Order
1. We have heard both the learned counsel at length. The respondent-landlord sought to evict the appellant under Section 41 of the Presidency Small Causes Court Act, stating that the leave and licence granted in favour of the appellant came to be terminated by notice dated 14-5-1974. Thereafter he had no right to remain in possession and he was liable to be evicted. In defence, what the appellant urged that he was a joint tenant along with others. That plea of joint tenancy has been negatived by the courts below. In this appeal, it is urged before us that the courts below have gone wrong on two counts — (i) that by amending a written statement, an alternative plea opposed to the original stand of the defendant was not permissible; (ii) the courts below have overlooked the beneficial provision of Section 15-A available to the appellant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Should this Court accept these submission, the appellant is entitled to succeed.
2. The stand of the appellant is opposed by the learned counsel for the respondent urging that having regard to the ruling in D.H Manier v. Waman Laxman Kudav (1976) 4 SCC 118 (para 7), AIR 1976 SC 2340, even on the basis that the appellant is a licensee, he cannot get the protection of Section 15-A.
3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. Be that so.
4. In this case, undoubtedly, the appellant will be entitled to the protection of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the Act’). The reason is Section 15-A in no uncertain terms states as follows:
“15-A. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.”
5. The non obstante clause contained in the section has overriding effect. If that be so, what has looked into is this section and this section alone. What does this section require. (i) Person in occupation on the crucial date of 1-2-1973; (ii) as a licensee. If these conditions are satisfied then he is deemed to be a tenant for the purpose of this Act. In this case, having regard to the fact that the licence of the appellant came to be terminated only in 1974, he satisfies both the conditions. However, the learned counsel for the respondent relies on D.H Maniar v. Waman Laxman Kudav (1976) 4 SCC 118 (para 7), AIR 1976 SC 2340. A perusal of the facts of this case shows that the licence, in this case, stood revoked on 1-4-1966. In other words, as we pointed out, the crucial date being 1-2-1973, it was rightly held, if we may say so with respect that such an occupant who continues after revocation of the licence would not be a licensee and, therefore, would be disentitled to the protection of Section 15-A. Factually, this decision is clearly distinguishable from the case in hand. The appeal stands allowed. There shall be no orders as to costs.