# 9 S.C.R. 52 PRABHUDAS DAMODAR KOTECHA & ORS v. MANHABALA JERAM DAMODAR & ANR

- **Citation:** [2013] 9 S.C.R. 52
- **Court:** Supreme Court of India
- **Decided:** 2013-08-13
- **Case number:** Civil Appeals Nos. 6726-6727 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-52-prabhudas-damodar-kotecha-ors-v-manhabala-jeram-damodar-anr-29304
- **Pages:** 39

## Headnote

PRESIDENCY SMALL CAUSE COURTS ACT, 1882:
s. 41 (1) - Suits or proceedings between licensors and
licensees - Suit for eviction of gratuitous licensee - Held: Is
maintainable before the Small Causes Courl ., Expression
'licensee' used in PSCC Act is a term of wider imporl intended
to bring in a gratuitous licensee as well and is used in general
0
sense of term as defined in s. 52 of Easements Act - It does
not derive its meaning from the expression 'licensee' as used
in sub-s. (4A) of s. 5 of Rent Act Bombay Rents, Hotel and .
Lodging House Rates (Control) Act, 1947 - ss. 5(4-A) and 15A - Interpretation of statutes - Contemporenea exposition -
E
Easements Act, 1882 - s.52 - Transfer of Property Act, 1882.
s.41(1) -Suits or proceedings between licensors and
licensees and landlord and tenant- Jurisdiction - Held: s.41(1)
confers jurisdiction on Small Causes Court to entertain and
try all suits and proceedings between a "licensor" and a
F
"licensee" relating to recovery of possession of any
immovable property or relating to recovery of licence fee --
High Courl has correctly noticed that the clubbing of the
expression "licensor and licensee" with "landlord and tenant"
in s. 41(1) and clubbing of causes relating to recovery of
G licence fee is only with a view to bring all suits between
"landlord and tenant" and "licensor and licensee" whether
under Rent Act or under PSCC Act under one umberalla to
avoid unnecessary delay, expenses and hardship.
H
52
·-
P RAB HU DAS DAMODAR KOTECHA v. MANHABALA 53
JERAM DAMODAR
BOMBAY RENTS, HOTEL AND LODGING HOUSE
A
RATES (CONTROL) ACT, 1947:
ss. 5(4-A) and 15-A - 'Licensee" - Held: Under sub-s. (4A)
of s. 5, "licensee" means a person who is in occupation of the
premises or such part as the case may be, under a subsisting
8
agreement for licence given for a "licence fee or charge" --
The definition of "licensee" under sub-s. (4A) of s. 5 is both
exhaustive as well as inclusive -- But licensee under sub-s.
(4A) must be a licensee whose licence is supported by
material consideration meaning thereby a gratuitous licensee
C
is not covered under the definition of 'licensee' under sub-s.
(4A) of s. 5.
INTERPRETATION OF STATUTES:
Contemprenea expositio - Held: Is a recognized rule of D
interpretation -- Concept of licence and lease were dealt with
by contemporary statutes: Easements Act, Transfer of
Property Act ands. 41 of PSCC Act -- Therefore, s. 41(1) of
PSCC Act could not have contemplated any other meaning
of the term "occupation with permission" but only the
E
permission as contemplated by s. 52 of Easements Act.
Provisions 'pan· materia' - Held: Bombay Rent Act, 1947
and Chapter VII of PSCC Act cannot be said to be pari pateria
statutes- s.5(4-A) of Bombay Rent Act and s.52 of Easements
Act reflecting the expression 'licensee' are not pari material.
F
Noscitur a sociis - Held: When the intention of legislature
in using the expression 'licensee' ins. 41(1) of the PSCC Act
is clear and unambiguous, the principle of noscitur a sociis
is not to be applied.
G
Statement of objects and Reasons - Relevance of
interpreting a provision - Explained.
Respondent Nos.1 and 2 along with other plaintiffs
filed a suit uls 41 of the Presidency Small Cause Courts
H
54
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Act, 1882 before the Small Causes Court, Bombay against
the appellants (original defendants) for recovery and
vacant possession of the suit premises and also for other
consequential reliefs. It was the case of the plaintiffs that
the defendants were in use and occupation of the suit
B premises as their guest-house and in this regard no
monetary consideration was charged by them from the
defendants. Permission granted to the defendants to use
the premises was later revoked and since they did not
vacate the suit flat, the suit was filed for eviction. The '.
c Small Causes Court decreed the suit and ordered .
eviction of the defendants-appellants with a specific ·
finding that they were gratuitous licensees. The ap

## Text

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A
B
c
[2013) 9 S.C.R. 52
PRABHUDAS DAMODAR KOTECHA & ORS.
v.
MANHABALA JERAM DAMODAR & ANR.
(Civil Appeals Nos. 6726-6727 of 2013)
AUGUST 13, 2013
[K.S. RADHAKRISHNAN, AND DIPAK MISRA, JJ.]
PRESIDENCY SMALL CAUSE COURTS ACT, 1882:
s. 41 (1) - Suits or proceedings between licensors and
licensees - Suit for eviction of gratuitous licensee - Held: Is
maintainable before the Small Causes Courl ., Expression
'licensee' used in PSCC Act is a term of wider imporl intended
to bring in a gratuitous licensee as well and is used in general
0
sense of term as defined in s. 52 of Easements Act - It does
not derive its meaning from the expression 'licensee' as used
in sub-s. (4A) of s. 5 of Rent Act Bombay Rents, Hotel and .
