LAXMI AND COMPANY Vs. ANANT R DESHP NDE

JUDGEMENT

(1.) This is an appeal by special leave from the judgment dated 1 March, 1967 of Naik, J. of the High Court at Bombay allowing Civil Revision Application under Section 115 of the Code of Civil Procedure filed by the respondent Dr. Deshpande.

(2.) The principal question which falls for consideration in this appeal is the construction of Section 42A of the Presidency Small Cause Courts Act, 1882 (referred to as the 1882 Act) incorporated by Maharashtra Amendment Act 1963. The section is set out hereunder :

(3.) Two questions arise for decision in this appeal. First, whether the word 'appears' occurring in S. 42A means appearance of the party in person or through someone at the date of the hearing. Secondly, whether the Small Cause Court is required to frame an issue as to whether the occupant is a tenant within the meaning of the Bombay Act of 1947 and is entitled to protection of that Act, and decide it as a preliminary issue, whether or not the contesting party appears before the Court at the date of the hearing.