Rajadhyaksha J. - (1.)This is an application in revision against an order passed by the Small Cause Court, Bombay, which has been referred to a Division Bench by Shah J. The applicant in this case was a trustee of the late Rao Bahadur Seth Karamsey Damji Sanatorium which is situated near the Wilson College, Chowpatty. The sanatorium has certain rooms which are let out for a period of one month at a time, and according to the rules of the trust no occupant of the room may remain on the premises for more than three months. The opponent Tulsidas applied for one of the rooms on the ground of illness and produced a medical certificate in support of his application. He was thereupon assigned Room No. 26 for one month from 11th July 1948. The period of occupany was extended first up to 10th September and then up to 10th October 1948. As the opponent failed to vacate the premises on 10th October inspite of his undertaking and the conditions for the use of the sanatorium, a notice was served upon him by the trustees requiring him to vacate. In defiance of this notice, the opponent continued to remain in occupation, and thereupon the trustees filed an application in the Small Cause Court, being Application No. 11080 of 1948, under Section 41, Small Cause Courts Act, slating that the opponent was in occupation purely by leave and license, and that the license had been revoked both by the undertaking he had given and by the notices served upon him. It appears that when the application came on for hearing on 18th November, the opponent's pleader gave an undertaking that Tulsidas would vacate the premises or come to a settlement with the trustees within on month thereafter. The proceedings were accordingly adjourned to 23rd December 1948, when an adjournment was again asked for and granted on the plea that the opponent would vacate the room before 18th January 1949, or, in the alternative, would submit to a decree to vacate the room on or before 28th February 1949. When the matter came on for hearing on 18th February 1949, an order was passed by the learned Judge of the Small Cause Court directing the opponent to restore possession of the room to the trustees on or before 18th May 1949. Two days before the period was to expire, i. e., on 16th May 1949, the opponent filed an application under Section 47, Presidency Small Cause Courts Act, asking that the proceedings for delivery of possession be stayed as he intended to file a suit as contemplated by that section. Accordingly on 6th June 1949, the order for execution was stayed, and 16 days' time was granted for filing the suit. On 21st June, time for filing the suit was extended, and notice of the application asking for a stay of the proceedings was served upon the trustees. It was contended on behalf of the trustees that the Court had no jurisdiction to stay the proceedings after an order had been passed under Section 43, and in support of this contention the judgment of Shah J. in Gopal Anant v. Anandrao, was produced. In that judgment Shah J. had expressed grave doubts as to whether after an order had been passed by the Court of Page 2 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC) Small Causes directing delivery of possession, any suit seeking an injunction for restraining execution of the order of the Small Cause Court could lie, and whether by reason of the intended filing of the suit, a stay of the proceedings could be asked for under Section 47. The learned Judge of the Small Cause Court, however, felt himself bound by a decision of Bavdekar J. in a civil revision application filed against the learned Judge's own judgment in an earlier case. That was in Bai Parvatibai v. Kesurdas, C. R. A. No. 827 of 1918, D/-5th April 1949 by Bavdekar J. In that judgment Bavdekar J. expressed his agreement with the view taken by the Madras High Court in Krishna Iyer v. Subramania Iyer, A. I. R. (10) 1923 Mad. 323: (72 I.C. 154) that an application under Section 47 for a stay of proceedings could be made even after an order had been passed under Section 43, Small Cause Courts Act. As the observations of Shah J. in Gopal Anant's case were mere obiter, the learned Judge of the Small Causes Court felt himself bound to follow the decision of Bavdekar J. Accordingly he held that he had no alternative but to stay execution of the warrant of possession until the suit for compensation for trespass intended to be filed by the opponent was disposed of. He accordingly directed that the execution be stayed pending the disposal of the suit by the Bombay City Civil Court. It is against this order that the applicant trustees came in revision. The revision application came on for hearing before Shah J. The advocates at the bar inform us that this application was not argued on merits before the learned Judge. But the learned Judge, adhering to his earlier views expressed in Gopal Anant's case has referred the application to a Division Bench for he considered that the question involved was an important one and also because the view which he was inclined to take was in conflict with the decision of Bavdekar J. in Bai Parvatibai v. Kessurdas (C.R.A. No. 827 of 1948 D/- 5-4-1949). In these circumstances the application has come before us foe disposal. In the referring judgment which he delivered on 9th September 1949, Shah J. expressed the view that:
"The right to obtain possession of premises, which are in the possession of an occupant within the meaning of Section 41, Presidency Small Cause Courts Act, must be decided at the original hearing of the summons and that adjudication by the Court under Section 43 must conclude as between the parties the existence or otherwise of such a right. The Court of Small Causes thereafter would be bound to execute the warrant issued in pursuance of the order, if any passed by the Court. The learned Judge thought that it would thereafter not be open to the occupant who has raised or must be deemed to have raised the contention to urge that the applicant was not entitled to obtain possession of the premises in dispute."
Mr. Shah J. was not disposed to accept the view expressed by Bavdekar J. and by the Madras High Court in the case referred to above, viz, that a suit instituted under Section 41 does not terminate on an order passed under Section 43. He thought that an order under Section 48 would be an adjudication in the nature of a decree, which could be enforced by taking proceedings in execution. He also expressed the view that the terms of Section 47, Presidency Page 3 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC) Small Cause Courts Act, and particularly para. 2 thereof, did not militate against the view which he was inclined to take.