Lodging House Rates (Control) Act, 1947 - ss. 5(4-A) and 15A - Interpretation of statutes - Contemporenea exposition -
E
Easements Act, 1882 - s.52 - Transfer of Property Act, 1882.
s.41(1) -Suits or proceedings between licensors and
licensees and landlord and tenant- Jurisdiction - Held: s.41(1)
confers jurisdiction on Small Causes Court to entertain and
try all suits and proceedings between a "licensor" and a
F
"licensee" relating to recovery of possession of any
immovable property or relating to recovery of licence fee --
High Courl has correctly noticed that the clubbing of the
expression "licensor and licensee" with "landlord and tenant"
in s. 41(1) and clubbing of causes relating to recovery of
G licence fee is only with a view to bring all suits between
"landlord and tenant" and "licensor and licensee" whether
under Rent Act or under PSCC Act under one umberalla to
avoid unnecessary delay, expenses and hardship.
H
52
·-
P RAB HU DAS DAMODAR KOTECHA v. MANHABALA 53
JERAM DAMODAR
BOMBAY RENTS, HOTEL AND LODGING HOUSE
A
RATES (CONTROL) ACT, 1947:
ss. 5(4-A) and 15-A - 'Licensee" - Held: Under sub-s. (4A)
of s. 5, "licensee" means a person who is in occupation of the
premises or such part as the case may be, under a subsisting
8
agreement for licence given for a "licence fee or charge" --
The definition of "licensee" under sub-s. (4A) of s. 5 is both
exhaustive as well as inclusive -- But licensee under sub-s.
(4A) must be a licensee whose licence is supported by
material consideration meaning thereby a gratuitous licensee
C
is not covered under the definition of 'licensee' under sub-s.
(4A) of s. 5.
INTERPRETATION OF STATUTES:
Contemprenea expositio - Held: Is a recognized rule of D
interpretation -- Concept of licence and lease were dealt with
by contemporary statutes: Easements Act, Transfer of
Property Act ands. 41 of PSCC Act -- Therefore, s. 41(1) of
PSCC Act could not have contemplated any other meaning
of the term "occupation with permission" but only the
E
permission as contemplated by s. 52 of Easements Act.
Provisions 'pan· materia' - Held: Bombay Rent Act, 1947
and Chapter VII of PSCC Act cannot be said to be pari pateria
statutes- s.5(4-A) of Bombay Rent Act and s.52 of Easements
Act reflecting the expression 'licensee' are not pari material.
F
Noscitur a sociis - Held: When the intention of legislature
in using the expression 'licensee' ins. 41(1) of the PSCC Act
is clear and unambiguous, the principle of noscitur a sociis
is not to be applied.
G
Statement of objects and Reasons - Relevance of
interpreting a provision - Explained.
Respondent Nos.1 and 2 along with other plaintiffs
filed a suit uls 41 of the Presidency Small Cause Courts
H
54
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Act, 1882 before the Small Causes Court, Bombay against
the appellants (original defendants) for recovery and
vacant possession of the suit premises and also for other
consequential reliefs. It was the case of the plaintiffs that
the defendants were in use and occupation of the suit
B premises as their guest-house and in this regard no
monetary consideration was charged by them from the
defendants. Permission granted to the defendants to use
the premises was later revoked and since they did not
vacate the suit flat, the suit was filed for eviction. The '.
c Small Causes Court decreed the suit and ordered .
eviction of the defendants-appellants with a specific ·
finding that they were gratuitous licensees. The appeal
of the appellants was dismissed by the Appellate Bench
of Small Causes Court. The appellants as well as the
0 respondents filed writ petitions before the High Court; the
respondents' writ petition was for claiming mesne profits.
The matter was referred to a Full Bench, which held that
the expression 'licensee' would include a 'gratuitous
licensee' and the suit was tenable before the Small
Causes Court u/s 41 of PSCC Act.
E
In the instant appeals, the question for consideration
before the Court was: "whether a suit filed by a licensor
against a gratuitous licensee u/s 41(1) of the Presidency
Small Cause Courts Act, 1882, as amended by the
F Maharashtra Act No.19 of 1976 is maintainable before a
Small Causes Court."
Dismissing the appeals, the Court
HELD: 1.1. "Licensees" were brought within the
G purview of the Bombay Rents, Hotel and Lodging House
Rates (Control) Act, 1947 (Bombay Rent Act) by adding
s. 5(4A) and s.15A by way of amendment in the year 1973.
The expression "licensee" was inserted by sub-s. (4A) in
s. 5 which provided that a person in occupation of the
H premises or of such part thereof which is not less than a
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 55
JERAM DAMODAR
room, as the case may be, in a subsisting agreement for A
license given only for a license fee or charge but
excluded from its sweep a gratuitous licensee. [para 21
and 23) [74-C-D; 75-D-E]
1.2 Maharashtra Act 19 of 1976 made drastic changes 8
and Chapter VII was substituted for the original Chapter
VII (ss. 41 to 49) of the Presidency Small Cause Courts
Act, 1882 (PSCC Act). Under Chapter VII of the 1976
Amendment, the proceedings for recovery of possession
u/s 41 no more remained summary and they were given
status of regular suits. The expressions "licensor" and C
"licensee" were introduced ins 41(1) of the PSCC Act by
the 1976 Amendment. The statement of Objects and
Reasons of the 1976 Amendment, inter alia, states that in
order to avoid multiplicity of proceedings between a
landlord and tenant or a licensor and licensee in different D
courts, it was considered expedient to make the required
supplementary provisions in the Presidency Small
Causes Court. Act. [para 24-26) [75-F-G; 76-F; 77-G-H; 78A-C]
1.3 It is trite law that if the words of a statute are
themselves precise and unambiguous, then no more can
be necessary than to expound those words in their
natural and ordinary sense. [para 28) [78-G]
E
Chief Justice of Andhra Pradesh and Others v. L. V.A.
