ORDER
P.S. Patankar, J.
1. Both these Petitions can be disposed of by this common order as they involve the same point. The point involved is 'whether the Court of Small Causes at Bombay under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as SCC Act), in its pre-1976 form as also post-1976 form, has jurisdiction to entertain and try an application or suit for ejectment against a gratuitous licensee'?
FACTS IN WRIT PETITION NO.2336 OF 1997:
The suit premises involved are the upper floor (mezzanine floor) of the garage premises situated at Napeansea Gringe, 91, Napeansea Road, Bombay 400 006. In 1959, the Respondents permitted the Petitioners to use the said premises on license basis without payment of any compensation. The parties are closely related. By notice dated 29th March,1968 the permission granted to the petitioners to occupy the premises was revoked. No reply was given to the said notice. The petitioners refused to deliver the premises. Hence, the respondents filed an application to recover from the petitioners vacant and peaceful possession of the suit premises on 29th March, 1968 under Section 41 of the SCC Act. The petitioner No.1 filed points of de-fence on 11th November, 1968 contending that he was allowed to occupy the premises on tenancy basis. He admitted the close relationship between the parties, though denied that he was permitted to occupy temporarily. In view of Section (now 42A deleted by Maharashtra Act 19 of 1976), preliminary issue regarding plea of tenancy was framed. The trial Court held in favour of the petitioners by order dated 30th March, 1974. Appeal was filed on behalf of the respondents, being Appeal No.429 of 1974. The Appeal came to be allowed. It was held that the petitioners were only gratuitous licen-sees. The petitioners filed Writ Petition No.580 of 1986 in this Court. It came to be dismissed on 9th December, 1986 confirming the finding that petitioners were gratuitous licensees. The petitioners preferred S.L.P. No.2011 of 1987 but the Supreme Court dismissed it. On 21st December, 1989, the trial Court heard the Ejectment Application and decided against the petitioners directing eviction from the suit premises by the Small Cause Court, Bombay. The petitioners filed Appeal No.72 of 1990 before the Appel-late Bench of the Court of Small Causes at Bombay. The Appeal came to be dismissed confirming the finding that the Small Cause Court, Bombay was having jurisdiction to decide the Appeal.
FACTS IN WRIT PETITION NO. 5986 OF 1997
The petitioner is the owner of flat No.10, in Building No.4, Navjivan Society, Lamington Road, Mumbai 400 008. The petitioner purchased the same from her own funds in October, 1970. Her husband was living with her who passed away in June 1983. The petitioner is having two sons - Shashi and Ramesh. Ramesh is the Respondent in this Petition. Both the sons were permitted to live in two separate rooms in the said flat as licensees without payment by the petitioner. They misbehaved and even made complaints against the petitioner to the Police. Therefore, the petitioner served a notice upon them to vacate it. No reply was sent by any of them. They refused to vacate. Hence, the petitioner filed Ejectment Applications under Section 41 of the SCC Act in May 1990 for recovering possession from them. The Suit No.106 of 1990 filed against Shashi came to be decreed in June 1992. Appeal filed by Shashi came to be dismissed by the Appellate Bench of the Small Cause Court in June 1993. Similarly, Civil Revision Application filed by him in this Court also came to be dismissed. He left the said room. The defence raised in the said suit was that he was a joint owner of the flat alongwith his brother (present respondent) and their father. It was alleged that all of them had contributed to the purchase of the said flat. The respondent herein has deposed supporting the case of Shashi. The said case was not accepted. A contention was also raised by Shashi that he was a gratuitous licensee and the Small Cause Court had no jurisdiction. But the said contention was also rejected by the Appellate Court. In 1994 the Suit No.119 of 1990 filed against the petitioner was taken up for hearing. The respondent has also raised similar defence of joint ownership. Again the trial Court held that the respondent was not the joint owner of the flat and he was residing as a gratuitous licensee and the license was terminated. It was held that the suit under Section 41 of the SCC Act was maintainable. In Appeal filed by the respondent, being Appeal No.75 of 1995, the Appellate Bench by order dated 6th November, 1997 confirmed the finding that respondent was not the joint owner of the flat. It was held that he was a gratuitous licensee. It was further held that the Small Cause Court has no jurisdiction to decide the suit. Hence, the order came to be passed returning the plaint for presentation to the proper Court.
