# LAXMI & CO v. DR. ANANT (Ray, ],)

- **Citation:** [1973] 2 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1972-09-12
- **Case number:** Civil '.Appeal No. 1036 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/laxmi-co-v-dr-anant-ray-5771
- **Pages:** 12

## Headnote

172
LAXMI&CO
••
DR. ANANT R. DESHPANDE & ANR.
September 12, 1972
[A. N. RAY AND I. D. DUA, ]].]
Presidency Small Cause Courts Act 1882 incorporated by Maharashtra
Amendment Act 1963-S. 42A-Whetlrer trial Court should
fr~ u
preiiminary Issue in absence of the defendant on the date hearing.
S. 42-A of the Presidency Small Causes Courts Act 1882 (incorporated
by Maharashtra Amendment Act 1963) pro,ides that :
"If any application, pending in the Small Cause Court immediately
before the date of the commencement of 1 he Presidency Small Cause
Courts (Maharashtra Amendment) Act of 1963, or made to it on or
.after such dale. the occupant appears at the time appointed within the
meaning of the Bombay Rents, Hotel and Lodging Houses, Rates Control Act 1947, and in consequence whereof is entitled to the protection
of that Act. and if such claim is not admitted by the applicant, then,
notwithstanding anything contained in that Act, 'the question •hall he
.decided by the Small Cause Court as a preliminary issue."
Two questions arme for decision in this appeal.
First, whether the
word "appears" occurring in S. 42A means appearance of the party in
person, or through someone at the date of the hearing. Secondly, wholber the Small Cause Court is required to frame an issue as to whether
the occupant was a tenant within the meaning of the Bombay Act of
1947, and entitled to issue, whether or not the contesting party appears
before the court at the dale of the hearing. Allowing the appeal.
HELD : {i) S. 42 was introduced by the Maharashtra Amendment
Act, which provided a special procedure, where oocupant claims tenancy
within the meaning of the 1947 Act. The occupant. is to claim the
tenancy of the applicant within the meaning of 1947 Act. If such claim
of the occupant is not admitted by the applicant asking for posseMion,
then the question shall be deciood by the Small Cause Court as a pre.
liminary issue.
The words of importance to denote the time when the
question is to whether the occupant is entitled to the protection of the
1947 Act are "then notwithstanding anything contained in tha.! Act". The
word "then" is prefaced by the preceding aspects; first, the occupant
is to appear at the time appointed; 2nd. he is to claim that he is a
tenant of the applicant within the· meaning of the 194 7 Act; !hirdly, ru,
is lo claim that in consequence, he is entitled to the procction of the Act:
fou•thly, that the claim of the occupant is not admitted by the applicant
asking for possession. It is clear from the provisions of that statute that
the word "appear" in S. 42A of this statute means appearance at the
date of the hearing. [177H]
(iii) Further. it is not obligatory on the trial court to frame a preliminarv is..ue on the appointed dav irrespective of the appearance of
the oocupant.
In the present case. since the respondent did not appear
at the date of hearing and claim the protection of the statute, he i• entitled to retain possession .of the said tenancy.

## Text

172
LAXMI&CO
••
DR. ANANT R. DESHPANDE & ANR.
September 12, 1972
[A. N. RAY AND I. D. DUA, ]].]
Presidency Small Cause Courts Act 1882 incorporated by Maharashtra
Amendment Act 1963-S. 42A-Whetlrer trial Court should
fr~ u
preiiminary Issue in absence of the defendant on the date hearing.
S. 42-A of the Presidency Small Causes Courts Act 1882 (incorporated
by Maharashtra Amendment Act 1963) pro,ides that :
"If any application, pending in the Small Cause Court immediately
before the date of the commencement of 1 he Presidency Small Cause
Courts (Maharashtra Amendment) Act of 1963, or made to it on or
.after such dale. the occupant appears at the time appointed within the
meaning of the Bombay Rents, Hotel and Lodging Houses, Rates Control Act 1947, and in consequence whereof is entitled to the protection
of that Act. and if such claim is not admitted by the applicant, then,
notwithstanding anything contained in that Act, 'the question •hall he
.decided by the Small Cause Court as a preliminary issue."
