The duty of the Small Causes Court to ensure fair play in the trial and the importance of following due process of law in eviction cases.

Headnote:
JUDGMENT - EVICTION - [PRESIDENCY SMALL CAUSES COURTS ACT, 1882, SECTIONS 41-49, 19-A, 20, 24, 94] - The judgment discusses the eviction of the petitioners from a plot of land and the legal provisions of the Presidency Small Causes Courts Act, 1882. It highlights the duty of the Small Causes Court to ensure that the party filing the petition comes with clean hands and offers all necessary averments for getting an order or a decree, and the importance of following due process of law in eviction cases.
Fact of the Case:

The Port Trust sought eviction of the petitioners from a plot of land. The petitioners resisted the execution of the eviction order, leading to a series of legal proceedings. The court considered the possession of the premises, the delay in filing the eviction petition, and the duty of the Small Causes Court to ensure fair play in the trial.
Finding of the Court:

The court found that the petitioners were in possession of the property prior to the quit notice sent to the heirs of the original tenant. It also found that the Port Trust failed to request the petitioners to hand over possession, leading to a miscarriage of justice.
Issues: The issues revolved around the possession of the premises, the duty of the Small Causes Court to ensure fair play in the trial, and the failure of the Port Trust to follow due process of law in seeking eviction.
Ratio Decidendi: The court emphasized the duty of the Small Causes Court to ensure that the party filing the petition comes with clean hands and offers all necessary averments for getting an order or a decree, and the importance of following due process of law in eviction cases.
Final Decision: The court quashed the eviction order, finding it improper, illegal, and a miscarriage of justice. It set aside the order and allowed the petition with costs, directing the Port Trust to issue a fresh request notice to the petitioners and the heirs of the original tenant if they desired to initiate a proceeding against them.

JUGDMENT - CHITRE J.G., J.:---The appellants who were original obstructionists Nos. 1, 2 and 3 in Obstructionist Notice No. 17 of 89 connected with Eviction Application No. 79/351 of 75 are hereby invoking the jurisdiction and authority of the High Court in view of Articles 226 and 227 of the Constitution of India for assailing the judgment and order passed by Small Cause Court in EA No. 79/351 of 75 and Appeal No. 109 of 1993-Obstructionist Notice No. 17 of 89, for quashing those orders, the result of which was the eviction of the petitioners from plot of land bearing old RR No. 1520, Gamadia Road, Elphinstone Estate, Bombay. As per the case of the Board of Trustees of the Port of Bombay (hereinafter referred to as Port Trust for convenience) they own the said plot which was given to Lakhamashi Ghelabhai initially on a lease in 1941. The said lease expired by efflux of time. However, L.Rs. of Lakhamashi Ghelabhai remained in possession of the said property. Their predecessors in title had constructed a godown which was in occupation and use of the heirs of Lakhamashi Ghelabhai till notice of eviction was issued to them dated 3-4-1974. A request therein was made to those L.Rs., namely, Ratanben, Vasanbhai, Mulchandabhai, Dhanjibai, Virendrabhai and Premji Ghelabhai claiming the possession of the said plot as well as the said godown. Those L.Rs. did not reply to the said notice and, therefore, the Port Trust was constrained to file the eviction application in Small Cause Court in view of provisions of section 41 of the Presidency Small Causes Courts Act, 1882 (hereinafter referred to as the Act for convenience). The evidence was adduced by the Port Trust. The learned Judge of Small Causes Court passed the order in favour of the Port Trust directing that the above mentioned persons be evicted from the premises. The said order was put to execution.

2. When the said order was being executed, the obstructionists, the present petitioners, resisted the said execution and did not hand over the vacant possession of the premises. They moved Obstructionist Notice No. 17 of 1989 which was decided against them by the Single Bench of Small Causes Court. They preferred the appeal against that before the Division Bench of Small Causes Court bearing Appeal No. 109 of 1993. It was also dismissed. Therefore this writ petition.

3. Number of points have been urged before this Court for justifying the contentions of rival parties by their Counsel and that needs churning of the entire controversy and the points revolving around the said controversy. It was argued on behalf of the obstructionists, the present petitioners, that the Port Trust adopted a fraudulent attitude for the purposes of keeping in dark the petitioners and evicting them by taking the help of provisions of section 41 of the Act. It was countered by the Port Trust by submitting that the obstructionists, the present petitioners, cannot go beyond the said order which assumes the form of a decree when that was put to execution and, therefore, the question whether the present petitioners should have been impleaded as parties in the said petition for eviction or whether a notice should have been issued against them requesting them to hand over the possession arise for adjudication. It was also the point for debate as to when the present petitioners were in possession of the said premises. Whether they were in possession of the said premises prior to quit notice sent to the heirs of Lakhamashi Ghelabhai, whether they were in possession of the premises after the quit notice was issued but before the suit was filed (eviction petition was filed). Prima facie it appears that both the sides are having some infirmities, may be on account of negligence, may be on account of the smartness shown in the battle of litigation tantamounting to shrewdness. That necessitates a consideration whether these stances adopted by the rival litigants were the mistakes or callousness, negligence or mala fide trick

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