MADHAVDAS DWARKADAS Vs. JUGAL KISHORE SARAF

JUDGEMENT

(1.) The present petitioner is filed by the petitioner who is the owner of the suit premises which consist of a building at Walkeshwar. The application for defendants ejectment filed under Section 41 of the Presidency Small Cause Courts Act has been rejected by trial Court in the ground that the Court had no jurisdiction to grant such application in view of an order in certain previous proceeding between the parties. The correctness of the said view is challenged in these proceedings.

(2.) The fact relevant for the purpose of this judgment are the following:-- The flat in question belongs to the present petitioner and admittedly he gave the same on leave and licence to the defendants in the year 1959. The amount of compensation fixed was Rs. 531/-. It has been contended before me that the said amount of Rs. 531/- was not only for the premises but also for furniture because it was a furnished flat which was given on leave and licence basis to the defendants. This fact is stoutly denied before me by Mr. Pandey, the learned Advocate for the defendants. I am keeping this question open forth decision of the trial Court after the re-appreciation of the entire evidence.

(3.) The leave and licence arrangement continued till the year 1965. The last leave and licence agreement in that behalf was executed on 21-6-1964 and it was to expire on 31-3-1965. On 12-4-1965 the plaintiff gave a notice to the defendants informing him about the expiry of the agreement of licence and calling upon him to agreement of licence and calling upon him to vacate the premises, Due to the failure on the part of the defendants to comply with the requisition, an ejectment application was filed by the plaintiff against the defendants under Section 41 of the Presidency Small Cause Courts Act (hereafter, the Act). For the sake of convenience, the said ejectment application the parties arrived at some kind of compromise and a consent order in that behalf was passed on 17-6-1968. As per the consent order the defendants was directed to give vacant possession of the suit premises to the plaintiff unless the paid the entire arrears of compensation due till 31st May, 1968 in stated instalments. The last instalment of Rs. 800/- was to be paid on 27-3-1969. The consent order clearly shows that if any default was made in such payment the consent order was to become executable and the would have been entitled to possession of the suit premises by executing the consent order it appears that according to the plaintiff the defendants had committed some default and hence in the year 1968 he filed an application for execution of the above mentioned consent order. The trial Court, it appears, directed the execution to proceed, holding that the default was proved. A against the said, order Special Civil Application No. 1053 of 1969 was filed by the defendants in this Court and the same was allowed by the learned single Judge (Vaidya J) of this Court on 27-3 1973. The Court held that there was no default committed by the defendants and hence on question of execution arose.