Full Judgment Text
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PETITIONER:
LAXMI & CO
Vs.
RESPONDENT:
DR. ANANT R. DESHPANDE & ANR.
DATE OF JUDGMENT12/09/1972
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
DUA, I.D.
CITATION:
1973 AIR 171 1973 SCR (2) 172
1973 SCC (1) 37
ACT:
Presidency Small Cause Courts Act 1882 incorporated by
Maharashtra Amendment Act 1963-S. 42A-Whether trial Court
should frame a preliminary issue in absence of the defendant
on the date hearing.
S. 42-A of the Presidency Small Causes Courts Act 1882
(incorporated by Maharashtra Amendment Act 1963) provides
that :
HEADNOTE:
"If any application, pending in the Small Cause Court
immediately before the date of the commencement of the
Presidency Small Cause Courts (Maharashtra Amendment) Act of
1963, or made to it on or after such date. the occupant
appears at the time appointed within the meaning of the
Bombay Rents, Hotel and Lodging Houses, Rates Control Act
1947, and in consequence whereof is entitled to the
protection of that Act. and if such claim is not admitted by
the applicant, then, notwithstanding anything contained in
that Act, the question shall be decided by the Small Cause
Court as a preliminary issue."
Two questions arose for decision in this appeal. First,
whether the word "appears" occurring in S. 42A means
appearance of the party in person, or through someone at the
date of the hearing. Secondly, whether the Small Cause
Court is required to frame an issue as to whether the
occupant was a tenant within the meaning of the Bombay Act
of 1947, and entitled to issue, whether or not the
contesting party appears before the court at the date of the
hearing. Allowing the appeal.
HELD : (i) S. 42 was introduced by the Maharashtra Amendment
Act, which provided a special procedure, where occupant
claims tenancy within the meaning of the 1947 Act. The
occupant is to claim the tenancy of the applicant within the
meaning of 1947 Act. If such claim of the occupant is not
admitted by the applicant a.-,king for possession, then the
question shall be decided by the Small Cause Court as a pre-
liminary issue. The words of importance to denote the time
when the question is to whether the occupant is entitled to
the protection of the 1947 Act are "then notwithstanding
anything contained in that Act". The word "then" is
prefaced by the preceding aspects; first, the occupant is to
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appear at the time appointed; 2nd, be is to claim that he is
a tenant of the applicant within the meaning of the 1947
Act; thirdly, he is to claim that in consequence, he is
entitled to the protection of the Act: fourthly, that the
claim of the occupant is not admitted by the applicant
asking for possession. It is clear from the provisions of
that statute that the word "appear" in S. 42A of this
statute means appearance at the date of the hearing. [177H]
(iii) Further, it is not obligatory on the trial court
to frame a preliminary issue on the appointed day
irrespective of the appearance of’ the occupant. In the
present case, since the respondent did not appear at the
date of hearing and claim the protection of the statute, he
is entitled to retain possession of the said tenancy.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1036 of
1967.
173
Appeal by special leave from the judgment and order dated
March 1, 1967 of the High Court at Bombay in Civ. Rev.
Application No. 64 of 1967.
N. A. Mody, P. C. Bhartari, J. B. Dadachanji, O. P. Mathur
and Ravinder Narain, for the appellant.
V. S. Desai, Vilas V. Kamat, Yogeshwar Prasad Tri and
Ganpat Rai, for the respondent No. 1.
The Judgment of the Court was delivered by
RAY, J. This is an appeal by special leave from the Judgment
dated 1 March, 1967 of Naik, J. of the High Court at Bombay
allowing Civil Revision Application under section 115 of the
Code of Civil Procedure filed by the respondent Dr.
Deshpande.
The principal question which falls for consideration in this
appeal is the construction of section 42A of the Presidency
Small Cause Courts Act, 1882 (referred to as the 1882 Act)
incorporated by Maharashtra Amendment Act 1963. The section
is set out hereunder :
"42A. Procedure where occupant contests as a
lawful tenant, etc.-(1) If in any application
pending in the Small Cause Court immediately
before the date of the commencement of the
Presidency Small Cause Courts (Maharashtra
Amendment) Act, 1963 (Mah. XLI of 1963) or
made to it on or after such date, the occupant
appears at the time appointed within the
meaning of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 (Bom. LVII of
1947) and in consequence whereof he is
entitled to the protection of that Act, and if
such claim is not admitted by the applicant,
then notwithstanding anything contained in
that Act, the question shall be decided by the
Small Cause Court as a preliminary issue.
