JAMSHEDJI HORMASJI Vs. GORDHANDAS GOKULDAS

JUDGEMENT

(1.) On the 28th April 1919 the plaintiff in these proceedings, hereinafter called the petitioner, gave notice to the respondent, who is his tenant, to deliver up possession of the plaintiff s shop by the end of November 1919. As the respondent did not vacate, the petitioner filed an ejectment suit in the Small Cause Court on the 9th December 1919. The suit was heard on the 21st January 1920. A decree was passed for possession on the 21st January, the respondent being ordered to vacate by the 21st June 1920. On the 10th June 1920, the respondent took out a Bale praying for two months further time, on the ground that ]he had filed a suit against some other tenant of his own of other premises where he wanted to shift his shop.

(2.) It will be observed in the first instance that from the time the respondent received notice in April 1919, he did not take any steps to provide himself with other premises, or to get his own tenant to vacate until a decree had been passed against him in favour of the petitioner. It is quite true that the respondent had difficulties with his own tenant. But if he had taken steps in time to eject his own tenant, then he would not have been compelled to ask for further time for remaining in possession of the petitioner s premises. The Court gave the respondent further time up to the 9th of July. In spite of that he did not vacate the petitioner s premises, and again took out another Rule against the petitioner to show cause why the order for vacating the shop made against him should not be stayed pending the result of an application made to the High Court by A.M. Sawliwalla and Co., (a tenant of the premises of the respondent) for an injunction staying execution of the respondent s decree against them. On the 8th September the Court stayed execution of the petitioner s decree till the 20th October 1920. The petitioner thereupon applied to this Court in revision as the repeated stay orders of the Small Causes Court tended to make his decree valueless, and he was unable to obtain the fruits of his decree which was passed so far back as the 21st of January.

(3.) The real question is whether the Small Cause Court has any jurisdiction to alter or amend the term of a decree or order for possession once it has been passed under Chapter VII of the Presidency Small Cause Courts Act. Chapter VII deals with summary proceedings for recovering possession of immoveable property. The owner may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause why he should not be compelled to deliver up the property, and Section 43 provides: "If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Cause Court is satisfied that he is entitled to apply under Section 41, be entitled to an order addressed to a bailiff: of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order." That section is not very well worded, but it must include cases where the occupant does appear and fails to show cause to the summons, or satisfy the Court that there are reasons for not making an order for possession.