BARJIWANDAS GUJRATI Vs. MOHINI MOHAN SHAH

JUDGEMENT

(1.) This Rule is directed against an order of the Judge of the Presidency Small Cause Court, rejecting two applications of the present petitioner, the first of which was filed on 11-9-1953 and the second on 2-4-1954. An application under Section 41 of the Presidency Small Cause Courts Act hereinafter also referred to as the Act was made on 11-7-1949 by the landlord opposite party stating that this defendant was a monthly tenant under the plaintiff in respect of premises No. 45, Nalini Sett Road, that the tenant's interest had determined on his failure to pay rent for three consecutive months and praying "for recovery of possession of the said room from the defendant." The defendant stated in his petition that he had been "persuaded and coerced to consent to be a tenant" and in the same breath denied relationship of landlord and tenant and lastly said that there had been a prescriptive right of defendant's family". On 20-124949 the Judge holding that the relationship of landlord and tenant had been established and that the tenancy had ipso facto determined passed an order saying "decreed as prayed. Date of possession 21-3-1950". On 20-3-1950 the landlord made an application that the date of possession be extended from 21-3-1950. Then the learned Judge passed an order on the 21st March in these words: "On plaintiff's application the date of possession be extended to 5-4-1950". Thereafter; on successive applications of the landlord the date of possession was extended to different dates until by an order dated 16-7-1953 the learned Judge extended the date of possession to 16-9-1953. It was on 11-9-1953 that the present petitioner filed his application praying for "an order that the extension of date of possession granted from time to time and particularly on 16-7-1953 whereby the date of possession had been extended and fixed on 16-9-1953 be cancelled". Pending the hearing of this application the date of possession was extended by successive orders to 4-5-1955. The application was dismissed on 30-4-1955 and on the same date the date of possession was extended to 31-5-1955.

(2.) The second application filed on 2-4-1955 was on the ground that as in the application under Section 41 of the Presidency Small Cause Courts Act the plaintiff had asked for recovery of the said room and the order passed was "Decreed as prayed", the "decree" drawn up in the ivqrds "Possession is to be given in respect of premises No. 45, Nalini Sett Road, Calcutta" was not in accordance with the judgment and that this "decree" should, accordingly, be set aside. This application was also dismissed by the Court below toy his order of 304-1955.

(3.) The present Rule was obtained on 10th, May 1955 and all proceedings as regards the delivery of possession have been stayed pending disposal of the Rule.