MATHURADAS VASSANJI Vs. TULSIDAS DAMODAR GANATRA

JUDGEMENT

(1.) This is an application in revision against an order passed by the Small Cause Court, Bombay, which has been referred to a Division Bench by Shah J. The applicant in this case was a trustee of the late Rao Bahadur Seth Karamsey Damji Sanatorium which is situated near the Wilson College, Chowpatty. The sanatorium has certain rooms which are let out for a period of one month at a time, and according to the rules of the trust no occupant of the room may remain on the premises for more than three months. The opponent Tulsidas applied for one of the rooms on the ground of illness and produced a medical certificate in support of his application. He was thereupon assigned Room No. 26 for one month from 11th July 1948. The period of occupany was extended first up to 10th September and then up to 10th October 1948. As the opponent failed to vacate the premises on 10th October inspite of his undertaking and the conditions for the use of the sanatorium, a notice was served upon him by the trustees requiring him to vacate. In defiance of this notice, the opponent continued to remain in occupation, and thereupon the trustees filed an application in the Small Cause Court, being Application No. 11080 of 1948, under Section 41, Small Cause Courts Act, slating that the opponent was in occupation purely by leave and license, and that the license had been revoked both by the undertaking he had given and by the notices served upon him. It appears that when the application came on for hearing on 18th November, the opponent's pleader gave an undertaking that Tulsidas would vacate the premises or come to a settlement with the trustees within on month thereafter. The proceedings were accordingly adjourned to 23rd December 1948, when an adjournment was again asked for and granted on the plea that the opponent would vacate the room before 18th January 1949, or, in the alternative, would submit to a decree to vacate the room on or before 28th February 1949. When the matter came on for hearing on 18th February 1949, an order was passed by the learned Judge of the Small Cause Court directing the opponent to restore possession of the room to the trustees on or before 18th May 1949. Two days before the period was to expire, i. e., on 16th May 1949, the opponent filed an application under Section 47, Presidency Small Cause Courts Act, asking that the proceedings for delivery of possession be stayed as he intended to file a suit as contemplated by that section. Accordingly on 6th June 1949, the order for execution was stayed, and 16 days' time was granted for filing the suit. On 21st June, time for filing the suit was extended, and notice of the application asking for a stay of the proceedings was served upon the trustees. It was contended on behalf of the trustees that the Court had no jurisdiction to stay the proceedings after an order had been passed under Section 43, and in support of this contention the judgment of Shah J. in Gopal Anant v. Anandrao, was produced. In that judgment Shah J. had expressed grave doubts as to whether after an order had been passed by the Court of Page 2 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC) Small Causes directing delivery of possession, any suit seeking an injunction for restraining execution of the order of the Small Cause Court could lie, and whether by reason of the intended filing of the suit, a stay of the proceedings could be asked for under Section 47. The learned Judge of the Small Cause Court, however, felt himself bound by a decision of Bavdekar J. in a civil revision application filed against the learned Judge's own judgment in an earlier case. That was in Bai Parvatibai v. Kesurdas, C. R. A. No. 827 of 1918, D/-5th April 1949 by Bavdekar J. In that judgment Bavdekar J. expressed his agreement with the view taken by the Madras High Court in Krishna Iyer v. Subramania Iyer, A. I. R. (10) 1923 Mad. 323: (72 I.C. 154) that an application under Section 47 for a stay of proceedings could be made even after an order had been passed under Section 43, Small Cause Courts Act. As the observations of Shah J. in Gopal Anant's case were mere obiter, the learned Judge of the Small Causes Court felt himself bound to follow the decision of Bavdekar J. Accordingly he held that he had no alternative but to stay execution of the warrant of possession until the suit for compensation for trespass intended to be filed by the opponent was disposed of. He accordingly directed that the execution be stayed pending the disposal of the suit by the Bombay City Civil Court. It is against this order that the applicant trustees came in revision. The revision application came on for hearing before Shah J. The advocates at the bar inform us that this application was not argued on merits before the learned Judge. But the learned Judge, adhering to his earlier views expressed in Gopal Anant's case has referred the application to a Division Bench for he considered that the question involved was an important one and also because the view which he was inclined to take was in conflict with the decision of Bavdekar J. in Bai Parvatibai v. Kessurdas (C.R.A. No. 827 of 1948 D/- 5-4-1949). In these circumstances the application has come before us foe disposal. In the referring judgment which he delivered on 9th September 1949, Shah J. expressed the view that:

