order XLI Rule 33 of the

Code.

12) Mr. Thorat submits that the Respondent is deprived of the

valuable rights in respect of the premises on account of unauthorised

occupation thereof since 14 August 1996. He submits that though the

Appellate Court has adjudicated the prayer for recovery of amount of

Rs.4,000/- per month raised in the Plaint and has reduced the same to

Rs.2,000/- per month, Respondent is entitled to seek modification of

relevant directions of the Appellate Court and substitute the same with

an order for enquiry into the mesne profits. Mr. Thorat would accordingly

submit that while dismissing the Petitions, this Court may direct enquiry

into mesne profits w.e.f. 14 August 1996.

13) In rejoinder, Mr. Joshi would submit that it would be

impermissible to grant any relief in favour of the Respondent under

Order XLI Rule 33 of the Code. He submits that the Respondent raised a

specific prayer for recovery of amount of Rs.4,000/- per month. His

prayer is adjudicated by the Appellate Court and is partially declined.

That the Appellate Court has made a decree for only Rs.2,000/- per

month. If the Respondent was aggrieved by the said quantification, he

ought to have challenged the order of the Appellate Court. That there is

adjudication on the issue of quantum of monthly charges to be paid and

since the Respondent has accepted the said quantification, it is no longer

open for him to now turn around and raise a prayer for mesne profits.

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14) Rival contentions urged on behalf of the parties now fall for

my consideration.

15) Petitioner is aggrieved by the common judgment delivered

by the Appellate Court which reverses the finding of the Trial Court and

decrees the suit filed by the Respondent directing eviction of the

Petitioner from the suit premises. The issue whether Petitioner can be

directed to vacate the suit premises hinges on the issue as to whether

Petitioner is a tenant or a mere licensee in respect of the suit premises.

The Trial Court held that Petitioner was inducted as a tenant in respect

of the suit premises by virtue of Agreements dated 12 October 1994 and

15 September 1995 and granted her protection from eviction. The

Appellate Court, on the other hand, has held that Agreements dated 12

October 1994 and 15 September 1995 merely created a license in favour

of the Petitioner and that possession of the premises post expiry of

license from 14 August 1996 was unlawful.

16) Thus, there is a difference of opinion between the Trial and

the Appellate Courts on the issue as to whether induction of the

Petitioner into the suit premises is as a ‘tenant’ or as a ‘licensee’. To

decide as to which of the opinions is correct, it would be necessary to

look into the covenants of the two Agreements dated 12 October 1994

and 15 September 1995.

17) Respondent owns the suit premises bearing Shop/Gala No.9

situated at Plot no.50, APMC Market, Sector 19, Vashi. It is the case of

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the Petitioner that she and her husband operate a Restaurant/Hotel in

another premises bearing Shop No.10 and they desired expansion of the

business and for such expansion, the arrangement for taking over the

suit premises was made.

18) The first agreement was executed on 12 October 1994 in the

name of Petitioner's husband, Shri. K. Dinesh J. Shetty. The Agreement is

titled ‘Caretaker Agreement’. The recital to the Agreement clearly

envisages creation of license and reads thus:

WHEREAS the Shop Owner is seized and possessed of or otherwise and

sufficiently entitled to a Shop/Gala bearing No.9, Plot No.50, A.P.M.C. Market,

Sector-19, Vashi, New Bombay, (hereinafter referred to as “The said Premises”)

which is in his exclusive possession and whereas the Caretaker being in acute

need of commercial place has requested the shop owner to grant the caretaker

his permission and licence for use of the said premises as hereunder

described which the shop owner has agreed top up on the terms and conditions

hereinafter contained.

(emphasis and underling supplied)

19) Under Clause-1 of the Caretaker Agreement dated 12

October 1994, Respondent granted permission and license to use the

premises to the husband of the Petitioner for a period of 11 months from

15 October 1994 to 14 September 1995. Clause-1 reads thus:

1. The Shop Owner hereby grants unto the Caretaker his permission and

license to use from 15/10/1994 for the period of eleven months upto the

14/9/1995, the said premises together with all fixtures, fittings in the said

premises.

(emphasis and underling supplied)

20) Under Clause 3 again, there is a specific reference to grant of

license and the clause reads thus:

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3. In consideration of the licence and permission to and use the said premises

hereby granted to the caretaker the Caretaker has paid to the Shop Owner by

way of monthly compensation an amount of Rs. 1800/- (Rupees One thousand

eight hundred only) upon the execution of this Agreement. The total rent of

Rs.19,800/- (Rupees Nineteen Thousand Eight Hundred only) i.e. the rent of

Eleven months, paid by the Caretaker to the Shop owner, on the execution of

this Agreement.

(emphasis and underling supplied)

Thus, while using the words ‘license and permission’, the Agreement also

used the word ‘rent’ twice in clause 3.

21) Under Clause-4(b), the word used is ‘permission’ and

Petitioner's husband undertook to remove himself from the suit premises

at the end of 11 months. Clause-4(b) reads thus:

4(b) To quit, remove himself his family, servants and their belonging from the

said premises at the end of eleven months or upon the earlier termination of

the permission and with the fixtures, fittings, therein and proper conditions

usual wear and tear expected.

(emphasis and underling supplied)

22) Under Clause 4(c), it was agreed that possession of the suit

premises shall always remain with the Respondent and that Petitioner’s

husband could not be construed to be in exclusive possession or use of

the premises. Clause 4(c) reads thus:

4(c) To permit the shop owner and his agents at all time to enter for inspection

of the said premises, it being agreed that the shop owner shall be at all

times in control dominion and possession of the said premises shall not

be in the exclusive possession or use of the caretaker.

(emphasis supplied)

23) Clause 5 of the Caretaker Agreement creates some confusion

and reads thus:

5. It is hereby expressly agreed and declared that neither this Agreement nor

anything contained herein shall be deemed to create any interest or estate as

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tenant or otherwise it being the express intention of the parties that the

relationship between the shop owner and the caretaker shall always be

landlord and tenant.

(emphasis and underling supplied)

24) Under first part of clause 5, it was agreed between the

parties that the Agreement did not create any interest or estate as a

‘tenant’ in the premises. However, in the second part of clause 5, it was

agreed that it was the express intention of the parties that their

relationship shall always be of ‘landlord-tenant’.

