DATTARAM TUKARAM BORDEKAR Vs. PRAKASH DATTATRAYA TIWATANE

JUDGEMENT

(1.) AN interesting but immensely important dimension concerning proceedings under section 41 of the Presidency Small Cause Courts Act has been raised in this proceeding which is being summarised below: whether an applicant, who applies for ejectment of a tenant under setion 41 of the Act is required to satisfy the Court that there is some justification in support of the application or whether as hitherto a held by the Courts, possession can be claimed on the simple ground that the lease has been terminated and that the opposite party has failed to restore possession regardless of there being any justification for such termination.

(2.) IT would be useful to first set out the salient facts. The petitioner was the tenant in respect of a shop bearing No. 6 in Jaykar House Girgaum, Bombay 400 004. The admitted position is that in 1942, Prabhakar Tiwatane, father of the original tenant sublet shop No. 6 to the petitioner. After the death of his father in a 1952, Prabhakar became the tenant in respect of the said premises. In 1954, he filed a suit against the petitioner for possession of the shop on the ground that he required the same reasonably and bonafide for personal use. This suit, which was filed under the provisions of section 13 (1) (g) of the Rent Act came to be dismissed. Within less than a year, Prabhakar filed another suit on the same ground which came t be dismissed once again, this time, with compensatory costs. The appeal from this order was also dismissed and the Special Civil a Application filed in the High Court against that two orders was also rejected.

(3.) IN 1972, the owner of the building sold the same to the Bombay Municipal Corporation. The petitioner continued to be possession of a shop No. 6 as a lawful sub-tenant of the opponent, by a notice dated 2-7-1974, the opponent Prabhakar sought possession of the premises on the ground that the petitioner was in arrears of rent. By his reply dated 20-7-1974 the petitioner informed the opponent that he was always ready and willing to pay the rent and that the money order for the amount of rent was wrongly refused. Along with the reply, the petitioner remitted the entire amount of rent. On 30-10-1974, Prabhakar filed an application in the Court of Small Causes for a decree for possessing under section 41 of the the Presidency Small Cause Courts Act. The contention raised was to the effect that in view of the provisions of section 4 of the Bombay Rent Act, the premises were exempt from the provisions of that Act. The petitioner in his written statement contended that the provisions of Section 4 of the Rent Act would and must apply to the shop premises in the special circumstances of the case. He contended that in the two earlier proceedings, the relationship of landlord and tenant between him and the opponent and the applicability of the provisions of the Rent Act had both been undisputed and that the said relationship remained unaltered and he contended that this issue was barred from being re-agitated by the principles of res judicata. The learned trial judge rejected these contentions and held that the premises belonged to the Bombay Municipal Corporation which was a public authority and consequently, by virtue of section 4 of the Rent Act, which was attracted in this case, whereby the provisions of that Act were exempt from application to the premises. By a judgment dated 11-6-1981, the petitioner was directed to vacate and hand over peaceful possession of the shop premises on or before 31-5-1982. It is against this order that the present petition has been filed.