Two questions arme for decision in this appeal.
First, whether the
word "appears" occurring in S. 42A means appearance of the party in
person, or through someone at the date of the hearing. Secondly, wholber the Small Cause Court is required to frame an issue as to whether
the occupant was a tenant within the meaning of the Bombay Act of
1947, and entitled to issue, whether or not the contesting party appears
before the court at the dale of the hearing. Allowing the appeal.
HELD : {i) S. 42 was introduced by the Maharashtra Amendment
Act, which provided a special procedure, where oocupant claims tenancy
within the meaning of the 1947 Act. The occupant. is to claim the
tenancy of the applicant within the meaning of 1947 Act. If such claim
of the occupant is not admitted by the applicant asking for posseMion,
then the question shall be deciood by the Small Cause Court as a pre.
liminary issue.
The words of importance to denote the time when the
question is to whether the occupant is entitled to the protection of the
1947 Act are "then notwithstanding anything contained in tha.! Act". The
word "then" is prefaced by the preceding aspects; first, the occupant
is to appear at the time appointed; 2nd. he is to claim that he is a
tenant of the applicant within the· meaning of the 194 7 Act; !hirdly, ru,
is lo claim that in consequence, he is entitled to the procction of the Act:
fou•thly, that the claim of the occupant is not admitted by the applicant
asking for possession. It is clear from the provisions of that statute that
the word "appear" in S. 42A of this statute means appearance at the
date of the hearing. [177H]
(iii) Further. it is not obligatory on the trial court to frame a preliminarv is..ue on the appointed dav irrespective of the appearance of
the oocupant.
In the present case. since the respondent did not appear
at the date of hearing and claim the protection of the statute, he i• entitled to retain possession .of the said tenancy.
CIVIL APPELLATE JURISDICTION :
Civil '.Appeal No. 1036
of 1967.
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LAXMI & CO. V. DR. ANANT (Ray, ],)
173
Appeal by special leave from the judgment and order dated
March 1, 1967 of the High Court at Bombay in Civ. Rev. Application No. 64 of 1967.
N. A. Mody, P. C. Bhartari, /. B. Dadachanji, 0. P. Mathur
and Ravinder Narain, for the appellant.
n
V. S. Desai, Vilas V. Kamat, Y ogeshwar Prasad Tri and
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Ganpat Rai. for the respondent No. 1.
The Judgment of the Court was delivered by
RAY, J. This is an appeal by special leave from the Judgment
dated 1 March, 1967 of Naik, J. of the High Court at Bombay
allowing Civil Revision Application under section 115 of the Code
of Civil Procedure filed by the respondent Dr. Deshpande.
The principal question which falls for consideration in this.
appeal is the construction of section 42A of the Presidency Small
Cause Courts Act, 1882 (referred to as the 1882 Act) incorporated ·
by Maharashtra Amendment Act 1963.
The section is set out
hereunder :
"A2A. Procedure where occupant con/esls as a lawful
ienanl, e1c.-O) If in any application pending in the
Small Cause Court immediately before the date of the
commencement of the Presidency Small Cause Courts
(Maharashtra Amendment) Act, 1963 (Mah. XLI of
1963) or made to it on or after such date, the occupant
appears at t'he time appointed within the meaning of the
Bombay Rents, Hotel and Lodging House Rates Control
Act, 194 7 (Born. L VII of 194 7) and in consequence
whereof he is entitled to the protection of that Act, and
if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question
shall be decided by the Small Cause Court ;is a preliminary issue.
(2) An appeal against the decision on this issue shall
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lie to a bench of Two Judges of tire Small Cause Court .
