:1::1::1:

IN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE

WRIT PETITION NO.148 OF WRIT PETITION NO.148 OF WRIT PETITION NO.148 OF 200420042004

1.Prabhudas Damodar Kotecha,

2.Taruna Prabhudas Kotecha

Both residing at 16 Ram Mahal,

5th Floor, 8, Dinshaw Vachha Rd,

Mumbai-400 020. .. PetitionersPetitionersPetitioners.

Versus

1. Smt. Manharbala Jeram Damodar,

2. Arvind Jeram Damodar,

Karta and Manager of Hindu

Undivided family all residing

at Ram Mahal, 6th floor, 8,

Dinshaw Vachha Road,

Mumbai-400 020.

3. Bhavana Prabhudas Kotech,

4. Madhavi Prabhudas Kotecha,

5. Rupin Prabhudas Kotecha

Nos 3 to 5 having their

address in India at 16,

Ram Mahal, 5th Floor, 8,

Dinshaw Vachha Road,

Mumbai-400 020. Respondents.Respondents.Respondents.

Mr J.J.Thakkar, Senior Advocate with Mr Jaydeep Thakkar,

Advocate for the petitioners-defendant nos.1 and 2.

Ms Ranjana Parikh, Advocate, for respondent nos 1 and

2-plaintiffs.

Ms Gauri Godse, Advocate for respondent nos 3 to

5-defendants.

WRIT PETITION NO.561 OF WRIT PETITION NO.561 OF WRIT PETITION NO.561 OF 200520052005

1. Smt. Manharbala Jeram Damodar,

85 years,

2. Arvind Jeram Damodar,

Aged 63 years.

Karta and Manager of Hindu ::: Downloaded on - 30/08/2025 11:37:30 :::

:2::2::2:

Undivided family, bot residing

at 20, Ram Mahal, 6th floor, 8,

Dinshaw Vachha Road,

Mumbai-400 020. PetitionersPetitionersPetitioners.

Vs.Vs.Vs.

1. Prabhudas Damodar Kotecha,

aged 77 yrs, retired Businessman,

2. Taruna Prabhudas Kotecha,

Age - 70 years, Housewife,

3. Bhavana Prabhudas Kotech,

Age-48 years, Housewife,

4. Madhavi Prabhudas Kotecha,

Age 45 years,

5. Rupin Prabhudas Kotecha

Age-40 years

All residing at 16,

Ram Mahal, 5th Floor, 8,

Dinshaw Vachha Road,

Mumbai-400 020. Respondents.Respondents.Respondents.

Ms Ranjana Parikh, Advocate for the petitioners.

Mr J.J.Thakkar, Senior Advocate with Mr Jaydeep Thakkar,

for Respondent nos 1 and 2.

Ms Gauri Godse, Advocate for respondent nos 3 to

5-defendants.

CORAM :CORAM :CORAM : DR.S.RADHAKRISHNAN, D.B.BHOSALE DR.S.RADHAKRISHNAN, D.B.BHOSALE DR.S.RADHAKRISHNAN, D.B.BHOSALE

AND SMT.V.K.TAHILRAMANI, JJJ.AND SMT.V.K.TAHILRAMANI, JJJ.AND SMT.V.K.TAHILRAMANI, JJJ.

DATED :DATED :DATED : 10TH JULY, 2007.10TH JULY, 2007.10TH JULY, 2007.

JUDGMENT:JUDGMENT:JUDGMENT: (PER D.B.BHOSALE,J.)(PER D.B.BHOSALE,J.)(PER D.B.BHOSALE,J.)

1. The order of reference dated 16.1.2006, which

has occasioned the constitution of this Full Bench, has ::: Downloaded on - 30/08/2025 11:37:30 :::

:3::3::3:

been passed by the learned Single Judge in view of a

divergence of the views of the Division Benches of this

court, the first being in Ramesh Dwarkadas Mehra Vs.Ramesh Dwarkadas Mehra Vs.Ramesh Dwarkadas Mehra Vs.

Indravati Dwarkadas Mehra, 2001(3) ALL MR 668Indravati Dwarkadas Mehra, 2001(3) ALL MR 668Indravati Dwarkadas Mehra, 2001(3) ALL MR 668 and the

second in Letters Patent Appeal No.129 of 1993Letters Patent Appeal No.129 of 1993Letters Patent Appeal No.129 of 1993

(Bhagirathi Lingawade and ors Vs. Laxmi Silk Mills)(Bhagirathi Lingawade and ors Vs. Laxmi Silk Mills)(Bhagirathi Lingawade and ors Vs. Laxmi Silk Mills) ,

decided on 3.9.1993. The provisions of Section 41(1) of

The Presidency Small Cause Courts Act, 1882 (for short,

"PSCC Act") and section 5(4A) of The Bombay Rents, Hotel

and Lodging House Rates (Control) Act, 1947 (for short,

"the Rent Act") crop up for consideration in these

petitions. In view of a conflict in the interpretation

made by the Division Benches, in the aforesaid cases, on

the language of these provisions the learned Single

Judge has made a reference to the Larger Bench. The

Hon'ble the Chief Justice has accordingly constituted

this Full Bench to decide the same.

2. The Division Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's

case was dealing with the question, "Whether a suit by a

licensor against a gratuitous licensee is tenable before

the Presidency Small Cause Court under section 41 of the

Presidency Small Cause Courts Act, 1882 or should such a

suit be filed before the Civil Court?" This question was

answered by the Division Bench holding that a suit by a ::: Downloaded on - 30/08/2025 11:37:30 :::

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licensor against a gratuitous licensee is not tenable

before the Presidency Small Causes Court under section

41(1) of PSCC Act and it should be filed before the City

Civil Court or the High Court depending upon the

valuation. The Division Bench has observed that the

expression "licensee" used in section 41(1) of PSCC Act

has the same meaning as in section 5(4A) of the Rent

Act. In other words, the expression "licensee", not

having been defined in PSCC Act, must derive its meaning

from the expression "licensee" as used in section 5(4A)

of the Rent Act. The expression "licensee" as used in

section 5(4A) does not cover a "gratuitous licensee".

Consequently, the ejectment application in that case

filed in the Court of Small Causes at Bombay was

dismissed as without jurisdiction, holding that the suit

was within the jurisdiction of this Court on the

Original Side.

3. In Bhagirathi Lingawade'sBhagirathi Lingawade'sBhagirathi Lingawade's case, decided on

3.9.1993, the Division Bench has expressed a view that

the provisions of Section 5(4A) and section 13(1) of the

Rent Act are not at all relevant for interpreting the

scope and ambit of section 41 of PSCC Act. The Division

Bench, after considering the submissions advanced by the

learned counsel for the parties, in paragraph 5 of the ::: Downloaded on - 30/08/2025 11:37:31 :::

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order held thus:

"Our attention was invited to the definition

of the expression "licensee" given under

section 5(4A) and so also section 13(1) of

the Bombay Rent Act. The provisions of that

Act are not at all relevant for interpreting

the scope and ambit of Section 41 of the

Presidency Small Causes Court Act under which

the suit was filed."

The aforesaid view expressed by the Division Bench, as

observed in the reference order by the learned Single

Judge, runs counter to the view expressed by the

Division Bench in Ramesh Dwarkadas MehraRamesh Dwarkadas MehraRamesh Dwarkadas Mehra 's case. The

learned Single Judge in paragraph 15 of the reference

order has observed that there is a direct conflict in

the ratio laid down by both the Division Benches on

important legal aspect of the matter, namely, the scope

and enquiry under Chapter VII of PSCC Act prior to its

amendment and after amendment as also the definition of

"licensee" under section 5(4A) of the Rent Act, and it

is necessary to resolve the conflict.

4. We propose to consider and deal only with the

questions that fall for our consideration in these

petitions without touching upon the merits of the case.

However, to understand the background against which the ::: Downloaded on - 30/08/2025 11:37:31 :::

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questions are raised, we make a brief reference to the

factual matrix in these Writ Petitions. Writ Petition

No.148 of 2004 and cross Writ Petition No.561 of 2005,

both arise out of Suit L.E.&C Suit No. 430/582 of 1978

filed in the Court of Small Cause under section 41 of

PSCC Act. The petitioners in Writ Petition No.148 of

2004 are defendant nos 1 and 2 in the suit whereas the

respondents are the original plaintiffs and defendant

nos 3 to 5. The petitioners in Writ Petition No.561 of

2005 are the original plaintiffs and the respondents

therein are the original defendants. Hereinafter they

are being referred to in their original capacity.

According to the plaintiffs, the defendants were in use

and occupation of one bed room in flat no.16, Ram Mahal,

Churchgate, Mumbai (for short, "the suit flat") as their

guest. So far as the hall and kitchen are concerned,

family members of the plaintiffs and the defendants were

using it as common amenities. The plaintiffs claim that

they are in occupation of another bedroom in the suit

flat. According to the plaintiffs, no monetary

consideration was charged by them from the defendants

for exclusive use and occupation of one bedroom and

joint use of the hall and kitchen as common amenities.

It appears that defendant no.1 is the younger brother of

plaintiff no.1. The plaintiffs claim that since 1955 ::: Downloaded on - 30/08/2025 11:37:31 :::

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plaintiff no.1 in his individual name and since October,

1967, the HUF of the plaintiff no.1 was the tenant of

flat no.11 in the very same building. The members of

HUF were in need of additional premises and hence they

acquired the suit flat on 1.11.1964. Since then the

said HUF of plaintiff no.1 has been and continues to be

a tenant of flat no.16 and they are paying the rent of

the suit flat to the landlord. The plaintiffs further

claim that they allowed and/or permitted the defendants

to use the bed room in the suit flat as guest of the

said HUF of plaintiff no.1. The plaintiffs claim that

they revoked the said permission granted to the

defendants to use the said premises and since they did

not vacate the suit flat and continued to hold

possession wrongfully and illegally they filed the suit

for eviction.

5. The defendants challenged the jurisdiction of

the Court of Small Cause to entertain and try the suit

relying upon the judgment of the Division Bench in

Ramesh Dwarkadas Mehra'Ramesh Dwarkadas Mehra'Ramesh Dwarkadas Mehra' s case contending that the

licence created by the plaintiffs in favour of the

defendants was admittedly gratuitous, that is, without

consideration and hence the suit is not tenable in that

court. The issue of jurisdiction was, however, answered ::: Downloaded on - 30/08/2025 11:37:31 :::

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in the affirmative. It is against this backdrop and in

view of a divergence of the views in two judgments of

the Division Benches in the aforesaid cases on the

question of jurisdiction of the Court of Small Cause to

entertain a suit against a gratuitous licensee, the

reference has been made.

6. At the outset, we once again make it clear that

we do not propose to deal with the petitions on merits

and we would like to address only the questions raised

and fall for our consideration. The learned Single

Judge while making reference, though clearly indicated

in the order the conflict, did not formulate the

question/s. We, therefore, formulate the following

questions:-

(i) Whether the expression "Licensee" used in

section 41(1) in Chapter VII of PSCC Act, not

having been defined therein, would derive its

meaning from the expression "licensee" as used

in sub-section (4A) of section 5 of the Rent Act

and/or whether the 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? ::: Downloaded on - 30/08/2025 11:37:31 :::

:9::9::9:

(ii) Whether a suit by a "licensor" against a

"gratuitous licensee" is tenable before the

Presidency Small Cause Court under section 41 of

PSCC Act?

7. We have heard the learned counsel for the

parties at great length. We have also gone through the

order of reference as also the judgments of the Division

Benches in Ramesh Dwarkadas MehraRamesh Dwarkadas MehraRamesh Dwarkadas Mehra and in BhagirathiBhagirathiBhagirathi

Lingwade's cases.Lingwade's cases.Lingwade's cases. We have also considered several other

judgments relied upon by the learned counsel for the

parties to which we propose to make reference while

dealing with the questions at appropriate stages in the

judgment. However, we also make it clear that the

authorities cited by the learned counsel in the course

of hearing and which we do not think to be of any

assistance in deciding the controversy have not been

referred to by us.

8. Ms Parikh, learned counsel for the plaintiffs

chose to address us first. At the outset, she took us

through the legislative history of the amendments to

PSCC Act as also the Rent Act and more particularly the

amendments by which Chapter VII of PSCC Act was ::: Downloaded on - 30/08/2025 11:37:31 :::

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substituted for original Chapter VII consisting of

sections 41 to 49 by Maharashtra XIX of 1976 (for short,

"the 1976 Amendment") and the amendments to bring

licensee within the purview of the Rent Act by

Maharashtra XVII of 1973 (for short, "the 1973

Amendment"). She submitted that the definition of

"licensee" under section 5(4A) is totally irrelevant for

attributing the same meaning to the expression

"licensee" occurring in section 41(1) of PSCC Act. She

submitted that the Division Bench in Ramesh DwarkadasRamesh DwarkadasRamesh Dwarkadas

Mehra'Mehra'Mehra's case was in error in restricting the ambit of

the word "licensee" occurring in section 41(1) only to

licence for material consideration and thereby holding

that the Court of Small Cause has no jurisdiction to

entertain and try a suit against a gratuitous licensee.

