Norman Macleod, Kt., C.J.
1. The petitioner in this case is the owner of a house at Kalbadevi. The opponent is a tenant. Before the Bombay Rent Act came into force the petitioner gave notice to the opponent to g& out of the premises rented by him as the front portion of the petitioner's premises had been notified by the Municipality for the purposes of a set-back. On the 6th February 1918, the petitioner got a decree directing possession of the shop to be given to the petitioner before the 31st July 1918. Meanwhile, the Bombay Rent Act came into force and the opponent applied to the Court to suspend the execution of the decree which had been passed. An order was made on the 23rd August 1918:
For the present I allow defendant ten months' time from today to vacate, reserving liberty to both parties to apply on expiration of the ten months. No execution without notice. I do not think the premises in suit come within the set-back and his intention to use it for himself seems only an excuse to get possession, set up on failure of his plea that premises were within set-back line.
2. When the ten months had expired the petitioner applied for possession, but an order was made 'execution of the original decree should be stayed until further order.' The Judge said:
The plaintiff has come forward first on a pretext that the Municipality are acquiring this portion of the house. When on inquiry that plea failed, he came forward with a plea that he required the shop for himself. Now he urges that defendant be called upon to vacate a portion as he, the plaintiff, is much inconvenienced in the shop he occupied at present. I do not see any good and valid grounds for ordering defendant to vacate at present.
3. In a similar case which came before a Bench of this Court it was decided that an order for a tenant to vacate within a certain time with liberty to apply was beyond the jurisdiction of the Small Cause Court as it was not in, compliance with Section 43 of the Presidency Small Cause Courts Act. Unfortunately in that case no reference was made to Section 10 of the Bombay Rent Act which gives the Court power, to rescind or vary its former order. In that case an order was made on the 8th May just after the Rent Act had come into force giving the tenant six months to find new premises with liberty to apply at the end of the period. It was held that that order was not in compliance with Section 43 of the Presidency Small Cause Courts Act, and that the Judge had exceeded his jurisdiction.
4. Under Section 10 of the Rent Act 'where any order of the kind mentioned in Section 9, Sub-section (1), (that is to say, an order for the recovery of possession) has been made but not executed before the commencement of this Act, the Court, by which the order was made may, if it is of opinion that the order would not have been made if the Act had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Act.' There does not seem any legitimate reason why the Court according to the provisions of Section 10 should not have told the parties that the decree should not be executed for ten months and then the parties might come before the Court, when the Court should decide whether the decree should be executed or not. But it seems to me that in this particular case the Courts have been obsessed with the idea that the landlord does not reasonably require the use of his premises, because before the Bombay Rent Act came into force, when he gave notice to his tenants, he said nothing about requiring the premises for his own use. There was no necessity whatever for him to give any reason at all why he (required the premises, so that is not a matter which the Court ought to take into consideration in the slightest degree. The only question which the Court has to consider is whether at the time the landlord seeks to eject a tenant he reasonably requires the premises for his own use. The case must go back to the lower Court to decide on the evidence, without any reference to what has been said in the past, whether at the present moment the landlord can satisfy the Court that he reasonably requires the premises for his own use. At present he occupies a space of a little over eighteen square feet in front of somebody else's shop, for which he pays a rent of Rs. 47 a month which puts a value on the land, estimated on these two square yards, at about Rs. 3,500 a square yard. In any event the photograph which has been produced here shows that the space is absolutely inadequate, and it does-seem clear that it is not the policy of the Act that a man should be kept out of his premises, if he shows good ground that he wants them for his own use. The case must go back to the lower Court for decision after the parties have had an opportunity of producing evidence. The costs will be costs in the cause. The case must go before another Judge.
Fawcett, J.
5. It is contended before us that the order staying execution of the original decree till further orders is without jurisdiction, and the judgment of this Court in Civil Extraordinary Application No. 137 of 1918 is relied upon in support of that contention. The present case, however, clearly falls under Section 10 of the Bombay Rent Act II of 1918, and is not governed by Section 43 of the Presidency Small Cause Courts Act, on which that judgment is based. Therefore, I can see no legal objection to the passing of an order varying the decree in the manner in which the Small Cause Court has done. It is contended that lie had already varied it by an order passed in August 1918, and therefore, he could not further vary it by the order complained of. But the doctrine that a power once having been exercised cannot be exercised again is one that in modern law has, I believe, been almost exploded, and in any case the provisions of Section 21 of the Bombay General Clauses Act, 1904, in my opinion, conclude any such contention. That Section provides inter alia that 'where, by any Bombay Act, a power to issue orders is conferred, then that power includes a power, exercisable in the like manner to add to, amend, vary or rescind any orders so issued.' So that, after having passed an order of variance under the power conferred by Section 10, the Court still has power to add to, amend, vary or rescind any such order, subject of course to any provisions in the Civil Procedure Code or Presidency Small Causes Court Act to the contrary. I agree, however, that the learned Judge has not properly exercised the jurisdiction vested in him under Sub-section (2) of Section 9 of the Bombay Rent Act in deciding whether the premises are reasonably and bona fide required by the landlord. He has dismissed the landlord's allegation that he does so require the premises on the ground that he was very late in setting up that plea. He practically treats this as an estoppel, and has not considered the case on its merits. I think, therefore, that he has failed to exercise a jurisdiction which is vested in him by the law. Accordingly we are justified in interfering under Section 115 of the Civil Procedure Code to the extent of requiring him properly to consider the case on its merits.