advocatemmmohan
just another law knowledge bank
Small Causes Court
Sec.466 Company Act – permission of company court for eviction suit against a winding up company from a leased premises – earlier orders when not on merit – a subsequent order granting permission for filing eviction suit – Reversed by D.B. bench on the point of resjudicate – Apex court allowed the appeal and set aside the D.B. bench holding that there is no Res-judicata = Erach Boman Khavar … Appellant Versus Tukaram Shridhar Bhat and another …Respondents = Published in / Cited in / Reported in judis.nic.in/supremecourt/filename=41074
Sec.466 Company Act – permission of company court for eviction suit against a winding up company from a leased premises – earlier orders when not on merit – a subsequent order granting permission for filing eviction suit – Reversed by D.B. bench on the point of resjudicate – Apex court allowed the appeal … Continue reading
JURISDICTION OF SMALL CAUSE COURTS IN EVICTING GRATUITOUS LICENSEE = i) Whether the expression “Licensee” used in section 41(1) in Chapter VII of PSCC Act, not having been defined therein, would derive its meaning from the expression “licensee” as used in sub- section (4A) of section 5 of the Rent Act and/or whether the expression “licensee” used in section 41(1) of PSCC Act is a term of wider import so as to mean and include a “gratuitous licensee” also? ii) Whether a suit by a “licensor” against a “gratuitous licensee” is tenable before the Presidency Small Cause Court under section 41 of PSCC Act? = whether a suit filed by a licensor against a gratuitous licensee under Section 41(1) of the Presidency Small Causes Courts Act, 1882 (for short “the PSCC Act”), as amended by the Maharashtra Act No.XIX of 1976 (for short “1976 Amendment Act”) is maintainable before a Small Causes Court, Mumbai. 3. The Division Bench of the Bombay High Court in Ramesh Dwarikadas Mehra v. Indirawati Dwarika Das Mehra (AIR 2001 Bombay 470) held that a suit by a licensor against a gratuitous licensee is not tenable before the Presidency Small Causes Court under Section 41 (1) of the PSCC Act, and it should be filed before the City Civil Court or the High Court depending upon the valuation. The Division Bench held that the expression “licensee” used in Section 41(1) of the PSCC Act has the same meaning as in Section 5 (4A) of the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 (in short “the Rent Act”). Further it was held that the expression “licensee” as used in Section 5(4A) does not cover a gratuitous licensee. The Division Bench in that case rejected the ejectment application holding that the Small Causes Court at Bombay lacked jurisdiction. We are of the view that in such a situation the court also should give a liberal construction and attempt should be to achieve the purpose and object of the legislature and not to frustrate it. In such circumstances, we are of the considered opinion that the expression licensee employed in Section 41 is used in general sense of term as defined in Section 52 of the Indian Easement Act. 52. We have elaborately discussed the various legal principles and indicated that the expression ‘licensee’ in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression ‘licensee’ used in the PSCC Act does not derive its meaning from the expression ‘licensee’ as used in Sub-section (4A) of Section 5 of the Rent Act and that the expression “licensee” used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well. 53. We are, therefore, in complete agreement with the reasoning of the Full Bench of the High Court. In such circumstances, the appeals lack merits and are, therefore, dismissed. There is no order as to costs.
PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40640 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 6726-6727 OF 2013 (Arising out of SLP (Civil) NO.20763-764 OF 2007) Prabhudas Damodar Kotecha & Ors. …. Appellants v. Manhabala Jeram Damodar & Anr. …Respondents J U D G M E N T K. … Continue reading
Revision powers in rent control cases = (1) What is the scope and ambit of the power of revision under section 34(4) of the Maharashtra Rent Control Act, 1999 ? (2) Whether a revision application under section 34(4) of the Maharashtra Rent Control Act, 1999 would be maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of the Maharashtra Rent Control Act ?= For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party’s case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.= Following are instances of revisable orders. (i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law (ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC (iii) an order allowing or rejecting an application for a declaration that the suit has abated (iv) an order refusing to extend the time for filing a written statement (v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law This list is illustrative and not exhaustive.- Following are instances of orders which would not be revisable orders:- (i) an order granting leave to amend plaint or written statement (ii) an order granting extension of time to file written statement (iii) an order raising additional issue (iv) an order made for production of documents or discovery or inspection. (v) an order directing a plaintiff/defendant to furnish better and further particulars (vi) an order issuing or refusing to issue a commission for examination of witnesses (vii) an order issuing or refusing to issue summons for additional witness or document (viii) an order condoning delay in filing documents, after the first date of hearing. (ix) an order of costs to one of the parties for its default (x) an order granting or refusing an adjournment (xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC This list is also illustrative and not exhaustive. 88. As regards question No.1 about scope and ambit of power of revision under Section 34(4) of the Maharashtra Rent Control Act, 1999, our answer is that after the revisional Court is satisfied about maintainability of the revision application, the revisional Court will consider whether the impugned order is according to law. However, “according to law” refers to the order as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be , if there is a miscarriage of justice due to mistake of law. = As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular. reported/published in http://bombayhighcourt.nic.in/judgements/2013/&fname=CWP2932810.=N
Bombay High Court WP-9562-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9562 OF 2010 Bhartiben Shah, R/o.Rasik Niwas, `F’ Road, Marine Lines, Mumbai-400002. .. Petitioner versus Smt.Gracy Thomas and others .. Respondents Mr. Vikram Goel a/w Ashok K. Goel for petitioner. Mr. Y.E. Mooman a/w Manisha B. … Continue reading
“Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a “life interest”, through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a “life interest”, it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title.” ; so far as the court of first instance is concerned, and that the respondent was not the party before the said court. Permitting an application under Order IX Rule 13 CPC by a non-party, would amount to adding a party to the case, which is provided for under Order I Rule 10 CPC, or setting aside the ex-parte judgment and decree, i.e. seeking a declaration that the decree is null and void for any reason, which can be sought independently by such a party. In the instant case, as the fraud, if any, as alleged, has been committed upon a party, and not upon the court, the same is not a case where Section 151 CPC could be resorted to by the court, to rectify a mistake, if any was made.; See also: Kothamasu Kanakarathamma & Ors. v. State of Andhra Pradesh & Ors., AIR 1965 SC304) It is evident from the above, that a person who has not made an application before the Land Acquisition Collector, for making a reference under Section 18 or 30 of the Act, 1894, cannot get himself impleaded directly before the Reference Court.; In view of the above, the legal issues involved herein, can be summarised as under:- (i) An application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings; (ii) Inherent powers under Section 151 CPC can be exercised by the Court to redress only such a grievance, for which no remedy is provided for under the CPC; (iii) In the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate court; (iv) Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a 33Page 34 party has the right to get the said judgment or order set aside, by filing an independent suit. (v) A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Act, 1894, but cannot make an application for impleadment or apportionment before the Reference Court. 21. The instant case has been examined in light of the aforesaid legal propositions. We are of the considered opinion that the impugned judgment and order of the High Court cannot be sustained in the eyes of law, and is hence liable to be set aside. In view of the above, the appeals succeed and are allowed. The judgment and order impugned herein are set aside. The respondents are at liberty to seek appropriate remedy, by resorting to appropriate proceedings, as permissible in law.
Page 1REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO.629 of 2004Ramji Gupta & Anr. … AppellantsVersusGopi Krishan Agrawal (D) & Ors. … RespondentsWith CIVIL APPEAL NO. 630 of 2004J U D G M E N TDr. B.S. Chauhan, J.C.A. No.629 of 20041. This appeal has been preferred against the judgment and orderdated 6.9.2002, passed … Continue reading
advocatemmmohan 