SABAVVA KOM HANMAPPA SIMPIGER Vs. BASAPPA ANDANEPPA CHINIWAR
LAWS(BOM)-1954-9-21
HIGH COURT OF BOMBAY
Decided on September 30,1954

Sabavva Kom Hanmappa Simpiger Appellant
VERSUS
Basappa Andaneppa Chiniwar Respondents


Referred Judgements :-

MAHADEO PRASAD V. BINDESHRI PRASAD [REFERRED TO]
MUHAMMAD IBRAHIM KHAN V. AHMAD SAID KHAN [REFERRED TO]
KARASHIDDAYYA SHIDDAYYA V. SHREE GAJANAN URBAN CO -OPERATIVE BANK,LTD [REFERRED TO]
HARI GOVIND V. NARSINGRAO KONHERRAO [REFERRED TO]
HARI GOVIND V. NDRSINGRAO KONHERRAO [REFERRED TO]
MOHAMMAD IBRAHIM KHAN V. AHMAD SAID KHAN [REFERRED TO]
SADASHIV MAHADEO WALHEKAR VS. MAHOMED YAKUB MAHOMED SAIDULLA [REFERRED TO]



Cited Judgements :-

SADBUDHI BRAHMESH WAGH VS. SHEELA MAHABALESHWAR WAGH [LAWS(BOM)-2003-3-126] [REFERRED TO]


JUDGEMENT

DIXIT, J. - (1.)THIS second appeal raises a question under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The circumstances giving rise to the execution application in which the question arises are these.
(2.)ONE Sabavva Kom Hanmappa Simpiger, a resident of Muddebihal in the Bijapur District, is the owner of a shop situated in the Muddebihal town. The owner let out the shop to the two defendants upon a lease which commenced on November 11, 1949. The period of the lease expired on November 10, 1950. The annual rent reserved was a sum of Rs. 450. The tenants did not vacate the shop in accordance with the terms of the rent note and so a dispute arose between the parties. On November 16, 1950, the dispute was referred to arbitration and the arbitrators (panchas) after hearing the contentions of the parties gave an award on November 17, 1950.
A proceeding was then taken to file the award in the Court and the proceeding came to be numbered as Civil Suit No. 455 of 1950 on the file of the Court of the Civil Judge of Muddebihal at Muddebihal. On January 31, 1951, the Court passed a decree in terms of the award and the material terms of the decree were as follows: The defendants do make vahiwat of the suit shop...up to the 1st of Kartik Shuddha of the Shaka year 1874 (i.e. 19 -10 -1952 A.D.), as tenants on rent (and) thereafter deliver up possession of the plaintiff's shop to her. Clause 2 of the decree then provides for the payment of the amount of the rent on certain specified dates. Clause 3 is also material and it runs as follows: If the defendants fail to pay in time, the amount of any of the instalments as mentioned above, the plaintiff do recover at once the amount of the instalment in default and do take possession of the shop, at once and do make vahiwat thereof as owner. Clause 5 which is also material is in the following terms: At the time of giving up (possession of) the shop the defendants are not to raise any objection in any manner whatever. On October 22, 1952, the plaintiff -decree -holder filed an execution application to execute the decree and sought to recover possession of the property in suit. This application for execution was resisted by the defendants principally upon two grounds. Firstly, it was contended that the relief sought by the decree -holder for possession was contrary to the provisions of the Bombay Rent Control Act and, secondly, that the defendants -judgment -debtors were statutory tenants. The executing Court allowed the darkhast to proceed, holding that the decree was not contrary to law and that the judgment -debtors could not claim the benefit of Section 12(i) of the Bombay Rent Control Act. From this order the judgment -debtors appealed in the District Court, Bijapur, and the learned Assistant Judge allowed their appeal and dismissed the darkhast, holding that the decree passed by the Court on January 31, 1951, was without jurisdiction. From the appellate decree the plaintiff -decree -holder has come up in second appeal.

(3.)UPON this appeal, Mr. Datar for the appellant contends that the Court below was wrong in holding that the decree sought to be executed was one without jurisdiction. At the outest, it may be observed that two points were raised in the lower appellate Court. One of these was one relating to the question of jurisdiction and the other was about the judgment -debtors being contractual tenants. This latter question was rejected by the lower appellate Court and has not been repeated in this Court. The only question for decision, therefore, is whether the lower appellate Court was right in holding that the decree passed by the Court on January 31, 1951 was one without jurisdiction.


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