SITARAM HARI SALUNKHE Vs. LAXMAN RAMBODH DUBEY

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the order passed by the Small Cause Court Bombay in Miscellaneous Notice No. 960 of 1976 decided on 19th November 1976. Respondent Laxman Dube filed an application under Section 41 of the Bombay . Presidency Small Cause Courts Act, 1882 against Smt. Parvati w/o Shankar Salunke and four others, who are heirs and legal representatives of the deceased Shankar Salunke. The said application related to the delivery of possession of the Stall bearing Municipal No. C/2180/3(A) 86384-A/86 situate on Jagannath Shankar Sheth Road, Bombay. The said application proceeded ex parte against the legal representatives of Shankar and therefore the learned trial Judge made an order in favour of Laxman Dube under Section 43 of the Act on 17-9-1975. In execution of that order the present petitioner is dispossessed of the premises. It appears from the record that one Pandurang Koli at the initial stage tried to obstruct the warrant of possession for which the respondent took out obstructionist notice No. 359 of 1975. The said Pandurang Koli did not appear in Court and, therefore, the said notice was made absolute ex parte removing the obstruction of Pandurang Koli. The present petitioner later on took out a notice on 6th of May 1975, under Order 21, Rule 100 of the Code of Civil Procedure for restoration of possession of stall.

(2.) In the said application it was the case of the petitioner that the stall was initially owned by three brothers viz. Vinayak, Bhalchandra and., Vasantrao. In the year 1962 the landlord leased out the stall to him on rental basis as a tenant on a monthly rent of Rs. 25/- and has, accordingly received rent from him till 31st of March 1973, though no receipts are issued for the same. It was also his case that he has paid all along the municipal taxes since 1961-62, though the assessment bills were issued in the name of the landlord because he was the owner of the property. He further contended that he obtained assessment receipts in the year 1969 onwards. It is his case that he is conducting a bidi shop in a part of the stall and in the remaining part of the stall his son is conducting business in electrical goods. This business of electrical goods was handed over to Pandurang Koli to conduct the same on behalf of his son on certain terms and conditions, In substance, therefore, it is his case that all through he was in possession of the premises in his own right. Before the trial Court he had also made a reference to the lertter received by him from the Municipal Corporation some time on or before 25th of May 1974, According to him the deceased Shankar Salunke was never a licensee of the respondent. It is his specific case that the respondent in collusion with the heirs of Shankar Salunke managed to get an ex parte order in the proceedings instituted by them under Section 41 of the Act. He also contended that this ex parte order was obtained in collusion is clear from the fact that the legal representative of Shankar had chosen not to appear and defend the application. He also contended that respondent No. 1 is merely a rent collector of the landlord and the premises were never in possession of Shankar Salunke as licensee. In these circumstances according to the petitioner he has been wrongly dispossessed by the respondent and hence he is entitled to the restoration of possession of suit premises under Order 21, Rule 100 of the Code of Civil Procedure. As the respondent had parted with the possession of the suit premises subsequently in favour of one Miss Kunda Naik, she was also joined as a correspondent in this application. However, she remained absent at all the stages and the application filed by the petitioner under Order 21, Rule 100 was only resisted by respondent No. 1. It was contended by the respondent that the application is not maintainable as the provisions of Order 21. Rule 100 are not applicable to the summary proceedings instituted under Chapter VII of the Act. He also contended that the petitioner was claiming possession not in his own right but through the judgment-debtor and hence on that count also the application filed by him was liable to be rejected.

(3.) The learned Judge of the trial Court, relying upon an unreported decision of this Court in Civil Revn. Appln, No. 386 of 1974 Shamji v. Indermal Dhanraj decided on 24-9-1974 by Joshi J. as well as an un-reported decision of the Calcutta High Court reported in the Notes section of AIR 1955 NUC 1021 : Duliram Guganmull v. Jalan Brothers Ltd., came to the conclusion that an application under Order 21, Rule 100, C. P. C. 1908 was not maintainable. So far as the merits of the controversy are concerned relying upon the admission of the petitioner incorporated in the reply to the notice dated 2-5-1973 the learned trial Judge came to the conclusion that even though the petitioner was in possession at the time of the filing of the ejectment application as well as at the time of passing the execution order, his possession was not on his own account and hence on that count also the application was not maintainable. Therefore the learned Judge of the trial court dismissed the said application. As already observed it is against this order that the present writ petition is filed.