She submitted that the expression "licensee" in section

41(1) will have to be read in general sense. The

meaning of the expression "license" as defined under

section 52 of the Indian Easements Act, 1882 (for short,

"the Easement Act" ) will have to be given to the

expressions "licensor" and "licensee" in section 41(1)

of PSCC Act so as to include all licences, whether with

or without consideration. In short, she submitted that

since the expressions "licence", "licensor" and

"licensee" have not been defined in PSCC Act, they ::: Downloaded on - 30/08/2025 11:37:31 :::

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should be given the same meaning as defined under

section 52 of the Easement Act. She then submitted that

by no stretch of imagination the Rent Act and PSCC Act

could be treated as cognate Acts and, therefore, the

definition of "licensee" under section 5(4A) of the Rent

Act cannot be imported to give the same meaning to the

expression "licensee" used in PSCC Act. After taking us

through the Statement of Objects and Reasons of the 1976

Amendment she vehemently submitted that the mischief

rule and the principles of purposive consideration will

have to be applied in the present case so as to give

widest possible meaning to the expression "licensee"

occurring in section 41 of PSCC Act so as to include a

gratuitous licensee also. If a restricted meaning is

given to the expression "licensee" occurring in section

41 the very object with which Chapter VII was introduced

by the 1976 Amendment would be frustrated. She also

took us through sections 50 and 51 of the Rent Act and

submitted that the Division bench in Ramesh Dwarkadas

Mehra's case has committed a grave error in holding that

the Rent Act and the PSCC Act are pari materia statutes.

Ms Parikh made reference to several judgments in support

of her submission to which we propose to make reference

while dealing with her submissions. ::: Downloaded on - 30/08/2025 11:37:31 :::

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9. Per contra, Mr Thakkar, learned counsel for the

defendant nos.1 and 2 vehemently submitted that the

Division bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case has

rightly held that since the expression "license" or

"licensee" has not been defined in the statute the

meaning of the expressions can be derived from a cognate

pari materia statute, whether earlier or later. He

further submitted that the well settled rules and

principles of interpretation have rightly been applied

by the Division Bench in Ramesh Dwarkadas Mehra's case

for interpreting the expression "licensee" used in

section 41 of PSCC Act and has rightly held that it

derives its meaning from the expression "licensee" as

used in section 5(4A) of the Rent Act. He submitted

that the Rent Act and PSCC Act are cognate pari materia

statutes and, therefore, the expression "licensee" has

the same meaning as in section 5(4A) of the Rent Act.

Mr Thakkar after taking us through the Statement of

objects and reasons and the situations contemplated

therein submitted that the factual situation

contemplated when bringing forward the amendment to

Section 41 in 1976, did not include a gratuitous

licensee. Mr Thakkar then took us through every single

paragraph in the judgment of the Division Bench in

Ramesh Dwarkadas Mehra's case as also the relevant ::: Downloaded on - 30/08/2025 11:37:31 :::

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provisions in both the statutes and submitted that under

any circumstances the expression "licensee" occurring in

section 41 of PSCC Act cannot be read in general sense

or as defined under section 52 of the Easement Act and

it will have to be given the same meaning as reflected

in the definition of the expression "licensee" occurring

in section 5(4A) of the Rent Act. The submissions

advanced by Mr Thakkar were based on the reasoning

recorded by the Division Bench in Ramesh Dwarkadas

Mehra's case. Mr Thakkar submitted an assumption that

there are only two forums, that is, under section 28 of

the Rent Act and section 41 of PSCC Act, for evicting

licensee itself is misconceived. The word "licence" or

"licensee" does not have one and plain meaning. These

words have different meanings and not only the meanings

as reflected under section 5(4A) of the Rent Act or

under section 52 of the Easement Act or a dictionary

meaning. He submitted neither the definition of

licensee under section 5(4A) of the Rent Act nor the

definition of "licence" under section 52 of the Easement

Act would apply fully. In the facts and circumstances

of each case, both or only one may apply fully or

partly. The Courts should apply different tests to find

out the exact meaning and then embark upon an inquiry as

to which Court has jurisdiction whether to the Small ::: Downloaded on - 30/08/2025 11:37:31 :::

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Cause Court under section 28 of the Rent Act or to the

Small Cause Court under section 41 of PSCC Act or to the

City Civil/District Court or to this Court when such an

issue is raised. He further submitted that the Division

Bench in Bhagirathi Lingawade'sBhagirathi Lingawade'sBhagirathi Lingawade's case has not recorded

reasons while making the observations as reflected in

paragraph 5 and, therefore, external aid, such as,

statement of objects and reasons, different tests and

rules of interpretation including the principle of

noscitur a sociis will have to be taken into

consideration to find out the exact meaning of the

expression "licensee" in the present case. In Ramesh

Dwarkadas Mehra's case, he submitted, the Division Bench

has applied all these tests and has rightly held that

the suit by a licensor against a gratuitous licensee is

not tenable before the Small Cause Court under section

41 of PSCC Act and such a suit should be filed before

the Civil Court, City Civil Court or the High Court

depending upon the valuation. We propose to make

reference to the judgments relied upon by Mr Thakkar at

appropriate stages in the course of this judgment.

10. The submissions advanced by Ms.Godse, learned

counsel for defendant nos. 3 to 5 were more or less

similar to the submissions advanced by Mr Thakkar. ::: Downloaded on - 30/08/2025 11:37:31 :::

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Besides the submissions on merits, Ms Godse, after

taking us through the order of reference and the order

of the Division Bench in Bhagirathi Lingawade'sBhagirathi Lingawade'sBhagirathi Lingawade's case

submitted that there is no conflict in the views

expressed by the two Division Benches. The question

that fell for consideration of the Division Bench in

that case was not the one which is addressed by the

Division Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case. The

observations of the Division Bench in Bhagirathi

Lingawade's case and more particularly paragraph 5

thereof that the provisions of the Rent Act, that is,

section 5(4A) as also section 13(1) are not at all

relevant for interpreting the scope and ambit of section

41 of PSCC Act, according to Ms.Godse, were made in the

facts of that case and in the context of the issue that

was raised before it. In Bhagirathi Lingawade's case,

she submitted, the Division Bench was considering the

question whether the defendant was a trespasser or a

service tenant at the initial entry in the premises and

after the termination of licence. She, therefore,

submitted that the observations in Bhagirathi

Lingawade's case should not be read as ratio. She

further submitted that the view expressed in Bhagirathi

Lingawade's case is not accompanied by the reasons and

does not proceed on conscious consideration of the issue ::: Downloaded on - 30/08/2025 11:37:31 :::

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and, therefore, cannot be deemed to be a law declared to

have a binding effect on the lower courts. In support

of this proposition and this ground of objection she

placed reliance upon the following judgments: (1)(1)(1)

M.P.Gopalkrishnan Nair Vs. state of Kerala - 2005 (11)M.P.Gopalkrishnan Nair Vs. state of Kerala - 2005 (11)M.P.Gopalkrishnan Nair Vs. state of Kerala - 2005 (11)

SCC 45, (2) Arnit Das Vs State of Bihar - 2005 SCC 488,SCC 45, (2) Arnit Das Vs State of Bihar - 2005 SCC 488,SCC 45, (2) Arnit Das Vs State of Bihar - 2005 SCC 488,

(3) Ramesh Singh Vs. State of AP -2004 (11) SCC 305 and(3) Ramesh Singh Vs. State of AP -2004 (11) SCC 305 and(3) Ramesh Singh Vs. State of AP -2004 (11) SCC 305 and

(4) Rameshwar Prasad Vs. State of U.P.-1983 (2) SCC(4) Rameshwar Prasad Vs. State of U.P.-1983 (2) SCC(4) Rameshwar Prasad Vs. State of U.P.-1983 (2) SCC

195195195. On merits, Ms Godse also took us through several

passages from the judgment of the Division Bench in

Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case and after placing heavy

reliance upon the judgment of the Supreme Court in

Mansukhlal Dhanraj Jain and ors Vs. Ekanath VithalMansukhlal Dhanraj Jain and ors Vs. Ekanath VithalMansukhlal Dhanraj Jain and ors Vs. Ekanath Vithal

Ogale - 1995 (3) Bombay Cases Reporter 240,Ogale - 1995 (3) Bombay Cases Reporter 240,Ogale - 1995 (3) Bombay Cases Reporter 240, submitted

that the provisions of section 41 (1) of PSCC Act should

be read in juxta position with section 28 of the Rent

Act. She submitted that looking to the scheme of both

these statutes and more particularly the provisions of

section 41(1) and section 28 it is clear that they are

cognate pari materia statutes and, therefore, taking

recourse to the definition of section 5(4A) of the Rent

Act cannot be held to be wrong. She submitted that in

Ramesh Dwarkadas Mehra's case the Division Bench has

exhaustively discussed the concept of licence under the

Easement Act; the legislative history of PSCC; section ::: Downloaded on - 30/08/2025 11:37:31 :::

:17::17::17:

42A as added by the 1963 Amendment; the legislative

history of Rent Act since 1925; 1976 and 1982

amendments to PSCC Act; and the provisions of section

41 prior to Amendment of 1976 and the legislative intent

of amending section 41 for introducing the word

"licensee" in place of permission in right perspective

and has answered the questions that fell for its

consideration.

11. At the outset, before we deal with the questions

that are raised for our consideration, we would like to

address the contention urged by Ms Godse, learned

counsel for defendant nos 3 to 5, that there is no

conflict in the views expressed in Ramesh DwarkadasRamesh DwarkadasRamesh Dwarkadas

Mehra and Bhagirathi LingawadeMehra and Bhagirathi LingawadeMehra and Bhagirathi Lingawade cases. In Bhagirathi

Lingawade's case, it cannot be overlooked that the

Division Bench was dealing with the Letters Patent

Appeal against the concurrent findings of fact and a

decree for possession and perhaps that is the reason why

detailed and lengthy reasons were not recorded. The

contention of the appellant urged therein was that at

the very initial entry in the premises one Dhondoo was

either a "trespasser" or a "service tenant" as

contemplated under the Rent Act and hence the Small

Cause Court would have no jurisdiction to try the suit. ::: Downloaded on - 30/08/2025 11:37:31 :::

:18::18::18:

It is clear from mere perusal of the order that this

argument was based on the definition of "licensee" under

section 5(4A) of the Rent Act. It is clear that,

according to the appellant therein, Dhondoo did not fall

within the definition of licensee under section 5(4A) of

the Rent Act and hence the Small Cause Court under

section 41 of PSCC Act has no jurisdiction to entertain

the suit. In other words, Dhondoo being a trespasser or

a service tenant, was not a "licensee" as defined under

section 5(4A), the suit against him under section 41(1)

of PSCC Act would not be tenable inasmuch as the

expression "licensee", as used in section 41(1) derives

its meaning from the expression licensee under section

5(4A) of the Rent Act. As against this, the case of the

appellant-company was that Dhondoo was their employee

and was permitted to occupy the premises in that

capacity. In other words, Dhondoo was not a "licensee"

within the meaning of section 5(4A) and, therefore,

their suit for possession under section 41 of PSCC Act

in the Court of Small Cause was tenable.

12. It is against the backdrop of these facts, it

appears to us, the definition of licensee under section

5(4A) of the Rent Act was relied upon to contend that

the Small Cause Court has no jurisdiction to try a suit ::: Downloaded on - 30/08/2025 11:37:31 :::

:19::19::19:

instituted under section 41(1) of PSCC Act inasmuch as

Dhondoo falls in the exclusive part of the definition of

"licensee" under section 5(4A). Considering these set

of facts and the contentions urged by the learned

counsel for the parties, the Division Bench in paragraph

five of the order in Bhagirathi Lingawade's case,

appears to have held that the provisions of the Rent Act

and more particularly section 5(4A) are not at all

relevant for interpreting the scope and ambit of section

41 of PSCC Act under which the suit was filed.

13. Looking at the overall facts and circumstances

of Bhagirathi Lingawade's case, in our opinion, it

cannot be said that the view expressed by the Division

Bench in paragraph five of the order, was not necessary

for the decision of the case. The opinion such as one

expressed by the Division Bench in Bhagirathi

Lingawade's case, in our opinion, is binding on the

subordinate courts within the jurisdiction of the High

Court. It is now well settled that with a view to

achieve consistency in judicial pronouncements, the

Courts have evolved the rule of precedents, the

principle of stare decisis etc. These rules and

principles are based on public policy and if they are

not followed by the courts then there will be chaos in ::: Downloaded on - 30/08/2025 11:37:31 :::

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the administration of justice. This is well expressed

by the Supreme Court in Government of Andhra Pradesh andGovernment of Andhra Pradesh andGovernment of Andhra Pradesh and

ors Vs. A.P.Jaiswal and ors -AIR 2001 Supreme Courtors Vs. A.P.Jaiswal and ors -AIR 2001 Supreme Courtors Vs. A.P.Jaiswal and ors -AIR 2001 Supreme Court

499.499.499.

