BHAGWANDAS MAGANLAL Vs. KAIKHUSHROO ADARJI ANTIA

JUDGEMENT

(1.) The petitioner in this case is the owner of a house at Kalbadevi. The opponent is a tenant. Before the Bombay Rent Act came into force the petitioner gave notice to the opponent to g& out of the premises rented by him as the front portion of the petitioner s premises had been notified by the Municipality for the purposes of a set-back. On the 6th February 1918, the petitioner got a decree directing possession of the shop to be given to the petitioner before the 31st July 1918. Meanwhile, the Bombay Rent Act came into force and the opponent applied to the Court to suspend the execution of the decree which had been passed. An order was made on the 23rd August 1918: For the present I allow defendant ten months time from today to vacate, reserving liberty to both parties to apply on expiration of the ten months. No execution without notice. I do not think the premises in suit come within the set-back and his intention to use it for himself seems only an excuse to get possession, set up on failure of his plea that premises were within set-back line.

(2.) When the ten months had expired the petitioner applied for possession, but an order was made "execution of the original decree should be stayed until further order." The Judge said: The plaintiff has come forward first on a pretext that the Municipality are acquiring this portion of the house. When on inquiry that plea failed, he came forward with a plea that he required the shop for himself. Now he urges that defendant be called upon to vacate a portion as he, the plaintiff, is much inconvenienced in the shop he occupied at present. I do not see any good and valid grounds for ordering defendant to vacate at present.

(3.) In a similar case which came before a Bench of this Court it was decided that an order for a tenant to vacate within a certain time with liberty to apply was beyond the jurisdiction of the Small Cause Court as it was not in, compliance with Section 43 of the Presidency Small Cause Courts Act. Unfortunately in that case no reference was made to Section 10 of the Bombay Rent Act which gives the Court power, to rescind or vary its former order. In that case an order was made on the 8th May just after the Rent Act had come into force giving the tenant six months to find new premises with liberty to apply at the end of the period. It was held that that order was not in compliance with Section 43 of the Presidency Small Cause Courts Act, and that the Judge had exceeded his jurisdiction.