(2) An appeal against the decision on this
issue shall lie to a bench of Two Judges of
the Small Cause Court.
(3) Every appeal under sub-section (2) shall
be made within thirty days from the date of
the decision appealed against;
Provided that, in computing the period of
limitation prescribed by this sub-section the
provisions contained in sections 4, 5 and 12
of the Indian Limitation Act, 1908 (IX of
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1906) as far as may be, apply.
17 4
(4) No further appeal shall lie against any
decision in appeal under sub-section (2)".
Two questions arise for decision in this appeal. First,
whether the word ’appears’ occurring in section 42A means
appearance of the party in person or through someone at the
date of the hearing. Secondly, whether the Small Cause
Court is required to frame an issue as to whether the
occupant is a tenant within the meaning of the Bombay Act of
1947 and is entitled to protection of that Act, decide it as
a preliminary issue, whether or not the contesting part
appears before the Court at the date of the hearing.
The appellant is a firm owning lease hold rights in an
immovable property known as "Lokmanya Department Stores"
situate at Dadar in Bombay. The appellant became owner of
that property in the month of August, 1960. The previous
owner of that lease hold property was Department Service
Stores. The respondent Deshpande is a medical practitioner.
He had come to occupy under what is described as a "leave
and licence" Agreement dated 1 November, 1952 a portion of
the ground floor of the annex to that property on payment of
Rs. 250/- per month or 2% of the gross income of the clinic
whichever was higher. The agreement was with the previous
lease-holder Departmental Service Stores for a period of
five years with an option of renewal for a further term of
five years.
The appellant filed an ejectment application on 23 July,
1964 against the respondent Deshpande under.Chapter VII of
the 188 Act in the Court of Small Causes at Bombay. A
summons was issued to Deshpande. The summons was returnable
on 22 August, 1964 calling upon him to show cause why he
should not be compelled to deliver up the ground floor of
the annexe in his occupation. The respondent Deshpande
caused his appearance filed through his Advocate. The
ejectment application was postponed for hearing on 22
September, 1964. It was again adjourned to 17 November,
1964 to enable the respondent Deshpande to file his defence.
He filed his defence. The ejectment application was
adjourned to 3 December, 1964 for scrutiny. After scrutiny
the matter was transferred to what is described in the
Bombay Small Cause Courts as non-priority warned list. In
September, 1966 the ejectment application appeared on the
monthly board. On 10 October. 1966 the matter was placed
before Court in Court Room No. 12 in the Court of Small
Causes at Bombay for the purpose of giving a fixed date, for
bearing. Advocates on behalf of both the parties were
present in Court on 10 October, 1966 when the date for
hearing was fixed for 23 November. 1966. On 23 November,
1966 the matter was called out for hearing. No one on
behalf of
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the respondent Deshpande was present in Court. The matter
was passed over and was again called out in the afternoon.
No one on behalf of the respondent Deshpande was present.
The matter was called out for the third time at about 4.30
p.m. Neither the respondent Deshpande nor his Advocate, was
present on any of the occasions when the application was
called out. The application was heard ex-parie. Evidence
was led on behalf of the, appellant. The Small Cause Court
passed an ex-parte decree on 23 November, 1966 in favour of
the appellant directing the responding Deshpande to deliver
possession of the premises.
The appellant in the month of January, 1967 made an
application for execution of the decree. Possession was
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delivered up to the appellant by the bailiff.
The appellant thereafter agreed to let out the premises to
the second respondent V. B. Gandhi.
On 14 January, 1967 the appellant was served with an ex-
parte order passed by the Small Causes Court, Bombay on
respondent Deshpande’s application for setting aside the ex-
parte decree restraining the appellant from executing the
ex-parte decree dated 23 November, 1966. In view of the
fact that the appellant had already obtained possession
through the bailiff the respondent Deshpande requested the
appellant to allow the respondent Dshpande to use the ground
floor for his professional work between certain stated
hours. The appellant allowed the arrangement as a temporary
one and without prejudice to the rights and contentions of
the parties.