14. The doctrine of "stare decisis" envisages that

the judicial decisions hold a binding force for the

future. A judgment is authoritative only as to that

part of it which is considered to have been necessary

for the decision of the actual issues between the

litigants. It is true that in some cases, it may be

difficult to extract a ratio, and the difficulty is

enhanced when no long reasons are recorded, expressing

an opinion/view as to the issues raised, considered and

decided. The doctrine of stare decisis further

envisages that the lower courts are bound by such

decisions of the higher Courts and, thus, every court in

the State of Maharashtra and Goa is bound by the

decision of this Court. Our judicial system is

characterised by a scheme of hierarchy of courts, the

Supreme Court being the Apex Court and High Courts being

the highest courts in different States and, therefore,

the doctrine of stare decisis or the doctrine of binding

precedents is the cardinal feature of the Indian

judiciary. When High Court decides a principle or ::: Downloaded on - 30/08/2025 11:37:31 :::

:21::21::21:

expresses opinion on the question of law, which was

necessary for the decision of the case, such judicial

decisions have a binding force for the future and it is

the duty of subordinate courts to follow such decisions.

In the present case, merely because no long reasons are

recorded it cannot be said that the opinion/view

expressed in paragraph 5 was not necessary or the issue

was not raised, considered and decided. An expression

of opinion by the Division Bench in Bhagirathi

Lingawade's case in paragraph 5, in our opinion, is the

expression of opinion on the question of law which has a

binding force and that it is in conflict with the

view/opinion expressed by the coordinate Bench in Ramesh

Dwarkadas Mehra's case. The learned Single Judge has,

therefore, rightly observed that the views of the two

Division Benches on the provisions of section 41(1) of

PSCC Act and section 5(4A) of the Rent Act run counter

to each other.

15. In M.P.Gopalkrishnan Nair'M.P.Gopalkrishnan Nair'M.P.Gopalkrishnan Nair' s case (supra) the

Supreme Court has expressed that "the observations in a

judgment should not be, it is trite, read as ratio. A

decision, as is well known, is an authority of what it

decides and not what can logically be deduced

therefrom." Insofar as Bhagirathi Lingawade's case is ::: Downloaded on - 30/08/2025 11:37:31 :::

:22::22::22:

concerned, it cannot be said that the views expressed by

the Division Bench was not necessary for the decision of

the case. As a matter of fact, to meet the argument

advanced by the appellant therein, the Division Bench

had to express its view as reflected in paragraph 5 of

the order in that case. In Arnit Das'Arnit Das'Arnit Das's case (supra),

the Supreme Court held that a decision not expressed,

not accompanied by reasons and not proceeding on a

conscious consideration of an issue cannot be deemed to

be a law declared to have a binding effect as is

contemplated by Article 141. At the outset, this

judgment of the Supreme Court has no application.

Similarly, the judgments of the Supreme Court in RameshRameshRamesh

Singh'sSingh'sSingh's case (supra) and Rameshwar Prasad(supra) and Rameshwar Prasad(supra) and Rameshwar Prasad 's case (Supra)

are also of no avail in view of the peculiar facts and

circumstances of this case and in view of the

observations made by us in the foregoing paragraphs. In

the circumstances, this submission of Ms Godse must be

rejected.

16. The legislative history of PSCC Act, to the

extent as may be necessary for our purpose, will have to

be noted. The PSCC Act was enacted and came into force

on 1st July, 1882. Under this Act, the Courts of Small

Cause were established in Calcutta, Madras, Ahemadabad ::: Downloaded on - 30/08/2025 11:37:31 :::

:23::23::23:

and Bombay. Section 18 of this Act, subject to

exceptions in section 19, confers jurisdiction on Small

Cause Court to try all suits of a civil nature where

value of the subject matter does not exceed Rs.10,000/-.

Section 19(d) specifically states that Small Cause Court

shall have no jurisdiction in suits for the recovery of

immovable property. This clearly indicates that the

Presidency Small Cause Court is Civil Court in hierarchy

of the Courts. However Chapter VII of PSCC Act, as it

stood before its substitution in 1976, containing

sections 41 to 46, conferred limited jurisdiction of

recovery of possession of any immovable property on

Presidency Small Cause Court giving summary remedy for

recovery of possession of immovable property of the

prescribed value. The proceedings initiated, therefore,

were in the nature of an application and not a suit and

as a consequence thereof they resulted in the order of

bailiff and not in a decree. Before the advent of the

Rent Act the proceedings for recovery of possession of

the premises between a landlord and a tenant were filed

under summary procedure by making an application under

section 41 of the PSCC Act as it then stood depending

upon the prescribed annual rack rent. Even under Bombay

Rent Act, 1939 and Bombay Rent Act, 1944 exclusive

jurisdiction was not given to any court. In respect of ::: Downloaded on - 30/08/2025 11:37:31 :::

:24::24::24:

the premises having the annual rack rent upto

Rs.2,000/-, the proceedings for recovery of possession

between landlord and tenant were to be filed in

Presidency Small Cause Courts under Chapter VII of PSCC

Act and in case where the annual rack rent exceeds

Rs.2,000/- the regular suits were to be filed on the

Original Side of the High Court.

17. This situation under went a dramatic change with

coming into force of the Rent Act on 13.2.1948. Under

section 28 thereof, exclusive jurisdiction was conferred

on the Small Cause Court in respect of all the suits

between landlord and tenant relating to recovery of rent

or possession irrespective of value of the subject

matter. Even suits between landlord and tenant governed

under Rent Act of 1939 or 1944 and pending on the

Original Side of the High Court were transferred to the

Presidency Small Cause Courts, Mumbai and were to be

tried under the provisions of the Rent Act. That Act

gave considerable right and protection to the tenants.

The landlords were prohibited from recovering any amount

in excess of standard rent which was pegged down at the

level of rent in September, 1940 or on the date of first

letting. Similarly, the landlord's right of evicting

tenant was severely curtailed. The landlords could ::: Downloaded on - 30/08/2025 11:37:31 :::

:25::25::25:

recover possession only on proof of grounds enumerated

under the Rent Act. Several restrictions were placed on

the landlord's right by the Rent Act. As a result

thereof the landlord started giving their premises under

an agreement of leave and licence. The proceedings for

recovery of possession against the licensee were filed

under section 41 of the Small Cause Courts Act. The

defendants in such suits would take a defence that he

was not a licensee but a tenant and that agreement of

leave and license was a sham, bogus or not binding.

Besides, the findings given by the Small Cause Courts in

exercising jurisdiction under section 41 on the question

of tenancy, was not final as the proceedings were

summary proceedings and aggrieved party had a right to

file a regular suit for declaration of the title. That

resulted in multiplicity of the proceedings. It is

against this backdrop Chapter VII was amended in the

year 1963 by introduction of section 42A. Under this

provision if the question of tenancy was allowed to be

tried as a preliminary issue and appeal was provided for

finding on a preliminary issue. The underlying purpose

behind introduction of section 42A was that the question

of tenancy should be finally decided under section 41

itself and no separate proceedings could thereafter be

permitted. ::: Downloaded on - 30/08/2025 11:37:31 :::

:26::26::26:

18. The question of filing suits against the

licensee even after introduction of section 42-A

depended on the value of the subject matter as there

were three civil courts available in the City of Bombay,

namely, the Hon'ble High Court on its Original Side,

Bombay City Civil Court and Presidency Small Cause

Court. Thus, depending on the value of the subject the

suit had to be filed in any one of these three different

courts. Whereas in case of proceedings filed against

the licensee under Chapter VII of PSCC Act, the question

of tenancy could be finally decided under section 42A.

That was not the case if the suits were filed either on

the Original Side of the Bombay High Court or in the

Bombay City Civil Court. In respect of such suits, it

was open to an unsuccessful defendant to agitate the

question of tenancy by filing the proceedings under

section 28 of the Rent Act. Thus, multiplicity of the

proceedings was sought to be remedied by introduction of

section 42A continued in respect of the suits filed on

the Original Side of the Bombay High Court or in the

City Civil Court. It appears that to overcome this

mischief of multiplicity of the proceedings, that large

scale amendments were carried out in 1976 and the

Chapter VII was substituted for the original chapter VII ::: Downloaded on - 30/08/2025 11:37:31 :::

:27::27::27:

(Sections 41 to 49) by the 1976 Amendment. It may be

noticed that under Chapter VII of the 1976 Amendment,

the proceedings for recovery of possession under section

41 no more remained summary and they were given status

of regular suits. The underlying purpose of the

amendment was to cure the mischief of multiplicity of

proceedings by investing one court with exclusive

jurisdiction irrespective of the value of the matter in

all the suits between the landlord and tenant or the

licensor and licensee.

19. Similarly, legislative history of the Rent Act,

to the extent as may be relevant for our purpose, will

have to be seen. The Bombay Rent Act, 1925 and Bombay

Rent Act, 1939 did not have any special or separate

definition of "licence" nor did they deal with

"licensees". On 13th February, 1947 the Rent Act was

brought into force. Even this Act as enacted originally

did not deal with "licence" or "licensee" and their

rights. As stated earlier the landlords in order to

evade the rigour of the Bombay Rent Act, 1947 started

entering into an agreement called "leave and licence".

Such agreements specifically declared that they were

mere "licensees" for consideration and did not create

any right of tenancy or any other right in the immovable ::: Downloaded on - 30/08/2025 11:37:31 :::

:28::28::28:

property. It is against this backdrop the amendment was

moved to make the rent control provisions applicable to

leave and licence agreement. Accordingly, the Bombay

Rent Act was amended in 1973 to bring "licensees" within

the purview of the Rent Act, 1947 by the 1973 Amendment.

Section 15-A was introduced in the said Act. Under this

provision where a person was on 1st February, 1973 in

occupation of any premises or any part of which is not

less than a room as licensee under a subsisting

agreement of leave and licence, he shall on that day

deemed to have become tenant of the landlord, for the

purpose of Bombay Rent Act, 1947 in respect of the

premises or part thereof in his occupation. The

definition of the expression "tenant" in section 5(11)

was also amended to include such licensee as shall be

deemed to be the tenant by virtue of section 15A. The

expression "licensee" was also inserted by sub-section

(4A) in section 5. This definition of licensee provides

that a person in occupation of the premises or of such

part thereof which is not less than a room, as the case

may be, in a subsisting agreement for licence given only

for a licence fee or charge. This definition clearly

excludes from its sweep a gratuitous licensee with which

we are concerned in these petitions. ::: Downloaded on - 30/08/2025 11:37:31 :::

:29::29::29:

20. In the present case, we are concerned with the

provisions of section 41 (1) of PSCC Act and we may have

to find out the exact intent of the legislature in

inserting the expressions "licensor" and "licensee"

therein by the 1976 Amendment. Before we embark upon an

enquiry as to what would be the correct interpretation

of the expression "licensee" occurring in section 41(1)

of PSCC Act, we think it appropriate to bear in mind

certain basic principles of interpretation of a statute.

The rule stated by Tindal, C.J.in Sussex Peerage Case -Tindal, C.J.in Sussex Peerage Case -Tindal, C.J.in Sussex Peerage Case -

8 (1844) 11 CI & Fin 85 : 8 ER 1034,8 (1844) 11 CI & Fin 85 : 8 ER 1034,8 (1844) 11 CI & Fin 85 : 8 ER 1034, still holds the

field. A specific reference to the said rule is made by

the Supreme Court in Union of India Vs. Hansolidevi,Union of India Vs. Hansolidevi,Union of India Vs. Hansolidevi,

(2002) 7 SCC 273(2002) 7 SCC 273(2002) 7 SCC 273 while interpreting section 28-A of Land

Acquisition Act. The rule is to the effect that "If the

words of the statute are in themselves precise and

unambiguous, then no more can be necessary than to

expound those words in their natural and ordinary sense.

The words themselves alone do, in such case, best

declare the intention of law giver".

21. The observations made by the Supreme Court in

Gurudevdatta VKSSS Maryadi & ors Vs. State ofGurudevdatta VKSSS Maryadi & ors Vs. State ofGurudevdatta VKSSS Maryadi & ors Vs. State of

Maharashtra - AIR 2001 SC 1980Maharashtra - AIR 2001 SC 1980Maharashtra - AIR 2001 SC 1980 may be borne in mind

which read thus ; ::: Downloaded on - 30/08/2025 11:37:31 :::

:30::30::30:

"It is a cardinal principle of interpretation

of statute that the words of a statute must

be understood in their natural ordinary or

popular sense and construed according to

their grammatical meaning, unless such

construction leads to some absurdity or

unless there is something in the context or

in the object of the statute to suggest to

the contrary. The golden rule is that the

words of a statute must prima facie be given

their ordinary meaning. It is yet another

rule of construction that when the words of

the statute are clear, plain and unambiguous,

then the Courts are bound to give effect to

that meaning, irrespective of the

consequences. It is said that the words

themselves best declare the intention of the

law giver. The Courts have adhered to the

principle that efforts should be made to give

meaning to each and every word used by the

legislature and it is not a sound principle

of construction to brush aside words in a

statute as being inapposite surpluses, if

they can have a proper application in

circumstances conceivable within the

contemplation of the statute."