2. The learned Counsel appearing for the parties invited my attention to a number of decisions which are usually cited at the hearing of such cases. I am making a brief reference to them. However, at the outset, I must observe that for too long it has been the order of the day in this City of Bombay, particularly for persons in unjustified occupation of premises, to litigate for decades by clutching to one point or the other, and taking advantage of some lacuna and bringing the other party to the breaking point. Invariably the claims are couched in a veneer of profoundness and used as justification for such wrongful retention of the premises, thereby defeating rights of the other.
The present petitions before me are classic illustrations of how judicial process is sought to be used as a cover for the perpetuation of possession on the solitary plea of jurisdiction.
3. Section 41 of the SCC Act Pre-1976 stood as under :
'RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY
41. Summons against person 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 juris-diction and of which the annual value at a rack-rent does not exceed (three thousand rupees), as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has been determined or been withdrawn,
and such tenant or occupier or any person holding under or by assignment from him (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.'
Section 41(1) of the Post-1976 is as under:
'41(1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes 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 the license fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.'
4. I would like to note at the outset that it is well settled that jurisdiction of a Court has to be decided on the basis of averments in the plaint. There are many decisions of this Court as well as of the Apex Court : [1995]1SCR996 .
5. The learned Counsel appearing for the parties submitted that gratuitous license is not covered by Section 41 of the Act and hence the suit in the Small Causes Court was not maintainable. It is also submitted that there is divergence of opinion on this point and there are judgments on both sides and hence the matter should be referred to a Division Bench. These submissions are countered by the other side.
6. 'license' is defined under Section 52 of the Indian Easement Act, 1882. It runs as follows:
'52. 'License defined - Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.'
The definition of 'license' is also contained in Section 5(4A) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (Bombay Rent Act for short). This definition came to be added by Maharashtra Act of 1973. Obviously, this was with a view to grant protection to such licensees under Section 15A of the said Act. Section 15A was also introduced by Act of 1973 and certain licensees who were in occupation on 1.2.1973 were to become tenants and were granted protection of the Bombay Rent Act. It is settled by the Judgment of the Supreme Court reported in 1994 Maharashtra Rent Control Journal page 90, State of Punjab and others vs. Brigadier Sukhjit Singh, that payment of license fee is not an essential attribute for the subsistence of a license. The question before the Apex Court was whether the licensee having possession for long can raise a plea of adverse possession. It was replied in the negative.
7. I shall first note the Judgments which have been cited for submitting that this matter be referred to a Division Bench. It is contended that the decisions of the Single Judges are conflicting and the decisions of the Division benches and the Supreme Court are either sub-silentio or in per-curiam.
8. The first judgment relied upon is : [1985]1SCR808 Ayyaswami Gounder and others vs. Munnuswamy Gounder and others. It was a case where the learned Single Judge of the High Court did not agree with the earlier decision of another Single Judge of the same High Court. It was held by the Apex Court in such a case the matter should be referred to a larger Bench and the propriety and decorum do not warrant Single Judges of the same High Court holding contrary to the other. Then reliance is placed on : AIR1995SC1421 Rajesh Kumar Verma vs. State of Madhya Pradesh and others. It was a case where the Division Bench of the High Court has not followed the earli-er Bench decision on the ground that it had not taken into consideration the Supreme Court decision on the point. It was held that in such a case the proper course is to refer the matter to a larger Bench. This was held by the Apex Court observing that:
'... With respect we think that the Division Bench of the High Court which rendered the impugned judgment laboured to find a distinction or reason to depart from a consistent view where non existed.'
Reliance is place on AIR (1998) 2 SC 44, Usha Kumar vs. State of Bihar and others.In the said case also it was observed that the judicial discipline requires that if the two Division Benches of the same High Court take different views, the matter should be referred to a large bench. One Divi-sion Bench cannot ignore or refuse to follow the decision.of an earlier Division Bench of the same Court and proceed to give its decision contrary to the decision given by the earlier Division Bench. If it is inclined to take a different view, a request should be made to the Chief Justice to refer the same to a Full Bench.
9. Reliance is placed on AIR 1993 SC 1893, Sundardas Kanyalal Bhathija and others vs. The Collector, Thane, Maharashtra and others. The Supreme Court in the said case dealt with what is precedents and observed that in multi-judge Court, the judges are bound by precedents and procedures when Single Judge or Division bench disagreeing with decision of bench of co-ordinate jurisdiction the matter should be referred to larger bench.
