ANUSAYABAI NARAYANRAO GHATE Vs. MAKTUMBI S NADAF

JUDGEMENT

(1.) AN eviction application was filed against the petitioner by the respondent as EA/444 of 1974 seeking possession of the shop room belonging to the respondent. It is not disputed that the said shop room was entrusted to the petitioner by the respondent under an agreement dated 1-2-1972 for conducting of the tailoring business for 11 months. The period of the said agreement was subsequently extended by another agreement dated 1-1-1973. When the aforesaid eviction application was filed before the Small Causes Court under section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter called "the Act"), the petitioner contested the same contending inter alia that the application is not maintainable before the Small Causes Court because he is tenant in possession of the shop room. That plea of tenancy was heard as preliminary issue and the learned Small Causes Court by its order dated 21-12-1981 rejected the plea of tenancy set up by the petitioner. An appeal was filed at the instance of the petitioner as Appeal No. 44 of 1982, the said appeal was dismissed by the appellate Court on 7-2-1984. Against this order, writ petition was filed before this Court as Writ Petition No. 1728 of 1984 by the petitioner challenging the order of the trial Court, which was confirmed by the appellate Court rejecting the claim of the petitioner as a tenant of the shop room. By the judgement dated 16-11-1989, this Court also confirmed that the petitioner is not tenant as the agreement between the parties was only with respect to the business of conducting tailoring business.

(2.) IT is necessary for the purpose of this case to refer to the certain observations of this Court made in that case which is annexed and marked as Exh. F in this case. In para 4 of the judgement, this Court has held :

(3.) AFTER this Court dismissed the writ petition, it appears that the petitioner had amended the written statement wherein he has also raised among other things another issue that the suit is not maintainable. In short, even considering the aforesaid agreement as one for conducting the business, section 41 of the Presidency Small Cause Courts Act, 1882 cannot be invoked because the said section clearly expresses that it applies only to the immovable property. Rightly or wrongly, the aforesaid amendment was not challenged by the respondent. With the amended written statement, the Small Cause Court went on trial. The parties were permitted to adduce evidence and trial Court had granted decree in favour of the respondent for handing over the possession of the shop room. The petitioner challenged the decree in the appellate Court. The appellate Court also confirmed the decree of delivery of possession ordered by the trial Court. It is in this circumstances, is a second round litigation that this matter has come before this Court by way of this writ petition.