H
. (3) Every appeal under sub-section (2) shall be made
within thirty days from the date of the decision appealed against;
Provided that, in computing the period of limitation
prescribed by this sub-section the provisions contained in
sections 4. 5 and 12 of the Indian Limitation Act, 1908·
(IX of 1906) as far as may be, apply.
174
SUPRBMB COUllT REPORTS
[1973) ~ s.c.r..
(4) No further appeal shall lie against any decision in
appeal under sub-section (2)".
Two questions arise for decision in this appeal. First, whether
the word 'appears' occurring in section 42A means appearance of
the party in person or through someone at the.date oti the hearing.
Secondly, whether the Small Cause Court is required to frame an
issue as to whether the occupant is a tenant within the meaning of
the Bombay Act of 1947 and is entitled, to protection of that Act,
decide it as a preliminary issue, whether or not the contesting part
appears before the Court at the date of the hearing.
The appellant is a firm owning lease hold rights in an immov·
able property known as "Lo.kmanya D,epartment Stores" situate
at Dadar in Bombay. The appeallant became owner of that pro·
perty in the month of August, 1960. The previous owner of thlt
lease held property was Department Service Stores. The respon•
dent Deshpande is a medical practitioner. He.had come to occupy
under what is described as a "leave and licence" Agreement dated
1 November, 1952 a portion of the ground floor of the annexe to
that property on payment of Rs. 2_50/- per month or 2% of the
_gross income of the clinic whichever was higher. The agreement
was with the previous lease-holder Departmental Service Srores
for a period of five years with an option of renewal for a further
.term of five years.
The appellant filed an ejectment applicatiC1n on 23 July, 1964
against the respondent Deshpande under Cnapter VII of the 1882
Act in the Court of Small Causes at Bombay. A summons was
issued to Deshpande. The summons was returnable on 22 August.
1964 calling upon him to show cause why he should not be compelled to deliver up the ground floor of the annexe in his occupa·
tion.
The respondent Deshpande caused his appearance filed
through his Advocate. The ejectment application was postponed
for hearing on 22 September, 1964. It was again adjourned to
17 November, 1964 to enable the respondent Deshpande to file his
defence.
He filed his defence.
The ejectment application was .
adjourned to 3 December, 1964 for scrutiny. After scrutiny the
matter was transferred to what is d.escribed in the Bombay Small
·Cause Courts as non-priority warned list. In September. 1966 the
ejectment application appe~red on the monthly board.
On 10
October, 1966 the matter was placed before Court in Court Rooni
No. 12 in the Court of Small Causes at Bombav for the purpose
of g\ving a fixed date for hearing. Advocates on behalf of both the
P~!ties were present in Court on I 0 October, 1966 when the date
for hearing was fixed for 23 November, 1966. On 23 November.
1966 the matter was called out for hearing. No one on behalf of
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LAXMI & CO. V. DR. ANANT (Ray, J,)
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the respondent Deshpande was present in Court. The matter was
passed over and was again called out in the afternoon. No one on
behalf of the respondent Deshpande was present. The matter was
called out for the third time at about 4.30 p.m. Neither the respondent Deshpande nor his Advocate was present on any of the
occasions when the application was called out. The application
was heard ex-parte. Evidence was led on behalf of the appellant.
The Small Cause Court passed an ex-parte decree on 23 November,
1966 in favour of the appellant directing the responding Deshpande
to deliver possession of the premises.
The appellant in the month of January, 1967 made an application for execution of the decree. Possession was delivered up to
the appellant by the bailiff.
The appellant thereafter agreed to let out the premises t6 the
second respondent V. B. Gandhi.