In the application dated 14 January, 1967 for setting aside
the ex-parte decree the respondent Deshpande alleged that he
was ill on 23 November, 1966 and could not attend the Court
and he did not know that an ex-parte decree was passed on
that day. The respondent Deshpande affirmed his second
affidavit on 16 January, 1967 that his prior statement that
he was ill on 23 November, 1966 was incorrect. In the
second affidavit the respondent Deshpande said that after 10
October, 1966 when the date was fixed for hearing of the
ejectment application the respondent Deshpande’s Advocate
had misplaced his brief and that the matter had escaped the atten
tion of his Advocate and accordingly no one remained
present in Court on 23 November, 1966. The Small Causes
Court said that the respondent Deshnande had made a false
affidavit on 14 January 1967 with a view to obtaining- an
ex-parte injunction order and the Small Causes Court vacated
the interim injunction and refused on 6 February, 1967 to
set aside the ex-parte decree dated 23 November, 1966.
The respondent Deshpande thereafter moved the Highh Court
under section 115 of the Code of Civil Procedure. The
respondent Deshpande contended that Small Causes Court acted
with-
176
out jurisdiction in passing an ex-parte decree without
framing and determining the preliminary issue as to whether
the respondent De shpande was a tenant in respect of the
premises. It was particularly contended that framing of
such an issue and its determination was obligatory on the
Small Causes Court even in an ex-parte matter by reason of
provisions contained in section 42A of the 1882 Act.
The respondent Deshpande also made a Civil Revision Appli-
cation under section 115 of the Code of Civil Procedure
against the order dated 6 February, 1967 refusing to set
aside the ex-parte decree dated 23 November, 1966.
Both the applications were heard by the learned Single Judge
of the High Court of Bombay who arrived at these
conclusions. it was the duty of the trial Court even when
the occupant did not appear before the Court to frame an
issue as to whether the occupant was or was not the tenant
of the premises and protected by the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (referred to as the
1947 Act) and to decide the same a,-, a preliminary issue on
the next date of hearing. After framing the preliminary
issue the Court would adjourn that matter for the hearing of
the preliminary issue. The trial Court had not framed any
preliminary issue, had not recorded a finding on that issue,
but proceeded straightaway to pass an order of ejectment.
The learned Single Judge of the High Court set aside the ex-
parte decree and sent it back to the Small Cause Court with
a direction that the preliminary issue be framed as
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contemplated under section 42A of the 1882 Act and to give
opportunity to the parties to lead evidence. No order was
passed on the other application for setting aside the ex-
parte decree.
Counsel for the appellant contended as follows. The provi-
sions contained in section 42A of the 1882 Act indicated
that the occupant against whom proceedings under Chapter VII
of the 1982 Act for recovery of possession were commenced
was required to appear at the date of hearing and to claim
the protection of the Act and only if the claim was not
admitted by the applicant asking for possession then the
question was to be decided by the Court as a preliminary
issue. The appellant placed accent on appearance of the
occupant on the date of hearing in Court in view of the
provisions indicating that the decision on a preliminary
issue was required only where there was a contest between
the parties at the date, of hearing and the occupant claimed
protection of the 1947 Act and such protection was denied by
the applicant asking for possession. The defence of the
respondent Deshpande that "he was the lawful tenant of the
said pre-
17 7
mises" did not amount to any pleading that he was a tenant
within the meaning of the 1947 Act and in consequence
thereof he was entitled to protection of that Act.
Counsel for the respondent Deshpande on the other hand
raised these contentions. The defence, that he was a lawful
tenant of the premises entitled him to protection under the
1947 Act. The defence was sufficient for framing of the
preliminary issue. The provisions of the Code of Civil
Procedure were attracted. Under Order 15 Rule 3 of the Code
the Court has to postpone the further hearing of the suit
for production of further evidence or argument as the case
might be. Therefore, the trial Court was bound in law to
postpone the case after the framing of the preliminary
issue. Emphasis was placed on the provisions of section 42A
of the 1882 Act which used the words "Preliminary issue" and
provided for an appeal against the decision on the
preliminary issue. The right of appeal ’was therefore
denied by not framing the issue and the respondent was
denied the right of agitating the question of tenancy within
the meaning of the 1947 Act.
The provisions in section 42A of the 1882 Act which were
introduced by the Maharashtra Amendment Act 1963 indicate a
special procedure where the occupant contests as a tenant
within the meaning of the 1947 Act. The proceedings under
Chapter VII of the 1882 Act relate to recovery of
possession of immovable property. Under section 41 of the
Act summons is issued against tile occupant calling upon
him to show cause on a date therein appointed why he
should not be compelled to deliver the property. Section 41
is attracted where tenancy has been determined and the
tenant refuses to deliver the property. The summons issued
under section 41 is served in the manner provided by
the Code of Civil Procedure for the service of summons.