25) Clause 6 contemplated revocation of the license and the

permission by issuance of notice and stipulated thus:

6. Notwithstanding anything contained herein, it shall be lawful for the shop

owner in the even of any breach by the caretaker any of the terms and

conditions of the said agreement, revoke the license and permission granted

by giving to the caretaker four weeks, previous notice by in writing and if such

notice is given the caretaker shall handover the possession of the four weeks

notice period and the caretaker shall not claim any rights in respect of the said

shop for the rest of the period.

(emphasis and underling supplied)

26) At the end of the Agreement, there is a receipt in respect of

the amount of Rs.19,800/- in which the word 'rent' is used. The receipt is

as under:

RECEIPT

RECEIVED with thanks a sum of Rs.19,800/- (Rupees Nineteen thousand eight

hundred only) as a Eleven months rent, from the withinnamed ‘CARETAKER’

i.e. the party of the Second Part, SHRI. K. DINESH SHETTY, as aforesaid in the

Agreement.

(emphasis and underling supplied)

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27) The arrangement under the Caretaker Agreement dated 12

October 1994 expired on 14 September 1995. Therefore, on 15

September 1995, a fresh Caretaker Agreement was executed, this time in

the name of the Petitioner. The recital and clauses of the Caretaker

Agreement dated 15 September 1995 are identical to the earlier

Agreement dated 12 October 1994. The only difference was in respect of

the name of the caretaker and the period agreed under clause 1, which is

as under:

1. The Shop Owner hereby grants unto the Caretaker his permission and

license to use from 15th of September, 1995 for the period of eleven months

upto the 14/8/1996, the said premises together with all fixtures, fittings in the

said premises.

(emphasis and underling supplied)

28) In my view, except use of the word 'rent' at three places in

the Caretaker Agreements and the apparent inconsistency in the latter

part of clause 5 envisaging creation of relationship between the parties

as landlord-tenant, there is absolutely nothing in both the agreements

which can create an impression that the parties intended to create

tenancy in favour of the Petitioner or her husband. This is a clear case of

grant of license for a period of 11 months. Petitioner’s case that there

was intention to create tenancy is belied by her own conduct in entering

into second Caretaker Agreement dated 15 September 1995. As observed

above, the contractual stipulations of both the Agreements were

identical. In that sense, if Caretaker Agreement dated 15 September

1995 is claimed to have created tenancy in the name of Petitioner, on a

similar analogy, earlier Caretaker Agreement dated 12 October 1994

would also create tenancy in the name of Petitioner’s husband. If

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Petitioner’s husband was already a tenant in respect of the suit premises

by virtue of Agreement dated 12 October 1994, why he vacated the

premises at the end of 11 months by treating himself as a mere licensee

and why the Petitioner approached the Respondent for execution of

second Caretaker Agreement dated 15 September 1995 has not been

explained in any manner. On the contrary, the very fact that Petitioner

was required to secure another license on 15 September 1995 upon

expiry of previous license on 14 September 1995 would clearly indicate

that the parties always intended to create a mere license and not tenancy

in favour of the Petitioner. Thus Petitioner’s own conduct of entering

into the second Caretaker Agreement (with identical terms) after expiry of

tenure of license executed with her husband leaves no manner of doubt

that what was secured by the Petitioner was also a license and not

tenancy rights.

29) Use of the word ‘rent’ at few places in the Agreement would

not ipso facto create tenancy in favour of the Petitioner. The intention

between the parties is to be gathered from the holistic reading of the

document instead of concentrating on use of a particular word. In

common parlance and practice, parties do informally use the word ‘rent’

to describe license fees/monthly compensation payable under a license.

Therefore, mere use of the word ‘rent’ in the Agreement does not create

tenancy in favour of the licensee. The law in this regard is well settled in

Suhas Yeshwant Chopde (supra). The Apex Court in para-8 of the

judgment has held as under:

8. The learned trial Judge and the High Court have given more importance to

the word “rent” used in the abovesaid agreement and in some subsequent

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receipts signed by the respondent. In our view, they are not conclusive of the

question. In view of the delay, the appellant had filed a separate suit on the

basis that the respondent was a tenant under the Rent Control Act. But that

suit was filed expressly stating that it was without prejudice to his contentions

in the appeal then pending in the High Court. We are of the view that the

decision in the appeal before us arising out of the suit of 1987 for possession

should conclude the issue irrespective of the decision in any other proceedings.

30) Similarly, in Rajendra B. Nair (supra), this Court has held in

para-11 of the judgment as under:

11. The first agreement of Leave and Licence was entered into on 10th July

1991 and expired on 10th June 1992. The agreement which was entered into

between the parties on 9th September 1992 which is the second agreement,

expressly provides that what was being agreed upon between the parties was

that the licensor would allow the licensee to use and occupy the premises

purely on a temporary basis on leave and licence, for a period of three months.

Clause 1 expressly provides that the licensor grants a licence to the licensee. It

is true that the word “rent” has been used in clause 2 while referring to the

payment of compensation fixed at Rs. 3500/- per month. That in my view

would not make any difference because it is a well settled principle of law that

the mere use of words such as “rent” or for that matter “compensation” would

not be dispositive of the legal relationship between the parties. Clause 8 of the

agreement gives free access to the premises to the licensor at all reasonable

times for inspection. Clause 10 recognises that the possession of the licensee

would be non-exclusive and would be only temporary. Clause 11 provides that

the licence could be revoked. Finally, clause 14 expressly stipulates that the

licence would not create any tenancy. Therefore, the mere reference in clause

12 to the fact that the licensee will not let or sublet the premises, cannot be

construed to mean that a right of tenancy was created in favour of the licensee.

The agreement is one by which a licence pure and simple was created in favour

of the respondent. Explanation (b) to section 13-A2 must be given effect and

its consequence is that the parties are shut out from leading evidence for the

purpose of demonstrating that the agreement was not a leave and licence

agreement. The provisions of the agreement which have been adverted to

above clearly establish that the agreement was in fact and in law what it

purported to be namely, an agreement by which a licence to occupy the

premises was given to the respondent for a temporary period of three months.

This needs emphasis, because quite apart from the provisions of Explanation

(b) which would have the effect of shutting out oral evidence to the contrary,

the plain terms of the agreement show that it was one of leave and licence.

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31) Therefore, mere use of the word ‘rent’ in the Caretaker

Agreement does not elevate the status of the Petitioner from a mere

licensee to that of a tenant.

32) Coming to the second factor of contractual stipulation under

clause 5 of the Agreements, in my view, clause 5 again does not amount

to creation of tenancy in favour of the Petitioner. As observed above, the

document has to be read as a whole. If intention between the parties was

to create tenancy, they would not have agreed for an arrangement for

retention of control, dominion and possession of the premises with the

Respondent or non-exclusivity of possession or use of the Caretakers. If

there was any intention to create tenancy, the same would not be for a

limited period of 11 months. More importantly, parties would not have

used the words ‘Caretaker Agreement’, ‘license’, ‘licensee’ etc. They

would have used the words ‘tenancy’, ‘tenant’ etc. Therefore, there

clearly appears to be a typographical error in clause 5 of both the

Agreements. Instead of typing that the relationship shall ‘not’ be as

landlord-tenant, it is inadvertently typed that the relationship shall

always be of landlord-tenant. Petitioner cannot be permitted to take

undue advantage of this typographical error for claiming status of a

tenant in respect of the suit premises.

33) In my view therefore, holistic reading of both the Caretaker

Agreements coupled with conduct of the Petitioner in securing another

arrangement after expiry of earlier arrangement of 11 months with her

husband leaves no manner of doubt that parties always intended to

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create a mere license in favour of the Petitioner vide Caretaker

Agreement dated 15 September 1995.

34) Perusal of the findings recorded by the Trial Court would

indicate that it completely misdirected itself in treating the arrangement

between the parties as tenancy. The three tests taken up for

consideration by the Trial Court for determining the nature of

arrangement were itself faulty. The Trial Court held that merely because

there was right to enjoy immovable property, specific time agreed for

such enjoyment, and valuable consideration for such transfer, the

necessary inference of tenancy must be drawn. In my view, the Trial

Court has faltered in holding that the first test of ‘transfer’ is fulfilled. In

the present case, there is no transfer of any interest in the suit premises

in favour of the Petitioner. What is granted is mere permission to enter

upon and use the premises for agreed tenure. No transfer of interest in

the property as such has occurred. Even the possessory rights are not

transferred and were retained by the Respondent, who had authority to

enter upon the suit premises even during currency of the Agreement.

There is no transfer of any interest in the property in case of a mere

license. By granting a license, the licensee is merely permitted to enter

upon the premises and use the same. The possession of the premises

always remains with the licensor. The licensee never acquires exclusive

possession of the premises licensed. In the present case, it was clearly

agreed between the parties that the control, dominion and possession of

the suit premises shall always remain with the Respondent. Since the

first condition of ‘transfer of interest’ itself is not satisfied, the

transaction between the parties cannot be treated as that of a lease.

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35) Reliance by Mr. Joshi on the provisions of Section 105 of the

Transfer of Property Act does not cut any ice. Section 105 defines the

term ‘lease’ as under:

105. Lease defined.—

A lease of immoveable premises is a transfer of a right to enjoy such premises,

made for a certain time, express or implied, or in perpetuity, in consideration

of a price paid or promised, or of money, a share of crops, service or any other

thing of value, to be rendered periodically or on specified occasions to the

transferor by the transferee, who accepts the transfer on such terms.

Lessor, lessee, premium and rent defined.—

The transferor is called the lessor, the transferee is called the lessee, the price

is called the premium, and the money, share, service or other thing to be so

rendered is called the rent.

36) On the other hand, the term ‘license’ is defined under

Section 52 of the Indian Easements Act, 1882 as under:

52. License defined

Where one person grants to another, or to a definite number of other

persons, a right to do, or continue to do, in or upon the immovable

property of the grantor, something which would, in the absence of such

right, be unlawful and such right does not amount to an easement or an

interest in the property, the right is called a license.

37) Thus, the first condition of lease is that there has to be

transfer of right to enjoy the premises. Thus, creation of lease envisages

transfer of right to enjoy the premises. On the other hand, license does

not involve creation of any interest in the property. When a license is

granted, the licensor retains legal possession, and licensee secures

merely a right to enter upon the premises and to use the same, without

involving transfer of any interest in the property. Since the first

condition of ‘transfer of right to enjoy such premises’ under Section 105 of

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the Transfer of Property Act is not fulfilled in the present case, whereas

the condition of grant of right to use the premises is fulfilled, what is

created is a mere license and not a lease.

38) In my view, the Trial Court had egregiously erred in

branding the arrangement between the parties as a tenancy. It is

unfortunate that the Trial Court did not read a simple document of

license and proceeded to erroneously treat the same as creation of

tenancy. The Trial Court ought to have appreciated that an owner of the

premises would never lose possessory right in the premises only on mere

monthly fees of Rs.2,000/-. The Trial Court ought to have appreciated

that under the provisions of the Bombay Rent Act and now under the

provisions of Maharashtra Rent Control Act, 1999 (MRC Act), a

protected tenant cannot be evicted unless one of the enumerated

grounds for eviction is made out. The Trial Court therefore ought to have

made enquiry as to whether the Respondent ever intended to induct

Petitioner as a statutory tenant in the suit premises at the time of

execution of the Caretaker Agreement.

39) The approach of the Trial Court in the present case in

converting a mere license for 11 months into statutory tenancy is

disquieting. Such approach would discourage the home owners from

permitting the home seekers to use the premises on license. The

approach is dangerous to the interests of both the home owners as well

as the home seekers. The leave and license arrangement ensures release

of housing stock for persons who do not desire to or are unable to

purchase houses/properties. Any reservation by property

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owners/licensors to create licenses (on account of fear of license being

treated as a tenancy) would shrink the housing stock affecting the

interests of licensees. The license regime enforced in the State instills

confidence in the mind of the property owners that the user would return

the property at the end of the license term. If there is breach of terms of

license, Section 24 of the MRC Act provides swifter, faster and cheaper

remedy for eviction of licensees. There is also a provision for recovery of

double the amount of license fees as a deterrent for licensees who retain

possession of the premises beyond the agreed license period. This

arrangement instills confidence in the minds of the property owners,

who become ready to allow their properties to be used by the needly

users. If the approach of the Trial Court in the present case is not

disapproved and persons like the Petitioner are permitted to occupy

licensed premises forever, the same would disturb the very fabric of

licensor-licensee arrangement. If the property owners are made to

litigate for years together for recovery of possession of properties owned

by them, they would be discouraged to give the premises on license. In

my view therefore, the egregious approach on the part of the Trial Court

in the present case deserves a stern criticism.

40) The Appellate Court has rightly reversed the erroneous

findings on the part of the Trial Court. I am in agreement with the

findings recorded by the Appellate Court that the arrangement between

the parties as well as their intention was always to create a mere licence

in respect of the suit premises. Therefore, there is no warrant for

interference in the part of the decree directing Petitioner to handover

possession of the suit premises to the Respondent.

