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Ganpatrao Sitaram Borlikar Vs. Shridhar Mukund Polekar - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 243 of 1953
Judge
Reported inAIR1955Bom64; (1954)56BOMLR1005; ILR1955Bom57
ActsPresidency Small Cause Courts Act, 1882 - Sections 47; Code of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rule 2; Transfer of Property Act - Sections 108(4)
AppellantGanpatrao Sitaram Borlikar
RespondentShridhar Mukund Polekar
Appellant AdvocateT.N. Walawalkar and ;V.T. Walawalkar, Advs.
Respondent AdvocateC.N. Daji, Adv. and Kothare and Co.
Excerpt:
.....order and the court gave him time to file a suit within ten days. accordingly the plaintiff filed a suit against the defendants in the city civil court alleging that there was a trespass as required by section 47 of the presidency small cause courts act and claimed compensation. in the alternative he asked for specific performance of the agreement which, according to him, was arrived at to adjust the decree and on the strength of this agreement asked for a declaration that he was a tenant of the defendants and that the agreement should be carried out in other respects. when the matter came up before the trial judge the plaintiff gave up completely his suit under section 47 of the act and the judge proceeded to try the suit on the alternative relief. on the question whether the..........court within ten days the plaintiff filed the suit. it is further pertinent to note that in a suit filed under section 47 if the occupant obtains a decree, such decree shall supersede the order made under section 47. therefore, not only is the operation of the ejectment order stayed, but the ejects ment order is completely wiped off, as it were, if in the substantive suit filed by the occupantunder section 47 he succeeds in getting an order that. there was a trespass and the applicant had noright to be in possession of the premises.now as we have already pointed out, the suitwhich was filed under section 47 ceased to be that suit as soon as it came on before the learned judge. the learned judge has not decided issue that arises under section 47. every issue than has been tried in.....
Judgment:

Chagla, C.J.

1. This is an appeal against a rather unusual decree passed by the learned Judge of the City Civil Court, and this suit illustrates, if ever a suit did illustrate, the legal ingenuity of litigants to try and make the utmost use of Section 47 of the Presidency Small Cause Courts Act.

The defendants in the suit took out proceedings under Chap. 7, Small Cause Courts Act, for the ejectment of the plaintiff. Their contention waa that the plaintiff was their tenant, but they became entitled to possession by reason of defaults committed by him under Section 108(4). T. P. Act. The application of the defendants succeeded and they got an order of ejectment on 4-12-1950. Time was given to the plaintiff to vacate by 31-3-1951. The plaintiff appealed against this order and this appeal was dismissed on 31-1-1951.

On 6-4-1951, the plaintiff took out a notice tor recording a compromise of the ejectment order, and the compromise he put forward was that pending his appeal the defendants had agreed that if he withdrew his appeal they would not execute the ejectment order and they would accept him as a tenant from 1-4-1951, and take rent from him and pass rent receipts in his favour. This notice was discharged on 36-4-1951, and the plaintiff went in appeal against that order, and on 16-1-1952, the appellate Court set aside the order of discharge and remanded the matter to the trial Court to investigate into the merits of the application made by the plaintiff.

But the activity of the plaintiff did not cease because on 26-4-1951, he made an application to the Small Cause Court under Section 47 for stay of proceedings under the ejectment order, and the Small Cause Court made an order on 3-8-1951, and gave the plaintiff time to file a suit within ten days. Availing himself of this order he filed the present suit from which this appeal arises.

2. In the plaint the plaintiff alleges that there was a trespass 0s required by Section 47 and claims rompensation although the trespass alleged is of a wrong point of time because under Section 47 the trespass has to be at the date when the application for ejectment is made and not when the ejectment order is passed but the learned draftsman seems to have thought that the trespass contemplated was as at the date of the ejectment order. But that is & minor consideration. Then there is an alternative relief sought in this plaint which really constitutes a curious aspect of this plaint, and that alternative relief is for specific performance of the agreement which according to the plaintiff was arrived at to adjust the decree and which was the subject-matter of the proceedings still pending before the Small Cause Gourt, and on the strength of this agreement the plaintiff asks for a declaration that he was a tenant of the defendants and that the-agreement should be carried out in other respects.

When the matter came before the learned Judge, the plaintiff gave up completely his suit under Section 47 and the learned Judge proceeded to try the suit on the alternative claim. He went into the merits of the case of the plaintiff that there was an agreement arrived at as alleged by him, he held that the agreement was arrived at, and he gave specific performance of this agreement and he declared that the plaintiff was the monthly tenant of the defendants and that the defendants were to accept rent from the month of April 1953 and to pass rent receipts to him as a bona fide tenant of the premises.

With respect to the learned Judge, he seems to have completely overlooked the fact that this was a suit under Section 47, Small Cause Courts Act and in such a suit only certain issues could arise and only certain points could be agitated. Now, the scheme of Chapter 7, Small Cause Courts Act is fairly clear and has often been considered by this Court. Proceedings under Chapter 7, are not in the nature of suits, and orders passed are not in the nature of decrees. The Legislature has provided a summary remedy to a landlord to obtain possession from his tenant, but the Legislature has also afforded a protection to the tenant and that protection is that the order passed by the Small Cause Court under Chapter 1 is not a conclusive order.

