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Gopal Anant Prabhu Vs. Anandrao Vishnu Phanse - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberCivil Revn. Appln. No. 423 of 1949
Judge
Reported inAIR1950Bom120
ActsPresidency Small Cause Courts Act, 1882 - Sections 41, 43 and 47; Code of Civil Procedure (CPC)
AppellantGopal Anant Prabhu
RespondentAnandrao Vishnu Phanse
Appellant AdvocateS.H. Lulla and ;P.A. Gandhi, Advs.
Respondent AdvocateB.K. Thakkar, Adv.
Excerpt:
.....he is a party to the summons, is entitled to make an application under section 47 for stay of proceedings and the court of small causes is bound to stay the proceedings on security being furnished as demanded by th if the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order, if any, made under section 43.'now, the question arising for determination is, does the expression 'occupant' include every person who occupies at any given time premises for possession of which the summons is applied for, or does it refer only to a person who being in occupation was called upon to deliver possession and has failed to comply with it and has consequently been sued under section 41 ? the scheme of chap. on failure to comply with the demand the..........the right to sue for trespass is given by statute under the last part of section 47 only to the person or persons against whom the landlord has made the application under section 47, presidency small cause courts act, and in consequence the suit that is spoken of by section 47 is a suit for that statutory trespass which can only be maintained by the person who has been made a party to the original ejectment proceedings by the landlord and such person alone can take advantage of section 47 by filing such a suit for compensation for a statutory trespass.'he held that the application was misconceived and should be dismissed with costs. the petitioner comes in revision to this court against that order.2. it is contended on behalf of the applicant by mr. lulla that the expression.....
Judgment:
ORDER

Shah, J.

1. This is an application in revision under Section 115, Civil P. C. 1908. The petitioner is one Gopal Anant Prabhu who says that he was a sub-tenant of certain premises, being rooms Nos. 14 and 15 and shops Nos. 5, 6, 7, 8 and 9 on the ground floor of a property known as No. 11 Phanse Building situate at Tulsirampada, Kalachowki, Bombay. The respondent, Anandrao Vishnu, is the owner of the property; and he let out the premises in dispute in the present application to one Hanumanta Naik as a monthly tenant. Sometime after the tenancy commenced, it is stated, Hanumanta Naik, the tenant, assigned or sub-let the premises to the petitioner, Gopal Anant Prabhu, in February 1946. Thereafter the respondent took out a summons, which was numbered as Suit No. 191/ 2987 of 1947 in the Court of Small Causes at Bombay, for an order requiring the tenant Hanumanta Naik to deliver possession of the premises in his occupation as a tenant, on the allegation that he had served a notice terminating the tenancy as required by law and had called upon the tenant to vacate and deliver possession of the premises, and that the tenant had failed or neglected to comply with the same. On 6th August 1947, the Court of Small Causes passed an order requiring the tenant to vacate and deliver possession of the premises, but it was directed that the execution of the order for delivery of possession of the premises should be postponed until 30th November 1948. After 30th November 1948, the petitioner, who was in possession of the premises having failed to vacate, a writ for possession was applied for by the opponent and was obtained from the Court of Small Causes. When the writ was sought to be enforced, the petitioner obstructed delivery of possession claiming that he was entitled to possession in his own right, and claimed that the termination of the tenancy was wrongful and unjustified. An application was filed by the opponent for removal of obstruction, and the Court of Small Causes by order dated 22nd December 1948, directed the removal of obstruction. But the Court appears as a matter of indulgence to have granted time to the petitioner to deliver possession by 31st May 1949. The time given till 31st May 1949, was further extended on the application of the petitioner to 30th June 1949, with the result that an order for delivery of possession which was passed on 6th August 1947, has remained unexecuted for a period of about two years. After the expiry of the period provided under the order of the Court of Small Causes, the petitioner applied to that Court purporting to do so under Section 47, Presidency Small Cause Courts Act for an order to stay the proceedings for the recovery of possession pending the hearing and disposal of a suit for compensation for trespass which he proposed to file in a competent Court. The learned Chief Judge of the Court of Small Causes-rejected the application holding that the applicant had no right to apply under Section 47. The learned Judge observed:

'It is clear that the right to sue for trespass is given by statute under the last part of Section 47 only to the person or persons against whom the landlord has made the application under Section 47, Presidency Small Cause Courts Act, and in consequence the suit that is spoken of by Section 47 is a suit for that statutory trespass which can only be maintained by the person who has been made a party to the original ejectment proceedings by the landlord and such person alone can take advantage of Section 47 by filing such a suit for compensation for a statutory trespass.'

He held that the application was misconceived and should be dismissed with costs. The petitioner comes in revision to this Court against that order.