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41) The matter however does not end here. Petitioner came into

the suit premises initially through her husband on 12 October 1994.

Later she secured a license in her own name. She is apparently running

her restaurant/hotel business in the suit premises. She is squatting on

the suit premises for the last 32 long years. Respondent would have

never imagined in his wildest dreams that creation of licence for 22

months in favour of the Shetty couple would make him go through the

ordeal of litigation for over three decades. The licence arrangement

envisages payment of license fees of only Rs.2,000/- per month in

respect of a shop located in the busy APMC market in Vashi. Petitioner

has been enjoying possession of the shop for the last 32 years on a paltry

sum of Rs.2,000/- per month. She has discontinued paying even this

paltry sum of Rs.2,000/- per month after September 2012 and she is

occupying the suit premises free of cost for the last 14 years.

42) The Appellate Court ordered Petitioner to pay Rs.2000/- per

month from 14 August 1996 till recovery of possession of the suit

premises. By order passed by this Court, the said amount of Rs.2,000/-

per month was directed to be deposited in the Trial Court. Accordingly,

Petitioner has deposited amount of Rs.2,000/- per month till September

2012 and thereafter has stopped making any deposit. Thus, the

Petitioner is enjoying possession of the suit premises for the last 14 long

years without even making any payment/deposit.

43) It is this conduct of the Petitioner which makes Mr. Thorat

raise a plea for exercise of powers by this Court under Order XLI Rule 33

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of the Code for the purpose of making an order for conduct of enquiry

into mesne profits in respect of the suit premises. On the other hand, it is

contended by Mr. Joshi that the suit contained a prayer for recovery of

amount of Rs. 4,000 per month (double the agreed amount of license fees)

and that the Appellate Court has adjudicated the said prayer, but has

granted only partial relief in favour of the Respondent. In para-33 of its

judgment, the Appellate Court has held as under:

33. The appellant has claimed the compensation at the rate of Rs.4000/- p.m.

after the expiry of the term of the license. However, there is no evidence on

record to show that the suit premises would have fetched the rent at a rate of

Rs.4000/- p.m. at the relevant time and the appellant is entitled for the

compensation at the rate of Rs.4000/- p.m. Admittedly the agreed licence fee

was Rs.2000/- It appears that some of the amount was also paid by the

respondent during the pendency of the appeal and therefore, appellant is

entitled for the compensation at the rate of Rs.2000/- p.m. After the expiry of

the period of the licence till the delivery of possession and the amount already

deposited by the respondent needs to be adjusted.

44) Mr. Thorat would submit that merely because the Appellate

Court went into the aspect of liability of the Petitioner to make payment

post expiry of license, the same would not preclude this Court from

directing enquiry into mesne profits.

45) Under Order XLI Rule 33 of the Code, the Appellate Court

has powers to pass any decree and make any order which ought to have

been passed or made as well as to pass or make such further order or

decree as the case may require and this power can be exercised by the

Appellate Court notwithstanding that the respondents may not have

filed any appeal/cross-objections. Order XLI Rule 33 of the Code reads

thus:

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33. Power of Court of Appeal.—

The Appellate Court shall have power to pass any decree and make any order

which ought to have been passed or made and to pass or make such further or

other decree or order as the case may require, and this power may be exercised

by the Court notwithstanding that the appeal is as to part only of the decree

and may be exercised in favour of all or any of the respondents or parties,

although such respondents or parties may not have filed any appeal or

objection and may, where there have been decrees in cross-suits or where two

or more decrees are passed in one suit, be exercised in respect of all or any of

the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A

in pursuance of any objection on which the Court from whose decree the

appeal is preferred has omitted or refused to make such order.

46) Thus, mere absence of filing of formal appeal or cross-

objection by a respondent, does not preclude the Appellate Court from

passing any order or making any decree which circumstances of the case

warrant and which ought to have been passed or made in the facts and

circumstances of each case. Mr. Thorat contends that in the facts and

circumstances of the case, the Appellate Court ought to have made an

order for enquiry into mesne profits after it was found that possession of

the suit premises by the Petitioner was unauthorised beyond 14 August

1996.

47) There can be no dispute to the position that Petitioner's

possession of the suit premises post 14 August 1996 is unauthorised. No

doubt, Respondent raised a prayer in the plaint for recovery of amount of

Rs.4,000/- per month in respect of the period of unauthorised

possession. However, the suit instituted by the Respondent for recovery

of possession of suit premises on 23 June 1998 was decided after a period

of 4 years on 22 January 2002. Respondent was required to file an appeal

in which he finally succeeded on 10 September 2003. The Respondent

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possibly did not imagine or expect that it would take such a long time for

securing a decree for possession. This could be the reason why he may

have restricted his prayer for recovery of amount of only Rs. 4,000/- in

the plaint filed in the year 1998. Since a period of 7 long years had

elapsed from the date of expiry of license, the Appellate Court could have

actually directed enquiry into mesne profits with a view to ensure that

Respondent would have secured reasonable market returns on the suit

premises from the Petitioner. However, the Appellate Court has thought

it prudent to not even grant the prayer for recovery of amount of

Rs.4,000/-.

48) However, this Court is not exercising appellate powers over

the decree passed by the District Court. The decree passed by the

Appellate Court is required to be challenged by filing Petition under

Article 227 of the Constitution of India on account of unique provisions

of Section 7 of the Code under which provisions of Section 115 of the

Code are excluded in relation to orders passed by the Courts constituted

under Provincial Small Causes Courts Act, 1887. Section 7 of the Code

reads thus:

7. Provincial Small Cause Courts.—

The following provisions shall not extend to Courts constituted under the

Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small

Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of

Small Causes under the said Act or Law, or to Courts in any part of India to

which the said Act does not extend exercising a corresponding jurisdiction that

is to say,—

(a) so much of the body of the Code as relates to—

(i) suits excepted from the cognizance of a Court of Small

Causes;

(ii) the execution of decrees in such suits;

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(iii) the execution of decrees against immovable premises; and

(b) the following sections, that is to say,—

section 9,

sections 91 and 92,

sections 94 and 95 so far as they authorize or relate to—

(i) orders for the attachment of immovable premises,

(ii) injunctions,

(iii) the appointment of a receiver of immovable

premises, or

(iv) the interlocutory orders referred to in clause (e) of

section 94, and sections 96 to 112 and 115.