10. Reliance is then placed on the Judgment reported in : [1992]198ITR297(SC) , Commissioner of Income-tax vs. M/s.Sun Engineering Works (P) Ltd. The observations on which the reliance is placed are from in para 39. They are:
'... The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.'
11. Reliance is placed on : 1980CriLJ1246 Rajpur Ruda Meha and others vs. State of Gujarat. The Apex Court held that when certain question is neither raised nor argued a discussion by court after pondering over the issue in depth would not be a binding precedent. It was a case where con-stitutional validity of Section 384 of the Criminal Procedure Code was not considered earlier by the Supreme Court. Only constitutional validity of Rule 15(1)(c) of Order XXI of the Supreme Court Rules was considered. Similar is in effect the Judgment of the Supreme Court reported in : [1991]188ITR402(SC) M/s.Goodyear India Ltd. State of Haryana and another. It was held that a decision on a question not argued cannot be considered as precedent. It was a case where the ingredient of Section was not earlier considered, but only passing reference was made and the question involved was not at all considered. Then reference is made to : AIR1989SC38 Municipal Corporation of Delhi vs. Gurnam Kaur. The Apex Court was considering Article 141 and laid down scope of what is obiter dicta, per incuriam and sub-silentio decision and it was held that such decisions are having no binding force. It was also held that 'When a direction or order is made by consent of the parties, the court does not adjudicate upon the rights of the parties nor does it lay down any principle.' Similarly, 'A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.' In para 11 it was observed as follows :
'11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument. Without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority.'
The Apex Court also noted what Professor P.J.Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. has to say on the sub silentio :
'A decision passes sub silentio in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind ....'
Then reliance is placed on : 1993(41)ECC326 State of U.P. and another vs. Synthetics and Chemicals Ltd. & Anr. The apex Court explained what decisions are per incuriam and sub-silentio and held that they are excep-tions to the rule of present. It was held that decisions not express, not founded on reasons, nor proceeding on consideration of the issue, cannot be deemed as 'law declared' within the meaning of Art 141 of the Constitution.
12. Reliance is placed on 56 Bombay Law Reporter 1156, Mohandas Issardas vs. A.N.Sattanath, in which it was held that the only opinion expressed by Supreme Court which would be binding would be the opinion expressed on a question that arose for determination by the Supreme Court and the question carefully considered and opinion expressed.
There is no dispute regarding ratio but the question is whether con-sidering the Division Bench Judgments of this Court and the Judgments of the Supreme Court, the above submissions hold any water. In my opinion not.
13. The learned Counsel relied upon the decision of my brother Ashok Agarwal, J, 1990 Mah.LJ 1145, Vishwanath Sawant vs. Gandabhai Kikabhai, in support of his submission that a gratuitous licensee is not covered under Section 41 of the Act. It arose out of a suit filed alleging that initial entry of the defendant in the premises itself was illegal and unauthorised. It was a case where the defendant was granted more temporary gratuitous permission not coupled with a grant or interest to occupy the suit prem-ises. The license was revoked. It was held that the possession of the defendant after revocation of the license was not of a licensee but of a rank trespasser and the provisions of Section 41 of the Presidency Small Cause Courts Act or Section 28 of the Bombay Rent Act is not attracted and the City Civil Court can entertain the said suit. This view came to be followed by my brother Vaidyanatha J. reported in : AIR1995Bom210 Conrad Dias of Bombay vs. Joseph Dias of Bombay. It was a case where a person was residing with his parents in the house. It was held that such a person cannot claim any legal character much less the character of a licensee as defined in Section 52. He was a person residing simpliciter as a member of the family and nothing more and nothing less. It was a suit for only in-junction not to remain on the premises and not for possession. No doubt reference was made to the Judgment of Agarwal, J. reported in 1990 Mah.LJ 1145 and 1990 Mah RCJ 273 and it was observed that a gratuitous licensee cannot claim any legal right in the property and the suit is maintainable in a Civil Court for eviction as the defendant was in the position of a trespasser. The same learned Judge (Vaidyanatha J.) followed this in 1997 (2) Mah.LJ 35, P.Vijaykumar and others vs. V.C. Gopalkrishnan. Two ques-tions, among other, which came to be considered were relating to two parts of the premises. One shaded as blue colour and the question raised was whether the defendant no.5 was staying in that portion of the premises as gratuitous licensee and in respect of the red shaded portion the question arose whether the defendant No.5 has trespassed upon it by breaking open the lock. It came to be observed, inter alia, as follows:
