LAXMI & CO versus DR. ANANT R. DESHPANDE & ANR.

Citation: [1973] 2 S.C.R. 172 · Decided: 12-09-1972 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed

Judgment (excerpt)

172 
LAXMI&CO 
•• 
DR. ANANT R. DESHPANDE & ANR. 
September 12, 1972 
[A. N. RAY AND I. D. DUA, ]].] 
Presidency Small Cause Courts Act 1882 incorporated by Maharashtra 
Amendment Act 1963-S. 42A-Whetlrer trial Court should 
fr~ u 
preiiminary 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) pro,ides that : 
"If any application, pending in the Small Cause Court immediately 
before the date of the commencement of 1 he Presidency Small Cause 
Courts (Maharashtra Amendment) Act of 1963, or made to it on or 
.after such dale. the occupant appears at the time appointed within the 
meaning of the Bombay Rents, Hotel and Lodging Houses, Rates Con-
trol 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 •hall he 
.decided by the Small Cause Court as a preliminary issue." 
Two questions arme 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, who-
lber 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 dale of the hearing. Allowing the appeal. 
HELD : {i) S. 42 was introduced by the Maharashtra Amendment 
Act, which provided a special procedure, where oocupant 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 asking for posseMion, 
then the question shall be deciood 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 tha.! Act". The 
word "then" is prefaced by the preceding aspects; first, the occupant 
is to appear at the time appointed; 2nd. he is to claim that he is a 
tenant of the applicant within the· meaning of the 194 7 Act; !hirdly, ru, 
is lo claim that in consequence, he is entitled to the procction of the Act: 
fou•thly, 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 pre-
liminarv is..ue on the appointed dav irrespective of the appearance of 
the oocupant. 
In the present case. since the respondent did not appear 
at the date of hearing and claim the protection of the statute, he i• en-
titled to retain possession .of the said tenancy. 
CIVIL APPELLATE JURISDICTION : 
Civil '.Appeal No. 1036 
of 1967. 
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LAXMI & CO. V. DR. ANANT (Ray, ],) 
173 
Appeal by special leave from the judgment and order dated 
March 1, 1967 of the High Court at Bombay in Civ. Rev. Appli-
cation No. 64 of 1967. 
N. A. Mody, P. C. Bhartari, /. B. Dadachanji, 0. P. Mathur 
and Ravinder Narain, for the appellant. 
n 
V. S. Desai, Vilas V. Kamat, Y ogeshwar Prasad Tri and 
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[) 
E 
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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 : 
"A2A. Procedure where occupant con/esls as a lawful 
ienanl, e1c.-O) 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 t'he time appointed within the meaning of the 
Bombay Rents, Hotel 

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