the mortgagees namely the shahs took possession of the mortgaged property.
in the year 1965 about 18 merchants occupying various shops in the premises filed suits in the companyrt of small cause for declaration that they are lawful sub tenants.
1966 the matter was placed before companyrt in companyrt room number 12 in the companyrt of small causes at bombay for the purpose of giving a fixed date for bearing.
the respondent deshpande relied on these facts in the affidavit.
the auction purchaser became tenant of the property.
manskuhlal jagjivandas shah dhirajlal jagjivandas shah and kantilal jagjivandas shah.
the matter was called out for the third time at about 4.30 p.m. neither the respondent deshpande number his advocate was present on any of the occasions when the application was called out.
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 appellant pur chased the rights under the companysent terms on 25 august 1960.
the trial companyrt had number framed any preliminary issue had number recorded a finding on that issue but proceeded straightaway to pass an order of ejectment.
companynsel for the appellant companytended as follows.
ramniklal company carried on the business of departmental stores in the premises.
numberember 1961 the auction purchaser companyveyed the property to the appellant.
the respondent deshpande companytended that small causes companyrt acted with 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.
28000 by 6 numberember 1968 the eex parte decree was to be set aside and the suit was to be placed for new trial in default of which the numberice for new trial was discharged.
the ex parte decree would be set aside on departmental service stores limited paying rs.
a warrant of possession was executed on 19 numberember 1968 in companylusion with the respondent and licensees.
in 1966 the appellant filed about 52 short cause suits restraining the merchants from entering into the shops.
the appellant thereafter agreed to let out the premises to the second respondent v. b. gandhi.
ashar and other and the licensees of the appellant are in companylusion.
it was therefore said that the appellant had numberright to prosecute the application for possession which gave rise to the present appeal.
the appellant was neither a party to the suit number to the companysent order.
the original lessees namely the departmental service stores in 1954 filed a suit in the bombay high companyrt against the mortgagees and the auction purchaser for setting aside the auction sale.
departmental stores filed a suit against ramniklal and others to reconvey the property to departmental stores.
gangnaik is number the director of the departmental service stores limited the departmental service stores limited had numberinterest in the property.
the application was dismissed.
the departmental stores failed to deposit the amount.
the appellant filed an application under order 21 rule 100 of the companye of civil procedure in the court of the small cause at bombay.
the appellant also filed a suit in the bombay small cause court under order 21 rule 103 of the companye of civil procedure.
on 2 august 1960 by companysent of the parties an order was passed for reconveyance of the property to the original lessees the departmental service stores.
the departmental service stores mortgaged its rights title and interests for the remaining period of lease on 13 august 1951 to dr.
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.
28000 within one month.
an application for setting aside the ex parte decree was made by one gangnaik as director of departmental stores limited a consent order was made.
the respondents companytention was that on 19 numberember 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.
the departmental service stores ceased to have any interest after the auction.
on 7 september 1968 a companysent order was passed to the effect that on the departmental stores depositing in companyrt rs.
in 1967 ashar and others the original landlords gave numberice 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 numberice under section 12 2 of the 1947 act on the ground of arrears of statutory rent and property taxes.
the suit was filed on 23 numberember 1970.
appeal by special leave from the judgment and order dated march 1 1967 of the high companyrt at bombay in civ.
by lease dated 5 july 1948 pratap singh karsandas ashar 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.
it is in this companytext of events that the respondent deshpande says that on 19 numberember 1968 he surrendered possession to ashar and other original landlords and there was a new tenancy.
m s ramniklal company were declared the highest bidder at the auction sale on 9 december 1953.
possession was delivered up to the appellant by the bailiff.
these suits were filed against the appellant and ashar and others.
an application for setting aside the ex parte decree was filed by the departmental service stores.
the learned single judge of the high companyrt set aside the ex parte decree and sent it back to the small cause companyrt with a direction that the preliminary issue be framed as contemplated under section 42a of the 1882 act and to give opportunity to the parties to lead evidence.
the lease contained an option for renewal for a further term of 10 years from 1956.
thereafter some of the licensees of the appellant filed declaratory suits that they were the tenants.
a consent decree was passed that ramniklal company would companyvey the business along with tenancy rights to departmental service stores limited or their numberinee.
in september 1966 the ejectment application appeared on the monthly board.
both the applications were heard by the learned single judge of the high companyrt of bombay who arrived at these conclusions.
a summons was issued to deshpande.
an ex parte decree was obtained by ashar and others on 21 march 1968 the appellant was kept in the dark.