'10. The previous suit was filed in the Court of Small Causes by the plaintiff for a declaration that he is a tenant. He also alleged that the first appellant was in permissive possession of two rooms and he had taken wrongful possession of the other two rooms. The question is whether on the basis of these allegations, the plaintiff could have asked for the relief of possession in the previous suit. It is well settled that the jurisdiction of the Court is determined on the basis of the allegations in the plaint. When the plaintiff has come to Court claiming that the possession is only permissive or that the defendant is a tres-passer, the relief of possession could not have been asked and even if asked, the Small Cause Court had no Jurisdiction to grant such a relief. The jurisdiction of the Small Cause Court is attracted when the plaintiff concedes that defendant is a tenant or a licensee. It is also not disputed that the gratuitous li-cense is not one which is covered under Section 41 of Presidency Small Causes Court Act, 1882. Further we find that in the defini-tion of license under the Bombay Rent Act, as provided under Section 5(4-A), the licensee has been defined only as a person who is in occupation of a premises on payment of license fee or charge. It is, therefore, clear that a gratuitous licensee is not one who is covered either by the Bombay Rent Act or by the Presi-dency Small Cause Court Act. I am also fortified in my view by a decision of this Court in 1990 Mh.L.J. 1145, Vishwanath vs. Gandabhai which the learned Counsel for the Respondent brought to my notice.'
This was again based on 1990 Mah.LJ 1145.
14. The reliance is placed upon a decision reported in 1994 Bombay Rent Control 47, Vijay K. Divekar vs. Deepak Jayantilal Gandhi and others. In this case, my brother Chaudhary, J. mainly considered the provisions of Section 5(4A) and 15A of the Bombay Rent Act. It was held that a combined reading of Section 5(4A) and 15A of the Bombay Rent Act excludes the gratu-itous licensee from getting protection of Section 15A. In such a situation the Civil Court would continue to exercise jurisdiction to recovery of possession of the premises from a gratuitous licensee.
15. Then there is a judgment of my brother Nijjar, J. reported in : AIR1998Bom107 Adi S. Mehta vs. Adi G. Illava. It was a case where heirs of a caretaker of premises set up claim of licensee/tenant of the premises, even when it was admitted that they had not regularly stayed in the prem-ises and had never set up any right in the premises nor did pay any consid-eration for use and occupation of the premises. It was held that they were not licensee of the premises but as rank trespassers and hence Civil Court would have jurisdiction to grant decree of possession.
16. Reliance is placed on unreported Judgment of my brother D.K.Deshmukh, J. Shri Faiz Mohammed vs. Shri Mohammed Ismail. It was based on confes-sion. It was observed:
'...It is also not disputed that the gratuitous license is not one which is covered under Section 41 of Presidency Small Causes Court Act.'
It was also based upon the judgment of my brother Agarwal, J. in Viwshwanath's case (cited supra).
17. As against this, the learned Counsel for the other side has relied upon the judgment of the Division Bench reported in : AIR1980Bom123 , the Division Bench Judgment (Mohta & Shah, JJ) in LPA No.129 of 1993 dated 3.9.93. Apart from this, reliance is also placed upon the Single Judge Judgments reported in : AIR1993Bom1 (Saldhana, J,) & 1995 (2) BCR 175 (A.V.Savant, J.) (the Judgment came to be affirmed by the Supreme Court in SLP (C) No.14085 and 14118 of 1994 dated 27.10.1994), the Judgment of Ashok Agarwal, J. reported in 1990 Mah. Rent Control Journal 620 and : (1988)90BOMLR22 Eknath Vithal's case by Pendse J. and which is affirmed by Supreme Court in : [1995]1SCR996 . The Division Bench in : AIR1980Bom123 Nagin Mansukhlal Dagli v . Haribhai Manibhai Patel, has considered the provisions of Section 41 of the Presidency Small Cause Courts Act. It is observed as follows :
'The use of the words 'a licensor and licensee' and 'a landlord and tenant' in the said Section 44 has no such particular significanceor effect as canvassed for by Mr Sanghavi. These words have been used in accordance with a very well-settled and normal legislative drafting practice. In various statutes dealing with rights and obligations arising out of jural or contractual rela-tionship and enforcement of such rights and obligations the parties described by the legal character they bear....'