On 14 January, 1967 the appellant W3S served with an ex-parte
order p,assed by the Small Causes Court, Bombay on respondent
Deshpande's application for setting aside the ex~parte decree restraining the appellant from executing the ex-parte decree dated 23
November, 1966. In view of the fact that the appellant had already
obtained possession through the bailiff the respondent Deshpande
requested the appellant to allow the respondent Deshpande to u'e
the ground floor for his professional work between certain stated
hours. Tha appellant allowed the arrangement as a temporary one
and without prejudice to the rig.lits· and contentions of the parties.
In the application dated 14 January, 1967 for setting; aside the
ex-parte decree the respondent Deshpande alleged that he was ill
on 23 November, 1966 and could not attend the Court and he
did not know that an ex-parte decree was passed on that day.
The re;pondent Deshpande affirmed his second affidavit on 16
January, 1967 that his prior statement that he was ill on 23 November, 1966 was incorrect. In the second affidavit the respondent Deshpande said that after 10 October, 1966 when the date
was fixed for hearing of the ejectment application the respondent
Deshpande's Advocate had misolaced his brief and that the matter
bad escaped the attention of his Advocate and accordingly no
one remained present in Court on 23 November,
1966. The
. Small Causes Court said that the re,oondent Deshpande had made
a false affidavit on 14 January. 1967 with a view to obtaining an
ex-parte injunction order and the Small Causes Court vacated the
interim injunction ·and refused on 6 February, 1967 to set aside
the ex-parte decree dated 23 November, 1966.
The respondent Deshpande thereafter moved the High Court
under section 115 of the Code of Civil Procedi:re.
The respondent Deshpande contended that Small Causes Court acted with-
176
SUPREME COURT .REPORTS
[1973] 2 S.C.R
out jurisdiction in passing an ex-parte decree without framing . A
and determining the preliminary issue as to whether the respondent Deshpande was a tenant in respect of the premises. It was
particularly contended that framing of such an issue and its
determination was obligatory on the Small Causes Court even in
an ex-parte matter by reason of provisions contained in section
42A of the 1882 Act.
·
The respondent Deshpande also made a Civil Revision Application under section 115 of the Code of Civil Procedure against
the order dated 6 February, 1967 refusing to set aside the ex-parte
decree dated 23 November, 1966.
Both the applications were heard by the learned Single Judge
<Jf the High Court of Bombay who arrived at these conclusions.
It was the duty of the trial Court even when the occupant did not
appear before the Court to frame an issue as to whether the
occupant was or was not the tenant of the pre'1lises and protected
by the Bombay Rents, Hotel and Lodging House Rates Control
Act, 194 7 (referred to as the 194 7 Act) and to decide the same
as a preliminary issue on the next date of hearing.
After framing the p'.eliminary issue the Court would adjourn that matter for
the hearing of the preliminary issue.
The trial Court had not
framed any preliminary issue, had not recorded a finding on that
issue, but proceeded straightaway to pass an order of ejectment.
The learned Sing'e Judge of the High Court set aside the ex-parte
decree and sent it back to the Small Cause Court with a direction
that the prelimmary issue be framed as contemplated under section 4 2A of the 18 82 Act and to give opportunity to the parties
to lead evidence.
No order was passed on the other application
for setting aside the ex-parte decree.
Counsel for the appellant contended as follows.
The provisions contained in section 42A of the 1882 Act indicated that the
occupant against whom proceedings under Chapter VII of · the
1882 Act for recovery of possession were commenced was
1'e"
quired to appear at the <late of hearing and to claim the protection of the Act and only if the claim was not admitted by the
applicant asking for possession then the question was to be decided by the Coμrt as a preliminary issue.
The appellant placed
accent on appearance of the occypant on the date of hearing in
Court in view of the provisions indicating that the decision on a
preliminary issue·was required only where there wa.~ a contest
between the parties at the date of hearing -and the occupant claimed protection of the 19~ 7 Act and such protection was denied by
the aoolicant asking for possession.
