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Madhavdas Dwarkadas Vs. Jugal Kishore Saraf - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1839 of 1981
Judge
Reported inAIR1983Bom20
ActsPresidency Small Cause Courts Act, 1882 - Sections 41 and 42-A; Evidence Act, 1872 - Sections 115
AppellantMadhavdas Dwarkadas
RespondentJugal Kishore Saraf
Appellant AdvocateH.C. Tunara, Adv.
Respondent AdvocateM.U. Pandey, Adv.
Excerpt:
.....be decided before deciding other jurisdictional issues.;b) the case questioned as to when the ejectment application was barred by consent order under section 41 of the presidency small cause courts act, 1882 - the ejectment application was filed on the ground of revocation of license - the consent order was passed that permitted the defendant to continue as licensee, provided he paid all arrears with in stipulated time - it was held that the consent order did not bar the plaintiff from filing the second ejectment application, though cause of action which arose out of earlier revocation was not available to the plaintiff.;c) the case dealt with the ejectment application of the plaintiff, which was beyond pecuniary jurisdiction of the court - the jurisdiction that was not taken by the..........the premises, due to the failure on the part of the defendants to comply with the requisition, an ejectment application was filed by the plaintiff against the defendants under section 41 of the presidency small cause courts act (hereafter, the act). for the sake of convenience, the said ejectment application the parties arrived at some kind of compromise and a consent order in that behalf was passed on 17-6-1968. as per the consent order the defendants was directed to give vacant possession of the suit premises to the plaintiff unless the paid the entire arrears of compensation due till 31st may, 1968 in stated instalments. the last instalment of rs. 800/- was to be paid on 27-3-1969. the consent order clearly shows that if any default was made in such payment the consent order was to.....
Judgment:
ORDER

1. The present petitioner is filed by the petitioner who is the owner of the suit premises which consist of a building at Walkeshwar. The application for defendants ejectment filed under Section 41 of the Presidency Small Cause Courts Act has been rejected by trial Court in the ground that the Court had no jurisdiction to grant such application in view of an order in certain previous proceeding between the parties. The correctness of the said view is challenged in these proceedings.

2. The fact relevant for the purpose of this judgment are the following:--

The flat in question belongs to the present petitioner and admittedly he gave the same on leave and licence to the defendants in the year 1959. The amount of compensation fixed was Rs. 531/-. It has been contended before me that the said amount of Rs. 531/- was not only for the premises but also for furniture because it was a furnished flat which was given on leave and licence basis to the defendants. This fact is stoutly denied before me by Mr. Pandey, the learned Advocate for the defendants. I am keeping this question open forth decision of the trial Court after the re-appreciation of the entire evidence.

3. The leave and licence arrangement continued till the year 1965. The last leave and licence agreement in that behalf was executed on 21-6-1964 and it was to expire on 31-3-1965. On 12-4-1965 the plaintiff gave a notice to the defendants informing him about the expiry of the agreement of licence and calling upon him to agreement of licence and calling upon him to vacate the premises, Due to the failure on the part of the defendants to comply with the requisition, an ejectment application was filed by the plaintiff against the defendants under Section 41 of the Presidency Small Cause Courts Act (hereafter, the Act). For the sake of convenience, the said ejectment application the parties arrived at some kind of compromise and a consent order in that behalf was passed on 17-6-1968. As per the consent order the defendants was directed to give vacant possession of the suit premises to the plaintiff unless the paid the entire arrears of compensation due till 31st May, 1968 in stated instalments. The last instalment of Rs. 800/- was to be paid on 27-3-1969. The consent order clearly shows that if any default was made in such payment the consent order was to become executable and the would have been entitled to possession of the suit premises by executing the consent order it appears that according to the plaintiff the defendants had committed some default and hence in the year 1968 he filed an application for execution of the above mentioned consent order. The trial Court, it appears, directed the execution to proceed, holding that the default was proved. A against the said, order Special Civil Application No. 1053 of 1969 was filed by the defendants in this Court and the same was allowed by the learned single Judge (Vaidya J) of this Court on 27-3-1973. The Court held that there was no default committed by the defendants and hence on question of execution arose.

