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Bai Jivkore Lakshmiram Vs. Himatlal Girdharlal Parekh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case Number Civil Revision Application No. 33 of 1935
Judge
Reported inAIR1936Bom98; (1935)37BOMLR965
AppellantBai Jivkore Lakshmiram
RespondentHimatlal Girdharlal Parekh
DispositionApplication allowed
Excerpt:
provincial small causes courts act (ix of 1887), section ii, clause 4 - provincial small cause courts (bombay amendment) act (bom. vi of 1930), section 3 ft-court- jurisdiction-ejectment suit-tenancy-at-will-notice to quit.;a suit in ejectment on the determination of a tenancy-at-will falls within the provisions of section 3, clause (c), of the provincial small cause courts (bombay amendment) act, 1930, and is cognizable by a provincial small cause court. - .....in which he held that he had no jurisdiction to deal with the suit, on the ground that the lease in suit created a tenancy-at-will.2. i do not agree with the grounds on which the learned judge proceeded. the small causes courts act provides, under the schedule, clause (4), that a small causes court has no jurisdiction to try a suit for the possession of immoveable property or for the recovery of an interest in such property. that was amended by bombay act no. vi of 1930 by inserting after the words ' such property ' the following words : ' but not including a suit for ejectment where....' then, there; are three sub-clauses specifying the conditions which have to be fulfilled. conditions (a) and (b) are admittedly fulfilled in this case. condition (c) is in these terms :-(c) the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision against an order of the Judge of the Small Causes Court, Ahmedabad, in which he held that he had no jurisdiction to deal with the suit, on the ground that the lease in suit created a tenancy-at-will.

2. I do not agree with the grounds on which the learned Judge proceeded. The Small Causes Courts Act provides, under the Schedule, Clause (4), that a Small Causes Court has no jurisdiction to try a suit for the possession of immoveable property or for the recovery of an interest in such property. That was amended by Bombay Act No. VI of 1930 by inserting after the words ' such property ' the following words : ' but not including a suit for ejectment where....' Then, there; are three sub-clauses specifying the conditions which have to be fulfilled. Conditions (a) and (b) are admittedly fulfilled in this case. Condition (c) is in these terms :-

(c) The only substantial issue arising for decision is as to whether the lease has determined by efflux of the time limited thereby or has been determined by a notice in accordance with Clause (h) of section 111 of the Transfer of Property Act, 1882.

3. The learned Small Causes Court Judge held that a tenancy-at-will does not fall within the provisions of Sub-clause (c). That seems to me to be erroneous. A tenancy-at-will is a tenancy so long as both parties are willing to continue it. If one party gives notice of his desire to determine the lease, then I think that the lease has determined either by efflux of the time limited thereby, namely the duration, of the will of the parties, or under Clause (h) of Section Ill of the Transfer of Property Act. In the present case the landlord gave a month's notice to determine the lease.

4. Apart from this point, however, I am of opinion that, looking at the plaint and the defendant's written statement, it cannot be said that the termination of the lease is the only substantial issue to determine, because the defendant disputes the plaintiffs title as claiming through the original landlord, and that is not a matter which can be dealt with in the Small Causes Court.

5. It appears that the plaint was originally presented to the regular Court and was refused, and the plaintiff was directed to present the plaint to the Small Causes Court. I think that that refusal on the part of the regular Court was wrong. The plaintiff must now take his plaint back to the regular Court, and I have no doubt the regular Court will now entertain the matter.

6. The application must be dismissed with costs.


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