Skip to content


Habib Ahmed Khudabax Vs. Abdul Kabur Rehmanji Godiwala and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 431 of 1972
Judge
Reported inAIR1975Bom41; (1974)76BOMLR427; 1974MhLJ812
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28 and 29; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 98
AppellantHabib Ahmed Khudabax
RespondentAbdul Kabur Rehmanji Godiwala and ors.
Appellant AdvocateV.O. Meghani, Adv.
Respondent AdvocateJ.M. Ratnani and ;C.R. Menon, Advs.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 28(1) - bombay rents, hotel and lodging house rates control rules, 1948, rules 5, 8--civil procedure code (act v of 1908), order xxi, rule 98--order made by single judge of presidency small causes court under order xxi, rule 98 of code in execution of decree for ejectment passed under section 28(1) of bombay rent act--whether appeal lies to bench of that court against such order.;an appeal lies to the bench of the presidency small causes court at bombay from an order made by a single judge of that court under order xxi, rule 98 of the civil procedure code, 1908, in execution of a decree for ejectment passed under section 28(1) of the bombay rents, hotel and lodging house rates control act, 1947.;v.m......nathwani, j.1. this revision application by one habib ahmad khudabax who had obtained by the ist respondent against the 2nd respondent is referred to a division bench by mr., justice vimadlal as he tough that there was a conflict of decisions of single judges of this court on the point, namely, whether an appeal lies at a bench of the presidency small cause court at bombay from an order made by a single judge of that court under order xxi, rule 98 of the code of civil procedure. 2. the first respondent is the owner of a property situate at victoria garden second respondent was a monthly tenant of a shop on the ground floor of the said property at a rent of rs.50/-per month. in 1962 the first respondent ( original plaintiff) filed a suit , r.a.e. suit no. 257 of 1962 against the second.....
Judgment:

Nathwani, J.

1. This Revision Application by one Habib Ahmad Khudabax who had obtained by the Ist respondent against the 2nd respondent is referred to a Division Bench by Mr., Justice Vimadlal as he tough that there was a conflict of decisions of single judges of this Court on the point, namely, whether an appeal lies at a Bench of the Presidency small Cause Court at Bombay from an order made by a single judge of that Court under Order XXI, Rule 98 of the Code of Civil Procedure.

2. The first respondent is the owner of a property situate at Victoria Garden second respondent was a monthly tenant of a shop on the ground floor of the said property at a rent of Rs.50/-Per month. In 1962 the first respondent ( original plaintiff) filed a suit , R.A.E. Suit No. 257 of 1962 against the second respondent to recover possession of the said shop in the Small (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (No.LVII of 1947), (hereinafter refereed to as the Rent Act), and April 1965 . Second respondent's appeal to a Bench of the Court of Small Causes against the said decree was dismissed on the 25th February 1969. In November 1971, the first respondent started execution proceeding in the Small Causes Court recover possession of the suit premises. As the present petitioner and his mother , the third respondent, obstructed the execution, the first respondent took out an obstructionist notice. On the 17th February 1972 a single Judge of the Small causes Court to passed an Order under Order XXI Rule 98 of the Code of Civil Procedure, directing the first respondent to be put into possession of the said shop. An appeal preferred by the present petitioner against the said order to a Bench of the Court of Small Causes was dismissed on the 14th July 194 2 on the ground that the said order was petitioner has preferred this revision application.

3. In order to decide the point, it is necessary to refer to relevant provisions of law and rules. The Small Causes Court in Bombay is established under the Presidency Small Cause Court Act, 1882 ( here in after referred to a the Small Cause Courts Act.) . Chapter IV containing Section 18 to 22 defines the jurisdiction of the Small Cases Court. Section 18 restricts it to suits of Civil nature when the amount or value of the subject -matter does not exceed Rupees 3,000 /- and section 19 specifies suits in which the Court shall have no jurisdiction. Chapter V containing Section 23 to 36 lays down the procedure in suits cognisable by the Small Cause Court . Chapter VI contrails. Section 37 to 40 provides for new trial of contested cases. Chapter VII contained Sections 41 to 49 prior to the Maharashtra Amending Act No. XLI of 1963 dealt with recover of possession of immovable property. Chapter VIII provides for issue of distress warrant to recover arrears of rent.

