9911796707
TMI Blog1972 (9) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Amendment) Act, 1963 (Mah. XLI of 1963) or made to it on or after such date, the occupant appears at the time appointed within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) and in consequence whereof he is entitled to the protection of that Act, and if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question shall be decided by the Small Cause Court as a preliminary issue. (2) An appeal against the decision on this issue shall lie to a bench of Two Judges of the Small Cause Court. (3) Every appeal under sub-section (2) shall be made within thirty days from the date of the decision appealed against; Provided that, in computing the period of limitation prescribed by this sub-section the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908 (IX of 1906) as far as may be, apply. 17 4 (4) No further appeal shall lie against any decision in appeal under sub-section (2) . Two questions arise for decision in this appeal. First, whether the word 'appears' occurring in section 42A means appearance of the party in person or through someo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out for hearing. No one on behalf of the respondent Deshpande was present in Court. The matter was passed over and was again called out in the afternoon. No one on behalf of the respondent Deshpande was present. The matter was called out for the third time at about 4.30 p.m. Neither the respondent Deshpande nor his Advocate, was present on any of the occasions when the application was called out. The application was heard ex-parie. Evidence was led on behalf of the, appellant. The Small Cause Court passed an ex-parte decree on 23 November, 1966 in favour of the appellant directing the responding Deshpande to deliver possession of the premises. The appellant in the month of January, 1967 made an application for execution of the decree. Possession was delivered up to the appellant by the bailiff. The appellant thereafter agreed to let out the premises to the second respondent V. B. Gandhi. On 14 January, 1967 the appellant was served with an ex- parte order passed by the Small Causes Court, Bombay on respondent Deshpande's application for setting aside the ex- parte decree restraining the appellant from executing the ex-parte decree dated 23 November, 1966. In view of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not appear before the Court to frame an issue as to whether the occupant was or was not the tenant of the premises and protected by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to as the 1947 Act) and to decide the same a,-, a preliminary issue on the next date of hearing. After framing the preliminary issue the Court would adjourn that matter for the hearing of the preliminary issue. The trial Court had not framed any preliminary issue, had not recorded a finding on that issue, but proceeded straightaway to pass an order of ejectment. The learned Single Judge of the High Court set aside the ex- parte decree and sent it back to the Small Cause Court with a direction that the preliminary issue be framed as contemplated under section 42A of the 1882 Act and to give opportunity to the parties to lead evidence. No order was passed on the other application for setting aside the ex- parte decree. Counsel for the appellant contended as follows. The provisions contained in section 42A of the 1882 Act indicated that the occupant against whom proceedings under Chapter VII of the 1982 Act for recovery of possession were commenced was required to appear at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons issued under section 41 is served in the manner provided by the Code of Civil Procedure for the service of summons. Section 43 deals with order for possession. If the occupant does not appear and show cause the applicant 'becomes entitled to an order for possession. If the occupant proves that the tenancy was created or permission granted by virtue of a title, which determined previous, to the date of the application, he shall be deemed to have shown cause. Section 43 also speaks of the occupant appearing and showing cause. The filing of a defence is not equated with appearance. The Court appoints a date for appearance of parties for the hearing. Unless there is appearance and a contest arises the Court will proceed ex-parte. It is manifest that section 42A which was introduced by the if Maharashtra Amendment provides a special procedure where the occupant claims tenancy of the applicant within the meaning of the 1947 Act. The occupant is to claim the tenancy of the applicant within the meaning of the 1947 Act and that in consequence 13-348Sup. Cl/73 he is entitled to protection of the Act. If such claim of the occupant is not admitted by the applicant asking for posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appeal and section 49 of the Act bars a suit on the basis of title as a tenant within the meaning of the 1947 Act. The High Court found that the question of tenancy within the scope of section 42A of the 1882 Act was to be decided once for all in- the proceedings under Chapter VII of the Small Cause Courts Act, because a suit was barred. Under section 49 of the 1882 Act as it stood prior to the Maharashtra Amendment recovery of possession of any immovable property under Chapter VII was not a bar to the filing of a suit in the High Court as to- the title of the occupant. The Maharashtra Amendment to section 49 has placed a bar against such suit because the occupant is given the opportunity under section 42A of the 1882 Act to contest the claim of the applicant to possession by pleading, proving tenancy within the 1947 Act and claiming the consequential protection under the provisions of the Act. The conclusion of the High Court that the bar of a suit under section 49 is a cogent reason for concluding that the Small Cause Court shall always try as a preliminary issue the claim of the occupant as a tenant within the meaning of the 1947 Act irrespective of his appearance is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed property. The property was auctioned on 9 December, 1953. Ramniklal Co.., a partnership firm, purchased the right, title and interest of the mortgagees and obtained possession of the property. On 6 April, 1954 the property was conveyed by the mortgagees to the auction purchaser. The original lessees, namely, the Departmental Service Stores in 1954 filed a suit in the Bombay High Court against the mortgagees and the auction purchaser for setting aside the auction sale. On 2 August, 1960 by consent of the parties an order was passed for reconveyance of the property to the original lessees the Departmental Service Stores. On 21. November, 1961 the auction purchaser conveyed the property to the appellant. On 24 December, 1965 Ashar and others filed a suit against the Departmental Service Stores, the mortgagees, namely, the Shah the auction purchaser and the appellant for possession of the property. The suit filed by Ashar and others is still pending in the Small Cause Court in. Bombay. In the year 1965 about 18 Merchants occupying various shops in the premises filed suits in the Court of Small Cause for declaration that they are lawful sub-tenants., These suits were filed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1965 by Ashar and others against inter alia the appellant, the lessors obtained an ex-parte injunction preventing the appellant from withholding the entry of the licensees of the appellant. The term of the licensee was to expire on 31 December, 1965. Ashar and other,% and the licensees of the appellant are in collusion. In the suits filed by the appellant against the licensees in the City Civil Court to prevent the entry of licensees to the property on the ground that the period of licence had expired by effluviums of time, the Court did not grant any 'interim injunction against the licensees but directed that the licensees should deposit in Court the monthly compensation. 'Thereafter some of the licensees of the appellant filed declaratory suits that they were the tenants. The Small Cause Court passed an order restraining the appellant from withholding the entry of the licensees otherwise then by course of law. Ashar and others in their suit filed in 1965 obtained an injunction restraining the appellant from withdrawing the amount lying deposited by the licensees in the City Civil Court. The appellant continued to pay rent to the lessor up to the month of September, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