The defence of the respondent Deshpande that "he was the lawful tenant of the said · preB
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LAXMI & CO. V. DR, ANANT (Ray, J,)
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mises" did not amount to any pleading that he was a tenant within the meaning of the 194 7 Act and in consequence thereof he
was entitled to protection of that Act.
Counsel for the respondent Deshpande on the other hand
raised these contentions. The defence that he was a lawful
tenant of the premises entitled him to protection under the 194 7
Act: .The defence was sufficient for framing of the preliminary
issue.
The provisions of the Code of Civil Procedure were
attracted. Under Order 15 Rule 3 of the Code the Court has to
postpone the further hearing of the suit for production of further
evidence or argument as the case might be.
Therefore, the trial
Court was bound in law to postpone the case after the framing
of the preliminary issue.
Emphasis was placed on the provisions
o( section 42A of the 1 !182 Act which used the words "preliminary issue" and provided for an appeai against the decision on the
preliminary issue.
The right of appeal was therefore denied by
not framing the issue and the respondent was denied the right of
agitating the question of tenancy within the meaning of the 194 7
Act.
.
The provisions in section 42A of the 1882 Act which were
inttodueed by the Maharashtra Amendment Act 1963 indicate a
_special procedure where the occupant contests as a tenant within
the meaning of the 194 7 Act.
The proceedings under Chapter
VII of the 1882 Act relate to recovery of possession of immovaE
ble property.
Under section 41 of the Act summons is issued
against the occupant calling. upon him to show cause on a date
therein appointed why he should not be compelled to deliver the
property.
Section 41 is attracted where tenancy has been· determined and the tenant refuses to deliver the property.
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mons issued under section 41 is served i'1 the manner provided
by the Code of Civil Procedure for the servic~ of summons. Section 43 deals with order for possession.
If the occupant does
not appear and show cause the applicant becomes entitled to an
order for possession. If the occupant proves that the tenancy
was created or permission granted by virtue of a title, which
determined previous to the date of the application~ he shall be
deemed to have shown cause.
Section 43 also speaks of theoccupant appearing and .showing cause.
The filing of a defence
is not equated with appearance.
The Court appoints a date for
appearance of parties for the hearing.
Unless there is appearance
and a contest a.:ises the Court will proceed ex-varte.
· It is manifest that section 42A which was introduced by the
Maharashtra Amendment provides a special procedure where the
occupant claims tenancy of the applicant within the meaning of
the 1947 Act.
The occupant is to claim the tenancy of the applicant within the meaning of the 1947 Act and that in consequence
13-348Sup. Cl/73
178
SUPREME COURT REPORTS
[ 1973] 2 s.c.11..
he is entitled to protection of the Act. If such claim of the
occupant is not admitted by the applicant asking for possession
1hen the question shall be decided by the Small Causes Court as
a preliminary issue.
The words of importance to denote the time
when the question as to whether the occupant is entitled to the
protection of the 194 7 Act are "then notwithstanding anything
contained in that Act".
The word "then" is prefaced by the preceding steps.
First, the occupant is. to
appear ar the
time
appointed; second, he is to claim that he is a tenant of the applicant within the meaning of the 1947 Act; thirdly, he is to claim
that in consequence he is entitled to the protection of that Act;
fourthly, that the claim of the occup.ant is not admired by the
applicant asking for possession.
It is correct that the pleadings will have an important bearing
on the question as to whether the occupant contests the right of
the applicant to possession.
That contest has to be based on bis
tenancy within the meaning of the 1947 Act.
In the present
case, the occupant respondent Deshpande stated in his defence
that he was a lawful tenant. The words "lawful tenant" by themselves do not expand as to how the occupant is a lawful tenant.
Section 42A speaks of tenancy within the meaning of the 1947
Act and protection under that Act. ·one has to claim the benefit and protection of the Act.
The claim of protection under the
Act will become an issue at the hearing of the case.
The word
'·appearance" cannot be equated with the· filing of the .written
statement.
After pleadings are complete the Court appoints a
date for hearing.