4. The present ejectment application (which will be referred to hereinafter as the second ejectment application) was filed by the plaintiff on 24-7-1973. In the said application the relevant facts out of the above mentioned facts have been mentioned. But in para 6 of the application some unhappy averments were made by stating that the agreement of leave and licence dated 21-6-1964 expired by efflux of time, that the licence was never renewed thereafter, that in any event the licence stood revoked by the filing of the first ejectment application, that there existed on subsisting agreement between the parties thereafter and that the respondent was wrongfully in possession of the premises. The reason why I describe this averment to be somewhat unhappy averment will be mentioned by me presently. The prayer that was made in the said application was that the defendants should be directed to vacate the suit premises. It is somewhat significant that there is no reference whatsoever to the fact that the defendants was in possession also of furniture and there is no prayer that the defendants should be directed to hand over the furniture also to the plaintiff. The significant of this aspect of the prayer clause will also be mentioned presently.

5. Various defendants were raised by the defendants. His first defendants, however, was that the present application was not maintainable in view of the order dated 17-6-1968. It was also contended that in view of the fact that they yearly compensation payable in respect of the suit premises exceeded the sum of Rs. 3,000/- referred to in Section 41 (as it stood before the present amendment) of the Act the ejectment application was not maintainable. The other relevant defence of the defendants was that he was the tenant in respect of the suit premises and as such was entitled to protection of the Rent Act.

6. The first two question relating to the jurisdiction of the Court were examined by the learned Judge in the first instance without considering the other issue relating to tenancy and the learned Judge held that the consent order passed in the first ejectment application resulted in a bar to the second ejectment application. he also held that the plaintiff had failed to prove the defendants to be his licensee, or that the licence was revoked. However, he negatived the defendants contention that the application was not maintainable on the ground that the compensation payable in respect of the premises exceeded Rs. 3,000/- per year. In view of his decision on the other point referred to above however, he dismissed the plaintiff ejectment application of the learned with costs.

The present with petitioner is filed against the said order of the learned Judge.

7. Mr. Tunara for the petitioner contends that when was a plea set up by the defendants that he was a tenant in respect of the suit premises it was the bounden duty of the trial Court in the first instance to frame that issue and only if the defendants failed to make good his case of the defendants failed to make good his case of tenancy that the other issues could be tried by the trial Court. In support of his contention he relied upon the provisions of amended Section 42-A of the Act as also to the judgment of the learned single Judge of this court (Jahagirdar, J.) in the case of Abdul Rashid Adam v. Ebrahim Kassam reported in 1981 Bom Ren Cas 1. I am afraid this contention cannot be accept at all. I find nothing in Section 42-A of the Act or in the judgment of Jahagirdar J. to justify the view that if there are other justify the view that if there are other jurisdiction question involved which also could be tried as preliminary issues, they could not be tired by the learned Judge before examining the question of the alleged tenancy. The judgment of Jahagirdar, J. relied upon by Mr. Tunara only mentioned that if a plea is raised by the tenant that he is a tenant of the suit premises the Court need not consider any other question but can try that issue as a preliminary issue. But Jahagirdar, J., was never called upon to decide the question as to whether if other jurisdiction issues were involved they could not be decided before the issue relating to tenancy was decided. To my mind the question regarding the very maintainability of the application has to be decided at the threshold and no mistake was committed by the learned Judge in applying him mind to the question in the first instance. If I was able to uphold his view that the second ejectment application was maintainable by virtue of the consent order in the first ejectment application, the present writ petitioner would have to be rejected on that ground itself, and in that event on question would have arisen as to whether the defendants was a tenant or not.

8. fortunately for Mr. Tunara I am inclined to accept his second contention viz. that in instant cased the consent order in the first ejectment application cannot have the effect of a bar to the second ejectment application. it is, therefore, necessary to examine this aspect of the matter.

The question as to whether the consent order would bar a second ejectment application or not would depend upon the condition embodied in the consent order itself. Coming to the consent order, therefore, I am completely at a loss to understand as to how whatever is stated in the consent order resulted in any bar to a second ejectment application. In this connection Mr. Tunara very rightly and elaborately analysed the entire consent order and pointed out that the consent order itself did not bring about any new right for the defendants. All that was done was that a decree for possession was passed against the defendants but that decree was not to be executed if the arrears of compensation due till 31st May, 1968, were paid in stated instalments. A careful examination of the consent order would show that if the amount of all the arrears was paid by the defendants within the stipulated time, expectation was that he would continue to be in possession. In any event there was no provision by the virtue of which the possession could be taken away from the defendants by execution of that consent order if all the arrears due till 31-5-1968 were paid. There is not even any mention about the quantum of compensation or rent (if it was tenancy) which was to be paid for h period subsequent to 1-6-1968. A reasonable interpretation of the consent order, therefore, would be that the defendants was to continue in the same capacity as before the payment of same amount of compensation with effect from 1-6-1968 onwards provided he went on paying the said amount regularly. It therefore follows that as per the consent terms the same licence (if it was licence) which was revoked by the plaintiff by his notice dated 12-4-9-1965 continued. In other words the revocation of licence dated 12-4-1965 was itself revoked and the previous licence was deemed to be continued as if it was never revoked.