F
Dixitulu and Others 1979 (1) SCR 26 = (1979) 2 SCC 34,
Kehar Singh and Others v. State (Delhi Admn.) 1988 (2)
Suppl. SCR 24 =AIR 1988 SC 1883, District Mining Officer
and Others v. Tata Iron and Steel Co. and Another 2001 (1)
Suppl. SCR 147 = (2001) 7 SCC 358, Gurudevdatta VKSSS G
Maryadit and Others v. State of Maharashtra and Others 2001
(2) SCR 654 =AIR 2001 SC 1980, State of H.P. v. Pawan
Kumar 2005 (3) SCR 417 = (2005) 4 SCC 350 and State of
Rajasthan v. Babu Ram 2007 (7) SCR 939 = (2007) 6 SCC
55 - referred to.
H
56
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
1.4 In Mansukhlal Dhanraj Jain's case while
interpreting s. 41 (1) of the PSCC Act, the Court stated that
before taking the view that jurisdiction of regular
competent civil court is ousted, the conditions that must
be satisfied are: (i) it must be a suit or proceeding
B between the licensee and licensor; (ii) or between a
landlord and a tenant; and (iii) such suit or proceeding
must relate to the recovery of possession of any property
situated in Greater Bombay; or (iv) relating to the
recovery of the licence fee or charges or rent thereof. For
C the purpose of the instant case, condition nos. (i) and (iii)
are relevant. [para 29-30) [79-C-F)
Mansukhlal Dhanraj Jain v. Eknath Vitha/ Ogale 1995 (1)
SCR 996 = (1995) 2 SCC 665 - referred to.
D
1.5 In view of sub-s. (2) of s. 41 of the PSCC Act,
s.41(1) takes in its compass "licensees" who do not fall
within the ambit of s. 5(4A) read with s. 5(11) and s. 15A
of the Rent Act 1947. Gratuitous licensee does not fall
within s. 5(4A) read with ss. 5(11) and 15A of the Rent Act
E 1947. The provisions of s. 41(1) also do not specifically
exclude a gratuitous licensee nor does it make any
distinction between the licensee with material
consideration or without material consideration. Further,
s. 28 of the Rent Act 1947 does not confer jurisdiction on
F
the Small Causes Court to entertain a suit against a
gratuitous licensee. Section 28 read with s.5(4A) would
show that a party who claims to be a gratuitous licensee
is not entitled to any protection under the Rent Act 1947.
[para 31-32) [80-C-F]
G
2.1 "Pari materia" words are used in s. 28 of the
Bombay Rent Act, 1947 ands. 41(1) of PSCC Act and
referring to the nature of suits in both the provisions
would indicate that those provisions confer exclusive
jurisdiction on Small Causes Court meaning thereby it
H alone can entertain suits or proceedings relating to
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 57
JERAM DAMODAR
recovery or possession of the premises. Section 28 of the
A
Bombay Rent Act deals with the suits between landlord
and tenant and between licensor and licensee relating
only to recovery of licence fee or charge while s. 41 of
the PSCC Act deals with such suits between licensor and
licensee also. Where the premises are not governed by
B
the Rent Act, the provisions of s. 41 of the PSCC Act
would apply, at the same time where the premises are
governed by the provisions of Rent Act, the provisions
of s. 28 would be attracted. From a reading of both the
provisions, it is clear that the nature of such suits as C
envisaged by both the sections is the same. However,
keeping in view the provisions of the two Statutes, it
cannot be said that the Rent Act and Chapter VII of the
PSCC Act are pari materia statutes. [para 34, 35 and 37]
[81-C-G; 83-D-E]
D
State of Punjab v. Okara Grain Buyers Syndicate Ltd.
Okara 1964 SCR 387 =AIR 1964 SC 669 Shah & Co.,
Bombay v. State of Maharashtra 1967 SCR 466 = AIR 1967
SC 1877- relied on.
E
Ahmedabad Pvt.
Primary Teachers Assn.
V.
Administrative Officer and Ors. 2004 (1) SCR 470 = (2004) 1
sec 755 - cited.
A.G. v. HRH Prince Ernest Augustus of Hanover (1957)
1 All ER 49; R. v. Loxda/e (1758) 97 ER 394; and R v. Herrod
F
(1976) 1 All ER 273 (CA) - referred to.
2.2 "Noscitur a sociis" is merely a rule of construction
and it cannot prevail in cases where it is clear that the
wider words are intentionally used by the legislature in
order to make the scope of the defined word G
correspondingly wider. The expression "licensee" in s.