4. Section 8 of the civil procedure Code , 1908 lays down that saves as provided Code and by the presidency Small Causes not court of Small Causes, provided, however that the High court may direct that any such provision with such modification and adaptation 9 of the small Causes Courts act also empowers the High Court to frame rules and prescribes the procedure to be followed by the court of small causes . Accordingly, in exercise of its powers conferred as aforesaid the High Court of Bombay has framed rules known as the presidency Small causes court rules , Bombay . rule 1 (2) applies to Code of Civil procedure with its Firsts Schedule, and the procedure prescribed thereby is the procedure to be followed in the Small Cause Court in all suits cognisable by it, except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Small Cause Courts Act.

5. The Rent Act of 1947 which repealed the Bombay Rent Restriction Act, 1939, came into force in Greater Bombay on 13th February 1948. By Section 28(1) of the Rent Act exclusively jurisdiction in Greater Bombay was conferred on the Bombay Small Cause Court to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part II apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions. There is an explanation to the said Section 28 which is referred to later. Section 29 provides for appeal and review from a decree or order made by the Court of Small Causes exercising jurisdiction under Section 28 to a Bench of two Judges of the said Court in Greater Bombay. Two provisos were added to the Section 29(1) by Bombay Act No.61 of 1953 which are considered hereinafter. Section 31 is important and reads as follows:-

'31. The Courts specified in Sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications, and appeals and in executing orders made by them.'

6. Section 49 confers rule making powers on the State Government. Subclause (iii) of Section 49(2) is material and says as under:-

'the procedure to be followed in trying or hearing suits, proceedings, (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of Orders:'

In exercise of the powers conferred on it the State Government has made rules known as Bombay Rents. Hotel and Lodging House Rates Control Rules, 1948 (hereinafter referred to as the Rent Control Rules). Rules 5, 7 (part) and 8 of the said Rules read as follows:-

'5. Procedure for suit, the value of the subject-matter of which does not exceed Rs.3,000/- and for proceedings for execution of decrees and orders passed therein and for distress warrants: - In such of the following suits and proceedings as are cognisable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely:-

(1) suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount or value of the subject-matter does not exceed Rs. 3,000/-.

(2) Proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and

(3) proceedings for extention of any decree or order passed in any such suit or proceeding

the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chap. VI thereof, and (b) in the rules made under Section 9 of the said Act.

7. (in so far as in material): Procedure in application for fixing standard rent. Court of Small Causes, Bombay shall follow, as far as may be and with the necessary modifications, the practice and procedure applicable to suits referred to in Rule 5 as it such applications were suits for sums not exceeding Rs. 1,000/-.

8. Procedure for other suits:- In suits and proceedings other than those referred to in Rules 5 and 7 the Court of Small Causes, Bombay, shall as far as may be and with necessary modifications follow the procedure prescribed for a Court of first instance by the Code including Or. XXXVII as modified in its application to the State of Bombay .....'

There is a proviso but it is not material for the present purpose.

7. From the provisions of Sections 28(1) and 29(1) it will be seen that the Rent Act confers exclusive and complete jurisdiction on the Bombay Small Causes Court to entertain and try suits and other proceedings specified in Section 28(1). Section 29 gives right of appeal and revision from a decree or order made by the Court exercising jurisdiction under Section 28. It is also important to notice here that Section 31 enjoins upon the Court to follow the prescribed procedure trying and hearing suits, proceedings etc. Therefore, the Court of first instance which hears the matters specified in Section 28(1) must follow the procedure prescribed by the Rent Rules, i.e. Rules 5,7 or 8 according to the nature and amount or value of the subject matter involved.