(2.)In order to decide as to whether an application for a stay of the proceedings under Section 47 must be made before an order is passed under Section 43 (as is the view of Shah J.) or it can be made after such order is passed, (as is the view of Bavdekar J. and of the Madras High Court), we must have regard to the scheme of the Act. Chapter 7, Presidency Small Cause Courts Act provides a summary procedure by which a landlord may obtain possession of the premises in the occupation of a tenant if the conditions requisite for the making of an application are satisfied. These conditions are (1) that the immovable property must be within the local limits of the Small Cause Court's jurisdiction, (2) the annual value must not exceed Rs. 2,000, (3) the person sought to be evicted must be (a) the tenant or (b) in possession of the property by permission of another person or (c) an occupier, i.e., a person claiming under a tenant, or a permissive occupier, (4) the tenancy must have been determined or the permission to occupy must have been withdrawn, and (5) there must have been a request to the occupant to deliver up possession conveyed by means of a notice to quit by a particular date and his refusal to do so. If these conditions are satisfied then under Section 41 it is open to the applicant to ask for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. Section 42 describes how such a summons shall be served upon the occupant, and Section 43 lays down that
"If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Cause Court is satisfied that he is entitled to apply under Section 41, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order."
The Explanation to that section says that:
"If the occupant proves that the tenancy was created or permission granted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section."
Section 44 gives protection to the Judge who issued the order or to the officer of the Small Cause Court who executed it against any action, criminal or otherwise, on the ground only that the applicant was not entitled to the possession of the property. Section 45 says that the applicant is not to be deemed to be a trespasser merely for the reason that there has been some error, defect or irregularity in the mode of proceeding for obtaining possession; but the section refers to the right of any person aggrieved by an order under Section 43 to bring a suit for the recovery of compensation for any damage which he has sustained by reason of such error, defect or irregularity. Section 46 is an important one and has considerable bearing on the point which we have to decide. The first part of Section 46 says that: Page 4 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC)
"Nothing herein contained shall be deemed to project any applicant obtaining possession of any property under this chapter from a suit by any person deeming himself aggrieved thereby, when such applicant was not, at the time of applying for such order as aforesaid, entitled to the possession of such property." The second part of Section 46 reads as follows : "When the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant."
If the occupant intends to file a suit as contemplated by Section 46, then Section 47 says :
"Whenever on an application being made under Section 41 the occupant binds himself . . . . . to institute without delay a suit . . . . against the applicant for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of." Paragraph 2 of this section lays down that : "If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order (if any) made under Section 43." Finally Section 49 lays down that: "Recovery of the possession of any immovable property under this chapter shall be no bar to the institution of a suit in the . . . . High Court for trying the title thereto."

(3.)This being the scheme of the Act, the question arises whether the suit to be filed under Section 46 (by the intended filing of which suit a stay order may be obtained under Section 47), must be filed before or after an order has been passed under Section 43, Presidency Small Cause Courts Act. Mr. Kotwal who appeared on behalf of the applicant argued that Section 43 contemplates an order which has been passed in the absence of the occupant, i.e., an ex parte order, and that it is only the execution of such order that may be stayed by an application under Section 47, but that where an order has been passed after the appearance of the occupant in answer to the summons, then such an order must stand, and the execution of such order cannot be stayed under Section 47. We are not altogether clear as to what difference it should make in the jurisdiction of the Court to issue a stay order under Section 47, whether the order under Section 43 is an ex parte order or an order passed after the Page 5 of 11 Mathuradas Vassanji and Anr. vs. Tulsidas Damodar Ganatra (05.10.1949 - BOMHC) opponent has appeared in answer to the summons. The Court has or has not jurisdiction to order a stay under Section 47. But we see nothing in the terms of that section which would justify the distinction which Mr. Kotwal has attempted to draw. In any case, we think that Mr. Kotwal is not correct when he submits that under Section 43 only an ex parte order can be passed. He reads the first sentence of Section 43 as meaning that an order may be passed on the failure of the occupant to appear and show cause. But if that were the construction, then there is apparently no section, according to Mr. Kotwal, which would enable an order being passed after the opponent has appeared in answer to the summons. He argued that by reason of Section 48 of the Act, which directs the Small Cause Court to follow the procedure prescribed for a Court of the first instance by the Code of Civil Procedure, the Small Cause Court gets jurisdiction to pass an order after the opponent has appeared. We do not think that this submission is correct. The Court cannot get jurisdiction merely by reference to Section 48, which directs that the Court of Small Causes should follow the procedure prescribed by the Code of Civil Procedure, and, in our opinion, it must be held that an order under Section 43 may be passed both in the absence of the occupant and after he has appeared in answer to the summons, for there is no other section in this chapter of the Presidency Small Cause Courts Act which authorises the passing of an order after the occupant has appeared. The very explanation to that section makes it clear that it could not have been the intention of Section 43 merely to provide for orders passed in the absence of the occupant, for, that explanation says that if the occupant proves certain circumstances, he shall be deemed to have shown cause within the meaning of that section. This explanation clearly postulates appearance of the occupant in answer to the summons. Apart from this we have a clear authority of our own High Court for holding that under Section 43 orders may be passed both in the absence of the occupant and after he has appeared. In Jamshedji Hormusji v. Gordhandas Gokuldas, 45 Bom. 1048 : (A. I. R. (8) 1921 Bom. 201) it was held that :
"Although the section is not very well worded, it must include cases where the occupant does appear and fails to show cause to the summons or satisfy the Court that there are reasons for not making an order for possession."
We must, therefore, hold that under Section 43 orders for delivery of possession may be passed even after the opponent has appeared in reply to the summons.