Section 43 deals with order for possession. If the occupant
does not appear and show cause the applicant ’becomes
entitled to an order for possession. If the occupant
proves that the tenancy was created or permission granted
by virtue of a title, which determined previous, to the
date of the application, he shall be deemed to have shown
cause. Section 43 also speaks of the occupant appearing
and showing cause. The filing of a defence is not equated
with appearance. The Court appoints a date for appearance
of parties for the hearing. Unless there is appearance and a
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contest arises the Court will proceed ex-parte.
It is manifest that section 42A which was introduced by the
if Maharashtra Amendment provides a special procedure
where the occupant claims tenancy of the applicant
within the meaning of the 1947 Act. The occupant is to
claim the tenancy of the applicant within the meaning of the
1947 Act and that in consequence
13-348Sup. Cl/73
178
he is entitled to protection of the Act. If such claim of
the occupant is not admitted by the applicant asking for
possession then the question shall ’be decided by the Small
Causes Court as a preliminary issue. The words of
importance to denote the time when the question as to
whether the occupant is entitled to the protection of the
1947 Act are "then notwithstanding anything contained in
that Act". The word "then" is prefaced by the preceding
steps. First, the occupant is to appear at the time
appointed; second, he is to claim that he is a tenant of the
applicant within the meaning of the 1947 Act; thirdly, he is
to claim that in consequence he is entitled to the
protection of that Act; fourthly, that the claim of the
occupant is not admitted by the applicant asking for
possession.
It is correct that the pleadings will have an important
bearing on the question as to whether the occupant contests
the right of the applicant to possession. That contest has
to be based on his tenancy within the meaning of the 1947
Act. In the present case, the occupant respondent Deshpande
stated in his defence that he was a lawful tenant. The
words "lawful tenant" by themselves do not expand as to how
the occupant is a lawful tenant. Section 42A speaks of
tenancy within the meaning of the 1947 Act and protection
under that Act. One has to claim the benefit and protection
of the Act. The claim of protection under the Act will
become an issue at the hearing of the case. The word
"appearance" cannot be equated with the filing of the
written statement. After pleadings are complete the Court
appoints a date for hearing. It is at the hearing that the
occupant will assert his tenancy and claim protection
against eviction. It is then that the Court will enquire
whether an issue is to be struck between the applicant on
the one hand and the occupant on the other by reason of
denial by the applicant of the occupant’s claim. It is,
therefore, clear from the provisions of the statute that the
word "appear" in section 42A of the 1882 Act means
appearance at the date of the hearing.
The High Court was wrong in the conclusion that it was
obligatory on the trial Court to frame a preliminary issue
on the appointed day irrespective of the appearance of the
occupant.
The High Court noticed that the two Maharashtra Amendments
to the Act, namely, sections 42A and 49 indicate that only a
decision on the claim of an occupant to be a tenant within
the meaning of the 1947 Act can be the subject matter of an
appeal and section 49 of the Act bars a suit on the basis of
title as a tenant within the meaning of the 1947 Act. The
High Court found that the question of tenancy within the
scope of section
179
42A of the 1882 Act was to be decided once for all in- the
proceedings under Chapter VII of the Small Cause Courts Act,
because a suit was barred.
Under section 49 of the 1882 Act as it stood prior to the
Maharashtra Amendment recovery of possession of any immov-
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able property under Chapter VII was not a bar to the filing
of a suit in the High Court as to- the title of the
occupant. The Maharashtra Amendment to section 49 has
placed a bar against such suit because the occupant is given
the opportunity under section 42A of the 1882 Act to contest
the claim of the applicant to possession by pleading,
proving tenancy within the 1947 Act and claiming the
consequential protection under the provisions of the Act.
The conclusion of the High Court that the bar of a suit
under section 49 is a cogent reason for concluding that the
Small Cause Court shall always try as a preliminary issue
the claim of the occupant as a tenant within the meaning of
the 1947 Act irrespective of his appearance is neither
supported by the scheme of the Act nor by the scope and
purport of section 42A of the Act. An occupant who claims
tenancy within the meaning of the 1947 Act is given the
opportunity to prefer the claim and to have a decision on
that question as a preliminary issue. The occupant has to
appear at the date of the hearing to prefer such a claim.