(emphasis supplied)

22. In a leading case of Chief Justice of A.P. Vs.Chief Justice of A.P. Vs.Chief Justice of A.P. Vs.

L.V.A. Dixitulu (1979 (2) SCC 34L.V.A. Dixitulu (1979 (2) SCC 34L.V.A. Dixitulu (1979 (2) SCC 34 the Supreme Court has

observed thus;

"The primary principle of interpretation is

that a constitutional or statutory provision

should be construed "according to the intent

of they that made it (Coke). Normally, such

intent is gathered from the language of the

provision. If the language or the ::: Downloaded on - 30/08/2025 11:37:31 :::

:31::31::31:

phraseology employed by the legislation is

precise and plain and thus by itself

proclaims the legislative intent in

unequivocal terms, the same must be given

effect to, regardless of the consequences

that may follow. But if the words used in

the provision are imprecise, protean or

evocative or can reasonably bear meanings

more than one, the rule of strict grammatical

construction ceases to be a sure guide to

reach at the real legislative intent. In

such a case, in order to ascertain the true

meaning of the terms and phrases employed, it

is legitimate for the court to go beyond the

arid literal confines of the provision and to

call in aid other well recognised rules of

construction, such as its legislative

history, the basic scheme and framework of

the statute as a whole, each portion throwing

light, on the rest, the purpose of the

legislation, the object sought to be

achieved, and the consequences that may flow

from the adoption of one in preference to the

other possible interpretation."

23. In District Mining Officer Vs Tata Iron andDistrict Mining Officer Vs Tata Iron andDistrict Mining Officer Vs Tata Iron and

Steel Co.(JT 2001 (6) SC 183Steel Co.(JT 2001 (6) SC 183Steel Co.(JT 2001 (6) SC 183 , the Supreme Court stated:

"... The legislation is primarily directed

to the problems before the legislature based

on information derived from past and present

experience. It may also be designed by use

of general words to cover similar problems

arising in future. But, from the very nature

of thing, it is impossible to anticipate

fully in the varied situations arising in

future in which the application of the

legislation in hand may be called for the

words chosen to communicate such indefinite

referents are bound to be in many cases,

lacking in charity and precision and thus

giving rise to controversial questions of ::: Downloaded on - 30/08/2025 11:37:31 :::

:32::32::32:

construction. The process of construction

combines both literal and purposive

approaches. In other words, the legislative

intention, i.e. the true or legal meaning of

an enactment is derived by considering the

meaning of the words used in the enactment in

the light of any discernible purpose or

object which comprehends the mischief and its

remedy to which the enactment is directed".

(emphasis supplied)

24. In Kehar Singh V. State (Delhi Admn), AIR 1988 In Kehar Singh V. State (Delhi Admn), AIR 1988 In Kehar Singh V. State (Delhi Admn), AIR 1988

SC 1883,SC 1883,SC 1883, the Supreme court has observed that "But, if

the words are ambiguous, uncertain or any doubt arises

as to the terms employed, we deem it as our paramount

duty to put upon the language of the legislature

rational meaning. We then examine every word, every

section and every provision. We examine the Act as a

whole. We examine the necessity which gave rise to the

Act. We look at the mischiefs which the legislature

intended to redress." Similarly in District MiningDistrict MiningDistrict Mining

Officer V Tata Iron & Steel Co. (JT 2001 (7) SCC 358,Officer V Tata Iron & Steel Co. (JT 2001 (7) SCC 358,Officer V Tata Iron & Steel Co. (JT 2001 (7) SCC 358,

the Supreme Court has observed that "the legislation is

primarily directed to the problems before the

legislature based on information derived from past and

present experience. It may also be designed by the use

of general words to cover similar problems arising in

future." It is then observed that "the legislative

intention, i.e. the true or legal meaning of an ::: Downloaded on - 30/08/2025 11:37:31 :::

:33::33::33:

enactment is derived by considering the meaning of the

words used in the enactment in the light of any

discernible purpose or object which comprehends the

mischief and its remedy to which the enactment is

directed." The Supreme Court then observed that "a

statute is an edict of the legislature and in construing

a statute, it is necessary to seek the intention of its

maker. A statute has to be construed according to the

intent of them that they make it and the duty of the

court is to act upon the true intention of the

legislature. If a statutory provision is open to more

than one interpretation, the court has to choose that

interpretation which represents the true intention of

the legislature".

25. We can also make reference to the observations

made by Lord Denning in Seaford Court Estates Ltd VSeaford Court Estates Ltd VSeaford Court Estates Ltd V

Asher (1949) 2 ALL ER 155 (CA)Asher (1949) 2 ALL ER 155 (CA)Asher (1949) 2 ALL ER 155 (CA) . In this case, the

learned Judge advised a purposive approach to the

interpretation of a word used in a statute and observed

thus:

"The English language is not an instrument of

mathematical precision. Our literature would

be much the poorer if it were. This is where

the draftsmen of Acts of Parliament have

often been unfairly criticised. A Judge, ::: Downloaded on - 30/08/2025 11:37:31 :::

:34::34::34:

believing himself to be fettered by the

supposed rule that he must look to the

language and nothing lese, laments that the

draftsmen have not provided for this or that,

or have been guilty of some or other

ambiguity. It would certainly save the

Judges trouble if Acts of Parliament were

drafted with divine prescience and perfect

clarity. In the absence of it, when a

defence appears, a Judge cannot simply fold

his hands and blame the draftsman, he must

set to work on the constructive task of

finding the intention of Parliament, and he

must do this not only from the language of

the statute but also from a consideration of

the social conditions which gave rise to it

and of the mischief which it was passed to

remedy, and then he must supplement the

written word so as to give 'force and life"

t o the intention of the legislature .. ...

A Judge should ask himself the question how,

if the makers of the Act had themselves come

across this ruck in this texture of it, they

would have straightened it out? He must then

do so as they would have done. A Judge must

not alter the material of which the Act is

woven, but he can and should iron out the

creases."

(emphasis supplied)

26. Bearing in mind the aforesaid principles, let us

now examine the provisions of section 41 of PSCC Act and

all the relevant provisions of both the statutes, to

answer the questions referred to by the learned Single

Judge.

27. In the present case, we may have to consider

whether the absence of definition of "licensee", either

to specially include or exclude a "gratuitous licensee" ::: Downloaded on - 30/08/2025 11:37:31 :::

:35::35::35:

within the meaning of the expression "licensee" used in

section 41(1) of PSCC Act, was intentional. We are

aware about the verdict of the Privy Council in PakalaPakalaPakala

Narayanasami Vs. Emperior (AIR 1939 PC 47Narayanasami Vs. Emperior (AIR 1939 PC 47Narayanasami Vs. Emperior (AIR 1939 PC 47 ) where Lord

Atkin had declared that "when the meaning of the words

is plain, it is not the duty of the courts to busy

themselves with supposed intentions". In the present

case, however, we may have to refer to the Statement of

Objects and Reasons of the 1976 Amendment as also the

basic rules and principles of interpretation of a

statute for interpreting the expression "licensee" in

view of the fact that the Division Bench in RameshRameshRamesh

Dwarkadas Mehra'sDwarkadas Mehra'sDwarkadas Mehra's case has applied all those principles

for attributing the meaning as reflected in the

definition of "licensee" in section 5(4A) of the Rent

Act to the expression "licensee" in section 41 (1) of

PSCC Act.

28. In order to address the questions posed for our

consideration it would be appropriate to note the

relevant statutory provisions of section 41 of the

Presidency Small Cause Courts Act, 1882 (for short "PSCC

Act") having bearing on these questions. Section 41 of

PSCC Act reads thus: ::: Downloaded on - 30/08/2025 11:37:31 :::

:36::36::36:

"S.41(1) Notwithstanding anything contained

elsewhere in this Act or in any other law for

the time being in force, but subject to the

provisions of sub-section (2), the Court of

the Small Cause shall have jurisdiction to

entertain and try all suits and proceedings

between a licensor and licensee, or a

landlord and tenant, relating to the recovery

of possession of any immovable property

situated in Greater Bombay, or relating to

the recovery of any licence fee or charges or

rent therefore, irrespective of the value of

the subject-matter of such suits or

proceedings.

(2) Nothing contained in sub-section (1)

shall apply to suits or proceedings for the

recovery of possession of any immovable

property, or of licence fee or charges or

rent thereof, to which the provisions of the

Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947, the Bombay Government

Premises (Eviction) Act, 1955, the Bombay

Municipal Corporation Act the Maharashtra

Housing and Area Development Act, 1976 or any

other law for the time being in force,

apply]."

29. This provision begins with non obstante clause

conferring over-riding jurisdiction to the Court of

Small Cause to entertain and try a suit which falls

within the sweep of section 41(1). A mere look at this

provision, as observed by the Supreme Court in

Mansukhlal Dhanraj Jain Vs. Eknath Vithal Ogale, 1995Mansukhlal Dhanraj Jain Vs. Eknath Vithal Ogale, 1995Mansukhlal Dhanraj Jain Vs. Eknath Vithal Ogale, 1995

(3) Bom.C.R. 240,(3) Bom.C.R. 240,(3) Bom.C.R. 240, would show that section 41(1) applies

only when the following conditions stand satisfied: (a)

It must be a suit or proceeding between the licensee and ::: Downloaded on - 30/08/2025 11:37:31 :::

:37::37::37:

licensor; or (b) between a landlord and a tenant; (c)

such suit or proceedings must relate to the recovery of

possession of any property situated in Greater Bombay;

or (d) relating to the recovery of licence fee or

charges or rent thereof. Keeping in view the questions

that fall for our consideration, in the present case, we

are principally concerned with the conditions (a) and

(c) though there could be a suit relating to recovery of

licence fee also as stated in condition (d). If both

these conditions stand satisfied, the court of Small

Cause will have a jurisdiction to entertain the present

suit provided we also hold that the expression

"licensee" means and includes "gratuitous licensee"

also. Therefore, the question whether the term

"licensee" in this section also covers "gratuitous

licensee" and/or the expression "licensee" in section

41(1) of PSCC Act could only be interpreted to mean the

"licensee" within the meaning of sub-section (4A) of

section 5 of PSCC Act will have to be addressed. It may

also be noted that under section 41(1) the Court of

Small Cause shall have jurisdiction to entertain and try

"all suits and proceeding" between licensor and

licensee. The expressions "all suits and proceedings"

means and includes "all suits" against "Licensee" either

relating to recovery of possession of any immovable ::: Downloaded on - 30/08/2025 11:37:31 :::

:38::38::38:

property or relating to the recovery of any licence fee

or both. Apparently, this provision does not make any

distinction between the "licensee" with and without

material consideration.

30. Sub-section (2) of section 41 of PSCC Act states

that nothing contained in sub-section (1) shall apply to

suits or proceedings for the recovery of possession of

any immovable property, or of licence fee or charges or

rent thereof, to which the provisions of Bombay Rent Act

apply. We are not concerned with other two statutes

referred to in sub-section (2). A plain reading of this

sub-section makes it clear that the provisions of

sub-section (1) shall not apply to the suits or

proceedings for recovery of possession of any immovable

property or licence fee to which the provisions of Rent

Act apply which may also mean if the provisions of

sub-section (4-A) and sub-section (11) of section 5 read

with section 15A of the Rent Act are attracted the

provisions of subsection (1) of section 41 of PSCC Act

cannot be taken recourse to institute a suit and

proceeding between the "licensor and licensee" relating

to recovery of possession of any immovable property or

relating to the recovery of licence fee. Apparently,

this provision makes a distinction between the ::: Downloaded on - 30/08/2025 11:37:31 :::

:39::39::39:

expression "licensee" in subsection (1) of section 41 of

PSCC Act and the expression "licensee" occurring in

section 5(4A), of the Rent Act. For instance, if the

"licensee" is covered by section 15A read with section

5(4A) of the Rent Act the suit under section 41(1) would

not be maintainable.

31. The marginal note of section 41 to which a

specific reference is made and relied upon by the

Division Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case, reads

thus: "suits or proceedings between licensors and

licensees or landlords and tenants for recovery of

possession of immovable property and licence fees or

rent, except to those to which other Acts apply to lie

in Small Cause Court". It may be noticed that a

conjunctive "and" used between the expressions "tenants

for recovery of possession of immovable property situate

in Greater Bombay" and "relating to the recovery of any

licence fee" does not find place in sub-section (1) of

section 41 of PSCC Act. In sub-section (1) a

disjunctive "or" is used between these two expressions

thereby indicating that there could be a suit against

licensee for possession irrespective of the fact whether

it relates to recovery of licence fee or charge. It is

not necessary, as indicated in the marginal note, that ::: Downloaded on - 30/08/2025 11:37:31 :::

:40::40::40:

there should be a suit for recovery of possession "and"

for licence fee.

