INSTITUTE OF RADIO TECHNOLOGY Vs. PANDURANG BABURAO

JUDGEMENT

(1.) These are three applications in revision against the judgments of the Small Cause Court Judge at Bombay. They arise out of three applications for summons registered as suits under Section 41 of the Presidency Small Cause Courts Act for eviction of the three defendants, the present petitioners, who were the plaintiffs tenants. The case for the plaintiffs was that the tenant in each case occupied one block in a building at Dadar belonging to them. The plaintiffs were living and also doing their business near the dock area in Bombay. On account of the explosion which occurred in April last, the property, which they were occupying, was destroyed with the result that they were rendered homeless and a friend of their family accommodated them temporarily. They, therefore, wished to occupy a part of their own premises at Dadar. The first plaintiff, who was an old man, was suffering from cancer, and wanted rooms with good light and air. He, therefore, selected four blocks on the second floor of his building and gave notices to the tenants of those blocks for eviction. As the notices were not complied with, the plaintiffs filed four applications for summons under Section 41.

(2.) The defendants case was that they had been occupying the premises for a long time, that the plaintiffs were not in need of four blocks for their reasonable and bona fide occupation and there was no reason why they should be ousted from possession. On the evidence led by the parties the learned Judge came to the conclusion that the plaintiffs reasonably and bona fide required at least three out of the four blocks for their occupation. He, therefore, asked the plaintiffs to select which three out of the four blocks they required. The plaintiffs selected the three blocks occupied by the present petitioners. The learned Judge thereafter dismissed the suit as against the defendant in the fourth suit and passed decrees for eviction against the three petitioners. Two of the three blocks are occupied by the Institute of Radio Technology and by its proprietor Mr. Ambre, and the third by a grain merchant. In view of the fact that the Institute had its apparatus and machines installed in the blocks, the learned Judge below gave two months time to all the defendants within which to vacate the premises. The petitioners then applied to this Court in revision and obtained interim stay orders.

(3.) The first contention raised by Mr. Coyajee as well as Mr. Thakor on behalf of the petitioners relates to the jurisdiction of the Small Cause Court. It is urged that the Small Cause Court had no jurisdiction to entertain these applications for summons under Section 41. The point is indeed a novel one as it has not been taken, so far as I know, ever since the Bombay Rent Restriction Act of 1939 was enacted and even while the Rent Act of 1918 was in force because the provisions of the two Acts on this point are common. It is contended that under Section 19(d) of the Presidency Small Cause Courts Act, the Small Cause Court has no jurisdiction to entertain suits for the recovery of immovable property. The only jurisdiction which it possesses for passing orders of eviction is conferred by Section 41. It is, however, a condition precedent to the maintainability of the application under that section that the tenancy must have been determined, and it is only after its determination that an order for eviction could be made. It is further urged that by virtue of Section 11 of the Rent Restriction Act of 1939 the tenancy could not be determined as long as the tenant was ready and willing to pay the rent to the full extent allowable by the Act and perform the other conditions of the tenancy, or, among other things, if the premises are not reasonably and bona fide required by the landlord for his own occupation. On this ground it is urged that reading the two sections together no application for summons can be proceeded with when the tenant takes any defence under Section 11. Reliance is placed on the provisions of Section 43, that if the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Cause Court was satisfied that he was entitled to apply under Section 41, be entitled to an order for possession of the property, and it is contended that therefore as soon as the tenant appears to show cause to the contrary the tenancy is not determined and the jurisdiction of the Court is ousted. In my opinion this contention is unsustainable. Whether a tenancy has been legally determined or not is to be decided on the provisions of Section 111 of the Transfer of Property Act which says, among other things, that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit. Therefore, when the landlord gives the tenant a valid notice to quit, the tenancy is determined in law at the expiration of the period and the Small Cause Court gets jurisdiction to entertain the application for summons. Even if the tenant relies on the provisions of Section 11, the tenancy will be deemed to be subsisting only if his defence succeeds and it is the Court which is seized of the application which has the power to decide whether the defence is good. The jurisdiction is not therefore ousted by taking up the defence. The only result of the defence being successful is that the Court cannot pass an order of eviction and the application would be dismissed. Mr. Thakor has relied on a decision of our Court in Luckmidas Khimji V/s. Mulji Canji (1880) I.L.R. 5 Bom. 295 and contended that if, for instance, the tenant sets up a title in himself, the Small Cause Court would have no jurisdiction to decide the matter. That question, however, does not arise in the present case, because the defendants have not disputed the plaintiffs title in any way. They have admitted their ownership and have put in the defences under Section 11 of the Rent Act in their capacity as tenants.