(2.) In order to decide as to whether an application for a stay of the proceedings under Section 47 must be made before an order is passed under Section 43 (as is the view of Shah J.) or it can be made after such order is passed, (as is the view of Bavdekar J. and of the Madras High Court), we must have regard to the scheme of the Act. Chapter 7, Presidency Small Cause Courts Act provides a summary procedure by which a landlord may obtain possession of the premises in the occupation of a tenant if the conditions requisite for the making of an application are satisfied. These conditions are (1) that the immovable property must be within the local limits of the Small Cause Court's jurisdiction, (2) the annual value must not exceed Rs. 2,000, (3) the person sought to be evicted must be (a) the tenant or (b) in possession of the property by permission of another person or (c) an occupier, i.e., a person claiming under a tenant, or a permissive occupier, (4) the tenancy must have been determined or the permission to occupy must have been withdrawn, and (5) there must have been a request to the occupant to deliver up possession conveyed by means of a notice to quit by a particular date and his refusal to do so. If these conditions are satisfied then under Section 41 it is open to the applicant to ask for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. Section 42 describes how such a summons shall be served upon the occupant, and Section 43 lays down that

(3.) This being the scheme of the Act, the question arises whether the suit to be filed under Section 46 (by the intended filing of which suit a stay order may be obtained under Section 47), must be filed before or after an order has been passed under Section 43, Presidency Small Cause Courts Act. Mr. Kotwal who appeared on behalf of the applicant argued that Section 43 contemplates an order which has been passed in the absence of the occupant, i.e., an ex parte order, and that it is only the execution of such order that may be stayed by an application under Section 47, but that where an order has been passed after the appearance of the occupant in answer to the summons, then such an order must stand, and the execution of such order cannot be stayed under Section 47. We are not altogether clear as to what difference it should make in the jurisdiction of the Court to issue a stay order under Section 47, whether the order under Section 43 is an ex parte order or an order passed after the Page 5 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC) opponent has appeared in answer to the summons. The Court has or has not jurisdiction to order a stay under Section 47. But we see nothing in the terms of that section which would justify the distinction which Mr. Kotwal has attempted to draw. In any case, we think that Mr. Kotwal is not correct when he submits that under Section 43 only an ex parte order can be passed. He reads the first sentence of Section 43 as meaning that an order may be passed on the failure of the occupant to appear and show cause. But if that were the construction, then there is apparently no section, according to Mr. Kotwal, which would enable an order being passed after the opponent has appeared in answer to the summons. He argued that by reason of Section 48 of the Act, which directs the Small Cause Court to follow the procedure prescribed for a Court of the first instance by the Code of Civil Procedure, the Small Cause Court gets jurisdiction to pass an order after the opponent has appeared. We do not think that this submission is correct. The Court cannot get jurisdiction merely by reference to Section 48, which directs that the Court of Small Causes should follow the procedure prescribed by the Code of Civil Procedure, and, in our opinion, it must be held that an order under Section 43 may be passed both in the absence of the occupant and after he has appeared in answer to the summons, for there is no other section in this chapter of the Presidency Small Cause Courts Act which authorises the passing of an order after the occupant has appeared. The very explanation to that section makes it clear that it could not have been the intention of Section 43 merely to provide for orders passed in the absence of the occupant, for, that explanation says that if the occupant proves certain circumstances, he shall be deemed to have shown cause within the meaning of that section. This explanation clearly postulates appearance of the occupant in answer to the summons. Apart from this we have a clear authority of our own High Court for holding that under Section 43 orders may be passed both in the absence of the occupant and after he has appeared. In Jamshedji Hormusji v. Gordhandas Gokuldas, 45 Bom. 1048 : (A. I. R. (8) 1921 Bom. 201) it was held that :