8. Now in considering whether the Order made on 17-2-72 under Order XXI. Rule 98 in the present case is appealable, the first question to be considered is whether in passing the said order the trial Judge was exercising jurisdiction under Section 28(1). Apart from any authorities to which we shall presently refer, the Bombay Small Causes Court has jurisdiction under Section Section 28(1), inter alia to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of possession of any premises to which the Rent Act applies. There is no dispute that in executing an ejectment decree obtained in a suit under Section Section 28(1) the landlord is seeking to recover possession from the tenant but it is contended by the respondent that an execution of a decree for possession is not a 'proceeding' within the meaning of Section Section 28(1), and therefore, an order passed under Order XXI, Rule 98 of the Civil Procedure Code cannot be said to have been made by the Court in exercise of its jurisdiction under Section Section 28(1). In our view 'proceeding' is a term of wide of the legislature in creating Courts of exclusive jurisdiction to entertain and try certain matters relating to landlords and tenants, it would include an execution proceeding of a decree passed under Section Section 28(1). But the point seems to have been put beyond controversy by the Explanation to Section 28. It reads:-

'In this section 'proceeding' does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act.'

In the above proviso it is implicit that a 'proceeding' includes an execution proceeding of a decree and insofar as the said provision clarifies this position, it serves as an explanation to the Section 28 but it also excepts from the scope of 'proceeding' an execution proceeding of a decree passed before the Rent Act came into force and to this extent, it is a proviso to the said Section 28. This view is further reinforced by the provisions of Section 49(2)(iii) which clarifies the scope of the said term 'proceedings' by adding thereafter in the bracket the words 'including proceedings for execution of decrees ....' This may also explain why Section 31 which inter alia, refers to 'proceeding' does not specifically mention the execution of decrees, though it expressly refers to the execution of orders. In our view, therefore, on a fair and plain reading of the word 'proceeding' in Section Section 28(1) and the Explanation in the light of the said provisions of Section 49(2) (iii), it includes an execution proceeding of a decree and therefore, in executing an ejectment decree passed under Section Section 28(1) the Small Cause Court exercises jurisdiction under Section Section 28(1).

9. Next, Section 28(1) and 29(1) confers general right of appeal from any decree or order, made by the Court under Section 28. Two provisos to Section 28(1) and 29(1), however, cut down the scope of such right of appeal lies under the Code of Civil Procedure, 1908. In order, therefore, to see whether proviso (I) is attracted in any particular case, one has to turn to the relevant Rent Control Rules i.e. Rules 5,6 and 8, to find out what provisions of the Code of Civil Procedure are made applicable to the decrees and orders made under Section 24 (1) and whether the same do or do not provide for appeal against such decrees or orders. Further proviso (II) bars an appeal from a decree or order in any suit or proceeding instituted in Greater Bombay (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or value of the subject-matter of which does not exceed Rupees 3,000/-. It would have been noticed that a decree or order made in a suit or proceeding relating to possession is excluded from the purview of the proviso (II) and therefore, an appeal from such a decree or suit is not subject to any pecuniary restriction and therefore, an appeal against such a decree or order will lie, irrespective of the amount or value of the subject-matter involved therein, if the requirements of the proviso (1) are satisfied.