41 of the PSCC Act has been used to fully achieve the
· o.bject and purpose especially of 1976 Amendment Act;
and legislature has used clear and plain language and the
principle noscitur a sociis is inapplicable when intention
H
58
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
is clear and unequivocal. It is only where the intention of
the legislature in associating wider words with words of
a narrow significance is doubtful or otherwise not clear, -
the rule of noscitur a sociis can be applied. When the
intention of the legislature in using the expression
B 'licensee' in s. 41 (1) of the PSCC Act is clear and
unambiguous, the principle of noscitur a sociis is not to
be applied. [para 38-39] [83-G-H; 84-A, C-E]
The State of Bombay and Others v. The Hospital
Mazdoor Sabha and Others (1960) 2 SCR 866 =AIR 1960
C
SC 610, Bank of India v. Vijay Transport and Others, (1988)
1 SCR 961 = AIR 1988 SC 151, Mis Rohit Pulp and Paper
Mills Ltd. v. Collector of Central Excise, 1990 (2) SCR 797 =
(1990) 3 SCC 447, Samatha v. State of Andhra Pradesh 1997
(2) Suppl. SCR 305 = (1997) 8 SCC 191, Mis Brindavan
D
Bangle Stores & Ors. v. The Assistant Commissioner of
Commercial Taxes & Another, 2000 (1) SCR 97 = (2000) 1
sec 674 - referred to.
2.3 Contemporenea expositio is the best and most
E
powerful_ law and it is a recognized rule of interpretation.
The PSCC Act came into force on 01.07.1882. In that year,
the Transfer of Property Act and the Easements Act were
also enacted. In the instant case, the concept of licence
and lease were dealt with by contemporary statutes:
F
Easements Act, Transfer of Property Act ands. 41 of the
PSCC Act. Therefore, s. 41(1) of the PSCC Act could not
have contemplated any other meaning of the term
"occupation with permission" but only the permission as
contemplated by s.52 of the Easements Act. The PSCC
G Act is a procedural law and the expressions "licensor"
and. "licensee" or "landlord" and "tenant" used in s. 41
of the PSCC Act (as amended by Maharashtra Act No.
XIX of 1976) relate to immovable property ands. 52 of the
Easements Act which defines a licence has an
inseparable connection to immovable property and
H
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 59
JERAM DAMODAR
property law. Legislature was well aware of those
A
contemporaneous statutes, that was the reason, why the
expression licence as such has not been defined in the
PSCC Act with the idea that the expression used in a
contemporaneous statute would be employed so as to
interpret s. 41 of the PSCC Act. The principle of B
contemporenea expositio would apply to the instant
case. [para 17, 40 and 41) [71-B; 84-F, G-H; 85-A-D]
National and Grindlays Bank Ltd. v. The Municipal
Corporation of Greater, Bombay 1969 (3) SCR 565 = (1969)
C
1 SCC 541 and The Tata Engineering and Locomotive
Company Ltd. v. Gram Panchayat 1977 (1) SCR 306 =
(1976) 4 sec 177 • referred to.
2.4 The PSCC Act does not define the expressions
"licensor" and "licensee". Both these expressions find
D
a place ins. 41(1) of the PSCC Act. Section 41(1) confers
jurisdiction on Small Causes Court to entertain and try
all the suits and proceedings between a "licensor" and
a "licensee" relating to recovery of possess.ion of any
immovable property or relating to recovery of licence fee.
E
Section 5(4A) of the Rent Act defines the term "licensee"
so also s.52 of the Easements Act, 1882. Sub-s. (4A) of
s. 5 of the Rent Act provides that "licensee" means a
person who is in occupation of the premises or such part
as the case may be, under a subsisting agreement for
F
licence given for a "licence fee or charge". The definition
of "licensee" under sub-s. (4A) of s. 5 is both exhaustive ·
as well as inclusive. But it is relevant to note that the
licensee under sub-s. (4A) must be a licensee whose
licence is supported by material consideration, meaning
G
thereby, a gratuitous licensee is not covered under the
definition of licensee under sub-s. (4A) of s. 5 of the Rent
Act. [para 42] [85-D-H]
2.5 Keeping in view the meaning of the term 'licensee'
as defined in s.52 of the Easements Act, and in various
H
60
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
other situations, it is evident that the word 'licence' is not
popularly understood to mean that it should be on
payment of licence fee, it can also cover a gratuitous ·
licensee as well. A licensor can permit a person to enter
into another's property without any consideration, it can
B
be gratuitous as well. [para 46) [87-C-D]
c
State of Punjab v. Brig. Sukhjit Singh 1993 (3) SCR 944
= (1993) 3 SCC 459; and Surendra Kumar Jain v. Royce
Pereira 1997 (5) Suppl. SCR 221 = (1997) 8 SCC 759. -
relied on.
C.M. Beena and Anr. v. P.N. Ramachandra Rao 2004
(3) SCR 306 = (2004) 3 SCC 595; Sohan Lal Naraindas v.
Laxmidas Raghunath Gadit (1971) 1 SCC 276, Union of India
(UOI) v. Prem Kumar Jain and Ors. 1976 (Suppl.) SCR 166
D = (1976) 3 SCC 743, Chandy Varghese and Ors. v. K. Abdul
Khader and Ors. 2003 (2) Suppl. SCR 322 = (2003) 11 SCC
328 - referred to.
P.R. Aiyar's the Law Lexicon, Second Edition 1997;
E
Black's Law Dictionary, Sixth Edition; and Stroud's Judicial
Dictionary of Words and Phrases, Sixth Edition, Vol. 2 -
referred to.
2.6 The expression "licence" as reflected in the
definition of licensee under sub-s. (4A) of s. 5 of the Rent
F
Act and s. 52 of the Easements Act are not pari materia.