Section 42A does not indicate that the Court will have to
frame an issue. All that section says is that it has to
decide the question as a preliminary issue. The Act does
not indicate that there will be a preliminary hearing and a
final hearing thereafter. The Act does not say that there
will be a preliminary decree or a final decree. The words
"preliminary issue" are intended to lend meaning to the
provisions of the Act that before the applicant can obtain
an order for possession that preliminary issue which is
raised on contest between the applicant and the occupant
shall be decided. If the occupant does not take benefit of
section 42A of the 1882 Act by appearing and contesting the
applicant’s rights the occupant loses his rights.
Counsel for the respondent Deshpande submitted that this
Court should take notice of subsequent events. An
application was filed for relying upon certain documents for
that purpose. The respondent’s contention was that on 19
November, 1968 the respondent surrendered possession to the
original landlord Ashar and others and thereafter the
original landlords created a new and independent tenancy in
favour of the respondent. It was, therefore, said that the
appellant had no right to prosecute the application for
possession which gave rise to the present appeal.
The respondent Deshpande relied on these facts in the
affidavit. By lease dated 5 July, 1948 Pratap Singh
Karsandas Ashar
180
and Bai Ratnabai Gordhandas leased the property to M/s
Departmental Service Stores Limited for a period of 10 years
commencing 1 June, 1946 to 31 May, 1956. ’The lease
contained an option for renewal for a further term of 10
years from 1956. The Departmental Service Stores mortgaged
its rights, title and interests, for the remaining period of
lease on 13 August, 1951 to Dr. Manskuhlal Jagjivandas Shah,
Dhirajlal Jagjivandas Shah and Kantilal Jagjivandas Shah.
The Departmental Service Stores made default in payment of
the mortgaged money. The mortgagees, namely, the Shahs took
possession of the mortgaged property. The property was
auctioned on 9 December, 1953. Ramniklal & Co.., a
partnership firm, purchased the right, title and interest of
the mortgagees and obtained possession of the property. On
6 April, 1954 the property was conveyed by the mortgagees to
the auction purchaser. The original lessees, namely, the
Departmental Service Stores in 1954 filed a suit in the
Bombay High Court against the mortgagees and the auction
purchaser for setting aside the auction sale. On 2 August,
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1960 by consent of the parties an order was passed for
reconveyance of the property to the original lessees the
Departmental Service Stores. On 21. November, 1961 the
auction purchaser conveyed the property to the appellant.
On 24 December, 1965 Ashar and others filed a suit against
the Departmental Service Stores, the mortgagees, namely, the
Shah the auction purchaser and the appellant for possession
of the property. The suit filed by Ashar and others is
still pending in the Small Cause Court in. Bombay. In the
year 1965 about 18 Merchants occupying various shops in the
premises filed suits in the Court of Small Cause for
declaration that they are lawful sub-tenants., These suits
were filed against the appellant and Ashar and others. In
1966 the appellant filed about 52 short cause suits
restraining the merchants from entering into the shops. In
1967 Ashar and others the original landlords gave notice to
the Departmental Service Stores that the term of lease had
expired and that the ejectment suit filed in the year 1965
was pending and without prejudice to "accrued rights" served
notice under section 12 (2) of the 1947 Act on the ground of
arrears of statutory rent and property taxes. Ultimately,
Ashar and others filed a suit in 1968 against the appellant
on the ground of arrears of statutory rent and property
taxes from 1 October, 1966 to 30 June, 1967. An ex-parte
decree was passed on 21 March, 1968. An application for
setting aside the ex-parte decree was filed by the
Departmental Service Stores. On 7 September, 1968 a consent
order was passed to the effect that on the Departmental
Stores depositing in Court Rs. 28,000 by 6 November, 1968
the eex-parte decree was to be set aside and the suit was to
be placed
181
for new trial in default of which the notice for new trial
was discharged. The Departmental Stores failed to deposit
the amount. The notice was discharged and the ex-parte
decree was valid and operative on and after 7 November,
1968. Most of the occupants in the lease property
surrendered possession in pursuance of the warrant of
possession. It is in this context of events that the
respondent Deshpande says that on 19 November, 1968 he
surrendered possession to Ashar and other original landlords
and there was a new tenancy.
