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Ramalal Saigal Vs. Sultana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 265 of 1981
Judge
Reported in1983(1)BomCR257
ActsPresidency Small Cause Courts Act, 1882 - Sections 41
AppellantRamalal Saigal
RespondentSultana and ors.
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateM.D. Pathak, Adv. for respondent Nos. 1 to 4 and 6
DispositionPetition dismissed
Excerpt:
- - 4. the trial court examined the entire question and came to the conclusion that the petitioner's averments and demeanour were of misleading character and that the petitioner had not made good any of pleas taken in support of his prayer that the ex parte decree should be set aside. abhyankar the learned advocate appearing for the petitioner that his client had no evidence whatsoever to make good his contention about the payment of the said huge amount of rs......in the court and to attend to the litigation at all, with the result that ultimately the ex parte decree was passed against him on 27-7-1979. the said decree was executed on 17-7-1980 and in the execution possession of the suit premises was taken from him by the decree-holder. it was thereafter that on 18-7-1980 the petitioner filed an application for setting aside the ex parte decree contending that he became aware of the fact about the decree against him only when the same was sought to be executed against him.4. the trial court examined the entire question and came to the conclusion that the petitioner's averments and demeanour were of misleading character and that the petitioner had not made good any of pleas taken in support of his prayer that the ex parte decree should be.....
Judgment:

Sharad Manohar, J.

1. It is impossible to find any substance in the present writ petition which arises out of the proceedings instituted by the respondent under section 41 of the Presidency Small Causes Court Act. The contention of the respondent was that the suit premises which consists of one room in a building at Narayan Dabholkar Road was given to the present petitioner on leave and licence basis just with a view to accommodate him temporarily and that too without any rent or compensation whatsoever. By a notice dated 29-1-1974, the petitioner was called upon to vacate the room in question and upon his refusal an application was filed by the landlord against the petitioner under section 41 of the Presidency Small Causes Courts Act for possession of the suit premises.

2. Summons of the application was served upon the petitioner and he even filed his defence contending firstly that he had initially taken the room on leave and licence basis for paying a sum of Rs. 14,000/- which was to be adjusted towards the monthly compensation fixed at Rs. 40/- per month. He further took the plea that he had become a protected licensee or deemed tenant by virtue of the amendment in the Act within came into force on 1st February, 1972.

3. The curious aspect of the matter, however, is that from the year 1974 till the year 1979, the petitioner did not care to remain present in the Court and to attend to the litigation at all, with the result that ultimately the ex parte decree was passed against him on 27-7-1979. The said decree was executed on 17-7-1980 and in the execution possession of the suit premises was taken from him by the decree-holder. It was thereafter that on 18-7-1980 the petitioner filed an application for setting aside the ex parte decree contending that he became aware of the fact about the decree against him only when the same was sought to be executed against him.

4. The trial Court examined the entire question and came to the conclusion that the petitioner's averments and demeanour were of misleading character and that the petitioner had not made good any of pleas taken in support of his prayer that the ex parte decree should be set aside. The application for setting aside the ex parte decree was, therefore, dismissed by the trial Court. The present writ petition is directed against the said order of the trial Court.

5. When the petition reached hearing before me, Mr. Abhyankar, the learned Advocate appearing for the petitioner wanted me to take the view that on the grounds of mercy the petitioner should be given an opportunity to defend the suit although he was frank enough to state that he could not point out any legal or patent error in the judgment and order passed by the trial Court refusing to set aside the ex parte decree. Even then I gave him time to satisfy me that the petitioner had in fact been paying any amount of compensation to the respondent or that his contention about the deposit of Rs. 14,000/- was supported by any prima facie evidence. The petition was for that purpose adjourned for two weeks. However, when it reached for hearing before me today I was informed by Mr. Abhyankar the learned Advocate appearing for the petitioner that his client had no evidence whatsoever to make good his contention about the payment of the said huge amount of Rs. 14,000/-. He also stated that no evidence could be adduced by his client to prove that any amount either by way of compensation or rent was ever paid by him to the respondent. It is, therefore, clear that this was the reason why the petitioner had chosen not to take any part of the proceedings the result of which was a foregone conclusion for him. Even assuming, therefore, that there existed any ground for setting aside the ex parte decree it would be only an exercise of fluidity doing so in view of the above position. Moreover, my attention was not invited to any legal or patent error in the order passed by the lower Court refusing to set aside the ex parte decree.

6. The petition, therefore, fails and the same is hereby dismissed. There shall be no order as to costs.


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