Maya Singha & Anr vs Bharati Roy

Sabyasachi Bhattacharyya, J

Initially an objection as the maintainability of the application under Article 227 of the Constitution of India is taken by the opposite party on the ground that the impugned order is an appellable one.

In reply, learned counsel for the petitioners cites a judgment, reported at 75 CWN 314 (Dwarka Shaw vs. Ram Chabika Mishra), whereby a coordinate bench of this Court held that a proceeding under Section 41 of the Presidency Small Cause Courts Act is not a suit within the meaning of Section 38 of the Act and, as such, does not culminate in a decree.

Learned counsel for the petitioners further cites a judgment, reported at AIR 1953 SC 148 (Nalinakhya Bysack vs. Shyam Sunder Halder & Ors.), wherein it was reiterated that although under the rules framed under the Presidency Small Cause Courts Act, an application under Section 41 is initiated by a plaint, the proceeding is not a suit and the order for delivery of possession under Section 43 does not, strictly speaking, amount to a decree for recovery of possession. In this context, learned counsel also places the relevant provisions of the Presidency Small Cause Courts Act.

Being satisfied with the submission of the petitioners, the instant revisional application is entertained, since by the impugned order, the Presidency Small Cause Court adjudicated an application under Section 41 of the said Act and the impugned order would not be considered to be a decree but was an order.

On merits, it is submitted by learned counsel for the petitioners that the plaintiff/opposite party repeatedly admitted that the petitioners had forcibly occupied the suit premises, although the petitioners stuck to the stand that they were sub-tenants in respect thereof. As such, it is argued that the suit was one for eviction of trespassers, which the Small Causes Court did not have jurisdiction to entertain. Thus, the suit ought to have been filed in the City Civil Court and the impugned order was vitiated by lack of jurisdiction.

Learned counsel for the opposite party, on the other hand, places reliance on portions of the impugned order to show that the defendants were temporarily allowed to stay in the suit room as permissive users up to December, 2012 on the basis of leave and licence without any licence fees. However, thereafter, despite repeated persuasion, the defendants refused to leave the premises and, as such, the filing of the application under Section 41 of the Presidency Small Cause Courts Act was necessitated.

It is seen from the tenor of the pleadings as well as the evidence, read as a whole, that the defendants/petitioners failed to substantiate their case of sub-tenancy by any cogent document and, as such, the court below was justified on merits to pass the eviction order.

As far as the objection as to eviction of a trespasser being not maintainable under the Presidency Small Cause Courts Act, it is evident from a plain and meaningful reading of the plaint (under Section 41 of the Act) that the specific plaint case was that the defendants' occupation was permissive, which turned into unlawful occupation upon the plaintiff/opposite party having revoked such permission.

In such view of the matter, the objection as to the suit being not maintainable by the Presidency Small Causes Court, does not hold good.

Accordingly, C.O. No. 2526 of 2019 is dismissed on contest, without, however, any order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities.