Section 41 of the Presidency Small Cause Courts Act, 1882, applies to all tenants, including those claiming tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and a suit for a declaration of tenancy under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is not barred by section 49 of the Presidency Small Cause Courts Act, 1882.

Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41 - TENANT OF THE APPLICANT - INTERPRETATION - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947 - SECTION 5(11)(C) - TENANCY BY OPERATION OF LAW - WHETHER BARRED BY SECTION 49 OF THE PRESIDENCY SMALL CAUSE COURTS ACT, 1882.
Fact of the Case:

The petitioner instituted a suit for a declaration that he is the tenant of the suit premises, based on section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The respondents, as the legal representatives of the deceased tenant, contended that the suit was barred by section 49 of the Presidency Small Cause Courts Act, 1882, as the petitioner had previously been evicted from the premises under section 41 of the same Act.
Finding of the Court:

The Court held that the suit was not barred by section 49 of the Presidency Small Cause Courts Act, 1882, as section 41 of the Act applied to all tenants, including those claiming tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Court further held that the order of eviction made under section 41 was valid, as the petitioner was a person who claimed through the deceased tenant and the tenancy had been impliedly terminated.
Issues: 1. Whether section 41 of the Presidency Small Cause Courts Act, 1882, applies to tenants by operation of law, such as those under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947? 2. Whether a suit for a declaration of tenancy under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is barred by section 49 of the Presidency Small Cause Courts Act, 1882?
Ratio Decidendi: 1. Section 41 of the Presidency Small Cause Courts Act, 1882, applies to all tenants, including those claiming tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This is clear from the fact that section 42-A of the Act enables the occupant to raise a claim of tenancy not only contractual but all claims of tenancy arising out of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Such claim is required to be raised in the application under section 41 which employs the words "tenant of the applicant". Therefore, it cannot be said that the legislature intended that section 41 excludes tenancy by operation of law as under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act or the statutory tenancy which is a creature of this Act. 2. A suit for a declaration of tenancy under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is not barred by section 49 of the Presidency Small Cause Courts Act, 1882. Section 49 bars suits to establish title as tenant, but it creates a solitary exception to this bar. The exception is that a suit in which "relief is claimed on the basis of title (other than title as the applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947)" shall not be barred.
Final Decision: The petition was dismissed, and the rule was discharged with costs. The ad-interim relief granted to the petitioner was continued until 31st May 1990, subject to the petitioner filing a written undertaking to vacate the premises in suit on or before that date.

JUDGMENT - G.H. GUTTAL, J.:---The petitioner instituted R.A. Declaratory Suit No. 5293 of 1971 in the Court of Small Causes, Bombay, for a declaration that he is the tenant of the Room No. 3/2, Street No. 18, Cadel Road, Dadar, Bombay. The respondents, as the legal representatives of a Ramchandra Kowli, are the owners of the building. The petitioner's claim is based on section 5(11)(c) of the Bombay Rents, Hotel and Loding House Rates Control Act, 1947, hereinafter referred to as "the Bombay Rent Act". According to him, he was residing with the deceased tenant Tukaram Achrekar as his heir from 1957 to 2nd August, 1966 when the latter died. The trial Judge, by his judgment dated 31-1-1981, decreed the claim. In Appeal No. 190 of 1981, the Appellate Bench of the Court of Small Causes reversed the decree and dismissed the suit. The decree of the Appellate Bench is impugned in this petition. In this judgment, the petitioner is referred to as the plaintiff", the respondents as "the Defendants" and the deceased tenant Tukaram as "Achrekar".

2. The facts necessary for decision of the questions arising in this petition are these.

Achrekar was the admitted tenant of the suit premises. He died in Bombay on 2nd August, 1966. The plaintiff claims to be the son of Achrekar's sister and contends that he was living with Achrekar at the time of his death.

The oral evidence let at the trial consists of the testimony of the plaintiff and three witnesses. Shah (P.W. 1) is a grocer having a shop in the adjoining Room No. 2. Revdankar (P.W. 2), a Rationing Officer, was examined to prove the application for ration card made by the petitioner. Sapre (P.W. 3) is engaged in the business of photography and was examined to prove the signature of the plaintiff on the ration card (Exh. 'A'). The Defendants examined Ramchandra Kowli, the owner and the deceased father of the Defendants. The documentary evidence consists of Ration Card (Exh. 'A'), School Leaving Certificate (Exh. 'F') Correspondence (Exh. 'G'), Order of plaintiff's externment from Bombay (Exh. 'K') Eleztorol Roll (Exh. 6), Letter dated 10-4-1962 (Exh.'J') addressed to the plaintiff by the Life Insurance Corporation of India to prove the plaintiff's residence at the suit premises, Electricity Bills (Exh. 'E') and so on.

3. There was a previous proceeding between the parties to which a reference is necessary as the main point urged in the petition depends upon the effect of those proceedings.

The owner R.D. Kowli filed Ejectment Application bearing No. E/944 of 1966 (Exh. 17) against the plaintiff under section 41 of the Presidency Small Cause Courts Act (for short 'the P.S.C.C. Act') 1882. The plaintiff appeared through an advocate but led no evidence. His advocate advanced arguments. The Court allowed the application and made a decree of eviction against the petitioner under section 41 of the P.S.C.C. Act.

4. The Appellate Bench of the Court of Small Causes whose decree is impugned in this petition, made two findings :

(i) Under section 49 of the P.S.C.C. Act, once an order of eviction under section 41 is made, the respondent to such application is precluded from bringing any suit except a suit to establish his title other than the title "as the Applicant's tenant within the meaning of the Bombay Rent Act". Therefore, the suit based on title under section 5(11)(c) is barred by reason of section 40 of the P.S.C.C. Act.

(ii) There is no evidence to prove that the plaintiff was residing with Achrekar on 2-8-1966 when the latter died and, therefore, he cannot claim tenancy under section 5(11)(c) of the Bombay Rent Act.

5. The principal question is whether the suit is barred by reason of section 49 of the P.S.C.C. Act or under the principles of res judicata. In order to appreciate the arguments, it is necessary to set out relevant provisions of the Act.

The Presidency Small Cause Courts Act, 1882 (Act XV of 1882) has undergone far-reaching changes, as the amendments introduced by various amendin

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1989 Supreme(Bom) 330

Cases Referred (2)