Under sub-s. (4A) of s. 5, there cannot be a licence
unsupported by the material consideration; whereas uls
52 of the Easements Act payment of licence fee is not an
essential requirement for subsistence of licence. The
G legislature in its wisdom has n.ot defined the word
"licensee" in the PSCC Act. The purpose is evidently to
make it more wide so as to cover gratuitous licensee as
well with an object to avoid multiplicity of proceedings in
different courts causing unnecessary delay, waste of
H money and time etc. The object is to see that all suits and
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 61
JERAM DAMODAR
proceedings between a landlord and a tenant or a licensor A
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
Small Causes Court. The object behind bringing the
licensor and the licencee within the purview of s. 41(1) by B
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 to avoid c
multiplicity of litigation with an issue of jurisdiction
thereby lingering the disputes for years together. [para
47] [87-D-H; 88-A-B]
Km. Sonia Bhatia v. State of U.P. and Ors. (1981) 2 SCC
585 - relied on.
D
2.7 The interpretation of the expressions 'licensor' and
'licensee' used in s. 41 (1) is in tune with the objects and
reasons reflected in the amendment of the PSCC Act by
the Maharashtra Act (XIX) of 1976. The objects and reasons E
as such may not be admissible as an aid of construction
to the statute but it can be referred to for the limited purpose
of ascertaining the conditions prevailing at the time of
introduction of the bill and the extent and urgency of the
evil which was sought to be remedied. This Court, F
therefore, cannot restrict the meaning and expression
'licensee' occurring in s. 41(1) of the PSCC Act to mean
the licensee with monetary consideration as defined u/s
5(4A) of the Rent Act. [para 49] [88-E-G; 89-8-C]
M. K. Ranganathan and Anr. v. Government of Madras G
and Ors. 1955 SCR 374 = AIR 1955 SC 604; and Bhaiji v.
Sub Divisional Officer, Thandla and Ors. 2002 (5) Suppl. SCR
116 = (2003) 1 sec 692 -- referred to.
2.8 The High Court has correctly noticed that the H
62
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A
clubbing of the expression "licensor and licensee" with
"landlord and tenant" in s. 41(1) of the PSCC Act and
clubbing of causes relating to recovery of licence fee is
only with a view to bring all suits between the "landlord
and tenant" and the "licensor and licensee" under one
B umberalla to avoid unnecessary delay, expenses and
hardship. The act of the legislature was to bring all suits
between "landlord and tenant" and "licensor and
licensee" whether under the Rent Act or under the PSCC
Act under one roof. It cannot be said that the legislature
C after having conferred exclusive jurisdiction in one court
in all the suits between licensee and licensor should have
carved out any exception to keep gratuitous licensee
alone outside its jurisdiction. The various amendments
made to Rent Act as well the Objects and Reasons of the
0
Maharashtra Act XIX of 1976 would clearly indicate that
the intention of the legislature was to avoid unnecessary
delay, expense and hardship to the suitor. In such a
situation, courts also should give a liberal construction
and attempt should be to achieve the purpose and object
of the legislature and not to frustrate it. This Court,
E therefore, holds that the expression 'licensee' employed
in s. 41 of PSSC Act is used in general sense of term as
defined in s. 52 of the Easements Act. Looking from all
angles, the expression 'licensee' used in s.4(1) of the
PSCC Act does not derive its meaning from the
F
expression 'licensee' as used in sub-s. (4A) of s. 5 of the
Rent Act, but is a term of wider import intended to bring
in a gratuitous licensee as well. Since the expression
'licensee' means and includes a 'gratuitous licensee' also,
the Small Causes Court will have jurisdiction to entertain
G the suit in question. [para 30, 50,51 and 52] [79-F; 89-DG; 90-A-D]
Ramesh Dwarikadas Mehra v. lndirawati Dwarika Das
Mehra AIR 2001 Bombay 470 - disapproved.
H
Prabhudas Damodar Kotecha & Ors. v. Manhabala
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 63
JERAM DAMODAR
Jeram Damodar & Anr. 2007 (5) Maharashtra Law Journal A
341 - affirmed.
Case Law Reference:
AIR 2001 Bombay 470
disapproved para 3
B
2007 (5) Maharashtra Law
Journal 341
affirmed
para 5
1995 (1) SCR 996
referred to
para 11
(1976) 1 All ER 273 (CA) referred to
para 11
c
2004 (1) SCR 470
cited
para 11
1979 (1) SCR 26
referred to
para 28
1988 (2) Suppl. SCR 24
referred to
para 28
D
2001 (1) Suppl. SCR 147 referred to
para 28
2001 ( 2 ) SCR 654
referred to
para 28
2005 (3) SCR 417
referred to
para 28
E
2007 (7) SCR 939
referred to
para 28
(1957) 1 All ER 49
referred to
para 33
(1758) 97 ER 394
referred to
para 33
1964 SCR 387
relied on
para 33
F
1967 SCR 466
relied on
para 33
(1960) 2 SCR 866
referred to
para 38
(1988) 1 SCR 961
. referred to
para 38
G
1990 (2) SCR 797
referred to
para 38
1997 (2) Suppl. SCR 305 referred to
para 38
2000 (1) SCR 97
referred to
para 38
H
A
B
c
D
E
F
64
SUPREME COURT REPORTS
[2013] 9 S.C.R.