49) In the present case, the suit for declaration of tenancy as

well as suit for recovery of possession of commercial premises from a

licensee would ordinarily lie before Provincial Small Causes Courts.

Thus, the Trial Court in the present case has exercised powers of Small

Causes Court. Ordinarily, a decree passed by Presidency Small Causes

Courts is revisable under Section 115 of the Code on account of

provisions of Section 8 of the Code, which does not exclude applicability

of provisions of Section 115 to a decree made by Presidency Small Causes

Courts. It is on account of the above peculiar circumstances that the

Petitioner has invoked jurisdiction of this Court under Article 227 for

raising a challenge against the impugned decree passed by the Appellate

Court. Had this been a decree passed by the Appellate Bench of the Small

Causes Court in the city of Mumbai, the same could have been revisable

under Section 115 of the Code and all other provisions of the Code

including the provisions of Order XLI Rule 33 would have been attracted.

50) The issue for consideration is whether this Court is

precluded from exercising the power under Order XLI Rule 33 of the

Code merely because Petitioner is required to invoke the jurisdiction of

this Court under Article 227 of the Constitution of India on account of

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peculiar provisions of Section 7 of the Code? The answer, to my mind,

appears to be in the negative. There have been judgments which do tend

to suggest that High Court exercising jurisdiction under Article 227 can

exercise powers under the Code. In M/s. Musaji Mohamadali Master

and Sons (supra), a coordinate bench of this Court noticed the position

that there is no provision under the Rules framed by the High Court for

filing of cross objections in a Petition filed under Article 227. The Court

therefore considered as to whether provisions of the Code could be

pressed into service in absence of enabling rules framed by the High

Court for filing of a cross objection in a Petition filed under Article 227.

This Court took into consideration the provisions of Section 141 of the

Code and held that explanation to Section 141 of the Code excludes the

Petitions filed under Article 226 from ambit of the expression

‘proceedings’ but the exclusion does not apply to Petition filed under

Article 227. This Court therefore held that Section 141 of the Code is

applicable to a Petition filed under Article 227. This Court thereafter

considered the provisions of Order XLI Rule 22 of the Code enabling a

party to file cross-objection and held that it is permissible to attack

adverse findings of the Appellate Court in a Petition filed under Article

227 without filing a formal cross-objection. This Court relied upon

judgment of the Apex Court in Banarsi vs. Ram Phal

9

. Instead of

discussing the facts and ratio of the judgment of the Apex Court, to

which a detailed reference is already made by this Court in M/s. Musaji

Mohamadali Master and Sons, I take the liberty to reproduce paras-29

to 32 of the judgment, which read thus:

9

2003 SCC OnLine SC 229

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29. This petition is filed under art. 227 of the Constitution. Obviously,

under the rules framed by the High Court for filing writ petition there is

no provision for filing cross objection or cross appeal. In absence of such

rules, whether the provisions contained in C.P.C. can be pressed into

service and whether the cross objections are required to be filed. Useful

purpose will be served if reference is made to s. 141 of the C.P.C. Section 141

reads thus:

“141. Miscellaneous Proceedings.— The procedure provided in this Code

in regard to suit shall be followed, as far as it can be made applicable, in

all proceedings in any Court of civil jurisdiction.

(Explanation: In this section, the expression “proceedings”

includes proceedings under o. IX, but does not include any

proceeding under art. 226 of the Constitution.)

By reading the provisions quoted above and considering the explanation to

that section, it is clear that this petition is not filed under art. 226 of the

Constitution. Therefore, the explanation is no bar from application of the

C.P.C. The procedure provided by the C.P.C. is required to be followed in filing

and prosecuting petition filed under art. 227 of the Constitution: as these are

the proceedings in the Court having civil jurisdiction. Therefore, in my

opinion, by considering s. 141 of the C.P.C. the Code is applicable to the

petition filed under art. 227 of the Constitution.

30. Having reached this conclusion, now, I have to address myself to the

provisions of o. 41, r. 22 which enables the party to file cross objection. No

doubt o. 41, r. 22 deals with filing of cross objections to the adverse finding.

The form and procedure is also provided in the said rule. Order 41, r. 22 reads

thus:

xxxx

31. On reading o. 41, r. 22 one gets an impression that while respondents in an

appeal (present case writ petition) has to file written objection to the adverse

finding. Prima facie reading the rules it does indicate that filing of writ petition

in the shape of memorandum of appeal is required to be filed. Shri

Katneshwarkar invited my attention to the judgment of the Apex Court in the

case of Banarsi v. Ram Phal, [(2003) 9 SCC 606 : AIR 2003 SC 1989 : 2003 (2)

S.C.R. 22.]. The Apex Court has considered the scope of o. 41, r. 22(1)

explanation and (4) and r. 33. The Apex Court has held that it is not

necessary to file written objections to the adverse finding; the

respondent in a given case can challenge or support a decree or adverse

finding without lodging or filing memorandum of cross objection as

envisaged under o. 41, r. 22. ……. After noticing the change the Apex Court

ruled as follows:

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“9. Any respondent though he may not have filed an appeal from any

part of the decree may still support the decree to the extent to which it

is already in his favour by laying challenge to a finding recorded in the

impugned judgment against him. Where a plaintiff seeks a decree

against the defendant on grounds (A) and (B), any one of the two

grounds being enough to entitle the plaintiff to a decree and the Court

has passed a decree on ground (A) deciding it for the plaintiff while

ground (B) has been decided against the plaintiff, in an appeal preferred

by the defendant, inspite of the finding on ground (A) being reversed

the plaintiff as a respondent can still seek to support the decree by

challenging the finding on ground (B) and persuade the Appellate Court

to form an opinion that insplte of the finding on ground (A) being

reversed to the benefit of the defendant appellant the decree could still

be sustained by reversing the finding on ground (B) though the plaintiff

respondent has neither preferred an appeal of his own nor taken any

cross objection. A right to file cross objection is the exercise of right to

appeal though in a different form. It was observed in Sahadu Gangaram

Bhagade v. Special Dy. Collector, Ahmednagar, [(1970) 1 SCC 685 : AIR

1971 SC 1887 : 1971 (1) S.C.R. 146 : 1971 (1) S.C.J. 717.] that the right

given to a respondent in an appeal to file cross objection is a right given

to the same extent as is a right of appeal to lay challenge to the

impugned decree if he can be said to be aggrieved thereby. Taking any

cross objection is the exercise of the right of appeal and takes the place

of cross appeal though the form differs. Thus it is clear that just as an

appeal is preferred by a person aggrieved by the decree so also a cross

objection is preferred by one who can be said to be aggrieved by the

decree. A party who has fully succeeded in the suit can and needs to

neither prefer an appeal nor take any cross objection though certain

finding may be against him. Appeal and cross objection both are filed

against the decree and not against judgment and certainly not against

any finding recorded in a judgment. This was the well-settled position

of law under the unamended C.P.C.

