VALI MOHD JAMAL MANSURI Vs. VALI MOHAMED SULEMAN

JUDGEMENT

(1.) Short question, though of considerable importance, that has arisen for my determination is whether a suit for a declaration that an order of eviction obtained under S.41 of the Presidency Small Cause Courts Act is null and void on the ground that the same has been obtained by practising fraud, is maintainable in view of the provisions of S.49 of that Act as it stood prior to its amendment by Maharashtra Act No. 19 of 1976.

(2.) The petitioner filed the present Rent Act Declaratory Suit against the respondent for a declaration that he was the tenant in respect of the suit premises entitled to protection of the Bombay Rent Act, and for a further declaration that the order of eviction obtained by the respondent in ejectment application under S.41 of the Presidency Small Cause Courts Act, (hereinafter referred to as the said Act) was a nullity as the same had been obtained by practising fraud. The petitioner inter alia averred that the respondent in the aforesaid ejectment application had fraudulently procured evidence in order to show that the petitioner had been served in that application and had obtained an ex parte order of eviction under S.41 of the said Act. It was further averred that the petitioner had been inducted in the suit premises on or about 24th November, 1951 in consideration of the petitioner paying monthly rent of Rs. 8.25 which rent was subsequently increased to Rs. 13 per month. The respondent issued rent receipts in favour of the petitioner though the respondent had in the ejectment application styled the petitioner as a licencee. Even on that basis the petitioner was a protected licencee as defined under S.5(4A) of the Bombay Rent Act. The said licence was subsisting on 1st February, 1973 but the respondent had falsely alleged that he had given a notice to the petitioner in July, 1973 alleging that the said licence had been duly revoked orally in November, 1972. The falsity of the aforesaid claim was apparent by virtue of the petitioner having paid rent to the respondent up to 31st July, 1973. The rent receipt for the period ending July, 1973 did not contain and reference to the alleged oral revocation of the licence. On the aforesaid averments the petitioner inter alia prayed that he should be restored back to possession, which possession was lost in execution of the ex parte order of eviction obtained by the respondent under S.41 of the said Act.

(3.) The aforesaid suit was resisted by the respondent on the grounds inter alia that such a suit was -not maintainable and was barred under the provisions of S.49 of the said Act. It was also contended on behalf of the respondent that the petitioner had made an application for setting aside the ex parte order of eviction passed under S.41 of the said Act on the ground that a fraud had been practised and the petitioner had not been duly served in the proceedings under S.41 of the said Act. That application came to be rejected right up to this Court. It was therefore not open to the petitioner to reagitate the said question over again.