1972 (9) TMI 155 - SC - Indian Laws

Summary

Issues Involved:
1. Interpretation of the term "appears" in Section 42A of the Presidency Small Cause Courts Act, 1882.
2. Obligation of the Small Cause Court to frame and decide the preliminary issue of tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
3. Jurisdiction of the Small Cause Court in passing an ex-parte decree without framing the preliminary issue.
4. Consideration of subsequent events in the context of the case.

Detailed Analysis:

1. Interpretation of the term "appears" in Section 42A:
The principal question for consideration was the construction of Section 42A of the Presidency Small Cause Courts Act, 1882, as amended by the Maharashtra Amendment Act, 1963. The term "appears" in Section 42A was interpreted to mean the physical or represented presence of the party at the date of the hearing. The court emphasized that the word "appear" cannot be equated with the mere filing of a written statement. It necessitates the occupant's presence at the hearing to assert tenancy and claim protection against eviction.

2. Obligation to Frame and Decide Preliminary Issue:
The court examined whether the Small Cause Court was required to frame an issue as to whether the occupant is a tenant within the meaning of the Bombay Act of 1947 and decide it as a preliminary issue, irrespective of the occupant's appearance at the date of hearing. The court concluded that it was not obligatory for the trial court to frame a preliminary issue if the occupant did not appear at the hearing. The High Court's conclusion that the trial court must frame such an issue irrespective of the occupant's appearance was found to be incorrect.

3. Jurisdiction of the Small Cause Court:
The respondent contended that the Small Cause Court acted without jurisdiction in passing an ex-parte decree without framing and determining the preliminary issue of tenancy. The court clarified that the provisions of Section 42A required the occupant to appear and claim tenancy under the 1947 Act. If the occupant did not appear, the court was not bound to frame and decide the preliminary issue. The High Court's decision to set aside the ex-parte decree on this ground was overturned.

4. Consideration of Subsequent Events:
The respondent sought to introduce subsequent events, arguing that a new tenancy was created after surrendering possession to the original landlords. The court acknowledged that it could take notice of subsequent events to shorten litigation and preserve rights. However, it found that there were pending suits and unresolved issues regarding the respective rights and claims of the parties. Therefore, it was neither desirable nor practicable to consider the subsequent events in this case.

Conclusion:
The appeal was allowed, and the judgment of the High Court was set aside. The High Court was directed to deal with the application for setting aside the ex-parte decree separately. The parties were instructed to bear their own costs for the appeal. The court underscored that the Small Cause Court was not obligated to frame a preliminary issue if the occupant did not appear at the hearing, and the term "appears" in Section 42A meant physical or represented presence at the hearing.