After this Court dismissed the writ petition, it appears that the petitioner had amended the written statement wherein he has also raised among other things another issue that the suit is not maintainable. In short, even considering the aforesaid agreement as one for conducting the business, section 41 of the Presidency Small Cause Courts Act, 1882 cannot be invoked because the said section clearly expresses that it applies only to the immovable property.
The learned Counsel for the petitioner Mr. Desai has contended that having this Court interpreted the said agreement to be one for conducting the business, the Small Causes Court has no jurisdiction. 1 find substance in the contention. This Court has interpreted the agreement and found that what was agreed between the parties is for conducting the business of tailoring. Therefore, possession of the room has become consequential thing. It has become indivisible part of the contract that for conducting the business, occupation of the room is necessary. In view of this categorical finding of the courts below, which was confirmed by this Court in aforesaid Writ Petition No. 1728 of 1984, what has been contended by the learned Counsel for the petitioner is legal.
As I observed earlier, when this Court has found that the contract was for conducting the business, section 41 of the said Act cannot be invoked and the decree passed against the petitioner by the trial Court and confirmed by the Appellate Court, is only to be set aside.
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The learned Counsel for the petitioner Mr. Desai has contended that having this Court interpreted the said agreement to be one for conducting the business, the Small Causes Court has no jurisdiction. 1 find substance in the contention. This Court has interpreted the agreement and found that what was agreed between the parties is for conducting the business of tailoring. Therefore, possession of the room has become consequential thing. It has become indivisible part of the contract that for conducting the business, occupation of the room is necessary. In view of this categorical finding of the courts below, which was confirmed by this Court in aforesaid Writ Petition No. 1728 of 1984, what has been contended by the learned Counsel for the petitioner is legal.
As I observed earlier, when this Court has found that the contract was for conducting the business, section 41 of the said Act cannot be invoked and the decree passed against the petitioner by the trial Court and confirmed by the Appellate Court, is only to be set aside.
Bombay High Court
Smt. Anusuyabai Narayanro Ghate vs Smt. Maktumbi S. Nadaf on 17 February, 1999
Equivalent citations: 1999 (2) BomCR 374, 1999 (1) MhLj 836
Bench: T C Das
