Judgment

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.

2. 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 1908) as far as may be, apply.

(4) No further appeal shall lie against any decision in appeal under sub-section (2)".

3. Two questions arise 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 is a tenant within the meaning of the Bombay Act of 1947 and is entitled to protection of that Act, and decide it as a preliminary issue, whether or not the contesting party appears before the Court at the date of the hearing.

4. 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 1-11-1952 a portion of the ground floor of the annexe 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.

5. The appellant filed an ejectment application on 23 July, 1964 against the respondent Deshpande under Chapter VII of the 1882 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 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 Co