2. It is contended on behalf of the applicant by Mr. Lulla that the expression 'occupant' as used in Section 47, Presidency Small Cause Courts Act includes a sub-tenant whether or not such a sub-tenant was a party to the ejectment proceeding in which an order for ejectment was passed. Mr. Lulla contends that every person, who is in occupation of premises at the date when a summons is taken out under Section 41, is entitled to a notice terminating his right to remain in possession followed by a demand for possession, and if no such notice is given or there is failure to make a demand for possession, a person in occupation is entitled, even after an order has been passed against a tenant under whom he claims to remain in possession, to demand that the execution proceedings taken against him shall be stayed on his undertaking to file a suit within the time to be specified by the Court of Small Causes under Section 47. In effect, the contention comes to this, that a person who is in possession of premises at the time when the summons is taken out, whether or not he is a party to the summons, is entitled to make an application under Section 47 for stay of proceedings and the Court of Small Causes is bound to stay the proceedings on security being furnished as demanded by that Court. As a corollary to the argument, Mr. Lulla has contended that an application to be filed under Section 47 need not be filed during the pendency of the summons taken out under Section 41, that is before an order in ejectment is passed under Section 43, but may be filed so long as the occupier remains in occupation of the premises which are the subject-matter of the proceeding. Section 47, Presidency Small Cause Courts Act, provides:

'Whenever on an application being made under Section 41 the occupant binds himself, with two sureties, in a bond for such amount as the Small Cause Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter mentioned, to institute without delay a suit in the High Court against the applicant for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of.

If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order, if any, made under Section 43.'

Now, the question arising for determination is, does the expression 'occupant' include every person who occupies at any given time premises for possession of which the summons is applied for, or does it refer only to a person who being in occupation was called upon to deliver possession and has failed to comply with it and has consequently been sued under Section 41 The scheme of Chap. VII, Presidency Small Cause Courts Act may be briefly stated. Section 41 provides for a summary remedy in certain cases for obtaining possession of premises from persons who occupy them as tenants or licensees. In order to obtain possession the tenancy or license must be determined or withdrawn, and there must be a demand for delivery of possession. On failure to comply with the demand the landlord or the licensor may apply for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver the property. From para. 3 of Section 41 it will be seen that 'a tenant or an occupier or any person holding under or by assignment, from him' is called an occupant; and it is evident that under para. 4 of that section, a summons may be applied for against an occupant. A summons is required to be served on an occupant (sought to be sued) under Section 42 in the manner provided by the Code of Civil Procedure. Under Section 43 if the occupant does not appear or if he appears and does not show sufficient cause, then the Court is entitled to pass an order directing him to vacate and deliver possession. Then follows an explanation, which enables the occupant to prove that the tenancy was created or permission granted by virtue of a title which had determined previously to the date of the application, and if he establishes that, he must be deemed to have shown cause within the meaning of the section. Now, in Sections 42 and 43, the expression 'occupant' obviously refers to a person who conforms to the definition in Section 41 and from whom possession has been demanded, and who has refused to deliver possession. In its context the expression cannot refer to a person who is merely in possession and upon whom no demand is made. It is only a person who is sued as an 'occupant' after demand, who can appear and show cause, and against whom alone an order can be passed. Section 46 provides for imposing a liability upon an applicant who obtains an order when he is not entitled to obtain an order and mere making of an application in such circumstances is deemed to be an act of trespass. This section is followed by Section 47, which I have set out above.

3. If in para. 4 of Section 41, in Section 42 and in Section 43 the expression 'occupant' means a person against whom proceedings are taken for obtaining possession, I see no reason why it should be assumed that the Legislature has used that expression in Section 47 in a different sense. It would, I think, be putting an unwarranted construction upon the words of Section 47 to hold that the expression 'occupant' as used in that section has a different connotation from that in Sections 41, paras. 4, 42 and 43. The expression 'occupant' in Section 47 must mean the same person as is referred to in Section 41, 42 and 43, namely, the person who is sued by the applicant as a person in possession of the premises; and the effect of that view would be that a person who has not been sued as an occupant would not be entitled relying solely upon his occupation to make an application under Section 47 to the Presidency Small Clause Court for stay of proceedings instituted under Section 41. In this connection I may refer to a decision of the Calcutta High Court in Gangaram Dhar v. Santosh Kumar A. I. R. 1949 Cal 248: 53 C.W.N. 187, where Harries C. J. in considering an argument very similar to the argument which has been presented by Mr. Lulla before me, held that in para. 4 of Section 41 'the occupant' refers to the person who has actually been asked to deliver up possession and has refused to do so. The learned Chief Justice observed (p. 249):

'It is cleat from Para. 8 of Section 41 that such a person may either be the tenant or occupier or any person holding under or by assignment from him. But whoever is processed against must be the person who had been requested to give up possession and has refused to do so. It is that person who is to be the defendant in the proceedings as contemplated by Para. 4 of Section 41.'

