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Madanlal Mulchand Soni Vs. Mainikchand Dhanraj Gugle and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 3395 of 1981
Judge
Reported inAIR1983Bom35; 1983(1)BomCR172; 1982MhLJ313
ActsBombay Rests, Hotel and Lodging House Rates Control Act, 1947 - Sections 29, 29(1), 29(2) and 29(3); Rent Act
AppellantMadanlal Mulchand Soni
RespondentMainikchand Dhanraj Gugle and anr.
Appellant AdvocateNavin B. Shah, Adv.
Respondent AdvocateC.R. Dalvi, Adv.
Excerpt:
the case dealt with the scope of section 29 (3) of the bombay rents, hotel and lodging house rates control act, 1947 - the section 29 (3) of the act contemplated only formal decisions affecting the rights of the parties and mere interlocutory or procedural orders were not within the contemplation of section - the court ruled that the order of court issuing process to income tax officer at behest of defendants in suit governed by the act was not revisable under section 29(3) of the act. - - if there be any other ground, like the bar of law, to issue such a process, the same has not been raised before the trial judge. if it be raised, the trial court is bound to consider the same like any other objection......of such a process was objected to on behalf of the plaintiff. the said order made by the learned trial judge was subjected to an application filed before the 2nd extra assistant judge, ahmednagar, purporting to be u/s. 29(3) of the bombay rests, hotel and lodging house rates control act, 1947, hereinafter called 'the rent act'. the said court dismissed the revision, holding that the same was incompetent. that order is under challenge in this court and so also the order made by the trial court issuing the process to the i. t. o.2. as far as the tenability of the revision is concerned, it is undoubtedly clear that the provisions of sub-section (3) of s. 29 of the rent act documents not provide for any such revisions. section 29 of the rent act deals with appeals. sub-section (1) of s. 29.....
Judgment:
ORDER

1. The present petitioner filed Regular Civil Suit No. 780 of 1977 in the Court of the Joint Civil Judge, Junior Division, Ahmednagar. That Court made an order on Nov. 21, 1980 issuing process to the Income-tax Officer at the behest of the defendants though issuance of such a process was objected to on behalf of the plaintiff. The said order made by the learned trial Judge was subjected to an application filed before the 2nd Extra Assistant Judge, Ahmednagar, purporting to be u/s. 29(3) of the Bombay Rests, Hotel and Lodging House Rates Control Act, 1947, hereinafter called 'the Rent Act'. The said Court dismissed the revision, holding that the same was incompetent. That order is under challenge in this Court and so also the order made by the trial Court issuing the process to the I. T. O.

2. As far as the tenability of the revision is concerned, it is undoubtedly clear that the provisions of sub-section (3) of S. 29 of the Rent Act documents not provide for any such revisions. Section 29 of the Rent Act deals with appeals. Sub-section (1) of S. 29 of the Rent Act indicates, by Cls. (a) and (b), the decree and order against which no appeal shall lie. Sub-section (2) enacts that there would be no further appeal against any decision in the appeal under sub-section. In the contest of sub-secs. (1) and (2), sub-section (3) has to be read and it means that 'the orders', which are otherwise non-appealable, are primarily spoken to in sub-section (3) of S. 29. It is not as if each and every order made by the trial Court is intended to be subjected to the process of revision under sub-section (3). Mere interlocutory or procedural orders are not the orders which can be taken up and challenged u/s. 29(3) of the Rent Act. Unless the orders formally adjudicate and affect rights of the parties, including those in the matters of procedure, it is difficult to conceive that the remedy u/s. 29(3) of the Rent Act would be available. In the context of the entire scheme of Section 29, it appears that the orders, which the rights of the parties and because of that are 'orders or decrees' as such, are in the contemplation of the legislature. Sub-section (3) does not style it as power of revision. It is a power akin to it circumscribed by conditions enacted therein, one such condition being it is available against only otherwise non-appealable 'decree or orders'. Wherever the words 'decree or orders' are used in S. 29, it is apparent that it intends to indicate formal decision affecting rights of the parties. The decision of the Gujarat High Court in the case of Shri Maharana Mills Pvt. Ltd. v. Manharrai, : AIR1972Guj226 , with respect, is an authority for the proposition that purely procedural orders not affecting the substantive rights of the parties are not within the contemplation of Sub-section (3) of S. 29. The view taken by the 2nd Extra Assistant Judge, Ahmednagar, therefore, is, thus, correct and the revision filed was rightly rejected.

3. Turning to the other submission of the learned counsel that the process should not have been issued by the trial Judge, it appears that the only opposition recorded was on the ground of delay and that was rejected by the learned trial Judge. If there be any other ground, like the bar of law, to issue such a process, the same has not been raised before the trial Judge. If it be raised, the trial Court is bound to consider the same like any other objection. As the point was not raised before the trial Judge, it will not be proper to express any view on that aspect.

4. In the result, the Rule is discharged with no order as to costs. However, if the plaintiff raises any legal objection for the issue of the summons by filing a proper application, the trial Court would hear the parties and decide the same according to law.

5. Ordered accordingly.


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