It is at the hearing that the occupant will
assert his tenancy and claim protection against eviction. It is
"then that the Court will enquire whether an issue is to be struck
between the applicant on the one hand and the occupant on the
other by reason of denial by the applicant of the occupant's
claim.
It is, therefore, clear from the provisions of the statute
that the word "appear" in section 4ZA of the 1882 A~t means
appearance at the dat\l of the hearing.
The High Court was wrong in the conclusion that it was
obligatory on the trial Court to frame a preliminary issue on the
appointed day irrespective of the appearance of the occupant.
The High Court noticed that the two Maharashtra Amendments to the Act, namely, sections 42A and 49 indicate that only
a decision on the claim of an occupant to be a tenant within the
meaning of the 1947 Act can be the subject matter of an appeal
and section 49 of the Act bars a suit on the basis of title as a
tenant within the meaning of the 194 7 Act.
The High Court
found that the question of tenancy within the scope of sec,tion
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LAXMI & CO. v. DR. ANANT (Ray, J,)
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42A of the 188~ Act was to be decided once for all in the proceedings under Chapter VII of the Small Cause Courts Act, because a suit was barred.
Under section 49 of the 1882 Act as it stood prior to the
Maharashtra Amendment recovery of possession of any inunoyable property under Chapter VII was not a bar to the filing of a
suit in the High Court as to the title of the occupant. The Maharashtra.Amep.dment to section 49 has placed a bar against such
suit because the occupant is given the opportunity under section
42A of the 1882 Act to contest the claim of the applicant to
possession by pleading, proving tenancy within the 194 7 Act and
claiming the consequential protection under the provisions of the
Act.
The conclusion of the High Court that the bar of a suit
under section 49 is a cogent reason for concluding that the Small
C11use Court shall always try as a preliminary issue the claim of
the occupant -as a tenant within the meaning of the
194 7 Act
irrespective of his appearance is neither supported by the scheme
of the Act nor by the scope and purport of section 42A of the
Act:
An occupant who cla\ms tenancy within the meaning of
the 194 7 Act is given the opportunity to prefer the claim and to
have a· decision on that question as a preliminary issue.
The·
occupant has to appear at the date of the hearing to prefer such
a claim.
Section 42A does not indicate that the Court will have
to frame an issue.
All that section says is that it has to decide
the question as a preliminary issue.
The Act .. does not indicate
that there will be a preliminary hearing and a final hearing thereafter. The Act does not say that there will be a preliminary decree
or a final decree. The words "preliminary issue" are intended to
lend meaning to the provisions of the Act that before the applicant
can obtain an order ifor possession that preliminary issue which is
raised on contest between the applicant and the occupant shall be
decided, If the occupant does not take benefit of section 42A of
the 1882 Act by appe\lring and contesting the applicant's rights
.the occupant loses bis rights.
CollllSel for the respondent Deshpande submitted
that this
Court should take notice of subsequent events.
An application
was filed f~r relying :upon certain documents for that purpose. The
respondents contenhon was that on 19 November, 1968 the respondent surrendered possession to the original landlord
Ashar
and others and thereafter the original landlords created a new and
indepen~ent tenancy in favour of the respondent.
It was, therefor;-, said that t_h~ appell.ant had n? right to prosecute the application for possess10n which gave nse to the present appeal.
. The respondent Deshpande relied on these facts in the affidav1t.
By lease dated 5 July, 1948 Pratap Singh Karsandas A~har
180
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[1973] 2 S.C.R.
and Bai Ratnabai Gordhandas leased the property to M/s Departmental Service Stores Limited for a period of 10 years commencing 1 June, 1946 to 31 May, 1956. The lease contained an
option for renewal for a further term of 10 years from 1956. The
Departmental Service Stores mortgaged its
rights,
title and
interests, for the remaining period of lease on 13 August,
1951
to Dr. Manskuhiai Jagjivandas Shah, Dhirajlal Jagjivandas Shah
and K(;ntiiai Jagjivandas Shah.