1969 (3) SCR 565
referred to
para 40
1977 (1) SCR 306
referred to
para 40
1993 (3) SCR 944
relied on
para 43
2004 (3) SCR 306
referred to
para 44
(1971) 1 sec 216
referred to
para 44
1976 (0) Suppl. SCR 166 referred to
para 44
2003 (2) Suppl. SCR 322 referred to
para 44
1997 (5) Suppl. SCR 221 relied on
para 45
(1981) 2 sec 585
relied on
para 48
1955 SCR 374
referred to
para 49
2002 (5) Suppl. SCR 116 referred to
para 49
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6726-27 of 2013.
From the Judgment and Order dated 10.07.2007 of the
High Court of Bombay in W.P. Nos. 148 of 2004 & 561 of 2005.
Soli J. Sorabjee, Pretesh Kapoor, R.N. Karanjawala,
Manik Karanjawala, Nandini Gore, Abhishek Roy, Tahira
Karanjawala, Mehernaz Mehta for the Appellants.
Shekhar Naphade, Ranjana Parikh, Siddharth Bhatnagar,
T. Mahipal for the Respondents.
The Judgment of the Court was delivered by
G
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. We are, in these appeals, concerned with the question
whether a suit filed by a licensor against a gratuitous licensee
. under Section 41 (1) of the Presidency Small Causes Courts
H. Act, 1882 (for short "the PSCC Act"), as amended by the
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 65
JERAM DAMODAR [K.S. RADHAKRISHNAN, J.]
Maharashtra Act No.XIX of 1976 (for short "1976 Amendment
A
Act") is maintainable before a Small Causes Court, Mumbai.
3. The Division Bench of the Bombay High Court in
Ramesh Dwarikadas Mehra v. lndirawati Dwarika Das Mehra
(AIR 2001 Bombay 470) held that a suit by a licensor against
B
a gratuitous licensee is not tenable before the Presidency Small
Causes Court under Section 41 (1) of the PSCC Act, and it
should be filed before the City Civil Court or the High Court ·
depending upon the valuation. The Division Bench held that the
expression "licensee" used in Section 41 (1) of the PSCC Act
C
has the same meaning as in Section 5 (4A) of the Bombay
Rents, Hotels and Lodging House Rates (Control) Act, 1947
(in short "the Rent Act"). Further it was held that the expression
"licensee" as used in Section 5(4A) does not cover a gratuitous
licensee. The Division Bench in that case rejected the ejectment
application holding that the Small Causes Court at Bombay
D
lacked jurisdiction.
4. In Bhagirathi Lingawade and others v. Laxmi Silk Mills,
in an unreported judgment of the Bombay High Court dated
03.09.1993, another Division Bench of the Bombay High Court
E
expressed the view that Section 5(4A) and Section 13(1) of the
Rent Act, 1947 are not at all relevant in interpreting the scope
and ambit of Section 41 of the PSCC Act, under which suit was
filed.
5. The Full Bench of the Bombay High Court, which is the.
Judgment under appeal, reported in 2007 (5) Maharashtra Law
Journal 341, answered the question in the affirmative overruling
the Ramesh Dwarikadas Mehra case (supra), the legality of
which is the question, that falls for our consideration.
FACTUAL MATRIX
6. Respondent Nos.1 and 2 along with other plaintiffs (who
F
G
are now deceased) filed a suit LE. and C. No.430/582 of 1978
under Section 41 of the PSCC Act before the Small Causes
H
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SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Court, Bombay against the appellants (original defendants) for
recovery and vacant possession of one bed room in Flat No.16,
Ram Mahal, Churchgate, Mumbai and also for other
consequential reliefs. Plaintiffs submitted that the defendants
were in use and in occupation of the above premises as their
B guest-house and so far as hall and kitchen are concerned,
family members of the plaintiff and defendants were using it as
common amenities. The plaintiffs also claim that they are in
occupation of another bed-room in the suit flat and no monetary
consideration was charged by them from the defendants for
c exclusive use and occupation of one bed-room and joint use
of the hall and kitchen as common amenities. Permission
granted to the defendants to use the premises was later
revoked and since they did not vacate the suit flat and
continued to hold possession wrongfully and illegally, suit was
D filed for eviction.
7. The Small Causes Court decreed the suit on
07.02.1997 and ordered eviction of the appellants with a
specific finding that they are gratuitous licensee. The appellants
preferred an appeal before the Appellate Bench of Small
E Causes Court, which was dismissed on 05.04.2003. Against
that order both the appellants and respondents filed writ
petitions before the High Court, Bombay and the respondents'
writ petition was for claiming mesne profits.
F
8. The Defendants questioned the jurisdiction of the Small ·
Causes Court, Mumbai to entertain and try the suit before the
learned Single Judge of the High Court of Bombay, placing
reliance on the judgment of the Division Bench in Ramesh
Dwarkadas Mehra's case (supra) contending that the licence
G created by the plaintiffs in favour of the defendants was
gratuitous, i.e. without consideration, hence the suit is not
maintainable in that Court. Learned Single Judge vide his order
dated 16.01.2006 referred the matter to a larger bench.
Consequently, a Full Bench was constituted.
H
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 67
JERAM DAMODAR [K.S. RADHAKRISHNAN, J.]
9. The Full Bench of the Bombay High Court formulated
A
the following questions for its co.nsideration:
(i)
Whether the expression "Licensee" used in section
41 (1) in Chapter VI I 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?
(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'(
Both the above mentioned questions, as already indicated,
were answered by the Full Bench in the affirmative, the
correctness of otherwise of those findings is the issue that falls
for our consideration.