32. It is now well settled that marginal notes to

the section of an Act cannot be referred to for the

purpose of construing the meaning of section

particularly when a language of the section is plain and

simple. (see in this connection I.T.Commissioner VsI.T.Commissioner VsI.T.Commissioner Vs

Ahmadabhai Umarbhai & Co, AIR 1950 SC 131Ahmadabhai Umarbhai & Co, AIR 1950 SC 131Ahmadabhai Umarbhai & Co, AIR 1950 SC 131 ; KalavatibaiKalavatibaiKalavatibai

Vs Soiryabai, AIR 1991 SC 1581, Utamadas Chela SundardasVs Soiryabai, AIR 1991 SC 1581, Utamadas Chela SundardasVs Soiryabai, AIR 1991 SC 1581, Utamadas Chela Sundardas

Vs Shiromani Gurudwara Prabhandhak Committee AIR 1996 SCVs Shiromani Gurudwara Prabhandhak Committee AIR 1996 SCVs Shiromani Gurudwara Prabhandhak Committee AIR 1996 SC

2133)2133)2133). Similarly, marginal note cannot certainly

control the meaning of the body of the section if the

language employed therein is clear. In this connection,

we can usefully refer to the judgment of the Supreme

Court in Nalinakhya Bysack Vs. Shamsunder Halder andNalinakhya Bysack Vs. Shamsunder Halder andNalinakhya Bysack Vs. Shamsunder Halder and

ors AIR 1953 SC 148.ors AIR 1953 SC 148.ors AIR 1953 SC 148. The Supreme Court in this case has

observed that marginal note cannot control the meaning

of the body of the section if the language employed

therein is clear and unambiguous. If the language of

the section is clear then it may be there is an

accidental slip in the marginal notes rather than it is

correct and accidental slip in the body of the section

itself. (See Nandini Satpathy Vs P.L.Dani and others,Nandini Satpathy Vs P.L.Dani and others,Nandini Satpathy Vs P.L.Dani and others,

AIR 1978 SC 1025)AIR 1978 SC 1025)AIR 1978 SC 1025). The Supreme Court in S.P.Gupta andS.P.Gupta andS.P.Gupta and ::: Downloaded on - 30/08/2025 11:37:31 :::

:41::41::41:

others Vs President of India and others, AIR 1982others Vs President of India and others, AIR 1982others Vs President of India and others, AIR 1982

Supreme Court 149,Supreme Court 149,Supreme Court 149, after considering the law on the use

of marginal notes while interpreting the provisions of a

statute in paragraph 1096, held thus:-

"1096. A reading of the passages and

decisions referred to above leads to the view

that the Court while construing a statute has

to read both the marginal notes and the body

of its provisions. Whether the marginal

notes would be useful to interpret the

provisions and if so to what extent depends

upon the circumstances of each case. No

settled principles applicable to all cases

can be laid down in this fluctuating state of

the law as to the degree of importance to be

attached to a marginal note in a statute. If

the relevant provisions in the body of the

statute firmly point towards a construction

which would conflict with the marginal note

the marginal note has to yield. If there is

any ambiguity in the meaning of the

provisions in the body of the statute, the

marginal note may be looked into as an aid to

construction."

33. It is thus clear that the function of a marginal

note is as a brief indication of the contents of the

section. It cannot be referred to for the purpose of

construing the meaning of section particularly when the

language is plain and simple. In other words, it cannot

construe the meaning of the body of the section if the

language employed therein is clear. If the relevant

provisions in the body of the statute firmly point ::: Downloaded on - 30/08/2025 11:37:31 :::

:42::42::42:

towards a construction which would conflict with the

marginal note the marginal note has to yield. In short,

the marginal note is a poor guide to the scope of a

section. In any case, the marginal note cannot be

legitimately used to restrict the wide words/expressions

in the section or plain term of an enactment and it

cannot be said to be enacted in the same sense.

34. In the present case, in our opinion, sub-section

(1) of section 41 of PSCC Act is clear and unambiguous.

The use of conjunctive, as aforestated, in the marginal

note appears to be an accidental slip. The disjunctive

"or" in sub-section (1) cannot be overlooked while

interpreting the provisions of section 41. The

disjunctive "or" clearly indicates that the court of

Small Cause shall have a jurisdiction to entertain and

try all suits and proceedings between the licensor and

licensee relating to the recovery of possession of any

immovable property situated in Greater Bombay and it is

not necessary that such suit should also be for recovery

of any licence fee. There could be a suit against

licensee relating only to recovery of possession of any

immovable property. The Legislature has not used the

conjunctive "and" in sub-section (1) of section 41

purposely thereby, in our opinion, making its intention ::: Downloaded on - 30/08/2025 11:37:31 :::

:43::43::43:

clear that there could be a suit only relating to the

recovery of possession of immovable property against the

licensee.

35. The provisions of section 41(1) do not

specifically exclude the "gratuitous licensee" or makes

any distinction between the licensee with material

consideration and the licensee without material

consideration. If that would have been the intention of

the legislature nothing would have prevented it from

saying so specifically. If "or" in sub-section (1) is

read as "and" perhaps we also would have had said that a

suit under section 41(1) would be maintainable against a

licensee only if licence was created with material

consideration.

36. It appears that even in the Statement of Objects

and Reasons conjunctive "and" is used. The Division

Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case has made

reference to the Statement of Objects and Reasons of the

1976 Amendment by which Chapter VII of PSCC Act was

substituted. In paragraph 43 of the judgment, the

Division Bench has made the analysis of the Statement of

Objects and Reasons. We find it difficult to accept the

analysis made therein. It would be advantageous to ::: Downloaded on - 30/08/2025 11:37:31 :::

:44::44::44:

reproduce the relevant paragraph no.43 which reads

thus:-

"43. A careful analysis of the Statement of

Objects and Reasons shows that the Bill

proceeds on the footing that under the

existing law "the licensor has to go to

different Courts for recovery of possession

of premises and licence fees and if the plea

of tenancy is raised by the Defendants and

succeeds, the matter is again to go to the

Small Causes Court." (Emphasis added). This

obviously contemplates a situation of licence

for consideration for otherwise the plea of

tenancy could not be raised. The other

situation contemplated under the Statement of

Objects and Reasons is where proceedings on

the basis of tenancy has started in the Small

Causes Court "and subsequently the defence of

licence is taken and succeeds". (Emphasis

added). Here again, the suit could not have

been filed on the basis of a tenancy, if the

licence was gratuitous. Thus, it appears to

us that the factual situation which was in

the contemplation of the Legislature when

bringing forward the amendment to Section 41

by Act XXI of 1975, did not include a

gratuitous licensee. Thus, we are fortified

in our thinking that the amendment to Section

41, despite its somewhat wide language, was

not intended to apply to gratuitous

licensee."

It is apparent, from bare perusal of the aforesaid

paragraph that in view of the conjunctive "and" used

between the expressions "the licensor has to go to

different courts for recovery of the possession of the

premises" and "Licence fee", even in the statement of

objects and reasons, the Division Bench has observed ::: Downloaded on - 30/08/2025 11:37:31 :::

:45::45::45:

that "this obviously contemplates the situation of

licence for consideration for otherwise the plea of

tenancy could not be raised." We have already observed

and also recorded that the conjunctive "and" does not

find place in subsection (1) of Section 41 of PSCC Act.

If disjunctive "or" as used in section 41(1) is taken

into consideration it would not be possible for us to

hold that the licence should be for consideration so as

to maintain a suit under section 41(1) of PSCC Act in

the court of Small Causes. The Division bench has

further proceeded to observe that the suit could not

have been filed on the basis of a tenancy, if the

licensee was gratuitous. This observation is made on

the basis of a situation contemplated in the statement

of objects and reasons where the proceedings on the

basis of tenancy has started in the Small Causes Court

and subsequently the defence of licence is taken and

succeed. We find it difficult to assume that the suit

against gratuitous licence is not maintainable in the

court of Small Causes. In the circumstances, it is not

possible to agree with the view expressed by the

Division Bench in Ramesh Dwarkadas Mehra's case.

37. At this stage we deem it appropriate to make

reference to section 28(1) of the Rent Act, 1947. This ::: Downloaded on - 30/08/2025 11:37:31 :::

:46::46::46:

section deals with jurisdiction of the Courts. The

relevant part of section 28(1) reads thus:

"28(1) Notwithstanding anything contained in

any law and notwithstanding that by reason of

the amount of the claim or for any other

reason, the suit or proceeding would not, but

for this provision, be within its

jurisdiction, --

(a) in Greater Bombay, the Court of Small

Causes, Bombay,

(aa) in any area for which, a Court of Small

Causes is established under the Provincial

Small Cause Courts Act, 1887, such Court and]

(b) elsewhere, the Court of the Civil Judge

(Junior Division) having jurisdiction in the

area in which the premises are situate or, if

there is no such Civil Judge the Court of the

Civil Judge (Senior Division) having ordinary

jurisdiction.

shall have jurisdiction to entertain and try

suit or proceedings between a landlord and a

tenant relating to the recovery of rent or

possession of any premises to which any of

the provisions of this Part apply [or between

a licensor and licensee relating to the

recovery of the licence fee or charge] and to

decide any application made under this Act

and to deal with any claim or question

arising out of this Act or any of its

provisions and [subject to the provisions of

sub-section (2)] no other Court shall have

jurisdiction to entertain any such suit,

proceedings, or application or to deal with

such claim or question".

38. A glance at this section read with section 5(4A)

would show that a defendant who claims to be a

"gratuitous licensee" is not entitled to any protection ::: Downloaded on - 30/08/2025 11:37:31 :::

:47::47::47:

under the Rent Act. In other words, having regard to

the sections 5(4A) and section 28, their application

clearly exclude a "gratuitous licensee" from the

protection of the Rent Act. Consequently, section 28 of

the Rent Act cannot confer a jurisdiction on the Small

Cause Court to entertain a suit against a gratuitous

licensee and a suit would lie before the ordinary civil

court or the High Court for recovery of the possession

of the premises from the gratuitous licensee if we hold

that a suit against such licensee even under section

41(1) of PSCC Act would not be maintainable.

39. A mere look at Section 28 of the Bombay Rent Act

and section 41(1) of PSCC Act would clearly show that

pari materia words are used about nature of suits in

both these provisions for conferring exclusive

jurisdiction on Small Cause Court, namely, it alone can

entertain the suits or proceedings relating to recovery

of possession of the premises. Section 41 of PSCC Act

deals with such suits between the licensee and licensor

also, while section 28 of the Bombay Rent Act, 1947

deals with the suit only between the landlord and tenant

and between licensor and licensee relating only to the

recovery of the licence fee or charge. Where the

premises are governed by the provisions of the Rent Act, ::: Downloaded on - 30/08/2025 11:37:31 :::

:48::48::48:

the provisions of Section 28 would be attracted and

where the premises are not governed by the Rent Act, the

provisions of section 41 of PSCC Act would apply. But

the nature of such suits as envisaged by both these

sections is same.

40. The Supreme Court in Mansukhlal Dhanraj Jain'sMansukhlal Dhanraj Jain'sMansukhlal Dhanraj Jain's

case (supra) has dealt with the question "whether the

suit filed by the plaintiff claiming the right to

possess the suit premises as a licensee, against

defendant alleged licensor, who is said to be

threatening to disturb the possession of the

plaintiff-licensee, without following due process of

law, is cognizable by the Court of Small Causes, Bombay

as per section 41(1) of PSCC Act or whether it is

cognizable by the City Civil Court Bombay?" The Supreme

Court, while dealing with this question and holding that

the Court of Small Cause shall have a jurisdiction has

observed that in section 41(1) of PSCC Act and section

28 of the Bombay Rent Act, 1947 pari materia words are

used about nature of the suits in both these provisions

for conferring exclusive jurisdiction on Small Cause

Courts. This judgment, (in Mansukhlal Dhanraj Jain'sMansukhlal Dhanraj Jain'sMansukhlal Dhanraj Jain's

case), does not state that the PSCC Act and the Rent Act

are cognate pari materia statutes. It is clear from the ::: Downloaded on - 30/08/2025 11:37:31 :::

:49::49::49:

observations made by the Supreme Court in paragraphs 17

and 18 of the judgment that some expressions in section

28 of the Rent Act only are pari materia with the

expressions employed in section 41(1) of the Small Cause

Court Act. We are unable to agree with the observations

made by the Division Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's

case in respect of this judgment. It is apparent from

the observations made in this case that the Supreme

Court considered the similar words used in

jurisdictional provision in two different Acts, namely

the Rent Act and PSCC Act. The Supreme Court was

concerned with the interpretation of the words "relating

to recovery of possession". That phrase occurs both, in

section 41 of PSCC Act and section 28 of the Rent Act.