9. But it also follows that if the defendants continued as a licensee then the licence was capable of being revoked by a second notice of revocation. This is so because there is nothing in the consent order by virtue of which it could be said that what was continued in favour of the defendants was an irrevocable licence. No circumstance impelling an inference of an irrevocable licence has either pleaded or brought on record. if that is the position, the plaintiff was perfectly within his rights when he revoked the said licence for second time.

I make it clear that the above view assumes that the original relationship was of licensor and licensee,. If it was one of tenancy the resultant situation would evidently be different in that it would be the tenant which would continue.

Shri Tunara further contended that if the licence was revocable subsequently it must be deemed to have been revoked by virtue of the execution. application or in any event by virtue of the second ejectment application and upon such revocation the Court would get jurisdiction under Section 41 of the Act for ejectment application of the defendants unless of-course of Court held that the defendants was a tenant in respect of t suit premises. Shri Tunara contended that it was incumbent upon the Court to the frame that issue and to try that issue and the Court was not justified in non-suiting the plaintiff on the ground that the ejectment application was incompetent.

To my mind Shri Tunara's contention in this connection has got to be upheld. But before I pass the order in that behalf I must mention the argument advanced by Mr. Pandey, the learned Advocate appearing for the defendants, in support of the view taken by the trial Court.

10. I must state at the outset that Mr. Pandey was not in a position to satisfy me that the ejectment application itself contained any provisions by virtue of which the second ejectment application would be barred. But his contention in support of the lower Court's ultimate order was that the previous cause of action of the plaintiff which had risen by virtue of the notice of the revocation dated 12-4-1965 had merged in the consent order. He pointed out that the present ejectment application was filed by the plaintiff on the identical previous cause of action dated 12-4-1965. He contended that the previous cause of action had vanished on account of the fact that it had merged in the consent order. He also pointed out that according to the plaintiff no licence had been given by the plaintiff to the defendants after the revocation of the licence dated 12-4-1965. If that was so, points out Mr. Pandey, there is no cause of action which the plaintiff can avail of and hence the present application under Section 41 is not maintainable.

11. Mr. Pandey's argument is no doubt somewhat attractive. But to my mind, in the ultimate analysis, it will have to be rejected on the ground that it is too technical a plea. As stated above, the averment made by the plaintiff in para 6 of the application is not very happily made. Mr. Pandey is right in contending that so far as the cause of action arising out of the revocation dated 12-4-1965 was concerned, the same is no longer available to the plaintiff because that cause of action certainly had merged in the consent order dated 17-6-1968. Since I am taking this view it is unnecessary for me to refer to the Authorities relied upon by Mr. Pandey in support of his contention that the previous cause of action had merged in the consent order. But I may just refer to the said Authorities. The first Authority was : [1956]1SCR72 , in the case of Sailendra Narayan Bhanja Deo v. State of Orissa. What has been decided in the said case was that the compromise decree in the said case was that the compromise decree in the fact of the case before the Court resulted in an estoppel against plaintiff from filing a second suit. I documents not think that this Authority can support the contention that the previous cause of action merged in the consent order.