The appellant on the other hand in his affidavit alleged
these facts. M/s Ramniklal & Co. were declared the highest
bidder at the auction sale on 9 December, 1953. The auction
purchaser was accepted as a lessee by the lessors Ashar and
others. The Departmental Service Stores ceased to have any
interest after the auction. The auction purchaser became
tenant of the property. Ramniklal & Co. carried on the
business of Departmental Stores in the premises.
Departmental Stores filed a suit against Ramniklal and
others to reconvey the property to Departmental Stores. A
consent decree was passed that Ramniklal & Co. would convey
the business along with tenancy rights to Departmental
Service Stores Ltd. or their nominee. The appellant pur-
chased the rights under the consent terms on 25 August,
1960. In the suit filed in the year 1965 by Ashar and
others against inter alia the appellant, the lessors
obtained an ex-parte injunction preventing the appellant
from withholding the entry of the licensees of the
appellant. The term of the licensee was to expire on 31
December, 1965. Ashar and other,% and the licensees of the
appellant are in collusion. In the suits filed by the
appellant against the licensees in the City Civil Court to
prevent the entry of licensees to the property on the
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ground that the period of licence had expired by effluviums
of time, the Court did not grant any ’interim injunction
against the licensees but directed that the licensees should
deposit in Court the monthly compensation. ’Thereafter some
of the licensees of the appellant filed declaratory suits
that they were the tenants. The Small Cause Court passed an
order restraining the appellant from withholding the entry
of the licensees otherwise then by course of law.
Ashar and others in their suit filed in 1965 obtained an
injunction restraining the appellant from withdrawing the
amount lying deposited by the licensees in the City Civil
Court.
The appellant continued to pay rent to the lessor up to the
month of September, 1966. The lessor thereafter declined to
accept rent from the appellant. The lessor filed a suit
against the Departmental Service Stores Ltd. only for non-
payment of rent. An ex-parte decree was obtained by Ashar
and others on
182
21 March, 1968 The appellant was kept in the dark. An
application for setting aside the ex-parte decree was made
by one Gangnaik as Director of Departmental Stores Ltd. A
consent order was made. The ex-parte decree would be, set
aside on Departmental Service Stores Ltd. paying Rs. 28,000
within one month. Gangnaik is not the Director of the
Departmental Service Stores Ltd. The Departmental Service
Stores Ltd. had no interest in the property. The appellant
was neither a party to the suit nor to the consent order.
The consent order does not represent the consent of the
appellant. A warrant of possession was executed on 19
November, 1968 in collusion with the respondent and
licensees. The appellant lodged a complaint at the Dadar
Police Station. The appellant filed an application under
Order 21 Rule 100 of the Code of Civil Procedure in the
Court of the Small Cause at Bombay. The application was
dismissed. The appellant preferred a revision application
against the order. That revision application is pending.
The appellant also, filed a suit in the Bombay Small Cause
Court under Order 21 Rule 103 of the Code of Civil
Procedure. The suit is numbered 61/414/1971. The suit was
filed on 23 November, 1970. The suit is pending.
It is true that the Court can take notice of subsequent
events. These cases are where the court finds that because
of altered circumstances like devolution of interest it is
necessary to shorten litigation. Where the original relief
has become inappropriate by subsequent events, the Court can
take notice of such changes. If the court finds that the
judgment of the Court cannot be carried into effect because
of change of circumstances the Court takes notice of the
same. If the Court finds that the matter is no longer in
controversy the court also takes notice of such event. If
the property which is the subject matter of suit is no
longer available the Court will take notice of such event.
The court takes notice of subsequent events to shorten
litigation, to preserve rights of both the parties and to
subserve the ends of. justice. Judged by these principles
it is manifest that in the present case suits are pending.
On the one hand the appellant has challenged the decree
obtained by Ashar and others as also the warrant of
execution. On the other hand, the suit instituted by Ashar
and others against inter alia the appellant in 1965 for
possession is pending. This Court cannot say with
exactitude that any final decision has been reached on the
respective and rival rights and claims of the appellant and
the respondent. If is, therefore, neither desirable nor
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practicable to take notice of any fact on the rival versions
of the parties as to subsequent events.
For the reasons indicated the appeal is allowed and the
judgment of the High Court is set aside.
183
The High Court in view of the conclusion on section 42A of
the 1882 Act set aside the decree and chose not to deal
separately with the other application for setting aside the
ex-parte decree.
The High Court will now deal with the application for
setting aside the ex-parte decree. The parties will pay and
bear their own costs, in this appeal.
S.C. Appeal allowed.
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