10. Turning next to the Rent Control Rules it would have been seen that R.5 quoted above applies to the suits and proceedings specified in sub-rules (1), (2) and (3) the practice and procedure provided for the time being in the Small Cause Courts Act, except Cap. VI thereof and in the rules made under Section 9 of the said Act. Sub-rule (1) of Rule 5 speaks of suits relating to the recovery of rent of charges for boarding, lodging houses etc. when the amount or value of the subject-matter does not exceed Rs. 3,000/-, sub-rule (2) of proceedings under Chapters VII and VIII of the Small Cause Courts Act and sub-rule (3) of proceedings for execution of any decree or order passed in any such suit or proceeding. It would be noticed from the above provisions that the only suits referred to in Rule 5 are suits relating to recovery of rents or charges where the amount does not exceed Rs.3,000/- and the suits relating to recovery of possession under Section Section 28(1), do not fall within the scope of Rule 5(1). As regards the pecuniary limit of Rupees 8,000/-, it is worth recalling that Section 18 of the Small Cause Courts Act confines its ordinary jurisdiction to suits of civil nature wen the amount or value of the subject matter does not exceed Rs.3,000/-. This seems to be reason why at the beginning of Rule 5 it is stated. 'In such of the following suits and proceedings as are cognisable by the Court of Small Causes, Bombay....' But it is to be borne in mind that after the passing of the Rent Act the Jurisdiction to entertain and try suits, inter alia, relating to the recovery of rent or charges is conferred upon the said Court by Section Section 28(1) of the Rent Act and in so entertaining and trying such suits, the Small Cause Courts Act. It appears that since such ordinary jurisdiction of the Small Cause Court extends up to Rs.3,000/- Rule 591) also prescribes the same procedure as is to be followed by the Small Cause Court in respect of its ordinary civil jurisdiction under Section 9 of the said Act. It may be noticed here that under the procedure so prescribed no appeal is provided by Or. XXI, Rule 98 of the Code of Civil Procedure as the said rule is continued to be applied without providing for a right of appeal from an order thereunder. Therefore, the position regarding appealability of a decree under Rule 5(1) or an order made in execution of such a decree accords with the express provision of item (i) of proviso (II) to Section 29(1) of the Rent Act.

11. Coming next to the provisions of sub-rules (2) and (3) of Rule 5 in regard to the proceedings under Chapter VII of the Small Cause Courts Act they seem anomallous. So far as proceedings under Chap. VIII (Distress) of the said Act are concerned, they are obviously covered by the rule making power conferred expressly by Section 49(2)(iii) of the Rent Act. Now, the provisions of Chapter VII before the same were amended by the Maharashtra Amending Act (XLI) of 1963 contained a group of Ss.41, to 49 which provided for recovery of possession of immovable property. The reason for including the property. The reason for including the proceedings under Chap. VII in Rule 5(2) may have been that proceedings under Chapter VII were pending at the date when the Rent Act of 1947 came into force and by virtue of the proviso to S.50, the same had to be disposed of according to the provisions of the Rent Act. Section 51 which was retrospectively introduced by Section 11 of the Bombay Act No.3 of 1949 declared that references to suits proceedings in the Act shall include references to proceedings under Chap. VII of the Small Cause Courts Act, 1882. The above view found favour with the Gujarat High Court in Motibhai Ramabhai v. Panchand Mohanlal Shah (1972) 13 Guj LR 508. However, the said expression in Rule 5(2) could not have in any event included any such proceedings under Chapter VII commenced after the Rent act came into force. In a Full Bench decision of this Court in: Dattatraya Krishna Jangam v. Jairam Ganesh gore, : AIR1965Bom177 (FB) the applicability of provisions of chapter VII as they stood before the Maharashtra Amending Act No.41, of 1963 came into force on June 1, 1964, was considered. The said provisions are summarised at page 670 and it is not necessary to set them out here. It was held by the Full Bench that in view of the exclusive jurisdiction conferred on the Small Cause Court under Section 28 of the Rent Act applications of provisions of Chapter VII as they stood before the Maharashtra Amending Act No.41 of 1963 came into force on June 1, 1964, was considered into force on June 1, 1964, was considered. The said provisions are summarised at page 670 and it is not necessary to set them out here. It was held by the Full Bench that in view of the exclusive jurisdiction conferred on the Small Court under Section 28 of the Rent Act applications under Sections 41, 47 and 49 of the Small Cause Courts Act did not lie against a tenant for possession of premises to which Part II of the Rent Act applies. (See pages 670 and 674). It is to be added that by the Maharashtra Amending Act No.41 of 1963 Sections 45, 46 and 47 in the said Chapter VII were deleted and section 49 was amended so as to make it clear that an order for recovery of possession under Section 41 shall bar a suit on the basis of title other than title as a tenant and a new Section 41 shall bar a sit on the basis of title other than title as a tenant and a new Section 42-A was added which provides that when an ejectment application is filed by a landlord against an occupier tenant under section 41 and the occupier contends that he is a protected tenant. From the foregoing discussion it would have been seen that when the Small Cause Court deals with the question of occupier being a protected tenant under Section 42-A, it exercise jurisdiction under the Small Cause Court deals with the question of occupier being a protected tenant under Section 41 and the occupier contends that he is a protected tenant the Small Causes Court is to try as a preliminary issue the question, notwithstanding anything contained in the Rent Act, whether the defendant is a protected tenant. From the foregoing discussion it would have been seen that when the Small Cause Court deals with the question of occupier being a protected tenant under Section 42-A, it exercises jurisdiction under the Small Cause Courts entertains a suit for possession as a Special Court under the said Section 28, no question of any proceeding under Chap. VII of the Small Cause Courts Act arises and, therefore, the procedure to be followed in a suit relating to recovery of possession under the said Section 28 and in executing a decree passed therein is, irrespective of the value of the subject-matter, the one prescribed by Rule 8 of the Rent Control Rules.

