1. Rule. Mr.Aftabhusen Ansari, learned advocate waives service of notice of Rule on behalf of the respondent herein – original opponent.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present civil revision application is taken up for final hearing today.
3. The present civil revision application u/s.115 of the Code of Civil Procedure has been preferred by the petitioner herein – original applicant to quash and set aside the impugned order dated 05/09/2011 passed by learned Small Cause Court No.8, Ahmedabad in P.S.R.P.Application No.9 of 2003, by which, learned Trial Court has rejected the said application preferred by the petitioner herein – original applicant u/s.41 of The Presidency Small Cause Courts Act,1882 (hereinafter referred to as “the Act”) for recovery of possession from the respondent herein – original opponent.
4. That the petitioner herein, who was claiming right, title and interest on the basis of the agreement to sell/ agreement entered into by original owner, instituted the proceedings before learned Small Cause Court at Ahmedabad for recovery of possession from the respondent herein – original opponent by submitting application u/s.41 of the Act being P.S.R.P. Application No.9 of 2003 submitting that he has permitted the respondent herein to use the suit premises without charging anything and thereafter he was licensor of the suit premises and the original opponent was licencee of the suit premises and when the original opponent was called upon to hand over the possession, he failed to hand over the possession of the suit premises and, therefore, it was requested to allow the suit and direct the original opponent to hand over actual and peaceful possession of the suit property.
5. The suit was resisted by the respondent herein – original opponent by submitting that as such there was no relationship of licensor and licencee between the applicant and opponent as the opponent himself was owner of the suit premises. It was specifically denied that he was inducted in the suit premises by the original applicant, as alleged. It was also further submitted that licence, if any, is not properly revoked. It appears that though learned Trial Court framed issues, learned Trial Court dismissed the said application submitted by the original applicant on the ground that the applicant has failed to prove by producing the registered document that he is owner of the suit premises and, therefore, he could not have become licensor and, therefore, he is not entitled to any relief in application u/s.41 of the Act and consequently learned Trial Court has dismissed the said application by impugned order.
Being aggrieved by and dissatisfied with the impugned order dated 05/09/2011 passed by learned Small Cause Court No.8, Ahmedabad in P.S.R.P. Application No.9 of 2003, the petitioner herein – original applicant has preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
6. After the matter was argued at length by learned advocates appearing on behalf of the respective parties and considering the impugned order passed by learned Small Cause Court at Ahmedabad as nothing has been discussed and as no reasons have been given by learned Trial Court as to whether there is relationship of licensor and licencee between the applicant and opponent; Whether in fact the opponent was put in possession of the suit premises as licencee by the applicant, as alleged; or Whether there was valid revocation of the licence or not or Whether all the conditions mentioned under section 41 of the Act are satisfied or not and the application is dismissed solely on the ground that the applicant is not owner of the suit premises, he could not have become licensor and he could not have preferred the application u/s.41 of the Act, the impugned order passed by learned Trial Court be quashed and set aside and the matter be remanded to the learned Trial Court to decide and dispose of the same afresh in accordance with law and on merits, on the basis of the evidence already led and by directing the learned Trial Court to give specific findings on following all issues : -
(1) Whether there was a relationship of licensor and licencee between the applicant and the opponent;
(2) Whether in fact the opponent was put in possession of the suit premises as licencee by original applicant, as alleged by the applicant;
(3) if the aforesaid two issues are answered in favour of the applicant, in that case, Whether the licence was properly revoked or not and;
(4) Whether all the conditions mentioned in section 41 of the Act are satisfied or not?
Learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the impugned order and remanding the matter to the learned Trial Court. Under the circumstances, this court is not assigning any further reasoned order.
7. In view of the above and for the reasons stated hereinabove, the present civil revision application succeeds in part and the impugned order dated 05/09/2011 passed by learned Small Cause Court No.8, Ahmedabad in P.S.R.P. Application No.9 of 2003 is hereby quashed and set aside and the matter is remanded to the learned Trial Court to decide and dispose of the same afresh, in accordance with law and on merits. However, on the basis of the evidence already led, meaning thereby, no further evidence is to be led, as agreed by learned advocates appearing on behalf of the respective parties and learned Trial Court to give specific findings on following all issues : -
(1) Whether there was a relationship of licensor and licencee between the applicant and the opponent;
(2) Whether in fact the opponent was put in possession of the suit premises as licencee by original applicant, as alleged by the applicant;
(3) if the aforesaid two issues are answered in favour of the applicant, in that case, Whether the licence was properly revoked or not and;
(4) Whether all the conditions mentioned in section 41 of the Act are satisfied or not?
The aforesaid exercise shall be completed by the learned Trial Court within a period of Nine months from the date of receipt of the copy of the present order. It is made clear that this Court has not expressed anything on merits and it is ultimately for the learned Trial Court to consider the same in accordance with law and on merits and on the basis of evidence already led and without in any way being influenced by the present order of quashing and setting aside the impugned order. Rule is made absolute accordingly. No costs.
[M.R.SHAH,J] *dipti