LILAWATI H HIRANANDANI Vs. USHA TANDON

JUDGEMENT

(1.) The original respondent in Ejectment Application No. 149/929/E of 1966 in the Court of Small Cause at Bombay - respondent in writ petition No. 1823/83 (hereinafter referred to as 'the original respondent'), is the appellant in this appeal. The original applicant in the said Ejectment Application- petitioner in writ petition No. 1823/83 (hereinafter referred to as 'the original applicant'), is the respondent in this appeal. The matter arises in connection with the eviction of the original respondent from the premises, comprised in flat No. 36, Block No. 30-C, 27-A, Mazgaon Terrace. One Sri Syed Abdul Hamid Kadri was the owner of the entire building. The original applicant was a tenant under Shri Kadri long before 1965. The property was mortgaged to a trust. Pursuant to some litigation, the property was put up for auction on 6-10-1965. Prior to this auction, on 14-8-1965, the tenants of the flat formed a Society called Mazgaon Terrace Co-operative Housing Society Ltd. The entire building in question was purchased by the society. The original applicant became a member of the society on 26-9-1965. It is stated the flat covered by the ejectment application was allotted to the original applicant.

(2.) The original applicant gave a licence over a portion of the flat in her possession to the original respondent. By notice Dated 3-8-1966, the licence was terminated. On 29-11-1966, the ejectment application was filed under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as 'the Act'). In the said proceedings, the original respondent claimed the benefit of Section 42-A- the right of tenancy. The Court repelled the said plea by order Dated 17-8-1973. The appeal filed from the aforesaid order, was dismissed on 18-10-1977. Thereafter, the original respondent raised an objection under Section 43 of the Act, contending that the applicant is not entitled to file the application under Section 41 of the Act. By order Dated 17-7-1978. The Court of Small Causes Bombay rejected the said plea relying on its earlier order Dated 17-8-1973 passed under Section 42A of the Act. The original respondent filed special civil application No. 2268/78 before the Bombay High Court and assailed the orders passed under Section 42A as well as under Section 43 of the Act. Masodkar, J., by judgment Dated 6th of October, 1982 ordered a remit of the matter, for a fresh consideration. The learned Judge held that the plea of the original respondent under Section 43 of the Act should be considered afresh and in case of rejection of the said defence, it is open to the original respondent to challenge the orders made under Section 42A of the Act. Thereafter, the trial Court passed the order Dated 24-1-1983 holding that the application filed under Section 41 of the Act by the applicant is not maintainable since the initial title of the applicant as a tenant has come to an end. The original applicant filed writ petition No. 1823/83 before the High Court of Bombay and assailed the order of the trial Court Dated 21-4-1983. By the judgment under appeal Dated 28-11-1991, the learned single Judge of the Bombay High Court set aside the judgment and order passed by the Small Cause Court Dated 21-4-1983 and allowed the application filed by the original applicant. The original respondent after having obtained special leave in Special Leave petition (Civil) No. 5509 of 1992, has filed this civil appeal.

(3.) We heard counsel. Mr. Harish Salve, Senior Counsel appearing for the appellant, raised two contentions. They are:(i) the original applicant has given a licence to the original respondent while she was a tenant of Sri Kadri and when she became a tenant member of the Society, her old status came to an end, and so, she is disqualified under Section 43 of the Act for obtaining a decree from the Court, and (ii) by the judgment in Special Civil Application No. 2258/78 Dated 6-10-1982 the Court had directed that in case the plea of the original respondent under Section 43 of the Act fails, the challenge to the orders made under Section 42A is open. In the judgment impugned in this appeal, the learned single Judge was in error in stating that the challenge to the orders passed under Section 42A cannot be entertained. On the other hand, counsel for the respondent submitted that the judgment passed by the learned single Judge rejecting the plea made under Section 43 of the Act, is justified. It was further submitted that the plea made by the original applicant under Section 42A of the Act has no substance.