41. Summons against person occupying property without leave.—When any person has had
possession of any immovable property situate within the local limits, of the Small Cause Court’s
jurisdiction and of which the annual value at a rack-rent does not exceed 2
[two] thousand rupees,
as the tenant, or by permission, of another person, or of some person through whom such other
person claims,
and such tenancy or permission has determined or been withdrawn,
and such tenant or occupier or any person holding under or by assignment from him (hereinafter called
the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf
by such other person,
such other person (hereinafter called the applicant) may apply to the Small Cause Court for a
summons against the occupant, calling upon him to show cause, on a day therein appointed, why he
should not be compelled to deliver up the property.
42. Service of summons.—The summons shall be served on the occupant in the manner
provided by the 1Code of Civil Procedure (14 of 1882) for the service of a summons on a defendant.
43. Order for possession.—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.
Explanation.—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.
44. Such order to justify bailiff entering on property and giving po ssession. Bar to
proceedings against Judge or officer for issuing, etc., order or summons.—Any such order
shall justify the bailiff to whom it is addressed in entering after the hour of six in the morning and before
the hour of six in the afternoon upon the property named therein, with such assistants, as he thinks
necessary, and giving possession of such property to the applicant; and no suit or prosecution shall be
1. See now the Code of Civil Procedure, 1908 (Act 5 of 1908).
2. Subs. by Act 9 of 1912, s. 2, for “one”.
16
maintainable against any Judge or officer of the Small Cause Court by whom any such order as aforesaid
was issued, or against any bailiff or other person by whom the same was executed, or by whom any such
summons as aforesaid was served, for the issue, execution or service of any such order or summons, by
reason only that the applicant was not entitled to the possession of the property.
45. Applicant, if entitled to possession, not to be deemed trespasser for any error in
proceedings. Occupant may sue for compensation.—When the applicant, at the time of
applying for any such order as aforesaid, was entitled to the possession of such property, neither he nor
any person acting in his behalf shall be deemed, on account of any error, defect or irregularity in the mode
of proceeding to obtain possession thereunder, to be a trespasser; but any person aggrieved may bring a
suit for the recovery of compensation for any damage which he has sustained by reason of such error,
defect or irregularity:
when no such damage is proved, the suit shall be dismissed; and when such damage is proved but the
amount of the compensation assessed by the Court does not exceed ten rupees, the Court shall award to
the plaintiff no more costs than compensation, unless the Judge who tries the case certifies that in his
opinion full costs should be awarded to the plaintiff.
46. Liability of applicant obtaining order when not entitled.—Nothing herein contained
shall be deemed to protect 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.
Application for order in such case an act of trespass.—And 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.
47. Stay of proceedings on occupant giving security to bring suit against
applicant.—Whenever on an application being made under section 41 the occupant binds himself, with
two sureties, in a bond for such amount as the Small Cause Court thinks reasonable, having regard to the
value of the property and the probable costs of the suit next hereinafter mentioned, to institute without
delay a suit in the High Court 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.
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.
Nothing contained in section 22 shall apply to suits under this section.
48. Proceedings to be regulated by Code of Civil Procedure.—In all proceedings under
this Chapter, the Small Cause Court shall, as far as may be and except as herein otherwise provided,
follow the procedure prescribed for a Court of first instance by the 1Code of Civil Procedure (14 of 1882).
49. Recovery of possession no bar to suit to try title.—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.
STATE AMENDMENT
Maharashtra
Substitution of Chapter VII of Act XV of 1882.—For Chapter VII of the principal Act, the
following Chapter shall be substituted, namely:--