12. It is also material to notice that if the language of Rule 5(2) were to be strained as including a suit filed under the said Section Section 28(1) for possession of property not exceeding Rs.3,000/- in value such construction will be in direct conflict with the express provisions of second proviso to the said Section 28(1) and 29(1). As already seen, proviso (II) expressly excepts from its purview a decree or order made in a suit or proceeding relating to possession, and therefore, an appeal from such a decree or order is competent if it otherwise fulfills the conditions of proviso (I). It is, therefore, not lightly to be inferred that the rule making authority and the Legislature intended (assuming that there was such a power) to override the said express exception in the Proviso (II). In our opinion, therefore, Rules 5 and 8 lay down the procedure to be followed in two specific categories of suits respectively mentioned therein and in the execution proceedings arising out of the decrees passed therein and therefore, suits for the recovery of possession under S.Section 28(1) fall only within Rule 8, irrespective of the value of the subject-matter, and the procedure to be followed under Rule 8 for executing a decree is one prescribed by the Code of Civil Procedure as amended in its Code of Civil Procedure as amended in its application to the State of Maharashtra by the High Court under Section 122. Order XXI, Rule 98 of the Code of Civil Procedure was so amended by the High Court on 1st November 1966 whereby a right of appeal against an order Under R.98 is expressly provided. Therefore, the bar provided by the proviso (1) to Section 28(1) and 29(1) does not apply to an order made under O.21, R.98. It therefore, follows that the appeal filed by the tenant against the said order dated February 17, 1972 of the single judge was competent and the Appellate Bench was in error in holding to the contrary.

13. We now refer to the authorities of this Court cited before us on this point. The first case is of Mr. Justice V.S. Desai in Hemchand Singhania v. Subhakaran, : AIR1967Bom361 . In that case in an ejectment suit filed by the landlord against a tenant in the Court of Small Causes at Bombay under Section 28 of the Rent Act an ex parte decree was passed on November 10, 1964. The tenant O. IX, Rule 13 of the Civil Procedure Code. That application was rejected by the trial Court. On an appeal by the tenant the said order was set aside by the Appellate Bench and the case was remanded to the trial Court.

14. Against the said order the landlord filed a Civil Revision Application to this Court, and contended that the appeal to the Appellate Bench was not competent as in entertaining the application for setting aside the ex parte decree and in so ordering the Small Cause Court did not exercise jurisdiction under Section 28 of the Rent Act as it came to an end as soon as the ex parte decree for eviction was passed and tenant's application for setting aside the exparte decree could be regarded as an application to the Bombay Small Cause Court exercising jurisdiction under the Small Cause courts Act. The learned Judge rejected the said contention and observed: (P.861) (of Bom LR) = (at P.365 of AIR).

'No doubt the jurisdiction of the special Court set up under Section 28 is confined to matters specified therein, which include, among others, the entertaining and trying of suits or proceedings, between a landlord and tenant ...... But once the Special Court entertains and tries a suit or procedure which falls within its exclusive jurisdiction all orders made by it in the said suit or proceeding or in relation thereto are made by it as a Special Court, that is a Court exercising jurisdiction under Section 28 and not only such of them as actually relate the recovery of rent or possession. Appeal provided under Section 29 of the Act is not confined only to the final decree or orders or to an order, which relates to recovery of rent or possession but it lies against all orders except those which are excluded under the proviso to the section.'