The Division Bench also negatived the argument that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. It so held because Section 41 used the words 'suits relating to the recovery of possession' and 'not suits for possession'. The words used are wide.
18. It will also be necessary to refer to the latest Supreme Court Judg-ment reported in : [1995]1SCR996 Mansukhlal Dhanraj Jain and others vs. Eknath Vithal Ogale. The Supreme Court has affirmed the view taken by Pendse J. in Eknath Vithal's case - 1988 (2) BCR 9. The Apex Court analysed Section 41 of the SCC Act. It was a case where licensee had filed a suit against licensor claiming injunction alleging that he was paying monthly consideration for occupying the premises. It was held 'for applicability of Section 41(1) of the Small Cause Courts Act, the following conditions must be satisfied before taking the view that jurisdiction of regular competent civil court like City Civil Court is ousted.
'i) It must be a suit or proceeding between the licensee and licensor; or
ii) between a landlord and tenant;
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 license fee or charges or rent thereof.'
It was further observed as follows :
'...It is obvious that if the present suits satisfy conditions Nos.1 and 3 they would clearly attract the applicability of Section 41(1) of the Act and such suits would be outside the purview of regular civil Court like the City Civil court. There-fore, the enquiry which becomes relevant at this stage is to find out from the averments in the plaint whether these are suits between a licensor and a licensee and whether they relate to the recovery of possession of immovable property situated in Greater Bombay.'
The Apex Court also held :
'It is, therefore, obvious that the phrase 'relating to recovery of possession' as found in Section 41(1) of the Small Causes Courts Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defend-ant from effecting forcible recovery of such possession from the licensee plaintiff would squarely be covered by the wide sweep of the said phrase.....'
'.....It is of course true that Section 41 of the Small Causes Court Act deals with such Suits between the licensee and licensor while Section 28 of the Bombay Rent Act deals with suits between land-lord and tenant. But the nature of such suits as contemplated by both these sections is the same, namely, it should be the suit relating to the recovery of possession of premises.'
No doubt, in the said suit by the licensee, there was an averment in the plaint regarding payment of monetary consideration to the licensor and in that context a reference was made to it in paras 16 and 19 of the said judgment. But it is very clear from what has been laid down that payment of monetary consideration is not a pre-requisite for filing a suit under Section 41. The Apex Court has already held in 1994 Mah. Rent Control Journal 90 (cited supra) that payment of license fee is not a requisite for creation of a license. Obviously payment of monetary consideration was not considered as an ingredient for attracting the provisions of Section 41 of the said Act. If that was to, it would have been mentioned by the apex Court in the conditions themselves. In paras 16 and 19 merely averments made by the licensee were mentioned and from that it cannot be inferred that the Supreme Court wanted to lay down that Section 41 covers only a non-gratuitous licensee or licensee for consideration. I would like also to refer to the decision of the Division Bench in LPA No.129 of 1993 (Mohta & Shah, JJ. dated 3.9.93). It was a case where the service tenancy was given to the defendant. The Division Bench specifically dealt with Vishwanath's case (cited supra) and held relying upon the Division Bench Judgment in the case of Nagin Mansukhlal Dagli (cited supra) that the words 'licensee' and 'licensor' mentioned in Section 41 mean initial relationship. I would like to quote that the Division Bench has said:
'4. Attention of the learned Single Judge was invited on behalf of the Appellants to a Single Judge decision of this Court (1) Vishwanath Sawant v. Gandabhai 1990 Mh.L.J. 1145. In that case the plaintiff had filed a suit on the basis that initial entry of the Defendant in the premises itself was illegal and unautho-rised. No observations of any Court can be read in isolation and will have to be read in the whole context of particular case. Ratio of that decision was rightly distinguished in the impugned order and rightly was reliance placed upon the Division Bench decision of this Court in Nagin Mansukhlal Dagli Vs . Haribhai Manibhai Patel, : AIR1980Bom123 .'
