- (1.) This is an appeal by special leave from the judgment dated 1 March, 1967 of Naik, J. of the High Court at Bombay allowing Civil Revision Application under Section 115 of the Code of Civil Procedure filed by the respondent Dr. Deshpande.
(2.) The principal question which falls for consideration in this appeal is the construction of Section 42A of the Presidency Small Cause Courts Act, 1882 (referred to as the 1882 Act) incorporated by Maharashtra Amendment Act 1963. The section is set out hereunder : "42A. Procedure where occupant contests as a lawful tenant, etc. - (1) If in any application pending in the Small Cause Court immediately before the date of the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963 (Mah. XLI of 1963) or made to it on or after such date, the occupant appears at the time appointed within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) and in consequence whereof he is entitled to the protection of that Act, and if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question shall be decided by the Small Cause Court as a preliminary issue. (2) An appeal against the decision on this issue shall lie to a bench of Two Judges of the Small Cause Court. (3) Every appeal under sub-section (2) shall be made within thirty days from the date of the decision appealed against : Provided that, in computing the period of limitation prescribed by this sub-section the provisions contained in Sections 4, 5 and 12 of the Indian Limitation Act, 1908 (IX of 1908) as far as may be, apply. (4) No further appeal shall lie against any decision in appeal under sub-section (2)".
(3.) Two questions arise for decision in this appeal. First, whether the word 'appears' occurring in S. 42A means appearance of the party in person or through someone at the date of the hearing. Secondly, whether the Small Cause Court is required to frame an issue as to whether the occupant is a tenant within the meaning of the Bombay Act of 1947 and is entitled to protection of that Act, and decide it as a preliminary issue, whether or not the contesting party appears before the Court at the date of the hearing.;