In the opinion of the learned Judge the passing of ex parte decree does not make the Court trying the suit functus officio with regard to the same, and therefore, he rejected the contention that the Court exercised jurisdiction under Section 28 only till the stage of the passing of the ex parte decree and did not exercise the jurisdiction when it subsequently entertained and decided the application under Or. IX, Rule 13 was made in its character as a Court exercising jurisdiction under Section 28.

15. Now it will be seen, Mr. Justice Desai was not dealing with the question which arises before us, namely, whether the execution of a decree is a proceeding, within the meaning of Section Section 28(1). Consequently, he did not decide or even consider whether the suit relating to the possession the property fell within Rule 5(2) of the Rent Control Rules. No doubt, he observed that: (p.860) (of Bom LR) = (at p.364 of AIR).

'A perusal of the said rules (Rent Control Rules) would show that if the suit fell under Rule 5(2), the procedure prescribed under the Rules framed under Section 9 of the Presidency small Cause Courts Act, and if the suit fell under Rule 8, the procedure prescribed by the Code of Civil Procedure.'

And then the learned Judge proceeded point out that in either case, i.e. whether Rule 5 or Rule 8 applies the result would be the same as in both the cases procedure under Or. IX was applicable and therefore an appeal lay against the order of a single Judge of the Court refusing to set aside the ex parte decree. It is clear from the perusal of the judgment that the issue namely whether a suit for recovery of possession under Section Section 28(1) was a proceeding under Chapter VII of the Presidency Small Caused Courts Act within the meaning of Rule 5(2) was not at all raised or considered and it is evident that it was assumed that even if the suit fell within Rule 5(2) and not within Rule 8, still an appeal was competent against the said order. This case, however is an authority for the proposition that the Small Cause Court in exercising its exclusive jurisdiction under Section 28 is not exercising its ordinary jurisdiction under the Presidency Small Courts Act and the decrees or orders passed by the Special Court under Section Section 28(1) are appealable under Section 28(1) and 29(1) of the Rent Act.

16. The Gujarat High Court has also in Panchal keshavlal Somnath v. Chinubhai Jagjivandas, (1967) 8 Guj LR 772, has taken the same view in regard to the appealability of an order under Or. IX, Rule 13 to a Bench of Small Causes Court.

17. Next authority is an unreported common judgment dated February 1, 1967 of Mr. Justice Palekar in Pranlal Calanchand Shah v. Dinyar Apsandyar Karmani and Pranlal C. Shah v. Vithal Shetty, dated 1st February 1967 in two Civil Revision Applications respectively numbered 1934 of 1962 and 1935 f 1962. There the facts were as follows:- Landlord had let out shops Nos. 5 and 6 of his building situated in Bombay to one N.M. Shetty on a monthly basis. He filed an ejectment suit on 12th June 1954 in the Small Cause Court at Bombay, against the tenant and obtained an ex parte decree on September 29, 1954. The landlord however, was obstructed by obstructionists in the execution of the said decree on 27th November 1954. The landlord's motion for removal of obstruction was rejected on 14th September 1955. So the landlord filed a suit in the Bombay Small Cause Court against the obstructionists for a declaration that the decree obtained by him against the said tenant was liable to be executed against the obstructionists. The obstructionists contested the suit inter alia on the ground that the Court had no jurisdiction to try the suit. The trial Judge held that the Court had jurisdiction to try the suit and the said decree was binding on the obstructionists and accordingly he decreed the suit and the said decree was binding on the obstructionists and accordingly the decreed the suit on October 15, 1959. In appeal No.416 of 1959 filed by the obstructionists the Appellate Bench of the Small Cause Court held that the trial Court had no jurisdiction. Against the said order the landlord preferred Civil Revision Application No.1934 of 1962. In the meanwhile the landlord preferred Civil Revision Application No.1934 of 1962. In the meanwhile the landlord had executed on August 30, 1961 the warrant of possession against one Vithal Shetty. From that order Vithal Shetty preferred a revision application to the Appellate Bench on October 9, 1961. Both the Appeal No.416 of 1959 filed by the obstructionists and the said revision application filed by Vithal Shetty were heard together by the Appellate Bench and as it took the view that the Small Cause Court had no jurisdiction to hear the suit, landlord's execution proceedings against Vithal Shetty did not survive and discharged the obstructionist notice against Vithal Shetty. The landlord filed the second revision application, being C.R.A. No.1935 of 1962, against the said order, Mr. Justice Palekar heard both the Civil Revision applications together. In the first civil revision application the real controversy between the parties was whether the suit was between a landlord and a tenant within the meaning of Section Section 28(1) of the Rent Act. It was common ground before him that as the respondents (original defendants to the suit) claimed to be assignees of the tenancy rights under Section 15 of the Rent Act the dispute related to a claim or question arising out of the provisions of the said Act. Mr. Justice Palekar held that having regard to the averments, in the plaint filed by the landlord, landlord's claim in the suit was that the decree obtained by him against his tenant was executable against the obstructionists and then the learned Judge proceeded to observe as follows:-