In view thereof, the Supreme Court observed that pari

materia words are used in both the Acts and

interpretation on that phrase in one Act would also be

useful in interpreting identical phrase in another Act.

It is clear that the Supreme Court was not concerned

with the provision dealing with substantive rights in

one Act as contrasted to a procedural provision in

another Act. Neither section 28 of the Rent Act nor

section 41 of PSCC Act confer any substantive rights on

the parties. The Supreme Court has no where stated that

PSCC Act and the Rent Act are cognate pari materia ::: Downloaded on - 30/08/2025 11:37:31 :::

:50::50::50:

statutes.

41. The Division Bench in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's

case in paragraph 38 has observed that "the Rent Act and

the Chapter VII of PSCC Act are pari materia, is

incontrovertible in view of the specific provision made

in Section 51 of the Rent Act". We are unable to agree

with this observation. A glance at section 51 of the

Rent Act would show that it provides for the removal of

doubt as regards proceedings under Chapter VII of PSCC

Act. It states that for removal of doubt, it is

declared that, unless there is anything repugnant in the

subject or context references to suits or proceedings in

this Act, shall include references to proceedings under

Chapter VII of PSCC Act and references to decrees in

this Act shall include references to final orders in

such proceedings. The Division Bench in Ramesh

Dwarkadas Mehra's case finds support from this provision

in coming to the conclusion that it should be guided by

the provisions of the Rent Act while interpreting the

word "licensee" in Chapter VII of PSCC Act. In our

opinion, section 51 of the Rent Act will have to be read

with section 50. On the date when the Rent Act came

into force, there were two different kinds of

proceedings for recovery of possession pending in two ::: Downloaded on - 30/08/2025 11:37:31 :::

:51::51::51:

different courts in the city of Mumbai. There were

proceedings under Chapter VII pending in the Small

Causes Court while there were suits pending on the

original side of this Court. Section 50 provides that

suits pending in any court, which also includes the High

Court, shall be transferred to and continued before the

courts which would have jurisdiction to try such suits

or proceedings under the Rent Act and shall be continued

in such courts as the case may be and all provisions of

the Rent Act and the Rules made thereunder shall apply

to all such suits and proceedings. In short, this means

the suits pending in the High Court will be transferred

to the Small Cause Court and will be heard and tried

there and all the provisions of the Rent Act and the

Rules made thereunder shall apply to such suits. It

further provides that all proceedings pending in the

Court of Small Cause under Chapter VII shall be

continued in that court and all provisions of the Rent

Act and the Rules made thereunder shall apply to such

proceedings. Thus, pending proceedings under Chapter

VII were to be continued as proceedings under the Rent

Act and all provisions and the Rules under the Rent Act

were to apply to such proceedings. It was in this

context that section 51 states that references to suits

or proceedings under the Rent Act shall include ::: Downloaded on - 30/08/2025 11:37:31 :::

:52::52::52:

references to proceedings under Chapter VII of PSCC Act

and references to decrees in the Rent Act shall include

references to final order in such proceedings. It will

have to be noticed that against the decree for eviction

an appeal is provided under the Rent Act. Since the

proceedings under Chapter VII were to continue even

after coming into force of the Rent Act and since there

were no decrees to be based in such proceedings, but

only final orders, as unsuccessful litigants could be

deprived of a right of an appeal as the appeals were

provided only against decrees. Hence, section 51 was

added by Bombay 3 of 1949. This purpose of section 51

of the Rent Act cannot be overlooked.

42. The PSCC Act does not define expression

"licensor" and "licensee". Both these expressions find

a place in section 41(1) of PSCC Act. Under this

provision the Court of Small Cause is conferred with the

jurisdiction to entertain and try all the suits and

proceedings between a "licensor" and a "licensee"

relating to recovery of possession of any immovable

property or relating to recovery of licence fee.

Section 5(4A) of the Rent Act defines the term

"licensee" while section 52 of the Indian Easement Act,

1882 defines the term "licence". A mere look at both ::: Downloaded on - 30/08/2025 11:37:31 :::

:53::53::53:

these provisions would show that sub-section (4A) of

section 5 of the Bombay Rent Act clearly provides that

the "licensee" means a person who is in occupation of

the premises or such part as the case may be, under a

subsisting agreement for licence given for a "licence

fee or charge". The definition of "licensee" under

sub-section (4A) of section 5 is very exhaustive and is

inclusive and exclusive in character. However, it would

suffice to note that the licensee under sub-section (4A)

must be a licensee whose licence is supported by

material consideration. In other words, a gratuitous

licensee is not covered under the definition of licensee

under sub-section (4A) of section 5 of the Rent Act.

43. As opposed to this, the expression "licence", as

defined under section 52 of the Indian Easement Act,

provides that 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

easement or an interest in the property, the right is

called a license. Section 52 does not require any

consideration, material or non material, to be an

element of the definition of licence, nor does it ::: Downloaded on - 30/08/2025 11:37:31 :::

:54::54::54:

require that the right under the licence must arise by

way of contract or as a result of a mutual promise.

Thus, licence as defined in section 52 of the Indian

Easement Act can be a unilateral grant and unsupported

by any consideration. The Supreme Court in State ofState ofState of

Punjab Vs. Brig Sukhjit Singh 1993(3) SCC 459Punjab Vs. Brig Sukhjit Singh 1993(3) SCC 459Punjab Vs. Brig Sukhjit Singh 1993(3) SCC 459 has

observed that, "payment of licence fee is not an

essential attribute for subsistence of licence".

44. Let us see as to how the expressions "licence"

and "licensee" are understood, used and spoken in common

parlance. It is often said that a word, apart from

having the meaning as defined under different statutes,

has ordinary or popular meaning and that a word of

everyday usage it must be construed in its popular

sense, meaning that sense which people conversant with

the subject matter with which the statute is dealing

would attribute to it. A "licence" is a power or

authority to do some act, which, without such authority,

could not lawfully be done. In the context of an

immovable property a "licence" is an authority to do an

act which would otherwise be a trespass. It passes no

interest, and does not amount to a demise, nor does it

give the licensee an exclusive right to use the

property. (See Puran Singh Sahani Vs Sundari Bhagwandas ::: Downloaded on - 30/08/2025 11:37:31 :::

:55::55::55:

Kriplani (1991) 2 SCC 180). Barron's Law Dictionary has

given the meaning of word "licensee" to mean "the one to

whom a licence has been granted; in property, one whose

presence on the premises is not invited but tolerated.

Thus, a licensee is a person who is neither a customer,

nor a servant, nor a trespasser, and does not stand in

any contractual relation with the owner of the premises,

and who is permitted expressly or implidly to go thereon

usually for his own interest, convenience, or

gratification". Stroud's Judicial Dictionary of Words

and Phrases, Sixth Edition, Vol.2, provides the meaning

of word "licensee" to mean "a licensee is a person who

has permission to do an act which without such

permission would be unlawful. (See Vaughan C.J., in

Thomas Vs Sewell, Vaugh at page 330, at page 351, quoted

by Romour, J, in Frank Warr & Co. Vs. London County

Council (1940) 1 K.B. 713)." In Black's Law Dictionary,

Seventh Edition, the word "licence" means "a revocable

permission to commit some act that would otherwise be

unlawful" and the word "licensee" means "one to whom a

licence is granted or one who has permission to enter or

use another's premises, but only for one's own purposes

and not for the occupier's benefit." Thus, it is seen

that even in popular sense the word "licence" is not

understood to mean it should be on payment of licence ::: Downloaded on - 30/08/2025 11:37:31 :::

:56::56::56:

fee for subsistence of licence. It also covers a

"gratuitous licensee", that is, a person who is

permitted, although not invited, to enter another's

property and who provides no consideration in exchange

for such permission.

45. The concept of "licence" as reflected in the

definition of licensee under sub-section (4A) of section

5 of the Bombay Rent Act and section 52 of the Indian

Easement Act are contra distinguishable. Under

sub-section (4A) there cannot be licence unsupported by

any material consideration whereas under section 52

payment of licence fee is not an essential attribute for

subsistence of licence. Therefore, we are considering

as to whether meaning of the expression "licensee", as

reflected in sub-section (4A) of section (5), could be

attributed to the expression "licensee" employed in

section 41(1) of PSCC Act or the meaning of the

expression "licence" as reflected in section 52 of the

Indian Easement Act could be derived for making the

expression "licensee" used in section 41(1) wider so as

to cover the term "gratuitous licensee" as well. The

intention of the Legislature which amended PSCC Act in

1976 and inserted the expressions "licensee and

licensor" in section 41 (1) of the said Act, will have ::: Downloaded on - 30/08/2025 11:37:31 :::

:57::57::57:

to be discerned.

46. If the definition of "licensee" in sub-section

(4A) of section 5 of Rent Act is accepted to understand

the expressions "licensee" in section 41(1) of PSCC Act

as held by the division bench in Ramesh DwarkadasRamesh DwarkadasRamesh Dwarkadas

Mehra'sMehra'sMehra's case, undoubtedly, in every case instituted by

the landlord in the Small Cause Court/City Civil Court

for recovery of possession of the premises, if the

defendant raises a question of his status and on the

basis thereof an issue of jurisdiction the only option

that would be left open to the landlord would be to get

the issue of jurisdiction decided first and then to

proceed on merits before the Court which has

jurisdiction to entertain and try the suit on merits.

Every such landlord will have to begin a fresh round of

litigation either by withdrawing the suit from the court

where it was filed or after the plaint is returned for

presenting it to an appropriate court, whenever the

issue of jurisdiction is decided in favour of the

defendant.

47. In our opinion, the legislature in its wisdom

has neither defined the word "licensee" in any of the

definitions of the Act nor has clarified it. The ::: Downloaded on - 30/08/2025 11:37:31 :::

:58::58::58:

primary object of the Act is to avoid multiplicity of

proceedings in different Courts and consequent waste of

public time and money and unnecessary delay, hardship

and expense to the suitors, and to have uniformity of

procedure. It was considered expedient to make the

required supplementary provisions in PSCC Act so that

all suits and proceedings between a landlord and a

tenant or a licensor and a licensee for recovery of

possession of premises or for recovery of rent or

licence fee, irrespective of the value of the

subject-matter, should go to and be disposed of by the

Small Cause Court, either under PSCC Act or the Rent

Control Act. In these circumstances, therefore, the

word "licensee", in our opinion, obviously has been used

by the legislature in general sense of the term as

defined in the Indian Easement Act, which is the statute

that governs all the licence of immovable properties.

In other words, the word "licensee" being a term of well

known legal significance having well ascertained

incidents, the legislature did not think it necessary to

define it separately.

48. The provisions of section 41(1) of PSCC Act

neither specifies as to what the expression "licensee"

used therein exactly means, nor does it expressly ::: Downloaded on - 30/08/2025 11:37:31 :::

:59::59::59:

exclude any particular category of licensee. A plain

reading of section 41(1) would show that the expression

"licensee" is used in a general sense. It does not

exclude a gratuitous licensee from its purview. The

defined meaning of the expression "licensee" under

section 5(4A) of the Rent Act cannot be assigned or

attributed to the word "licensee" occurring in section

41(1) of PSCC Act. Merely because some expressions in

section 28 of the Rent Act are pari materia with the

expressions employed in section 41(1) of PSCC Act does

not mean the wider meaning of the expression "licensee"

stands restricted or shrunk to mean only the licence

given for licence fee or charge. The object behind

bringing the licensor and the licensee within the

purview of section 41(1) by the 1976 Amendment was to

curb any mischief of unscrupulous elements using

dilatory tactics in prolonging the cases for recovery of

possession instituted by the landlord/licensor and to

defeat their right of approaching the Court for quick

relief and also to cause inconvenience to the court

making it to deal with an issue of jurisdiction in such

cases for years together even before touching upon the

merits of the case.

49. We are fortified in the aforesaid view by the ::: Downloaded on - 30/08/2025 11:37:31 :::

:60::60::60:

decision of the Supreme Court in Soniya Bhatia Vs.Soniya Bhatia Vs.Soniya Bhatia Vs.

State of U.P. AIR 1981 Supreme Court 1274State of U.P. AIR 1981 Supreme Court 1274State of U.P. AIR 1981 Supreme Court 1274 wherein the

Supreme Court was concerned with the ambit of expression

"transfer" and "consideration" occurring in U.P.

Imposition of Ceiling on Land Holdings Act. Those words

were neither defined in any of the definitions of the

said Act nor clarified it after considering the primary

object of the Act. In these circumstances, the Supreme

Court has observed that the word "transfer" has

obviously been used by the legislature in general sense

of the term as defined in the Transfer of Property Act.

It was further observed that the word "transfer" being a

term of well known legal significance having well

ascertained incidents, the legislature did not think it

necessary to define the term "transfer" separately. It

would be relevant to reproduce the observations made by

the Supreme Court in paragraph 10 of the judgment in

Soniya Bhatia'sSoniya Bhatia'sSoniya Bhatia's case:

"10. It is well settled that whenever the

legislature uses certain terms of expressions

of well-known legal significance or

connotation the courts must interpret them as

used or understood in the popular sense. In

the case of C.I.T. Andhra Pradesh V.

