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K.P. Mohmed Vs. Shapur A. Irani - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 638 of 1954
Judge
Reported inAIR1955Bom207; (1954)56BOMLR1169; ILR1955Bom168
ActsPresidency Small Cause Courts Act, 1882 - Sections 46 and 47; Presidency Small Cause Courts (Amendment) Act, 1953 - Sections 47
AppellantK.P. Mohmed
RespondentShapur A. Irani
Appellant AdvocateV.T. Gambhirwala, Adv.
Respondent AdvocateN.C. Bharucha, Adv.
Excerpt:
.....by occupant under section 47 made on january 6, 1954--maintainability of application --right of occupant under section 47 whether a substantive right--whether small cause court, when application made to it under section 47, can go into merits of application.;the presidency small cause courts (bombay amendment) act, 1958, (which has amended s. 47 of the presidency small cause courts act, 1882) can only apply to those applications for ejectment which were filed after the act came into force on november 10, 1953. with regard to the applications which were filed earlier, the amendment would not apply.;the right that an occupant gets under section 47 of the presidency small cause courts act, 1882, is a substantive right.;under section 47 of the presidency small cause courts act,..........the amendment would not apply.inasmuch as every one has notice of the law, if after the law is in force an application is made under chap. vii, then the occupant knows that his right would be lost unless he makes an application at the earliest opportunity. but this would not apply to the case where an application has already been made before the act came into force. at that date, as the new act was not in force, the occupant did not know and would not know that a law will come into force which would seriously curtail his rights. therefore, in my opinion, the learned judge below was in error in dismissing the application of the applicant.3. the next contention which mr. bharucha wants to put forward is that the case of the petitioner was that he was a sub-tenant of the opponent and he.....
Judgment:
ORDER

1. The opponent filed an application under Chap. VII of the Small Cause Courts Act for ejecting the petitioner on the ground that he was his licensee and the licence had been terminated. The petitioner filed his statement of defence to that application on 9-11-1953. On 6-1-1954, the petitioner applied under Section 47, Small Cause Courts Act, to enable him to file a suit in the higher Court on his title. This application was refused by the learned Judge of the Small Cause Court, apparently on the ground that the amending Act applied and, therefore the application of the petitioner was out of time. Now, under Section 47 as it stood before the amendment, it was open to an occupant to make an application under that section at any time, and the authorities have taken the view that he could make an application even after the order of ejectment was made, becauseit was thought that the proceedings under Chap. VII continued even after the making of the ejectment order.

Now, the Legislature has recently passed an amending Act and that is Act 59 of 1953. This Act came into force on 10-11-1953, and by this Act Section 47 has been amended and the effect of the amendment is that that the occupant has to make the application at the earliest opportunity and, in any event, before filing any statement of defence. Therefore, the point of time when an application has to be made is clearly indicated by this section. If any statement of defence is filed by the occupant, then he would be barred from making an application under Section 47, and the view taken by the learned Judge was that, inasmuch as the application here was made on 6-1-1954, after the petitioner had filed his defence on 9-11-1953, the application was barred.

2. Now, Mr. Bharucha's contention is that Act 59 of 1953 is a procedural Act and, therefore, when the petitioner's application came to be heard, the Court had to give effect to this procedural law, and as his application did not satisfy the condition laid down by Act 59 of 1953, his application was rightly dismissed.

In my opinion, the right that an occupant gets under Section 47 is a substantive right. The effect of Sections 46 and 47 Small Cause Courts Act, is that an order of ejectment passed by the Small Cause Court is not final and binding, but can be challenged by the occupant in a higher Court, and the challenge is based on this, that the applicant had no right to the possession of the property in respect of which the application is made; and Section 46 lays down that, if he has no right to possession, trespass is constituted by the making of the application and therefore what Section 47 enables the occupant to do is to go to the higher Court to contend that the applicant had no right to possession of the property, that by making the application he has committed trespass, and that the occupant is entitled to damages.

Now, it is clear that such a right as this cannot be taken away by the Legislature retrospectively unless the Act in terms so enacts. In one sense all laws are prospective; but it has been observed that a procedural law is retrospective in the sense that the procedure laid down by the law applies when a proceeding comes before a Court and the Court must give effect to that procedure. It is also held that procedural laws are retrospective on the ground that no party has a vested interest in procedure.

The vested interest of a party is to a substantive right and he cannot claim that in asserting a substantive right a certain procedure should be followed. But, in my opinion, the effect of the amendment is not at all procedural. The effect is to take away rights of parties who do not make an application within a certain time. Now take this very case. Although the Act came into force on 10-11-1953 and the petitioner could not possibly comply with the provisions of that Act because he had already filed his defence on 9-11-1953, still his right to file a suit in the higherCourt under Section 47 was taken away. Therefore, it is clear to my mind that Act 59 of 1953 can only apply to those applications for ejectment which were filed after the Act came into force. With regard to the applications which were filed earlier, the amendment would not apply.

Inasmuch as every one has notice of the law, if after the law is in force an application is made under Chap. VII, then the occupant knows that his right would be lost unless he makes an application at the earliest opportunity. But this would not apply to the case where an application has already been made before the Act came into force. At that date, as the new Act was not in force, the occupant did not know and would not know that a law will come into force which would seriously curtail his rights. Therefore, in my opinion, the learned Judge below was in error in dismissing the application of the applicant.

3. The next contention which Mr. Bharucha wants to put forward is that the case of the petitioner was that he was a sub-tenant of the opponent and he says that a sub-tenancy is illegal; that on his own admission the petitioner would either be a trespasser or a licensee and in neither case he would be entitled to litigate his right under Section 47 because he would have no right to be in possession of the premises. Now, it is clear that under Section 47 it is incumbent upon the Small Cause Court to stay the proceedings when an application is made. It is not open to the Small Cause Court to go into the merits of the application. If the occupant alleges that the applicant was not entitled to possession and that the application of the applicant constituted trespass and he wants to claim compensation, the Small Cause Court must stay the proceedings and allow the applicant to litigate his right and title in the higher Court -- of course, provided he carries out the requirements of Section 47, namely, binding himself with two sureties as provided by that section. Therefore, it is not open to me to go into the question whether the occupant is or is not a licensee or is or is not a trespasser. These are questions which will be considered by the higher Court when the petitioner flies his suit.

4. I would, therefore, set aside the order of Small Cause Court and send the matter back to it with a direction that it should dispose of the application made by the petitioner according to law. The order for ejectment passed by the Small Cause Court will also be set aside, because if the petitioner had a right to maintain his application under Section 47, the proceeding should have been stayed and no order should have been passed by the Small Cause Court.

5. Rule absolute with costs.

6. Case sent back.


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