'The notice of obstruction has been summarily disposed of, and in a sense the suit filed by the petitioner was merely a continuation of the execution proceedings he had started against the tenant. In my opinion, in a very real sense, the suit is still a suit between the landlord and tenant relating to possession in which a claim or question under the Act arises.'

The learned Judge, therefore, held that the suit fell within the scope of Section Section 28(1) and the Court had jurisdiction to try the suit. It may incidentally be pointed out that subsequently in a recent decision in Sushila Kashinath Dhonde v. Harilal Govindji Bohgani, : [1970]2SCR950 , the Supreme Court held that the claim or question arising out of Rent Act or any provision thereof need not be between the landlord and tenant.

18. As regards Civil Application 1935 of 1962, Mr. Justice Palekar, in view of his decision in the first revision application, remanded the same to be disposed of by the Appellate Bench of the Small Cause Court, Bombay in accordance with law. It may be mentioned that in 1962 when the obstructionist notice of the landlord was decided by the executing Court Order XXI, Rule 98 did not provide for an appeal against an order thereunder. The obstructionists had not, therefore, filed an appeal but a revision application to the Appellate Bench and thus there was no occasion for Mr. Justice Palekar to consider the question which has now arisen before us though from the observations quoted above it may seem that the learned Judge assumed that an execution of a decree is taken is by Section Section 28(1).

19. Next is an unreported judgment dated August 27, 1970 of Mr. Justice Bhasme in V.M. Bhaskar v. R.A. Haveliwalla and Mrs. Safiya v. Aminabai in two Special Applications Nos. 2553 of 1967 and 1421 of 1970 (Bom). The same question of law which arises in the present case arose in that case, namely whether an appeal lay against an order passed under Or. XXI, Rule 98 of the Civil Procedure Code as amended on November 1, 1966. The facts in both the special civil applications were the same except that in the second special civil application the order against the petitioner who obstructed the execution f the ejectment decree was passed on June 18, 1970. i.e. after 13th December 1868 when Or. XXI, Rule 98 as applied till then to the proceedings under the Small Cause Courts Act was amended by deleting the Provision for appeal from an order thereunder, Mr. Justice Bhasme held that Section Section 28(1) of the Rent Act refers only to original proceedings which will resolution the passing of final decisions or orders and the proceeding under Or. XXI, Rule 98 was, therefore, outside its scope and, therefore, the Small Cause Court in executing the decree made under the Rent Act does not exercise jurisdiction under Section Section 28(1). He further held that when an obstructionist raises a claim or question arising out of the Rent Act or any of the provisions, the Special Court in determining that point does not exercise jurisdiction under Section 28 not exercise jurisdiction under Section Section 28(1). He however, held that the suit for possession in which the decree was passed fell l under Rule 5(2), and therefore, the procedure in executing the decree laid down by the rules made by the High Court under the Small Cause Courts Act as varied by the rules made by the High Court was to be followed. In our opinion, the learned Judge erred in holding that Section Section 28(1) did not apply to execution proceedings in respect of a decree passed under Section Section 28(1). Apparently, his attention was not drawn to the Explanation to Section 28 or to the proviso to Section 50 which required the proceedings under Chapter VII to be disposed of according to the provisions of the Rent Act and Section 51 which retrospectively declared that reference to suits and proceedings in the Rent Act shall include references to proceedings under Chapter VII.. As already seen general right of appeal is provided by Section 28(1) and 29(1), though the two provisos cut down the scope of such appeals. Proviso (I) Limits the right of appeal from a decree or order in any suit or proceeding in respect of which an appeal lies under the Code of Civil Procedure. It is for this purpose of finding out whether an appeal is provided or not under the relevant provisions of the Code of Civil Procedure that may have been prescribed by the rule making authority that a reference is to be made to the Rent Control Rules. As already seen Rule 5(2) does not take in suits for possession of property and the same will fall within Rule 8.