The Departmental Service Stores
made default in payment of the mortgaged money.
The ·mortgagees, namely, the Shahs took possession of the mortgaged property.
The property was auctioned on 9 December, 1953. Ramniklal & Co., a nartnership firm,, purchased the right, title and
interest of the mortgagees and obtained possessio~ of the property.
On 6 A~ril, 1954 the property was conveyed by the mortgagees to
the auction purchaser.
The original lessees, namely, the Depart·
mental Service Stores in 1954 filed a suit in the Bombay High
Court against the mortgagees and the
auction purchaser for
setting aside the ai:ction sale.
On 2 August, 1960 by consent of
the parties an order was passed for reconveyance of the property
to the original lessees the Departmental Service Stores.
On 21
November, 1961 the auction purchaser conveved the property to
the appellant.
On 24 December, 1965 Ashar and. others filed a suit against
the Departmental Service Stores, the mortgagees,
namely,
the
Shah the auction purchaser and the appellant for possession of
the property.
The suit filed by Ashar and others is still pending
in the Small Cause Court in Bombay.
In the year 1?65 about
18 Merchants occupying various shops in the premises filed suits
in the Court of Small Cause for declaration that they are lawful
su.b-tenants.
These suits were filed against the appellant and
Ashar and others.
In 1966 the appellant filed about 52 short
cause suits restraining the merchants from entering into the shops.
In 1967 Ashar and others the original landlords gave notice to
the Departmental Service Stores that the term of lease had
expired and that the ejectmenf suit filed in the year
19~5 was
pending and without prejudice to "accrued rights" served notice
under section 12(2) of the 1947 Act on the ground of arrears
of statutory rent and property taxes.
Ultimately, Ashar' and
others filed a suit in 1968 against the appellant on the ground of
arrears of statutory rent and property taxes from 1 October, 1966
to 30 June, 1967. An ex-parte decree was passed on 21 March,
1968. An application for settin!( aside the ex-parte decree was
filed by the Departmental Service Stores.
On 7 Sept<l!llber, 1968
a consent order was passed to the effect that on the Departmental
Stores deoositing in Court Rs. 28.000 bv 6 November, 1968 the
ex-parte decree. was to be set aside and the suit was to be placed
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for new trial in default of which the notice for new trial was discharged.
The Departmental Stores failed to deposit the amount.
The notice was discharged and the ex-parte decree was valid and
operative on and after 7 November, 1968.
Most of the occupants in the lease property surrendered possession in pursuance
of the warrant of possession. It is in this context of events that
the respondent Deshpande says that on 19 November, 1968 he
surrendered possession to Ashar and other original landlords and
there was a new tenancy.
The appellant on t!le other hand in his affidavit alleged these
facts.
M/s Ramniklal & Co. were declared the highest bidder
at the auction sale on 9 December, 1953.
The auction purchaser was accepted as a lessee by the lessors Ashar and others.
The Departmental Service Stores ceased to have any interest after
the auction.
The auction purchaser became tenant of the
property.
Ramniklal & Co. carried on the business of Departmental
Stores in the premises.
Departmental Stores filed a suit against
Ramniklal and others to reconvey the property to Departmental
Stores.
A consent decree was passed that Ramniklal & Co.
would convey the business along with tenancy rights to Depart -
mental Service Stores Ltd. or their nominee.
The appellant purchased the rights under the consent terms on 25 August,
1960.
T n the suit filed in the year 1965 by Ashar and others against
inter a/ia the appellant, the lessors obtained an ex-parte injunction
preventing the appellant from withholding the yntry of the licensees of the appellant.
The term of the licensee WU!; to expire on
31 December, 1965.
Ashar and others and the licensees of the
appellant are in collusion.