Arguments
10. Shri Soli J. Sorabjee, learned senior counsel appearing
for the appellants, submitted that the Full Bench was in error in
overturning a well-reasoned judgment of the Division Bench of
B
c
D
E
the High Court in Ramesh Dwarkadas Mehra's case and
contended that the licence created by the plaintiffs in favour of
F
the defendants was admittedly gratuitous and hence a suit for
eviction of such a licensee is not maintainable in a Small
Causes Court. Further, it was pointed out that the intention of
the Legislature was that the "licence" contemplated in Section
41 of PSCC Act must take its colour from Section 5(4A) of the
G
Rent Act 1947, which specifically excludes a gratuitous
licensee, hence, such a suit is maintainable only before a
competent civil court. Learned senior counsel also pointed out
that it is an established position of law that, under Section 9 of
the Code of Civil Procedure, 1908, the jurisdiction of a Civil
H
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SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Court cannot be ousted unless such an ouster is expressed or
clearly implied and such a provision has to be strictly construed.
Shri Sorabjee also submitted that Section 41 of the PSCC Act,
as initially enacted, used the expression "permission" and not
"licence", despite the Easements Act, 1882, which is indicative
B of the legislative intent that Section 52 of the Easements Act,
not being pari materia, ought not be relied on in determining
the scope and meaning of the term "licensee" in Section 41 of
PSCC Act.
11. Shri Sorabjee also pointed out that, till 1976, the PSCC
C Act continued to use the expression "permission" and the 1976
Amendment to the PSCC Act was inspired only by 1973
Amendment to the Rent Act 1947. Further, it was also
submitted that 1976 Amendment was specifically made to
PSCC Act to harmonize it with the Rent Act 194 7. Shri Sorabjee
D also submitted that Section 41 of the PSCC Act, by virtue of
the 1976 Amendment, was completely reworded to specifically
reflect the language used in Section 28 of the Rent Act 1947
so as to make it pari materia. In other words, it was submitted
that, after the 1976 Amendment, the Rent Act 1947 and PSCC
E Act, are cognate and pari materia statutes which form part of
the same system. Learned senior counsel pointed out that the
statutes dealing with the same subject matter or forming part
of the same system are pari materia statutes. Reference was
made to the judgments of this Court reported in Mansukhlal
F Dhanraj Jain v. Eknath Vitha/ Oga/e (1995) 2 SCC 665, R v.
Herrod (1976) 1 All ER 273 (CA) and Ahmedabad Pvt.
Primary Teachers Assn. V. Administrative Officer and Ors.
(2004) 1 sec 755.
G
12. Shri Sorabjee also submitted that the Statement of
Objects and Reasons of 1976 Amendment proceeds on the
premise that the "licence" contemplated by Section 41 of
PSCC .A:ct is a non-gratuitous one which provides that, under
the existing law, the licensor had to go to different Courts for
recovery of possession and licence fee and that the intention
H
PRABHUDAS DAMODAR KOTECHA v. MANHABALA 69
JERAM DAMODAR [K.S. RADHAKRISHNAN, J.]
of the Legislature was always to confine the jurisdiction of the
A
Small Causes Court to eviction proceedings and proceedings
for the recovery of rent/licence fee, not to evict a gratuitous
licensee. Shri Sorabjee also submitted that the expression
"licence" contemplated in Section 41 of PSCC Act does not
include a gratuitous licensee, which is also in consonance with
B
the principle of Nocitur a sociis, which provides that words must
take colour from words with which they are associated. In
support of this contention, reliance was placed on the judgment
of this Court in Ahmedabad Pvt. Primary Teachers Assn. 's
case.
c
13. Shri Sorabjee also submitted that the respondents
have proceeded on a wholly incorrect premise that the Rent Act
1947 only protects the licensees who were in possession on
01.02.1973. It was pointed out that by virtue of 1973 Amendment
to the Rent Act 1947, protection was given to all "licensees"
D
defined in Section 5(4A). It was also submitted that certain
licensees were given the status of deemed tenants under
Section. 15A and that only those licensees who had subsisting
license on 01.02.1973. were given the status of deemed
tenants. Learned senior counsel pointed out that if all the
E
licensees were deemed tenants, there would not have been any
need to insert the word "licence" in various provisions of the
Act. Learned senior counsel also pointed out that these
aspects were overlooked by the judgment in appeal, unsettling
the law laid down by the Division Bench of the High Court in
F
Ramesh Dwarkadas Mehra's case (supra).
14. Shri Shekhar Naphade, learned senior counsel
appearing for the respondents, submitted that the Full Bench
of the Bombay High Court is right in holding that the expression
G
"licensee" used in Section 41 (1) of PSCC Act does not derive
its meaning from the expression "licensee" as defined in
Section 5(4A) of the Rent Act 1947 and that the expression
"licensee" used in Section 41 (1) of PSCC Act is a term of wide
import so as to mean and include a gratuitous licensee.
H
70
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
Learned senior counsel also submitted that the argument of the
appellants that the Rent Act 194 7 is pari materia with Section
41 of PSCC Act or same system statute, is totally
misconceived. Shri Naphade also submitted that the "licence"
contemplated in Section 41(1) of PSCC Act be considered as
B licence, as defined in Section 52 of the Easements Act. Shri
Naphade also pointed out that though Section 41 (1) of PSCC
Act, as originally enacted, refers to occupation of premises with
permission, such permission means permission as referred to
in Section 52 of the Easements Act which is a
c contemporaneous statute, i.e. Easements Act, the Transfer of
Property Act and Section 41 of PSCC Act. In support of that
principle, learned senior counsel placed reliance on the
judgment of this Court in National & Grindlays Bank Ltd. v. The
Municipal Corporation of Greater Bombay (1969) 1 SCC 541
0
and Tata Engineering and Locomotive Company Ltd. v. The
Gram Panchayat, Pimpri Wachere (1976) 4 SCC 177.