, 20. It remains now to advert to the referring Judgment of Mr. Justice Vimadalal. The learned Judge held relying on Hemchand Singhania's case, : AIR1967Bom361 (Supra) and the unreported Judgment of Palekar J., C.R.A. Nos. 1934 and 1935 of 1962, D/- 1.2.1967 (Bom) (supra) that the Order under Or. XXI, Rule 98 of the Code of Civil Procedure passed by the learned single Judge of Small Cause Court was made by the Court in exercise of its jurisdiction under Section 28 of the Rent Act. He however, construed the expression 'Civil Procedure Code' in the Proviso (I) to Section 28(1) and 29(1) as portions of the Civil Procedure Code made applicable to the Small Cause Court under Section 9 of the Small Cause Court under Rules made by the High Court under Section 9 of the Small Cause Courts Act known as the presidency Small Cause Courts Rules. In support of his view the learned Judge relied upon the provisions of Rule 1(2) of the said the provisions of Rule 1(2) of the said Rules which provides that the procedure laid down in the said rules is to be applied to the Court 'in all suits cognisable by it' and in that view Or. XXI, Rule 98 as amended from December 13, 1968 does not provide for an appeal against an order them under no appeal is competent, and that it did not matter whether a suit fell within Rule 5 or Rule 8 as in either case or. XXI Rule 98 as applied under the Presidency small Cause Courts Rules will bar an appeal. He, however, referred to the decisions of Mr. Justice V. S. Desai in Hemchand Singhania's case and of Mr. Justice Bhasme, here in above referred to, and thought that there was a direct conflict between their views. Further the learned Judge was, with respect, in error in holding that in view of the provisions of the said Rule 1 (2) portions of the Civil Procedure Code as applied under the Presidency Small appeals in respect of decrees or orders irrespective of whether a suit fell within Rule 5 or within 8. Rule 1 (2) applies to suits which Rule 8. Rule 1 (2) applies to suits which are cognisable by the Small Cause Court in exercise of its ordinary jurisdiction under the rent Act. It is true that in suits and execution proceedings under Rule 5 (1) and (3) the same proceedings under Rule 5 (1) and (3) the same procedure under Rule 5 (1) and (3) the same procedure as applies to the suits cognisable by the small Cause Court it its ordinary jurisdiction is made appalling under the Rent Act. It may be worth noticing that but for the Rent Act suits for recovery of rent and charges specified in Rule 5 (1) not exceeding Rs. 3,000/- in amount would have been tried by the Small Cause Court in Act and that is why it seems the rule making authority prescribed the procedure to be followed in such suits and execution proceedings as the one adopted in the Presidency small Cause Court Rules.

21. For the reasons expressed above we hold that the order passed under or. XXI, Rule 98 of the Code of Civil Procedure is appealable and the Bench of small Causes Court, Bombay is competent to hear it.

22. We make the rule absolute, and the appeal is directed to be heard bu the Bench on merits.

23. As there has been delay and the petitioner has not been able to execute the decree obtained in 1965, we direct the Bench to hear this matter as expeditiously as possible and dispose of the same within two months from the receipt of the order.

24. Costs of the revision application to be the costs before the Bench.

25. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //