9911796707
TMI Blog1979 (8) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is dispossessed of the premises. It appears from the record that one Pandurang Koli at the initial stage tried to obstruct the warrant of possession for which the respondent took out obstructionist notice No. 359 of 1975. The said Pandurang Koli did not appear in Court and, therefore, the said notice was made absolute ex parte removing the obstruction of Pandurang Koli. The present petitioner later on took out a notice on 6th of May 1975, under Order 21, Rule 100 of the Code of Civil Procedure for restoration of possession of stall. 2. In the said application it was the case of the petitioner that the stall was initially owned by three brothers viz. Vinayak, Bhalchandra and., Vasantrao. In the year 1962 the landlord leased out the stall to him on rental basis as a tenant on a monthly rent of ₹ 25/- and has, accordingly received rent from him till 31st of March 1973, though no receipts are issued for the same. It was also his case that he has paid all along the municipal taxes since 1961-62, though the assessment bills were issued in the name of the landlord because he was the owner of the property. He further contended that he obtained assessment receipts in the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Calcutta High Court reported in the Notes section of AIR 1955 NUC 1021 : Duliram Guganmull v. Jalan Brothers Ltd., came to the conclusion that an application under Order 21, Rule 100, C. P. C. 1908 was not maintainable. So far as the merits of the controversy are concerned relying upon the admission of the petitioner incorporated in the reply to the notice dated 2-5-1973 the learned trial Judge came to the conclusion that even though the petitioner was in possession at the time of the filing of the ejectment application as well as at the time of passing the execution order, his possession was not on his own account and hence on that count also the application was not maintainable. Therefore the learned Judge of the trial court dismissed the said application. As already observed it is against this order that the present writ petition is filed. 4. Mr. Gole, learned counsel appearing for the petitioner contended before me that the view taken by Joshi J. in Civil Revn. Appln, No. 386 of 1974 (Bom) is contrary to the specific provisions of the Act itself. According to Mr. Gole, Joshi J. has not noticed the provisions of Section 48 of the Act as well as the rules framed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, hereafter referred to as the Rules, Sub-rule (2) of Rule 1 of the said Rules reads as under:-- (2) The portions of the Code of Civil Procedure, 1908 (Act V of 1908) as modified from time to time by any competent legislature in its application to the State of Maharashtra with its first Schedule as amended by the High Court of Judicature at Bombay under Section 122 of the said Coda from time to time upto 1st May 1968 specified in the first column of the Schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the second and the third columns of that Schedule, extend and shall be applied to the Small Cause Court, and the procedure prescribed thereby shall be the procedure to be followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882. In the Schedule attached to the Rules a specific reference is made to Order 21 dealing with the execution of the decrees and orders. Then additions, alterations and modifications are also specified in the said Schedule. The relevant part of the Schedule read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific provisions of the Act and the Rules, it can safely be said that the said decision was delivered per incuriam and, therefore, is not binding upon me. As to when it could be said that a precedent is not binding, is by now well settled. A precedent is not binding if it was rendered in ignorance of the statute or a Rule having the force of a statute. In such circumstances it can be said that the matter was decided per incuriam. In this context a reference could usefully be made to a decision of. this Court in Yeshbai v. Ganpat Irappa Jangam AIR1975Bom20 and particularly towards the following observations hi paras 27 and 28:-- Now a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to and had not present to its mind the precise terms of the statute. Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of the decision being given per incuriam. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant observations In the said decision read as under:-- On the initial point of the locus standi it is worthy to note that the proceedings were initiated under Section 41 of the Presidency Small Cause Courts Act which finds place in Chap, VII, It is a summary proceeding and not a suit, The orders passed in such proceedings are not decrees. This is clear from the language of Section 41 as well as from a couple of authorities of this Court and the Supreme Court, The earliest authority is to be found in the case of Bai Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar (1927)29BOMLR1220 , It was an action under Section 41 of the Presidency Small Cause Courts Act, 1882, The Division Bench pointed out that the remedy under Chap, VII of the Presidency Small Cause Courts Act, 1882 for ejectment is a summary proceeding and not a suit and the order made therein cannot amount to a decree. The same view has been registered in the case of Govindram Salamatrai v. Dharampal AIR1951Bom390 , Speaking for the Court the learned Chief Justice Chagla pointed out: 'It is necessary to remember that under the Presidency Small Cause Courts Act under Chap. VII the Small Cause Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a member of the joint family along with Indermal Dhanraj and cannot be said to be in possession on his own account. If the firm, one or the other, was the tenant and if it was dispossessed, the son who claims to be a partner, would be equally a judgment-debtor along with the other partners including the father. Therefore, looked at from any point of view, he cannot successfully avail of the benefits conferred by R. 100 or 101 of Order 21 of the C. P. C. I have quoted the observations of Joshi, J. in extenso to point out that the material provisions of the said Act and the Rules framed thereunder have not been noticed by the learned Judge while deciding the question and the said decision was given in ignorance of the said statutory provisions. If the provisions viz. Section 48 of the Presidency Small Cause Courts Act, 1882 and the Rules framed thereunder are read with the provisions of Chapt. VII of the Act it is quite obvious that the provisions of the Code of Civil Procedure, 1908 will apply even to the proceedings instituted under Chap. VII of the Act. Once it is held that the provisions of the] Code of Civil Procedure apply to the said proceedings and there is nothing] in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Civil P. C. could not alter that provision. I may add as my opinion that matters could be much simplified if the Presidency Small Cause Courts Act were amended so that all the procedure could be provided for in one place as it were instead of being scattered about as it is, partly in the Act by reference in sections like Ss. 48 and 61 and partly by adaptations of the Code and partly by rules made under Section 9. This is, however, purely a personal opinion. I merely mention it because it seems that owing to those difficulties the actual provision applicable in the present case seems to have been lost sight of. In my opinion, therefore, the appropriate order that the learned Registrar should have made was merely to point out that the application in the form in which it stood could not be dealt with, but that the applicant if he considered he had a grievance and a right, and if and when the order of the Court was sought to be enforced so as to affect his right, could come to the Court under the appropriate provision under Order 21 of the Code and he would be heard. A similar view was taken by the Madras High Court in Mahomed Ghouse Sahib v. Sk. Mohiddin Sahib AIR 1924 Mad 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the reply given by his counsel to a notice given by the respondents. It appears that the learned trial Judge has taken into consideration the said admission and has then recorded a finding. The said finding is seriously challenged before me by Mr. Gole, learned counsel appearing for the petitioner and he has contended that the said finding is perverse. According to Mr. Gole there is no admission at all in the said reply. Assuming there is an admission, the said admission is not unqualified nor it is a true one. Further the learned trial Judge has failed to take into consideration the explanation given by the petitioner in that behalf. According to Mr. Gole, the finding recorded by the learned Judge only on the basis of alleged admission, overlooking the Explanation and other evidence is wholly perverse. 10. On the other hand it is contended by Mr. Vora, learned counsel appearing for the respondents that there is ample material on record to indicate that even on merits the petitioner has no case because he was in possession of the premises through the judgment-debtor. Therefore, according to Mr. Vora even on merits the application filed by the petitioner was liable to be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
