DAMJI NANSI Vs. OM PRAKASH NATHURAM GULATHI

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution, the petitioner seeks to challenge the order dated 22-4-1974 passed by the Appeal Court of the Small Causes Court, Bombay, summarily dismissing the petitioners suit for a declaration and injunction. Briefly stated the facts leading to the present petition are as follows :

(2.) The suit plot which admeasures 236 sq. yards and is situate at Damodar Wadi Mahim Bazar Road, Mahim, Bombay, was leased out by one Virji Vera the original owner of the plot to respondent No. 2 under a registered lease dated 3-8-1951 for a period of 15 years. The lease was to commence from 1-6-1950. The purpose of the lease was to construct a building on the said plot. Respondent No. 2 thereafter constructed a structure known as Kowli Chawl on the suit plot and let out to the tenants in the same to different tenants. The suit premises with which I am concerned in the present petition is one such tenement being room No. 1 on the ground floor of the said Chawl. One Ravji Ratansi was the tenant of the said room prior to 1956 and the petitioner came to occupy the suit premises from 1956 as the subtenant of the said Ravji Ratansi.

(3.) In 1956 the owner of the suit plot Virji Vera sold the same to respondent No. 1 and his brother and father. In 1964 respondent No. 1 purchased the shares of his brother and father in the suit plot and, therefore, become the sole owner thereof. Respondent No. 2 accepted the petitioner as his tenant by issuing rent receipts in his name in April 1965. On 31-5-1965 the lease of the suit plot in favour of respondent No. 2 expired. Thereafter respondent No. 1 who had become the owner of the suit plot filed a suit against respondent No. 2 in the Small Causes Bombay, being R.A.E. Suit No. 8206 of 1965 for possession of the suit plot on the ground that he wanted the same for making construction thereon. To that suit only respondent No. 2 was a party. On 30-11-1970 the said suit was compromised by filing consent terms wherein respondent No. 2 submitted to the decree for possession of the suit plot and also agreed not to claim the building material of the structure on the said plot viz., of the said Kowli Chawl. Respondent No. 1 thereafter took out execution proceedings against the occupants of the said Kowli Chawl including the petitioner. The warrant of possession having been obstructed, obstructionist notice was issued against all the occupants which was made absolute by the Court on 6-9-1971. The present suit was filed by the present petitioner for a declaration that he was a tenant of respondent No. 1 protected by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act), in respect of room No. 1 in his occupation and for an injunction restraining respondent No. 1 from executing the decree in R.A.E. Suit No. 8206 of 1965. The suit was resisted by respondent No. 1 and the trial Court came to the conclusion that the petitioner was only a tenant in respect of the suit premises and was not a tenant of the land beneath it and, therefore, there was no relationship of tenant and landlord between him and respondent No. 1 and as such he was not entitled to protection of the Rent Act. In this view of the matter, the trial Court dismissed the suit filed by the plaintiff. Against the said order of dismissal of the trial Court, the petitioner preferred an appeal to the Appeal Court of Small causes Court and the appeal Court by its impugned order and after giving reasons in support of the order, dismissed the petitioners appeal summarily under Order 41, Rule 11 of the Civil Procedure Code. Hence the present petition.