In the suits filed by the appellant
against the licensees in the City Civil Court to prevent the entry
of licensees to the property on the ground that the period of
licence had expired by efllux of time, the Court did not grant any
interim injunction against the licensee~ but directed that the
licensees should deposit in Court the monthly compensation.
Thereafter some of the licensees of the appellant filed declaratory
suits that they were the tenants.
The Small Cause Court passed
an order restraining the appellant from withholding the entry of
the licensees otherwise then by course of law.
Ashar and others in their suit filed in 1965 obtained an injunction restraining the appellant from withdrawing the amount lying
deposited by the licensees in the City Civil Court.
Tht appellant continued to pay rent to the lessor up to the
month of September, 1966. The lessor thereafter declLr1ed
to
accept rent from the appellant.
The lessor filed a suit against
the Departmental Service Stores Ltd. only for non-payment of
rent.
An ex-parte decree was .obtained by Ashar and others on
182
SUP&BMll COUllT lO!PO&TS
[1973] 2 s.c.a.
21 March, 1968. The appellant was kept in
the
dark.
An
application for setting aside the ex-parte decree was made by one
Gangna:ik as a Director of Departmental Stores Ltd.
A consent
order was made.
The ex-parte decree would be set aside on
Departmental Service Stores Ltd. paying Rs. 28,000 within one
month.
Gangnaik is not the Directc,r of the Departmental Service Stores Ltd.
The Departmental Service Stores Ltd. had no
interest in the property.
The appellant was neither a party to
the suit nor to the consent order.
The consent order does not
represent the consent of the appellant.
A warrant of possession
was executed on 19 November, 1968 in collusion with the respondent and licensees.
The appellant lodged a complaint at the
Dadar 'Police Station.
The appellant fil~d an appli91tion under
Order 21 Rule 100 of the Code of Civil Procedure m the Court
of the Small Cause at Bombay.
The application was dismissed.
The appellant preferred a revision application against the order.
That revision application is pending.
The appellant also
filed
a suit in the Bombay Small Cause Court under Orde· 21
Rule
103 of the Code of Civil Procedure., The suit is numbered
61/414/1971.
The suit was filed on 23 November, 1970. The
. rnit is pending.
It is true that the Court can take notice of subsequent events.
These cases are where the court finds that because of altered
circumstances like devolution of interest it is necessary to shorten
litigation.
Where the original relief has become inappropriate
by subsequent events. the Court can take notice of such changes.
If the court finds that the judgment of the Court cannot be carried
into effect because of change of circumsta'lces the Court takes
notice of the same.
If the Court finds that the matter is no
longer in c_gntroversy the court also takes notice of such i:vent.
It the property which is the subject matter of suit is no longer
available the Court will take notice of such event.
The court
takes notice of subsequent events to shorten litigation, to preserve
rights of both the parties and to subserve the ends of justice.
Judged by these principles it is manifest that in the present case
suits are pending.
On the one hand the appellant has challenged
the decree obtained by Ashar and others as also the warrant .of
execution.
On the other hand, the suit instituted by Ashar and
others against inter alia the appellant in 1965 for possession
is
pending.
This Co11rt cannot say with exactitude that any final
decision has been reached on the respective and rival rights and
cl:iims of the appellant and the
respondent.
If is,
therefore.
neither'\lesirabte._11or-pracfrcabte to take notice of any fact on the
ri\·al versions of the parties as to subsequent events.
For the reasons indicated the appeal is allowed and the judument of the High Court is set aside.
M
A
B
c
D
F
G
H,
A
B
LAXMI & CO. V. DR. AN ANT (Ray, ], )
183
The High Court in view of the conclusion on section 42A of
~he l 882 Act set aside the decree and chose not to deal separately
With the other application for setting aside the ex-parte decree.
The High Court will now deal with the application for setting
aside the ex-parte decree.
The parties will pay and bear their
own costs. in this appeal.
s.c.
Appeal allowed.
I