10. The C.P.C. amendment of 1976 has not materially or substantially

altered the law except for a marginal difference. Even under the

amended o. 41, r. 22 sub-r. (1) a party in whose favour the decree stands

in its entirety is neither entitled nor obliged to prefer any cross

objection. However, the insertion made in the text of sub-r. (1) makes it

permissible to file a cross objection against a finding. The difference

which has resulted we will shortly state. A respondent may defend

himself without filing any cross objection to the extent to which decree

is in his favour; however, if he proposes to attack any part of the decree

he must take cross objection. The amendment inserted by the 1976

amendment is clarificatory and also enabling and this may be made

precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in

favour of the respondent.

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(ii) The decree is entirely in favour of the respondent though an issue has

been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues

have also been answered in favour of the respondent but there is a

finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an

appeal or take cross objection against that part of the decree which is

against him if he seeks to get rid of the same though that part of the

decree which is in his favour he is entitled to support without taking

any cross objection. The law remains so post-amendment too. In the

type of cases (ii) and (iii) pre-amendment C.P.C. did not entitle nor

permit the respondent to take any cross objection as he was not the

person aggrieved by the decree. Under the amended C.P.C., read in the

light of the explanation, though it is still not necessary for the

respondent to take any cross-objection paying challenge to any finding

adverse to him as the decree is entirely in his favour and he may

support the decree without cross objection; the amendment made in

the text of sub-r. (1), read with the explanation newly inserted, gives

him a right to take cross-objection to a finding’ recorded against him

either while answering an issue or while dealing with an issue. The

advantage of preferring such cross objection is spelled out by sub-r. (4).

Inspite of the original appeal having been withdrawn or dismissed for

default the cross objection taken to any finding by the respondent shall

still be available to be adjudicated upon on merits which remedy was

not available to the respondent under the unamended C.P.C. In the pre-

amendment era. the withdrawal or dismissal for default of the original

appeal disabled the respondent to question the correctness or

otherwise of any finding recorded against the respondent.”

32. Applying the above said principle in the case at hand, the net result is that

the Lower Appellate Court has confirmed the decree of eviction passed by the

Trial Court but reversed the finding on the point of default and notice in cross

objection filed by the defendant. The plaintiff has sought a decree against the

defendant on two grounds provided under the Rent Act i.e. default u/s. 12 and

personal bona fide requirement u/s 13. As a decree of eviction was passed u/s.

13(1)(g), the defendant preferred this writ petition but as the decree was in

favour of the plaintiffs there was no occasion for the plaintiff to file an

independent proceeding for the finding which has been recorded on the point

of default. Applying the law declared by the Apex Court, in Banarsi's

case (supra), I am of the view that the plaintiff can certainly attack the

adverse finding without filing the cross objection. Therefore, in my

judgment, the objection raised by Shri Dixit that without filing cross objection,

the respondent cannot assail the adverse finding has to be rejected and, in my

judgment, it is permissible for the respondent to challenge the adverse finding

without filing an objection strictly in compliance with o. 41, r. 22. It is to be

noted that the right to file appeal or cross-objection is a creation of the Statute

and the right has to be exercised in the manner provided under the Statute. No

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doubt, o. 41, r. 22 gives a right to the party to file cross objections to the

adverse finding in the manner as provided under that rule but considering the

law declared by the Apex Court in Banarsi's case (supra), the aggrieved party

has right to object or assail the adverse finding without filing written objection.

At the cost of repetition. I may say that this petition is filed under art. 227.

That being the special jurisdiction conferred on this Court by the

Constitution even otherwise this Court can permit either side to assail

the adverse finding making oral submission. Therefore, in my judgment,

the learned Counsel for the respondents were right in challenging the finding

recorded by both the Courts below on the point of default and the notice u/s.

12(2).

(emphasis and underlining added)

51) Thus, in M/s. Musaji Mohamadali Master and Sons, apart

from recognizing the principle of applicability of provisions of Order XLI

Rule 22 of the Code to a Petition filed under Article 227 of the

Constitution, this Court has also concluded that the Court exercising

jurisdiction under Article 227 can otherwise permit either side to assail

adverse observation by making even oral submissions. Thus, the

judgment of this Court in M/s. Musaji Mohamadali Master and Sons

authoritatively holds that this Court, in exercise of jurisdiction under

Article 227, can permit even a respondent to raise an oral objection to

adverse finding recorded by the court whose order is challenged in the

Petition filed by the Petitioner.

52) In Puran Singh (supra), the issue was whether High Court

was bound by the provisions of Order XXII Rule 4 of the Code while

permitting legal representatives to be brought on record after delay. The

Apex Court held that in exercise of its extraordinary jurisdiction under

Articles 226 and 227, High Court is free to adopt its own procedure which

is reasonable and expeditious. It is held that provisions of the Code only

serve as a guide. The Apex Court held in paras-10, 11 and 12 as under:

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10. On a plain reading, Section 141 of the Code provides that the procedure

provided in the said Code in regard to suits shall be followed “as far as it can be

made applicable, in all proceedings”. In other words, it is open to make the

procedure provided in the said Code in regard to suits applicable to any other

proceeding in any court of civil jurisdiction. The explanation which was added

is more or less in the nature of proviso, saying that the expression

‘proceedings’ shall not include any proceeding under Article 226 of the

Constitution. The necessary corollary thereof shall be that it shall be open to

make applicable the procedure provided in the Code to any proceeding in any

court of civil jurisdiction except to proceedings under Article 226 of the

Constitution. Once the proceeding under Article 226 of the Constitution has

been excluded from the expression ‘proceedings’ occurring in Section 141 of

the Code by the explanation, how on basis of Section 141 of the Code any

procedure provided in the Code can be made applicable to a proceeding under

Article 226 of the Constitution? In this background, how merely on basis of

Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings?

Apart from that, Section 141 of the Code even in respect of other proceedings

contemplates that the procedure provided in the Code in regard to suits shall

be followed “as far as it can be made applicable”. Rule 32 of Writ Rules does not

specifically make provisions of Code applicable to petitions under Articles 226

and 227 of the Constitution. It simply says that in matters for which no

provision has been made by those rules, the provisions of the Code shall apply

mutatis mutandis insofar as they are not inconsistent with those rules. In the

case of Rokyayabi v. Ismail Khan [AIR 1984 Kant 234 : (1984) 2 Kant LC 114] in

view of Rule 39 of the writ proceedings rules as framed by the Karnataka High

Court making the provisions of Code of Civil Procedure applicable to writ

proceedings and writ appeals, it was held that the provisions of the Code were

applicable to writ proceedings and writ appeals.

11. We have not been able to appreciate the anxiety on the part of the different

courts in judgments referred to above to apply the provisions of the Code to

writ proceedings on the basis of Section 141 of the Code. When the

Constitution has vested extraordinary power in the High Court under Articles

226 and 227 to issue any order, writ or direction and the power of

superintendence over all courts and tribunals throughout the territories in

relation to which such High Court is exercising jurisdiction, the procedure for

exercising such power and jurisdiction have to be traced and found in Articles

226 and 227 itself. No useful purpose will be served by limiting the power of

the High Court by procedural provisions prescribed in the Code. Of course, on

many questions, the provisions and procedures prescribed under the Code can

be taken up as guide while exercising the power, for granting relief to persons,

who have invoked the jurisdiction of the High Court. It need not be impressed

that different provisions and procedures under the Code are based on well-

recognised principles for exercise of discretionary power, and they are

reasonable and rational. But at the same time, it cannot be disputed that many

procedures prescribed in the said Code are responsible for delaying the

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delivery of justice and causing delay in securing the remedy available to a

person who pursues such remedies. The High Court should be left to adopt its

own procedure for granting relief to the persons concerned. The High Court is

expected to adopt a procedure which can be held to be not only reasonable but

also expeditious.

12. As such even if it is held that Order 22 of the Code is not applicable to writ

proceedings or writ appeals, it does not mean that the petitioner or the

appellant in such writ petition or writ appeal can ignore the death of the

respondent if the right to pursue remedy even after death of the respondent

survives. After the death of the respondent it is incumbent on the part of the

petitioner or the appellant to substitute the heirs of such respondent within a

reasonable time. For purpose of holding as to what shall be a reasonable time,

the High Court may take note of the period prescribed under Article 120 of the

Limitation Act for substituting the heirs of the deceased defendant or the

respondent. However, there is no question of automatic abatement of the writ

proceedings. Even if an application is filed beyond 90 days of the death of such

respondent, the Court can take into consideration the facts and circumstances

of a particular case for purpose of condoning the delay in filing the application

for substitution of the legal representative. This power has to be exercised on

well-known and settled principles in respect of exercise of discretionary power

by the High Court. If the High Court is satisfied that delay, if any, in

substituting the heirs of the deceased respondent was not intentional, and

sufficient cause has been shown for not taking the steps earlier, the High Court

can substitute the legal representative and proceed with the hearing of the writ

petition or the writ appeal, as the case may be. At the same time the High

Court has to be conscious that after lapse of time a valuable right accrues to

the legal representative of the deceased respondent and he should not be

compelled to contest a claim which due to the inaction of the petitioner or the

appellant has become final.

53) In Prabhulal Chhogalal (supra), the Division Bench of this

Court was considering the issue as to whether the word ‘proceedings’

used in the amended provisions of Section 15 of the Bombay Rent Act

would include a Petition filed under Article 227 of the Constitution of

India. By amendment introduced in the year 1987, retrospective effect

was given to the amendment with a view to ensure that subletting made

before 1 February 1973 no longer constituted a lawful ground for eviction

of a tenant. However, Section 25 of the Amending Act provides that the

amendment would not authorise reopening of any suit or proceedings if

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such proceedings have been finally disposed of before commencement of

the Amending Act. In light of the above, the issue before this Court was

whether the word ‘proceeding’ used in Section 25 of the Amending Act

would include a Petition filed under Article 227. Answering the Reference

in the affirmative, this Court held in para-14 as under:

14. Therefore, if the word ‘proceeding’ as used in Section 25 of the Amending

Act is construed with the object of the legislation, in our view a liberal

construction will have to be put on the said word and so construed it will

include in its import even the proceeding instituted under Article 227 of the

Constitution of India and actually pending when the Amending Act came into

force. If this is so, then obviously it cannot be said that the matter was finally

disposed of before the commencement of the Amending Act. It is no doubt true

that the latter part of the explanation, i.e. or, if the period of limitation for

preferring an appeal or proceeding, as the case may be, had not expired before

the commencement of this Act’, was relied upon by Shri Abhyankar in support

of his contention that this clearly indicates that the word ‘proceeding’ will take

in its import only those proceedings for which a period of limitation has been

prescribed. It is not possible for us to accept this contention. The last part of

the explanation begins with the word ‘or’. If a period of limitation is prescribed

for a proceeding, then till that period expires, the proceeding has to be

considered as pending in view of the explanation. But from this an inference

cannot be drawn that proceedings for which no period of limitation is

prescribed are left out. In the present case writ petition was filed on 13th of

April, 1981, that is, even before the expiry of thirty days, from the date of

appellate order. In this context Shri Divekar has drawn our attention towards

the decision of the Supreme Court reported in 1989 Mah LJ 616 : (AIR 1989 SC

1477), Lata Kamat v. Vilas Bhalchandra and has contended that even for

computing the period of limitation, the other provisions of the Limitation Act

will have to be taken into consideration. Under Article 227 of the Constitution,

though no period of limitation is prescribed, petition has to be filed without

any undue and unreasonable delay. In our view, only because a reference is

made to the period of limitation it cannot be held that the proceedings referred

to in Section 25 are only those proceedings for which a period of limitation is

prescribed. As already observed the Rent Control Legislation is a beneficial

piece of legislation, meant for the protection of tenants and for restricting the

rights of the landlords. The legislature wanted to regularise sub-letting which

took place before the 1st day of February, 1973. The proceedings commenced

by a suit for eviction of a tenant do not come to an end on the decision of the

appeal or revision filed under the Bombay Rent Act. These decisions are liable

to be challenged in the High Court either under Section 115 of the Code of

Civil Procedure or under the supervisory jurisdiction of the High Court under

Article 227 of the Constitution of India, and, therefore, if the said proceedings

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were actually pending, on the date of commencement of the Bombay Rent Act,

then it cannot be said that the case has been finally disposed of before the

commencement of the Amending Act. In the view which we have taken, it is

not necessary to make a detailed reference to the various decisions cited before

us.