'6. ...Section 41. Section 41 as it reads, confers jurisdiction upon the Court of Small Causes to try suit for possession between a Licensor and Licensee. This means the initial relationship and not the relationship after termination of license whereafter only a next is filed. The circumstances that old provision specifical-ly included such cases and the new provision does not, will make no difference. No change on this aspect was intended by the amendment, as is clear from the letter as well as spirit of new section 41.'
19. It will also be proper to refer to the judgment of the Supreme Court reported in the case of D.H. Maniar & Ors. vs . Waman Laxman Kuday : [1977]1SCR403 . The Supreme Court observed as follows :
'...The remedy of section 41 is available only after the permis-sion or the license granted to the licensee to go on the property has been withdrawn or revoked. If the occupant of the property is not able to show any sufficient cause then order for possession follows under section 43.'
20. I would refer to the 3 judgments of the learned Single Judges of this Court. The first one is 1990 Mah. R.C.J. 620, Vallabhdas Bhagwandas Sampat (since deceased by his heirs) and others vs. Gopaldas Keshavji Sampat (since deceased by his heirs) and others. This is again decided by my brother Ashok Agarwal, J. It was a case where the parties were close rela-tions and the question arose whether the Small Cause Court under Section 41 can entertain the proceedings initiated against the gratuitous licensee and it was answered in the affirmative. The second one is : AIR1993Bom1 (Saldhana, J.), C.K. Talwar vs. M/s. Rallis India Ltd. It was a case where the company had filed a suit against its employee in Small Causes Court. That employee was occupying the residential premises. The employee refused to deliver possession when demanded by the company. The company filed the proceedings on the footing that he was a licensee. The contention raised by the employee was that he was a trespasser after termination of license and hence proceedings under Section 41 were not maintainable in the Small Causes Court. This was negatived. Then there is a judgment of my brother Savant, J. : 1995(2)BomCR175 Cawas Dhunjishaw Saher vs Dr. Keikobad C. Batliwala. I am referring to this judgment somewhat in detail. One Mr. Batliwala filed a suit in the Court of Small Causes under Section 41 to recover possession of one bedroom premises from one Cawas alleging that he was a gratuitous licensee and it was revoked. Cawas also filed a cross suit for declaration that he was a tenant in view of Section 5(11)(c)(r) of the Bombay Rent Act he being a member of the family son of sister of Mr. Batliwala. He also contended that he was not a gratuitous licensee but licensee with consideration. The case made out by Cawas was not accepted. He was found to be a gratuitous licensee. Further contention of Cawas that Mr.Batliwala's suit under Section 41 was not maintainable was negatived relying upon the judgments of Pendse, J. in Eknath Vithal's case (mentioned earlier) and Saldhana J. in C.K.Talwar's case (cited supra) and the Division Bench Judgment in Nagin's case. The judgment has been affirmed by the Supreme Court in SLP No.14085 and 14118 of 1994 dated 27.10.94. No doubt, the point of jurisdiction of the Small Causes Court to entertain the proceeding under Section 41 against the gratuitous licensee was not specificallyraised and decided. But the status of Cawas, as found, that he was a gratuitous licensee and his license was revoked was noted by the Apex Court.
21. Considering the two Division Bench Judgments in : AIR1980Bom123 - Nagin's case and in LPA No.129 of 1993 dated 3.9.93 (Mohta & Shah, JJ)) (mentioned above) and the Apex Court Judgments reported in : [1977]1SCR403 , 1994 Mah. R.C.J. 90 (S.C.) and : [1995]1SCR996 , in my opinion, it is not at all necessary to refer this matter to the Division Bench. The latest judgment of the Supreme Court reported in : [1995]1SCR996 was not consid-ered earlier. It arose out of a suit by licensee against the licensor praying for injunction averring in the plaint payment of monetary consider-ation for occupation of the premises. Because of such averments made by the plaintiff, at some places in the judgment the Apex Court made reference to it. But as pointed out above, the Supreme Court has laid down the scope and ambit of Section 41 in clear terms which certainly covers a gratuitous licensee.