M/s.Taj Mahal Hotel, Secunderabad, (1972) 1

SCR 168; (AIR 1972 SC 168) this Court while

laying down guidelines for holding how a

particular expression has been defined, ::: Downloaded on - 30/08/2025 11:37:31 :::

:61::61::61:

observed as follows:-

"Now it is well settled that where

the definition of a word has not been

given, it must be construed in its

popular sense means `that sense which

people conversant with the subject

matter with which the statute is

dealing would attribute to it'."

Lord Alkinson in Keates V Lewis 1911 AC 641

observed as follows:

"In the construction of a statute it

is of course, at all times and under

all circumstances permissible to have

regard to the state of things

existing at the time the statute was

passed, and to the evils, which as

appears from its provisions, it was

designed to remedy. If the words are

capable of one meaning alone; then

it must be adopted, but if they are

susceptible of wider import, we have

to pay regard to what the statute or

the particular piece of legislature

had in view."

In our opinion, these observations are fully applicable

to the present Act which has for its object to remedy

the mischief likely to be raised by the

occupant/defendant by taking different defences and

raising an issue of jurisdiction and making the landlord

run from one court to another to have his suit decided

on merits. In any case, it cannot be said that the word

"licensee" is capable of one meaning, as defined under

section 5(4A) of PSCC Act. It is susceptible of wider

import and, therefore we have to pay regard to what the ::: Downloaded on - 30/08/2025 11:37:31 :::

:62::62::62:

legislature had in view.

50. We have already seen the background against

which section 15-A of the Bombay Rent Act, 1947 was

introduced by the 1973 Amendment Act, by which a person

who is in occupation on 1st February 1973 of any

premises or any part of which is not less than a room as

a licensee, shall on that day deemed to have become, for

the purpose of Rent Act, 1947, the tenant of the

landlord in respect of the said premises. We cannot

overlook that it was introduced to remedy the mischief.

On introduction of this provision a consequential

amendment to section 5 was made and sub-section (4-A)

was inserted as also the definition of "tenant" under

sub-section 11 was made wider so as to include licensees

in possession of the premises.

51. Insofar as the 1976 Amendment, by which a new

chapter VII was inserted in PSCC Act in the place of

earlier Chapter VII, is concerned the intention of the

legislature, in our opinion, was not the same as

reflected in the amendment made in 1973 by which section

15-A and section 5(4A) in the Bombay Rent Act, 1947 were

inserted. It may be relevant to notice the Statement of

Objects and Reasons appended to LA Bill No.I of 1973, ::: Downloaded on - 30/08/2025 11:37:31 :::

:63::63::63:

which reads thus:

"It is now notorious that the Bombay Rents,

Hotel and Lodging House Rates Control Act,

1947, is being avoided by the expedient of

giving premises on leave and licence for some

months at a time, often renewing from time to

time at a higher licence fee. Licensees are

thus charged excessive licence fees; in

fact, several times more than the standard

rent, and have no security of tenure, since

the licensee has no interest in the property

like a lessee. It is necessary to make

provision to bring licensees within the

purview of the aforesaid Act. It is

therefore provided by clause 14 in the Bill

that persons in occupation on the 1st day of

February 1973 (being a suitable anterior

date) under subsisting licences, shall for

the purposes of the Act, be treated as

statutory tenants, and will have all the

protection that a statutory tenant has, under

the Act."

52. The statement of objects and reasons of the

amendment made in 1976 by which new Chapter VII was

substituted in PSCC Act will have to be noticed and we

deem it appropriate to reproduce the same which reads

thus:

. "At present in Greater Bombay, all

suits and proceedings between a landlord and

tenant relating to recovery of possession of

premises or rent, irrespective of the value

of the subject-matter, lie in the Court of

Small Causes, Bombay, under section 28 of the

Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947. Under that section, suits ::: Downloaded on - 30/08/2025 11:37:31 :::

:64::64::64:

and proceedings for the recovery of the

licence fee between a licensor and licensee

as defined in that Act also lie in the Court

of Small Causes, irrespective of the value of

the subject-matter. Under Chapter VII of the

Presidency Small Cause Courts Act, 1882, an

application can be made by a licensor for

recovery of possession of premises, of which

the annual value at a rack rent does not

exceed three thousand rupees. If the rack

rent exceeds three thousand rupees, the

licensor has to take proceedings in the City

Civil Court where the rack rent does not

exceed twenty five thousand rupees and for

higher rents in the High Court. Similarly,

for recovery of licence fees to which the

provisions of the Bombay Rent Control Act do

not apply, the licensor has to seek his

remedy in the Small Cause Court, the City

Civil Court or the High Court, as the case

may be, according to the value of the

subject-matter. Under the existing law, the

licensor has to go to different Courts for

recovery of possession of premises and

licence fees and if the plea of tenancy is

raised by the defendant and succeeds, the

matter has again to got to the Small Cause

Court. Similarly, where proceedings on the

basis of tenancy are started in the Small

Cause Court and subsequently the plea of

licence is taken and succeeds, the plaint is

returned and has to be re-presented to the

City Civil Court or the High Court, as the

case may be, depending on the valuation.

Thus there is unnecessary delay, expense and

hardship caused to the suitors by going from

one Court to another to have the issue of

jurisdiction decided. Moreover, Chapter VII

of the Presidency Small Cause Courts Act

envisages applications which culminate in

orders and are always susceptible of being

challenged by separate suits on title where

the relationship is admittedly not between a

landlord and tenant.

2. In order to avoid multiplicity of

proceedings in different Courts and

consequent waste of public time and money and

unnecessary delay, hardship and expense to ::: Downloaded on - 30/08/2025 11:37:31 :::

:65::65::65:

the suitors, and to have uniformity of

procedure, it is considered expedient to make

the required supplementary provisions in the

Presidency Small Cause Courts Act, so that

all suits and proceedings between a landlord

and tenant or a licensor and licensee for

recovery of possession of premises or for

recovery of rent or licence fee, irrespective

of the value of the subject-matter, should go

to and be disposed of by the Small Cause

Court, either under that Act or the Rent

Control Act.

3. The Bill in intended to achieve these

objects."

53. It is true that the statement of objects and

reasons may not be admissible as an aid to the

construction of a statute and it may be referred to for

the limited purpose of ascertaining the conditions

prevailing at the time which actuated the sponsor of the

bill to introduce the same and the extent and urgency of

the evil which was sought to be remedied. (See(See(See

M.K.Ranganathan Vs Government of Madras, AIR 1955M.K.Ranganathan Vs Government of Madras, AIR 1955M.K.Ranganathan Vs Government of Madras, AIR 1955

S.C.604)S.C.604)S.C.604). However, the statement of objects and

reasons, at the same time, cannot be overlooked and

could be used to assess the intent of the legislature in

the event of there being any confusion and no exception

can be taken. The Supreme court in Arnit DasArnit DasArnit Das (supra)

has observed that the ambiguity can be resolved by

taking into consideration the preamble and the statement

of object and reasons, which suggests what the Act was ::: Downloaded on - 30/08/2025 11:37:31 :::

:66::66::66:

intended to deal with. If language used is ambiguous or

controversy is raised on the language the Courts are

permitted to look into it. It would be useful to

interpret the enactment so as to harmonise it with the

object which legislature had in its view. It is true

that this is not an indispensable requirement but when

forced with an imperative need to appreciate the proper

intent of legislature it may be looked into. In the

facts of this case and the manner in which the

controversy has arisen we deem it appropriate to look

into the object which the legislature intended to

achieve by substituting Chapter VII in 1976. The

Statement of Object and Reasons is a key to unlock the

mind of legislature in relation to substantive

provisions of statutes. It is now well settled that a

statute is best interpreted when we know why it was

enacted. We, therefore, would like to examine the

necessity which gave rise to the 1976 Amendment Act and

look at the mischief which the legislature intended to

redress.

54. It is pertinent to note that the Division Bench

in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case after considering the

Statement of Object and Reasons in paragraph 42 observed

thus: ::: Downloaded on - 30/08/2025 11:37:31 :::

:67::67::67:

".... ..... depending on whether plea of

licensee/tenancy succeeded in one or the

other Court, the plaint would be returned and

the suitor would have to recommence his long

and ardous challenge in another Court. The

Bill was intended to cut through this Gordian

Knot to save public time and money and avoid

unnecessary delay, expenses and hardships to

suitors. By the amendment carried out in

Section 41, all suits of the type indicated

therein were brought within the jurisdiction

of the Small Causes Court irrespective of the

value of the subject matter ."

(emphasis supplied)

These observations show that the statement of objects

and reasons was appreciated in its right perspective,

but we are at a loss to understand as to why a category

of "gratuitous licensee" was excluded.

55. It is settled by the Supreme Court in catena of

decisions that a reference to the statement of objects

and reasons is permissible for understanding the

background, the antecedents, state of affairs, the

surrounding circumstances in relation to the statute and

the evil which the statute sought to remedy. The

Supreme Court recently in Bhaiji Vs Sub-DivisionalBhaiji Vs Sub-DivisionalBhaiji Vs Sub-Divisional

Officer Thandla, 2003 (1) SCC 692Officer Thandla, 2003 (1) SCC 692Officer Thandla, 2003 (1) SCC 692 has reiterated this

principle and has further added that "the weight of the

judicial authority leans in favour of the view that the ::: Downloaded on - 30/08/2025 11:37:31 :::

:68::68::68:

Statement of Objects and Reasons cannot be utilised for

the purpose of restricting and controlling statute and

excluding from its operation such transactions which it

plainly covers." This is what exactly been done, in

Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's case, after referring to the

Statement of Objects and Reasons plain meaning of the

expression "licensee" occurring in section 41(1) of PSSC

Act has been restricted to mean the licensee with

monetary consideration as defined under section 5(4A) of

the Rent Act.

56. In a suit under section 41 before its amendment

in 1976 if the plea of tenancy was raised and succeeded,

the matter would again have to be tried by the Small

Causes Court. Conversely, in a proceedings initiated in

the Small Cause Court on the footing of tenancy, if a

defence of licence is taken and succeeded, the plaint

would have to be returned and re-presented to the City

Civil Court or the High Court depending on the

valuation. That would cause unnecessary delay, expense

and hardship to the suitor to move from one Court to

another to have the issue of jurisdiction decided. In

order to overcome these difficulties, and to eliminate

delay, expenses and hardship to the suitor, and to have

uniformity of procedure, the Chapter VII in PSCC Act was ::: Downloaded on - 30/08/2025 11:37:31 :::

:69::69::69:

substituted in 1976 so that all suits and proceedings

between "landlord and tenant" or "licensor or licensee"

for recovery of possession of premises or for recovery

of rent or licence fee or charge irrespective of the

value of the subject matter should go to and be disposed

of by Small Cause Court. Thereby, the legislature

intended to bring "all suits" between landlord and

tenant and licensor and licensee , whether under the

Rent Act or under PSCC Act under one roof. It would not

be proper to state that after the amendment the third

forum, that is, City Civil/District Court or the High

Court is available. In our opinion, any other

interpretation would not fit in the scheme and looking

at the phraseology employed by the legislature in

drafting the 1976 Amendment Act, we find no reason as to

why "gratuitous licensee" is also not covered within the

meaning of the expression "licensee" in sub-section (1)

of section 41 of PSCC Act.

57. We find it difficult to accept the submission

based on the observation in Ramesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra'sRamesh Dwarkadas Mehra's

case that the inspiration for using the expression

"licensee" in section 41 of PSCC Act was derived from

the amendment of 1973 carried out in the Bombay Rent Act

by which section 15-A was introduced. Nothing had ::: Downloaded on - 30/08/2025 11:37:31 :::

:70::70::70:

prevented the legislature from saying so specifically if

that would have been the intention and if that was so

the legislature would have certainly amended section 41

of PSCC Act also in the year 1973 itself and not waited

to substitute Chapter VII until 1976. As a matter of

fact it appears that even after the amendment of 1973 by

which section 5(4A) and 15-A of the Rent Act was

introduced the legislature seems to have found that the

mischief was not remedied and to bring all suits in

respect of the licences, whether or not supported by the

material consideration, before the Court of Small

Causes. The very object and purpose will be defeated if

the expression "licensee" is not read to mean and

include the gratuitous licensees also. The expression

"licensee" must be given the widest interpretation so as

to bring gratuitous licensee within its sweep and it is

also consistent with the very object with which the 1976

Amendment was brought into force.

58. The principle of noscitur a sociis cannot be

applied in the present case to restrict the meaning of

the expression "licensee" so as to include only the

licence given for a licence fee or charge. The Supreme

Court very recently in Chandigarh Housing Board Vs.Chandigarh Housing Board Vs.Chandigarh Housing Board Vs.