It is open to the tenant to challenge that order by coming to the High Court and establish-ing his right to be in possession at the date when the landlord instituted proceedings against him, and Section 47 provides that if the occupant against whom an application is taken out 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 nest hereinafter mentioned, to institute without delay a suit in the High Court against the applicant for compensation for trespass and to pay all 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.

It will be noticed that the provisions of Section 47 are mandatory. If an application is made and if bonds are executed as provided in Section 47, the Small Cause Court has no discretion; it must stay the proceedings and the operation of the ejectment order. The plaintiff went to the Small Cause Court with an application contemplated by

Section 47, he executed the bonds contemplated by Section 47, and he obtained an order from the Small Cause Court which the Small Cause Court was bound to give him under Section 47. The result of the under was that the operation of the ejectment order was stayed, and pursuant to the condition Imposed upon him that he should file a suit in a civil Court within ten days the plaintiff filed the suit. It is further pertinent to note that in a suit filed under Section 47 if the occupant obtains a decree, such decree shall supersede the order made under Section 47. Therefore, not only is the operation of the ejectment order stayed, but the ejects ment order is completely wiped off, as it were, if in the substantive suit filed by the occupantunder Section 47 he succeeds in getting an order that. there was a trespass and the applicant had noright to be in possession of the premises.

Now as we have already pointed out, the suitwhich was filed under Section 47 ceased to be that suit as soon as it came on before the learned Judge. The learned Judge has not decided issue that arises under Section 47. Every Issue than has been tried in that suit is an issue entirery unconnected with Section 47. The title which the play by tiff has set up and which he has attempted es-establish is a title not as of the date when the application for ejectment was made under Case 7, but a title which arose to him or accrued the him subsequent to that date. It is unnecessary to observe that in a suit under Section 47 no other title can be agitated except the title content-plated by that section itself. It is equally clear that suits under Section 47 are special suits of a limited character for a limited purpose, and the Court's jurisdiction to try the suits under Section 47 is limited? to try issues that arise under Section 47,

3. Mr. Daji says that under., the Civil P. O. It is competent to a plaintiff to combine more than one relief, and Mr. Daji says he combined two-reliefs in this suit; one was an action lor trespass under Section 47 and the other a suit on title which accrued to him subsequently. It was open to him to give up the first cause of action and he was entitled to succeed on the second cause of action. Now, there is a clear fallacy underlying tliis argument. We are not dealing with an ordinary suit filed under the Civil P. C. where a plaintiff is at large and he is the complete dominus of his own litigation and he can file such suit as he likes, combine such causes of action as he likes, gtva-up such causes of action as he likes, and ultimately proceed to fight a suit as best he thinks proper.

We are here dealing with a special suit which the Legislature has enabled the occupant to file in his interest for a specific purpose, and what is overlooked is that the important result of such a suit being filed under Section 47 is an automatic stay of the order of ejectment. Mr. Daji says it was open to him to file a suit on his title which according to him accrued to him on 1-4-1951. Nobody disputes that proposition. He could have filed one suit or more than one suit, but what is forgotten is that if such a suit hod been filed it would not have resulted in the stay of the ejectment order and the ejectment order would have been enforced and possession would have had to be handed over to the defendants and then the plaintiff could have asserted any title he liked to the property subsequent to the ejectment order or the application for ejectment.

Therefore, in our opinion, the learned Judge's-jurisdiction in this suit, inasmuch as it was a su-filed under Section 47, was to try only those issut which rightly arose under Section 47, Inasmuch a he has extended the ambit of the suit and declder issues which do not fall under Section 47, he has acted without jurisdiction. it is not disputed that if the suit was limited to Section 47, the only result of the suit would have been that the suit would have been

dismissed. It is because the learned Judge thoughtr he had the jurisdiction to give relief to the plain-t iff outside Section 47 that he passed a decree in his favour.

4. But there is another difficulty in the way the plaintiff which is equally serious. it is Ticult to understand, again with respect to the irned Judge, how he could have investigated to the issue as to the agreement relied- upon by plaintiff. That issue was the subject-matter the proceedings pending in the Small Cause court, and it is unnecessary to state that pro-ceedings for the adjustment or compromise a decree can only be initiated under See-in 47 of the Civil P. C. and not by a bstantive suit. The learned Judge attempt-to decide an issue which could only have been decided by the executing Court and which in fact as pending before the executing Court.

The reason that the learned Judge gives why he went into this matter and why according to him Section 47, Civil P. C. was not made applicable was that the relief as to declaration that the plaintiff was a tenant could not have been given by the Small Cause Court. Obviously, with respect, the learned Judge has fallen into an error. It is the sole right of the executing Court to try an issue as to whether a decree has been adjusted or not. It is for the executing Court to decide what the adjustment is and to record that adjustment of the decree. To the extent that the executing Court can give relief to that adjustment, the executing Court will give it. To the extent it cannot, it may be that the judgment-debtor might become entitled to file a suit or take other proceedings for enforcing the part of the adjustment in respect of which the executing Court could not give any relief.

But what the learned Judge has overlooked is that the first Question is not about giving relief. The first qiuestion is about recording the adjustment and deciding what the compromise is, and he has assumed to himself the jurisdiction which clearly he did not possess and which was only possessed by the executing Court. In our opinion, therefore, on the admission made by counsel before the learned Judge that he could not sustain this suit under Section 47, the suit should have been dismissed.

5. The result is that the appeal succeeds andthe suit will be dismissed with costs throughout.

6. Appeal allowed.


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