Mr. Pandey has also relied upon the judgment Rajasthan High Court, reported in , Bhanwarlal v, Raja Babu. But even the principle decided in that case related to the estoppel of the plaintiff in view of the previous consent decree between the parties. But these Authorities documents not lay down any principle relating to merger. However, as stated above, to my mind the principle of merge formulated by Mr. Pandey is a correct principle and if the facts of the present case were different I would have no hesitation in holding that the case of action dated 12-4-1965 had merge in the consent order dated 17-6-1968 and the hence the second ejectment application on the same cause of action was not maintainable. But the difficulty for Mr. Pandey is that in the instant case in fact there has been a subsequent cause of action accruing for the plaintiff. I have already mentioned above that as per the consent order whatever was the legal character of the defendants possession before the 1st revocation continued even thereafter by virtue of the consent order. If defendants No. 1 was a former licensee he continued to be a licensee; but if he was a former tenant, he continued to be a tenant. The plaintiff is interested in saying that the continued to be a licensee. No doubt, he has also stated that the license cam to an end by virtue notice of revocation dated 12-4-1965, but that averment did not make him less of a licensee if he was a license did continue then the verifying of the execution application or even of the second ejectment application resulted in its revocation. This means that there did exist a fresh cause of action of the plaintiff for the section ejectment application though it was not mentioned in the relevant para of the plaint. This fresh cause of action is in no way affected by the previous consent order dated 17-6-1968. The doctrine of merger had no relevance whatsoever so far as this fresh cause of action is concerned.

12. I cannot agree with Mr. Pandey when he wants me to dismiss the plaintiff application merely because the correct cause of action is not mentioned or because a wrong cause of action is mentioned in the plaint. If it came to that I could have directed Mr. Tunara to make an appropriate amendment in the cause of action clause contained in paragraph 6 of the application and thereby the entire contention would have vanished. It can be thus seen that this is a highly technical defence. The Court to my mind would not be justified in non-suiting the plaintiff merely because he has mentioned a wrong cause of action, if the Court finds that in fact there did exist another right cause of action in favour of the plaintiff. I am therefore not inclined to accept the argument advanced by Mr. Pandey on this point.

13. This brings me to the second defence of the defendants. The trial Court has rejected the defendants contention that the compensation was Rs. 531/- per month, meaning thereby it was much more than Rs. 3,000/- per year and that the Small Causes Court had no jurisdiction to entrain the application had no jurisdiction to entrain the application under Section 41 of the Act. One of the reason given by the trial Court for taking this view is that in the first ejectment application such a plea was not taken and hence there was estoppel against the defendants from raising such a plea. To my mind this view is totally unsupportable. There cannot exist an estoppel against a statute and jurisdiction cannot be conferred upon the Court by the inaction of a parties or even by agreement of parties. If the original agreement intended to confer jurisdiction upon the Court, when it has none, the agreement would be bad, but no estoppel as such would result. But it is really unnecessary to evoke this principle of estoppel. In the instant case what the trial Court had done in the first ejectment application was that by virtue of the consent order the same relationship was continued. No such think as an ejectment application order as such was passed by the Court and none become executable. Moreover this jurisdiction aspect was never put in issue in that Court. If that was the position, then no damage was done by virtue of any conferral of jurisdiction upon the Court.

However, I must before that I am not quire happy about the way in which the trial Court has recorded the finding that the compensation of the premises was not Rs. 531/- The jurisdiction given by Mr,. Tunara for holding that compensation was Rs. 200/- and not Rs. 531/- was that what was given on leave and licence to the defendants was a furnished flat and that the amount of Rs. 531/- included the charge payable for use of the furniture. He also relied upon the fact that the Municipal Corporation had accepted the rent of the premises as such to be Rs. 200/-. But I also find that neither in the previous consent decree any order is taken from the Court for recovery of possession of the furniture nor in the present ejectment application any prayer is made that the defendants should be directed to hand over not only premises but also the furniture.

For ought I know there may be some good reasons for all this; but it does not appear that the Court has applied its mind to this aspect of the matter.

14. However, sitting in my writ jurisdiction, I documents not propose to appreciate the entire evidence on this point. Since I am remanding the matter back to the trial Court. I order that the finding recording by the trial Court on this point is set aside and the question will be examined by the trial Court defendants novo after re-appreciating the evidence on record on that point and if the parties so desire by allowing them to lead additional evidence on the above point. Mr. Tunara wanted me to give hi liberty to make an application for amendment of the plaint. I may stated that it will be open for him to move the trial Court by the appropriate application in that behalf and if such an application is made the trial Court will consider the same on its own merits.

14-A. The petition is therefore allowed.

The rule earlier issued is made absolute.

The judgment of the trial Court is hereby quashed and set aside and the trial Court is directed to dispose of the application in accordance with the provisions of law in accordance with the provisions of law in the light of the observations made above. The costs of this petition will be the costs in the cause.

In view of the fact that the proceedings are pending for nearly 9 years, the trial Court is directed to hear the application expeditiously and to dispose of the same in any event before 31st Aug., 1982.

15. petition allowed.


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