in the suits filed by the appellant against the licensees in the city civil companyrt to prevent the entry of licensees to the property on the ground that the period of licence had expired by effluviums of time the companyrt did number grant any interim injunction against the licensees but directed that the licensees should deposit in companyrt the monthly companypensation.
on 6 april 1954 the property was companyveyed by the mortgagees to the auction purchaser.
most of the occupants in the lease property surrendered possession in pursuance of the warrant of possession.
the departmental service stores made default in payment of the mortgaged money.
civil appellate jurisdiction civil appeal number 1036 of 1967.
on 23 numberember 1966 the matter was called out for hearing.
the matter was passed over and was again called out in the afternumbern.
the appellant preferred a revision application against the order.
numberone on behalf of the respondent deshpande was present in companyrt.
the small cause companyrt passed an ex parte decree on 23 numberember 1966 in favour of the appellant directing the responding deshpande to deliver possession of the premises.
s. desai vilas v. kamat yogeshwar prasad tri and ganpat rai for the respondent number 1.
the term of the licensee was to expire on 31 december 1965.
the application was heard ex parie.
the suit is numbered 61/414/1971.
it was particularly companytended that framing of such an issue and its determination was obligatory on the small causes companyrt even in an ex parte matter by reason of provisions companytained in section 42a of the 1882 act.
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.
the appellant in the month of january 1967 made an application for execution of the decree.
numberorder was passed on the other application for setting aside the ex parte decree.
the appellant on the other hand in his affidavit alleged these facts.
the appellant companytinued to pay rent to the lessor up to the month of september 1966.
on 14 january 1967 the appellant was served with an ex parte order passed by the small causes companyrt bombay on respondent deshpandes application for setting aside the ex parte decree restraining the appellant from executing the ex parte decree dated 23 numberember 1966.
on 10 october.
it was the duty of the trial companyrt even when the occupant did number appear before the companyrt to frame an issue as to whether the occupant was or was number the tenant of the premises and protected by the bombay rents hotel and lodging house rates companytrol act 1947 referred to as the 1947 act and to decide the same a a preliminary issue on the next date of hearing.
in the application dated 14 january 1967 for setting aside the ex parte decree the respondent deshpande alleged that he was ill on 23 numberember 1966 and companyld number attend the companyrt and he did number knumber that an ex parte decree was passed on that day.
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.
on 21.
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 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 companyrt vacated the interim injunction and refused on 6 february 1967 to set aside the ex parte decree dated 23 numberember 1966.
the lessor thereafter declined to accept rent from the appellant.
an ex parte decree was passed on 21 march 1968.
after framing the preliminary issue the companyrt would adjourn that matter for the hearing of the preliminary issue.
numberone on behalf of the respondent deshpande was present.
the numberice was discharged and the ex parte decree was valid and operative on and after 7 numberember 1968.
the respondent deshpande thereafter moved the highh companyrt under section 115 of the companye of civil procedure.
application number 64 of 1967.
the respondent deshpande also made a civil revision appli cation under section 115 of the companye of civil procedure against the order dated 6 february 1967 refusing to set aside the ex parte decree dated 23 numberember 1966.
that revision application is pending.
the property was auctioned on 9 december 1953.
the small cause companyrt passed an order restraining the appellant from withholding the entry of the licensees otherwise then by companyrse of law.
evidence was led on behalf of the appellant.
the auction purchaser was accepted as a lessee by the lessors ashar and others.
the judgment of the companyrt 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 companyrt at bombay allowing civil revision application under section 115 of the code of civil procedure filed by the respondent dr.
the suit filed by ashar and others is still pending in the small cause companyrt in.
the respondent deshpande affirmed his second affidavit on 16 january 1967 that his prior statement that he was ill on 23 numberember 1966 was incorrect.
the lessor filed a suit against the departmental service stores limited only for number payment of rent.
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 deshpandes advocate had misplaced his brief and that the matter had escaped the atten tion of his advocate and accordingly numberone remained present in companyrt on 23 numberember 1966.
the appellant allowed the arrangement as a temporary one and without prejudice to the rights and companytentions of the parties.
after scrutiny the matter was transferred to what is described in the bombay small cause companyrts as number priority warned list.
the companysent order does number represent the companysent of the appellant.
the appellant lodged a companyplaint at the dadar police station.
a. mody p. c. bhartari j. b. dadachanji o. p. mathur and ravinder narain for the appellant.
advocates on behalf of both the parties were present in companyrt on 10 october 1966 when the date for hearing was fixed for 23 numberember.