Devendra Singh, 2007-AIR SC 2724Devendra Singh, 2007-AIR SC 2724Devendra Singh, 2007-AIR SC 2724 , has observed that "if ::: Downloaded on - 30/08/2025 11:37:31 :::

:71::71::71:

a plain meaning can be given effect to, there is no

reason why it should not be applied. The Court would

not take recourse to any other principles of

interpretation when it is not necessary". In our

opinion, applying the principle "noscitur a sociis" is

unnecessary since we find no reason why a plain meaning

to the expression "licensee" employed in section 41 (1)

of PSCC be applied. It must be borne in mind that

noscitur a sociis, is merely a rule of construction and

it cannot prevail in cases where it is clear that the

wider words have been deliberately used in order to make

the scope of the defined word correspondingly wider. It

is only where the intention of the Legislature in

associating wider words with words of narrower

significance is doubtful, or otherwise not clear that

the present rule of construction can be usefully

applied. Intention of the legislature in using the

expression "licensee" in section 41(1) of PSCC Act, in

our opinion, is clear and need not be interpreted by

applying the principle of noscitur a sociis. (In this

connection, see State of Bombay Vs Hospital MazdoorState of Bombay Vs Hospital MazdoorState of Bombay Vs Hospital Mazdoor

Sabha, AIR 1960 SC 610Sabha, AIR 1960 SC 610Sabha, AIR 1960 SC 610 ). The Supreme Court in Bank ofBank ofBank of

India Vs. Vijay Transport, AIR 1988 SC 151India Vs. Vijay Transport, AIR 1988 SC 151India Vs. Vijay Transport, AIR 1988 SC 151 has stated

that the rule of noscitur a sociis has no application

when the meaning is not in doubt. This maxim is not to ::: Downloaded on - 30/08/2025 11:37:31 :::

:72::72::72:

be mechanically applied. It is of assistance only

insofar as it forbids guidance by compendiously summing

up principles based on rules of common source and logic.

The observations of the Supreme Court in Rohit Pulp andRohit Pulp andRohit Pulp and

Paper Mills Ltd Vs. Collector of Central Excise, AIRPaper Mills Ltd Vs. Collector of Central Excise, AIRPaper Mills Ltd Vs. Collector of Central Excise, AIR

1991 SC 754, Samatha V. State of Andhra Pradesh, (1997)1991 SC 754, Samatha V. State of Andhra Pradesh, (1997)1991 SC 754, Samatha V. State of Andhra Pradesh, (1997)

8 SCC 191 and Brindavan Bangle Stores V. Assistant8 SCC 191 and Brindavan Bangle Stores V. Assistant8 SCC 191 and Brindavan Bangle Stores V. Assistant

Commissioner of Commercial taxes, AIR 2000 SC 691Commissioner of Commercial taxes, AIR 2000 SC 691Commissioner of Commercial taxes, AIR 2000 SC 691

supports this canon of interpretation of statute. It

may be interesting to note that in Letang Vs CoopexLetang Vs CoopexLetang Vs Coopex

(1965) 1 Q.B. Lord Diplock C.J(1965) 1 Q.B. Lord Diplock C.J(1965) 1 Q.B. Lord Diplock C.J . has described the

maxim noscitur a sociis in his inimitable style as " a

treacherous one unless one knows the societas to which

the socii belongs". It is true that the Supreme Court

in State of Bombay Vs. Hospital Mazdoor SabhaState of Bombay Vs. Hospital Mazdoor SabhaState of Bombay Vs. Hospital Mazdoor Sabha (supra)

has observed that where two or more words which are

susceptible of analogous meaning are coupled together

they are understood to be used in their cognate sense.

However, in our opinion, this principle cannot be made

applicable in the present case merely because the words

licensor and licensee are associated with the words

landlord and tenant. This, at the most, could be

applied to understand the meaning of the expression

"licensor" and "licensee" to mean a "landlord" and "a

person in possession" of the premises owned by such ::: Downloaded on - 30/08/2025 11:37:31 :::

:73::73::73:

landlord. It cannot be applied to exclude "gratuitous

licensees".

59. It is now well settled that the intention must

be found in the language finally adopted in the statutes

under consideration and in that language alone. No

doubt, general words may in certain cases properly be

interpreted as having a meaning or scope other than the

literal or usual meaning. They may be so interpreted

where the scheme appearing from the language of the

legislature, read in its entirety, points to consistency

as requiring the modification of what would be the

meaning apart from any context, or apart from the

purpose of the legislature as appearing from the words

which the legislature has used, or apart from the

general law. In the present case, in our opinion, the

wider words have been deliberately used in order to make

the scope of the expression "licensee" correspondingly

wider. It is also well settled that for the purpose of

interpretation of statute, the entire statute is to be

read in its entirety. The purport and object of the Act

must be given full effect. This principle has been

reiterated by the Supreme Court in Indian HandicraftIndian HandicraftIndian Handicraft

Emporium Vs. Union of India, 2003 (7) SCC 589Emporium Vs. Union of India, 2003 (7) SCC 589Emporium Vs. Union of India, 2003 (7) SCC 589 . We find

the expression "licensee" in section 41(1) of PSCC Act ::: Downloaded on - 30/08/2025 11:37:31 :::

:74::74::74:

employed by the legislature is precise, plain and

proclaims its intent in unequivocal terms. We

therefore, would like to give full effect to the

expression licensee in section 41(1) and hold that even

a "gratuitous licensee" is covered under this provision

keeping in view the legislative history of PSCC and Rent

Act, basic scheme and framework of the statutes as a

whole and the object sought to be achieved.

60. In Halsbury's Laws of England, Volume 44(1),

fourth reissue, para 1474, pages 906 and 907, it is

stated thus:

" 1474. Construction by reference to the1474. Construction by reference to the1474. Construction by reference to the

mischief.mischief.mischief. Parliament intends that an

enactment shall remedy a particular mischief

and it is therefore presumed that Parliament

intends that the court, when considering, in

relation to the facts of the instant case,

which of the opposing constructions of the

enactment corresponds to its legal meaning,

should find a construction which applies the

remedy provided by it in such a way as to

suppress that mischief. This doctrine

originates in Heydon's Case where the Barons

of the Exchequer resolved that for the sure

and true interpretation of all statutes in

general (be they penal or beneficial,

restrictive or enlarging of the common law),

four things are to be discerned and

considered:

(1) what was the common law before the making

of the Act; ::: Downloaded on - 30/08/2025 11:37:31 :::

:75::75::75:

(2) what was the mischief and defect for

which the common law did not provide;

(3) what remedy Parliament has resolved and

appointed to cure the disease of the

commonwealth; and

(4) the true reason of the remedy, and then

the office of all the judges is always to

make such construction as shall:

(a) suppress the mischief and advance the

remedy; and

(b) suppress subtle inventions and evasions

for the continuance of the mischief pro

privato commodo (for private benefit); and

(c) add force and life to the cure and remedy

according to the true intent of the makers of

the Act pro bono publico (for the public

good).

There is some presumption that an Act passed

to amend the law is directed against defects

which came into notice about the time when

the Act was passed."

61. Clubbing of the "licensor and licensee" with

"landlord and tenant", in section 41(1) of PSCC Act, and

clubbing of causes relating to recovery of licence fee

also in our opinion is only with a view to bring all the

suits between the "landlord and tenant" and the

"licensor and licensee" under one roof to avoid

unnecessary delay, expense and hardship to the suitor.

The terms "landlord and tenant" and "licensor and

licensee" though have a close association the context in

which they are used cannot be said to have a ::: Downloaded on - 30/08/2025 11:37:31 :::

:76::76::76:

relationship based only on material consideration. We

find it difficult to accept the proposition that the

legislature after having invested one court with

exclusive jurisdiction in all the suits between the

licensor and licensee should have carved out small

exception in case of gratuitous licensee. Such

interpretation limits against very purpose of the

amendment and the mischief that was sought to be

remedied. The Supreme Court in Amir Trading CorporationAmir Trading CorporationAmir Trading Corporation

Ltd. Vs. Shapoorji Data Processing Ltd. AIR 2004 SCLtd. Vs. Shapoorji Data Processing Ltd. AIR 2004 SCLtd. Vs. Shapoorji Data Processing Ltd. AIR 2004 SC

355355355 in a similar situation has applied the doctrine of

suppression of mischief rule as enumerated in Heydon's

case. In order to ascertain the true meaning of the

expression "licensee" employed in section 41(1) of PSCC

Act, it would be legitimate to call in aid the well

recognised rules of construction such as its legislative

history, the basic scheme and the framework of a statute

as a whole, the purpose of the legislation, the object

sought to be achieved and the mischief sought to be

remedied. Heydon's Rules (3 Co.rep.7a, 76 ER 637)Heydon's Rules (3 Co.rep.7a, 76 ER 637)Heydon's Rules (3 Co.rep.7a, 76 ER 637)

referred to in paragraph 1474 in Halsbury's Laws of

England has been applied by the Supreme Court as well as

High Courts in a large number of cases in order to

suppress the mischief which the legislature intended to

be remedied while enacting or amending the statute as ::: Downloaded on - 30/08/2025 11:37:31 :::

:77::77::77:

against the literal rule which could otherwise cover the

field. (see in this connection Goodyear India Ltd VsGoodyear India Ltd VsGoodyear India Ltd Vs

State of Haryana and ors , AIR 1990 SC 781State of Haryana and ors , AIR 1990 SC 781State of Haryana and ors , AIR 1990 SC 781 ).

Furthermore, in a case of this nature, principles of

purposive construction must come into play. (See IndianIndianIndian

Handicraft Emporium Vs. Union of India (2003) 7 SCCHandicraft Emporium Vs. Union of India (2003) 7 SCCHandicraft Emporium Vs. Union of India (2003) 7 SCC

589589589). We are of the considered opinion that the

expression "licensee" employed in section 41 is used in

general sense of term as defined in section 52 of the

Indian Easement Act. The intention of the legislature

was to suppress the mischief, that was likely to be

raised by the defendants in the suits filed by the

landlords.

62. Thus, looking at the controversy raised in these

petitions from all points of view, we answer the

questions formulated by us as follows: The expression

"licensee" used in section 41(1) of PSCC Act does not

derive its meaning from the expression "licensee" as

used in sub-section (4A) of section 5 of the Rent Act.

The expression licensee used in section 41(1) is a term

of wider import so as to mean and include a "gratuitous

licensee" also. In view of this, we hold that a suit by

a licensor against a gratuitous licensee is tenable

before the Presidency Small Cause Court under section 41 ::: Downloaded on - 30/08/2025 11:37:31 :::

:78::78::78:

of PSCC Act.

63. We accordingly direct to place both the writ

petitions before appropriate bench for final disposal on

merits in the light of the aforesaid opinion recorded by

us.

DR.S.RADHAKRISHNAN,J.DR.S.RADHAKRISHNAN,J.DR.S.RADHAKRISHNAN,J.

D.B.BHOSALE, J. D.B.BHOSALE, J. D.B.BHOSALE, J.

SMT.V.K.TAHILRAMANI, J.SMT.V.K.TAHILRAMANI, J.SMT.V.K.TAHILRAMANI, J. ::: Downloaded on - 30/08/2025 11:37:31 :::

:79::79::79:

IN HIGH COURT OF JUDICATURE AT BOMBAYIN HIGH COURT OF JUDICATURE AT BOMBAYIN HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDECIVIL APPELLATE SIDECIVIL APPELLATE SIDE

WRIT PETITION NO.148 OF 2004 WRIT PETITION NO.148 OF 2004 WRIT PETITION NO.148 OF 2004

WITH WITH WITH

WRIT PETITION NO.561 OF 2005 WRIT PETITION NO.561 OF 2005 WRIT PETITION NO.561 OF 2005

Date of Judgment: 10th July, 2007 Date of Judgment: 10th July, 2007 Date of Judgment: 10th July, 2007

For approval and signatureFor approval and signatureFor approval and signature

THE HON'BLE DR.JUSTICE S.RADHAKRISHNAN : THE HON'BLE DR.JUSTICE S.RADHAKRISHNAN : THE HON'BLE DR.JUSTICE S.RADHAKRISHNAN :

THE HON'BLE MR.JUSTICE D.B.BHOSALE THE HON'BLE MR.JUSTICE D.B.BHOSALE THE HON'BLE MR.JUSTICE D.B.BHOSALE :::

THE HON'BLE SMT.V.K.TAHILRAMANI : THE HON'BLE SMT.V.K.TAHILRAMANI : THE HON'BLE SMT.V.K.TAHILRAMANI :

1. Whether Reporters of Local Papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the

fair copy of the Judgment?

4. Whether this case involves a substantial

question of law as to the interpretation of

the Constitution of India, 1950 or

any Order made thereunder?

5. Whether it is to be circulated

to the Civil Judges?

6. Whether the case involves an important

question of law and whether a copy of

the judgment should be sent to Nagpur

Aurangabad or Goa offices? ::: Downloaded on - 30/08/2025 11:37:31 :::