15. Shri Naphade also submitted that the expression
"licensor" or "licensee" or "landlord" and "tenant" used in
Section 41 of PSCC Act, as amended by the Maharashtra Act
E No. XIX of 1976, relate to "immoveable property" and Section
52 of the Easements Act which defines a "licence" has a
inseparable connection to immoveable property and property
law. Learned senior counsel pointed out that the expression
"licensee" is used as an antithesis to the concept of tenant and,
F therefore, the licensee under Section 41 (1) must mean a person
having a licence as defined in Section 52 of the Easements
Act. Shri Naphade also submitted that the Maharashtra Act of
1976 made necessary changes in Chapter VII of PSCC Act
which contained Sections 41 to 49 and by virtue of the
. G amendment, the pecuniary restriction on the jurisdiction of the
Small Causes Court placed by Section 18 has been removed
to speed up the proceedings for eviction and to avoid
multiplicity of proceedings. The Legislature also intended that
all cases of licensees and tenants should be tried only by the
H Small Causes Court under Section 41(1) of PSCC Act.
PRABHUDAS DAMODAR KOTECHA v: MANHABALA
71
JERAM DAMODAR [K.S. RADHAKRISHNAN, J.]
16. Before considering the rival contentions raised by the
A
counsel on either side and the reasoning of the Full Bench, it
is necessary to examine .the historical settings of the various
legislations.
LEGISLATIVE HISTORY
PSCC Act:
B
17. The PSCC Act came into force on 01.07.1882. In that
year, the Transfer of Property Act as well as the Easements Act
was also enacted. Under the PSCC Act, Small Causes Courts c
were established in Calcutta, Madras, Ahmedabad and
Bombay and the PSCC Act was enacted to consolidate and
amend the law relating to Courts of Small Causes established
in the Presidency Towns. Small Causes Court was conferred
with the jurisdiction to try all suits of a civil nature where value
0
of the subject matter did not exceed Rs.10,000/- as per Section
18, subject to exceptions in Section 19 of PSCC Act. S.mall
Causes Courts, at that time, were treated as a Civil Courts in
the hierarchy of the Courts. Chapter VII of PSCC Act, as it stood
prior to the Maharashtra Amendment Act, 1976, contained
Sections 41 to 46 conferring limited jurisdiction of recovery of
E
possession of immoveable property on Small Causes Court
giving summary remedy for recovery of possession of
immoveable property of the prescribed value. Section 41 of
PSCC Act then stood as follows:
F
"41. Summons against persons occupying
property without leave.- When any person has had
possession of any immovable property situate within the
local limits of the Small Cause Court's jurisdiction and of
which the annual value at a rack-rent does not exceed two
G
thousand rupees, as the tenant, or by permission, or
another person, or of some person through whom such
other person claims,
and such tenancy or permission has determined or
been withdrawn,
H
A
B
c
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SUPREME COURT REPORTS
[2013] 9 S.C.R.
and such tenant or occupier or any person holding
under or by assignment from :1im (hereinafter called the
occupant) refuses to deliver up such property in
compliance with a request made to him in this behalf by
such other person,
such other person (hereinafter called the applicant)
may apply to the Small Cause Court for a summons
against the occupant, calling upon him to show cause, on
a day therein appointed, why he should not be compelled
to deliver up the property.
18. Proceedings at that time were initiated by filing an
application, not a suit. Even the Bombay Rent Act, 1939 and
Bombay Rent Act, 1944, did not give exclusive jurisdiction to
any Court. Legislative history indicates that in respect of
D premises having annual rack rent up to Rs.2,000/-, the
proceedings for recovery of possession between landlord and
tenant were to be filed in Small Causes Court under Chapter
VII of the PSCC Act and in case where the annual rack rent
exceeded Rs.2,000/-, the recovery suits were to be filed in the
E Original Side of the High Court.
19. Bombay Rent Act 1947 also brought lot of changes to
the Rent Act of 1939 and 1944 and Section 28 of the 194 7 Act
provided that exclusive jurisdiction was conferred on the Small
Cause Court in respect of all the suits between landlord and
F tenant relating to recovery of rent or possession irrespective
of value of the subject-matter. Suits between landlord and tenant
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. Even landlords
G 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. Even the
landlord's right of evicting tenant was also severely curtailed and
the landlords could recover possession only on proof of grounds
H of eviction enumerated under the Rent Act, therefore, they
P~ABHUDAS DAMODAR KOTECHA v. MANHABALA 73
JERAM DAMODAR [K.S. RADHAKRISHNAN, J.]
started letting out their premises under an agreement of leave
A
and license. Proceedings for recovery of possession against
· · · -
the licensee though started filing suits under Section 41 of the
Small Cause Courts Act, the defendants in those cases starting
denying that there were licensees but tenants and that the
agreement of leave and licence was sham and bogus and
hence not binding. Even the findings rendered by the Small
Cause Court in exercise of its jurisdiction under Section 41 on
B
the question of tenancy was not final and the aggrieved party
had a right to file a regular suit for declaration of the title resulting
in multiplicity of the proceedings. Chapter VII of the PSCC Act c
was later amended by the Maharashtra Act No.