54) In my view therefore, this Court would have the necessary

power to permit Respondent to attack the findings recorded in para-33 of

the judgment of the Appellate Court in absence of filing of a formal

Petition raising a cross objection.

55) As observed above, Petitioner and her husband have been

squatting over the suit premises for 32 long years. Under the provisions

of Section 2(12) of the Code, the expression ‘mesne profits’ has been

defined as under:

(12) “mesne profits” of premises means those profits which the person in

wrongful possession of such premises actually received or might with ordinary

diligence have received therefrom, together with interest on such profits, but

shall not include profits due to improvements made by the person in wrongful

possession;

56) Under Order XX Rule 12(c) of the Code, while making a

decree for possession in a suit for recovery of possession of the

immovable property, the Court can pass a decree for directing an enquiry

as to mesne profits. Order XX Rule 12 of the Code provides thus:

12. Decree for possession and mesne profits.—

(1) Where a suit is for the recovery of possession of immovable premises and

for rent or mesne profits, the Court may pass a decree—

(a) for the possession of the premises;

(b) for the rents which have accrued on the premises during the period prior to

the institution of the suit or directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to such mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the

suit until—

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(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with

notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever,

event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in

respect of the rent or mesne profits shall be passed in accordance with the

result of such inquiry.

57) In the present case, there can be no doubt to the position

that possession of the Petitioner after 14 August 1996 is unauthorised. A

decree is made against her for handing over the possession of the suit

premises to the Respondent. In these circumstances, Petitioner must be

made liable to pay mesne profits in respect of the suit premises after her

possession became unauthorised on 14 August 1996. The Apex Court in

Narayanrao (supra) has dealt with a case where a suit was filed for

partition and possession of the suit premises. The suit was decided

without framing an issue regarding mesne profits. There was no prayer in

the suit for mesne profits. The suit was decreed without framing an issue

regarding mesne profits. The defendant filed appeal before the High

Court. While dismissing the appeal, the High Court exercised power

under Order XLI Rule 33 of the Code and directed enquiry into mesne

profits. Upholding the order of the High Court, the Apex Court held

thus:

1. The respondent-plaintiff instituted a suit for partition and possession of the

suit premises. The trial court decreed the suit. Before the trial court there was

no issue regarding the mesne profits nor there was any prayer for the grant of

mesne profits. The trial court, therefore, did not make any order so far as the

entitlement of the respondent-plaintiff for mesne profits was concerned. The

appellant-defendant went in appeal before the High Court. The High Court

while dismissing the appeal granted mesne profits to the respondent-plaintiff.

The High Court purported to act under order XLI, Rule 33 Civil Procedure Code

in granting further decree for mesne profits.

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2. We have heard learned counsel for the appellant. It is not necessary for us to

go into the scope and interpretation of Order XLI, Rule 33 Civil Procedure Code

in the facts and circumstances of this case. The High Court invoked order

XLI, Rule 33 Civil Procedure Code for doing complete justice between the

parties. The High Court was of the view that it was not a case where the

trial court had denied decree for mesne profits but it was a case where it

omitted to raise an issue in that respect. We see no infirmity in the

judgment of the High Court in granting mesne profits in the facts and

circumstances of this case. The appeal is dismissed with no order as to

costs throughout.

(emphasis supplied)

58) In Sattarsha (supra), a coordinate bench of this Court has

held in para-14 as under:

14. From aforesaid, it can be seen that the Appellate Court is vested with wide

powers to enable it to do complete justice between the parties so as to pass

such decree or order as the case may require even in absence of any appeal or

cross-appeal. Though it was urged on behalf of the appellants that only such

relief that was prayed for in the plaint could be granted in exercise of such

powers, I am not in a position to accept said submission. The exercise of these

wide powers is not trammeled by the absence of any prayer being made in the

plaint. This exercise of power is, however, circumscribed for being exercised

only in rare cases and when the facts of such case demand its exercise.

Reference may be made to the judgment of the Honourable Supreme Court

in Narayanrao (dead) through LRs. v. Sudarshan, 1995 Supp (4) SCC 463.

Therein, a suit for partition and separate possession was filed. The trial Court

decreed the suit. In the appeal filed by the defendant, the High Court while

dismissing the same granted mesne profits to the plaintiffs. It was held that

even though there was no prayer for grant of mesne profits and no issue

in that regard was framed by the trial Court, the High Court rightly

invoked the powers under Order XLI, Rule 33 of the Code for doing

complete justice between the parties. Thus, the relief of mesne profits

was granted even in absence of any prayer for the same.

(emphasis supplied)

59) Thus, in absence of prayer for mesne profits and in absence

of framing of issues by the Trial Court, it is permissible for the Appellate

Court to pass an order/decree for mesne profits. As held above, while

deciding a Petition under Article 227 of Constitution, this Court can

exercise powers of the Appellate Court also. In my view therefore, a

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direction needs to be issued for conduct of enquiry into mesne profits by

substituting the order for direction for payment of Rs.2,000/- per month

from 14 August 1996 made by the Appellate Court.

60) The conspectus of the above discussion is that Petitioner

has failed to make out any case for interference in the decree of the

Appellate Court to the extent it directs her to handover possession of the

suit property to the Respondent. However, entertaining the oral

objection raised by the Respondent in respect of the findings recorded by

the Appellate Court in para-33 of the judgment and exercising power

under Order XLI Rule 33 of the Code, it would be appropriate to set aside

the operative direction No. ‘5’ of the decree of the Appellate Court.

Instead, it needs to be directed that the Trial Court shall conduct an

enquiry into mesne profits under Order XX Rule 12(c) of the Code for

ascertaining the mesne profits in respect of the suit premises w.e.f. 14

August 1996 and making Petitioner liable to pay the same to the

Respondent.

61) I accordingly proceed to pass the following order:

(i)Both the Petitions are dismissed.

(ii)The Petitioner shall handover possession of the suit

premises to the Respondent on or before 30 September

2026.

(iii)However, the operative direction No. 5 in the decree of

the Appellate Court shall stand modified by an order

directing an enquiry into mesne profits in respect of the

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suit premises under the provisions of Order XX Rule 12

of the Code with further direction to the Petitioner to

pay such determined mesne profits to the Respondent

w.e.f. 14 August 1996 till the date of handing over of

possession of the suit premises.

62) Both the Petitions are accordingly dismissed. Considering

the facts and circumstances of the case, there shall be no order as to

costs.

[SANDEEP V. MARNE , J.]

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