The learned Chief Justice further stated (p. 249):

'... that the word 'occupant' in Section 47 must have the same meaning as it has in the last paragraph of Section 41 and in Section 42 and 43, namely, the person who has refused to deliver up possession when requested to do so, and who has been made a defendant m the proceedings under Section 41. To give the term a wider meaning would be to allow persons not parties to a proceeding to move to have it stayed.'

Consequently, according to the learned Chief Justice Section 47 could have no application to a sub-tenant who was not a party to the proceedings for recovery of possession. The learned Chief Justice pointed out (p. 250):

'If the term 'occupant' covers persons other than those made defendants in the proceedings in the Small Cause Court, then a very strange result would follow, namely, that the decree in a suit between, for example, a sub-tenant and the landlord, would supersede an order made between the landlord and the tenant, though the sub-tenant was never a party to those proceedings.'

4. Mr. Lulla has contended that the view taken by the Calcutta High Court ignores the definition of the expression 'occupant' contained in Section 41. He says that the statutory right to make an application for stay conferred upon a sub-tenant who satisfies the definition of 'occupant' would be rendered nugatory if an effective exercise of that right depended upon the circumstance that such person was a party to the proceeding under Section 41; and, he contends that it would be an unwarranted restriction upon the connotation of the word 'occupant' to say that a person who is in actual possession and who would be an occupant to whom it would have been possible for the applicant to give a notice under Section 41 and to demand possession from him would not be competent to make an application under Section 47, because no notice was given to him and he was not sued. Now, if the Legislature has conferred a statutory right upon a class of persons to obtain a specified relief, it is no argument to say that another class of persons should not be deemed to have been excluded from obtaining that relief, because the foundation of their fight is the same as that of the specified class. This at best is an argument of convenience. The right to the relief must be confined to the class designated, and cannot be extended on grounds of convenience. Mr. Lulla further contends that the expression 'trespass' has been given a special meaning in Section 46; it does not mean actual unlawful entry on premises in the possession of another person, but even an application for order for possession is deemed to be trespass; and from that Mr. Lulla contends that if under the second part of Section 46, Presidency Small Cause Courts Act it is open to a person who is in possession to treat an application for an order for possession as 'trespass,' then such a person should be entitled under the provisions of Section 47 to make an application as a person in occupation for stay of the suit proceedings in the Court of Small Causes pending the determination of the question of compensation in a suit to be instituted by him. That argument, in my view, proceeds upon a fallacy. The argument assumes that the second part of Section 46 enables a person other than a person who has been sued as an occupant to treat the application for possession as an act of trespass. That is plainly not so. The section in terms refers to the application by an applicant not entitled to possession as an act of trespass against the occupant who would obviously be the person sued.

5. Mr. Lulla has referred to certain decisions of the English Courts in support of the view that, unless notice is given to the person in actual possession, no possession can be taken from, him under proceedings which are analogous to the proceedings which can be instituted under Chap. 7, Presidency Small Cause Courts Act. I do not propose to refer to those decisions for the simple reason that the words of the two statutes are not identical; and it is always unsafe to decide a question of construction of an Indian statute by reference to supposed analogous provisions of a similar statute under a different system of law. Those observations made by the learned Judges of the Courts in England in suits filed for compensation for trespass at the instance of some persons who had been in possession at the date when summary proceedings were taken against the tenant for obtaining possession and to which they were not made parties cannot be utilized for the purpose of construing the provisions of Section 47, Presidency Small Cause Courts Act, is a matter hardly open to any argument.

6. I respectfully agree with the view taken by the Calcutta High Court, and hold that the expression 'occupant' used in Section 47, Presidency Small Cause Courts Act, means only a person who was a party to the proceedings filed under Section 41 and not a person who is or claims to be in possession, either at the time of the institution of those proceedings or thereafter, but who has not been sued. On that view of the case, it would be unnecessary for me to consider the further question which was argued by Mr. Lulla, that an application can lie even after an order has been passed under Section 43 for possession.

7. Mr. Lulla has referred me to a decision of my brother Bavdekar in Bai Parvatibai Ganpat v. Kesurdas Bhagwandas, C. R. A. No. 827 of 1948, D/- 5-4-1949 in which the view appears to be taken that an application under Section 47 for stay can be maintained even after an order has been passed under Section 43. I have grave doubts whether it is open, after the disposal of an application filed under Section 41, when an order has been passed for delivery of possession, to a person who is bound by that order, to contend that an action taken in furtherance or execution of an order lawfully passed by a Court competent to pass that order is an act of trespass. Bavdekar J. has, no doubt, taken the view that an application may lie under Section 47 even after an order is passed under Section 43. But for the purposes of the present application, I think it is unnecessary for me to got into that question and decide the point raised by Mr. Lulla.

8. On the view taken by me on the first question, that the applicant was not entitled to file an application for stay under Section 47, the rule in this case must be discharged with costs.


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