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Judgment
D.R. Dhanuka, J.—Heard learned Counsel for the appellant. The appeal is summarily dismissed.
The appellant in this first appeal is the defendant in Bombay City Civil Court Suit No. 2157 of 1981. By an agreement of conducting, dated 20th July, 1970, the plaintiff permitted the defendant to conduct the business of running a printing press initially for a period of three years. The plaintiff handed over various machineries and articles alongwith the premises to the defendant at the time of entering into of the said agreement. The licence pertaining to the said business stand in the name of the plaintiff. The plaintiff used to conduct the said business in the name of Messrs. Vijay Kumar & Printers. The defendant conducted the said business in some other name. The licence conducting was renewed for a period of two years and thereafter for a further period of one year.
By a letter, dated 8th August, 1972, addressed by the defendant, the defendant confirmed that the defendant was conducting the said printing press. The contents of the said letter are re-produced in Paragraph 41 of the judgment of the Trial Court.
The plaintiff had filed L. E. Suit No. 181 of 1977 against the defendant in the Court of Small Causes at Bombay almost for similar reliefs. The said suit was dismissed for default. An application for restoration of the said suit was also dismissed. The plaintiff thereafter filed the suit in the Bombay City Civil Court at Bombay being Suit No. 2157 of 1981, alleging that the defendant was a trespasser and seeking possession of the suit premises, machineries and articles and the said business. The plaintiff also prayed for award mesne profits in the said suit.
The learned Counsel for the appellant has submitted that the defendant was a protected licensee and thus a deemed tenant in respect of the premises where printing press was urged. The learned Counsel for the appellant has submitted that the defendant was in exclusive possession of the said premises. In my opinion, the Trial Court is right in holding that the true nature of the transaction was that of permitting the defendant to conduct a running business. There is no merit in this submission of the learned Counsel for the appellant. It is of significance that conducting agreements are specifically excluded from definition of licensee protected under Bombay Rent Act.
The defendant had filed a suit in the Court of Small Causes at Bombay for a declaration that he was a protected licensee. The number of this suit was "Suit No. 1795 of 1977. The suit has been dismissed on merits. Merely because an appeal is pending against the decision in the said suit, the Bombay City Civil Court was not bound to stay the hearing of suit No. 2157 of 1981. Trespass was a continuing cause of action. The learned Counsel for the appellant has relied upon Order IX, Rule 9 of the Code of Civil Procedure. The learned Counsel submits that no fresh suit could be filed in respect of the same cause of action as the earlier suit filed by the plaintiff against the defendant in the Court of Small Causes at Bombay was dismissed for default. The cause of action being recurring cause of action, Order IX, Rule 9 of the CPC has no application.
The learned Counsel for the appellant has submitted that the Bombay City Civil Court was bound to stay the trial of City Civil Court Suit No. 2157 of 1981. No application was made for stay of the suit u/s 10 of the Code of Civil Procedure. The suit has already been tried and heard on merits. There is no infirmity in the decree passed by the Trial Court. It is not possible to entertain this appeal on the ground that the trial of the suit ought to have been stayed pending the disposal of appeal before the Bench of Court of Small Causes at Bombay whatsoever from declaratory Suit No. 1795 of 1977. The above referred declaratory suit was also dismissed by the Court.
In the result, the appeal fails and the same is dismissed. Civil Application for stay of the execution of the decree passed by the Trial Court being Civil Application No. 5469 of 1993 is also rejected.
On request of Shri Apte, learned Counsel for the appellant, it is directed that the decree passed by the Trial Court shall not be executed for a period of one month from today.
The Registrar, High Court, Appellate Side is directed to communicate this order to the City Civil Court at Bombay, expeditiously and forward an Ordinary copy of this judgment and order, duly authenticated to the City Civil Court at Bombay for information.
Issue of certified copy is expedited.