Dismissed

1SHAIKH Gattehmohammad Amir,Deced.Hisl.R'S 1A. Shaikh Nisar Fattehmohammad v. 1. Shri Shaikh Gayas Usman and Ors.

Bombay HC24 Jan 2013CAS/490/2009

Case brief

AI extract

What is this about?

In a second appeal, the High Court of Bombay considered an application seeking arrears of compensation and mesne profits regarding a former gratuitous licensee. The Court held that since the trial court decree did not award mesne profits and no payment was made during the license, no amount was payable even after termination, dismissing the application.

What did the court decide?

Civil application dismissed with no order as to costs.

1SHAIKH Gattehmohammad Amir,Deced.Hisl.R'S 1A. Shaikh… — Landlord and Tenant | Bombay HC (2013)

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cas490-09.sxw

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO. 490 of 2009 IN

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SECOND APPEAL NO. 1033 OF 2005

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Shaikh Fattehmohammad Amir (since deceased through Lrs.) Mr.Shaikh Rabiyabi Fattehmohammed & Others .. Applicants/ Appellants

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v/s.

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Shri Shaikh Gayas Usman (Since deceased thorugh Lrs.Mannnuddin G. Shaikh & Others ..Respondent/s

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Mr.M.M.Sathaye for the Applicant/ Appellant. Mr.P.D.Purve i/b.Mr.Jayesh Kocheta for the Respondent

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CORAM: R.Y.GANOO, J. DATED : 24^th JANUARY 2013.

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P.C. :

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By this civil application, the applicants, original respondents are

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seeking arrears of compensation to the tune of Rs.3 lakhs and odd amount. The applicant also wants that the sum of Rs.3000/- should be ordered

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against the respondent.

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pps 1/4

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I have heard learned Advocates on both sides. Applicants came out with the case that the respondents were permitted to occupy the suit premises as Gratuitous Licensee and that after termination of the said Gratuitous License the respondent was required to vacate, and as he did not vacate, the suit was filed.

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It is noticed that the trial court has decreed the suit for possession and the District Court has confirmed the decree. These two judgments are required to be considered in the present second appeal. Second appeal has been admitted.

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Before this Court, judgment of Atmaram Properties Pvt. Ltd. v. Federal Motors Pvt. Ltd. reported in (2005)1 SCC 705 is relied upon. Learned Advocate Mr.Sathe, contended that based on the judgment in Atmaram's case the present applicants are entitled for the monies sought. Learned Advocate for the respondent opposed it by contending that the relationship between the applicant and the respondent as alleged by the applicants was that of licensor-licensee and that no monies were paid by the

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pps 2/4

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respondent while he was occupying the premises as alleged by the applicant.

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I have considered the record. In the judgment of the trial court, the learned Judge has passed an order thereby observing that the mesne profits are not to be granted in as much as the words used are “No order as to Mesne Profit”. This would mean that the present applicants are not entitled to get mesne profit as per the decree passed by the trial court. The applicants have not filed cross appeal so far as this aspect is concerned.

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Even if the case of the present applicant is accepted, the relationship

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between them was that of licensor-licensee and that the license was of Gratuitous License.

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During subsistence of the license if no amount was being paid, surely

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after the said permission has come to an end, whether the present respondent should pay some amount by way of compensation, which would be ofcourse in the nature of mesne profit is the question. In my view, in the wake of decree passed by the trial court, which is confirmed by the District

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pps 3/4

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Court as regards mesne profit, during the pendency of the second appeal, the applicant is not entitled to the amounts. In my view, in the facts of this case, judgment in the case of Atmaram Properties (supra) would not be applicable.

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Civil application is dismissed with no order as to costs.

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[R.Y.GANOO, J.]

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pps 4/4

1SHAIKH Gattehmohammad Amir,Deced.Hisl.R'S 1A. Shaikh Nisar Fattehmohammad v. 1. Shri Shaikh Gayas Usman and Ors.

Case brief

What is this about?

What did the court decide?

1SHAIKH Gattehmohammad Amir,Deced.Hisl.R'S 1A. Shaikh Nisar Fattehmohammad v. 1. Shri Shaikh Gayas Usman and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

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