22. I have already pointed out Section 41 of the Presidency Small Cause Courts Act pre-1976 and post-1976. Further Heading of Chapter VII pre-1976 is 'Recovery of possession of Immovable Property' and Heading of Section 41 is 'Summons against person occupying property without leave.' The heading of Chapter VII post-1976 reads as 'Recovery of possession of certain immov-able property and certain license fees and rent' and the heading of Section 41 reads as 'Suits or proceedings between licensors and licensees or land-lords, land tenants for recovery of possession of immovable property and license fees or rent except to those to which other Acts apply to lie in Small Cause Court'. Further a plain reading of Section 41 of the Act, pre-1976 and post-1976, as reproduced above shows that the person must be in possession of premises by permission of another person and that such per-mission must be withdrawn before filing an application against such a person. Once the permission is withdrawn, he becomes a person occupying property without leave. Section 41 exactly covers this. Section does not speak that a person should be in possession of premises on giving some consideration. Section 41 clearly shows that application can be filed even against a person occupying premises gratuitously. A gratuitous licensee would be a licensee within the meaning of Section 52 of the Easement Act and, therefore, even after revocation of such license, the suit would be between the licensor and the licensee as held by the Division Bench in Nagin's case followed by Pendse J. in Eknath Vithal's case (cited supra) and affirmed by the Supreme Court in : [1995]1SCR996 . Therefore, because of the termination of license, the licensee may become a trespasser, but nonetheless the suit is not against trespasser. It is only against a li-cense whose license is revoked, license whether with consideration or without consideration.
23. Further, those four decisions, cited in support of the proposition that gratuitous licensee is not covered by Section 41, are distinguishable on facts. The decision in Vishwanath's case by my brother Ashok Agarwal, J. (cited supra) arose out of the suit filed on the allegation that initial entry of the defendant in the premises itself was illegal and unauthorised. Therefore, after revocation of license, he was a rank trespasser. The Division Bench in LPA No.129 of 1993 (Mohta & Shah, JJ - cited supra) has noted this. This was followed in three other judgments (mentioned above) which involve averments more or less the same. But the present cases are not so.
24. It is also contended that the word 'licensee' is to be found in the company of words 'rent or fee' in Section 41 and hence gratuitous licensee is excluded. Reliance is placed on para 12 of : 1990(47)ELT491(SC) reads as under :
'12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is established. In the context with which we are concerned, we can legitimately draw upon the 'noscitur a sociis' principle. This expression simply means that 'the meaning of a word is to be judged by the company it keeps.'
I am mentioning this just for rejecting it. The word licensee is used indicating the proceedings between licensee and licensor. The words 'recov-ery of license fee or rent' are used to indicate the nature of suits which are also covered by Section 41. I have already noted the analysis made by Supreme Court of Section 41 in : [1995]1SCR996 (cited supra).
25. Therefore, in the present cases, the condition Nos. 1 & 3 i.e. as pointed out by Supreme Court in : [1995]1SCR996 (cited supra) are satis-fied. These are the proceedings between the licensee and the licensor and they relate to recovery of possession of the property situate in Greater Bombay. In view of this, the provisions of Section 41 are attracted and the proceedings initiated are with jurisdiction.
26. In view of this, I pass the following order:-
(1) Rule in Writ Petition No.2336 of 1997 is discharged.
(2) Rule in Writ Petition No.5896 of 1997 is made absolute. The impugned Judgment and Order dated 6th October, 1997 passed by the Bench of Small Causes Court at Bombay in Appeal No.75 of 1995 is set aside. The Judgment and Order dated 12th January, 1995 in L.E. & C. Suit No.119 of 1990 is restored.
27. The learned Counsel for the Petitioners in Writ Petition No.2336 of 1997 prays for stay of this order for a period of eight weeks.
The learned Counsel for the Respondents points out that as per the order passed by Pratap, J. dated 25th March,1986 in Writ Petition No.580 of 1986, the petitioners were to deposit Rs.100/- per month. The learned Counsel for the Petitioners states that accordingly the said deposit has been made upto the end of April,1998. The Respondents are permitted to withdraw the same.
The learned Counsel for the petitioners states that the petitioners shall not part with possession or create any third party rights.
28. The learned Counsel for the Respondent prays for stay in Writ Petition No.5986 of 1997 of this order. He states that the Respondent shall pay to the Petitioner an amount of Rs.10,000/- within four weeks from today by Bank Draft. The statement is accepted.
29. In view of the above, this order is stayed in both the Petitions for six weeks.
30. In the facts and circumstances of the case, there shall be no order as to costs in both the Petitions.
31. Petition I dismissed. Petition II allowed.