1. The petitioner original plaintiff has filed the writ petitioner challenging the order passed by the Bench of the Court of Small Cause at Bombay dated 11th of June, 1981 holding that the Revision Application under Section 29(3) of the Bombay Rents, Hotel and Lodging house Rates Control Act, 1947, (hereinafter referred to as the Act) was not maintainable against an order refusing permission to amend the plaint. The plaint shit was filed by the petitioner - landlord for the eviction of the tenant-respondent. It appears that during the pendency of the suit, amendment of the written statement was permitted on 10th of September, 1975. therefore, the plaintiff filed an application proposing to amend the plaint by adding para 6-A raising the ground that the eviction could also be order since the defendants -tenant has denied his title. Since the said amendment application came to be rejected, the plaintiff was debarred from raising this additional ground in the present suit. Against the said order, the plaintiff- petitioner filed a revision petition before the Bench of the Court of Small Cause under Section 29(3) of the Act which as already observed the was also reject on the ground that the revision petitioner was not maintainable.
2. Initially, the matter was placed before the single Judge, Masodkar J. The learned Judge held that the question involved in the writ petitioner is of general importance and there is a need for an authoritative interpretation of the provisions with regard to the remedies of the suitors, and therefore, the matter should be placed before the Division Bench. This is how, the matter is placed before us.
3. Shri Gokhale the learned Counsel application for the petitioner contended before us that the Bench of the Court of Small Cause committed an error in holding that the revision petitioner was not maintainable under Section 29(3) of the Act, According to Shri Gokhale, the Rent Act is a complete Code which provides for the rights and the obligation between the parties, that is, landlord and the tenant, as well as the remedies for their enforcement. Section 28 provides for a former and lays down the scope of the jurisdiction of the Courts. Then comes Section 29 which provides for the Appeals as well as the revisions. According to the leaned counsel if the provisions of Section 28 and 29 are the read together harmoniously it will have to be held that all others and/or decrees in which no appeal lies under Section 29(12) of the Act are revisable under Section 29(3), which will include even the procedural orders passed in the proceedings instituted under the Rent Act. Therefore, the Bench of the Court of the Small Causes has committed an error in holding that the revision petitioner against an order rejecting the amendment application was not maintainable. In this context, Shri Gokhale has placed reliance upon the Division Bench decision of this Court in : AIR1975Bom41 ; Habib Ahmed v. Abdul Khadar, : AIR1967Bom361 , in Hemchand Mr. Pandey. Singhania v. Subhkaran Nandlal and AIR 1959 Mys 145 F. Mr. Pandey. Subbayya v. Venkataramana, Shri Kulkarni the learned Counsel appearing for the defendants supported the a the contentions raised by Shri Gokhale. Since Shri Kulkarni chose to support the contentions raised by Shri Gokhale, we requested Shri Jahagirdar to help the court as amicus curiae to which he really agreed. We are very much thankful to him for the assistance.
4. For properly appreciating the controversy raised before us, it will be worthwhile if a detailed reference is made to S. 29 of the Act, which reads as under:--
'29. (1) Notwithstanding anything contained in any law, an appeal shall lie -- (a) in Grater Bombay, for a decree of order made by the Court of Small Causes, Bombay, exercising jurisdiction under Section 28, to a bench of two judges of the said Court which shall not include the Judge who made such decree or order;
(b) elsewhere, from a decree or order made by a Judge of the Court of Small Cause established under the Provincial Small Cause Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of small Causes Under Clauses (c) of sub-section (2) of the Section 28 or by a Civil Judge exercising such jurisdiction, to the District Court:
Provided that no such appeal shall lie from-
(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code or civil Procedure, 1908;
(ii) a decree or order made in any suit of proceeding (other than a suit or proceeding relating to possession ) in which the plaintiff seeks to recover rent (or licence fee or change for a licence in respect of any premises) and the amount of value of the subject matter of which does not exceed-
(i) where such suit or proceeding is instituted in Greater Bombay Rs. 3,000; and
(ii) where such suit or proceeding is instituted elsewhere, the amount up o which that Judge or Court specified in Clause (b) is invested with jurisdiction of a Court of Small cause, under any law for the time being in force;
(III) an order made upon an application for fixing the standard rent or license fee or change for a license) or for determining the permitted increases in respect of any premises except in a suit or proceedings in which an appeal lies;
(IV) an order made upon an application by a tenant for a direction to restore any essential supply for service in respect of the premises let to him.
(IA) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order as the case may be:
Provided that in computing the period of limitation prescribed by this sub-section the provisions contained in Section 4, 5, and 12 of the Indian Limitation Act, 1908, shall, so far as may be apply. (2) No further appeal shall lie against any decision in appeal under sub-section (1).
(3) Where no appeal lies under this section fro a decree or order in any suit or proceeding in Greater Bombay the bench of two Judge specified in Clause (a) of sub-section (1) and elsewhere the District court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and (the bench of Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall) pass such order with respect thereto as (it or he thinks fit)'.
Section 29 came to be amend by Bombay Act No. 61 1953 whereby proviso to sub-section (1) and sub-section (3) where inserted in Section 29. The relevant clause of the statement of object and reasons reads as under:--
'The right of appeal has been curtailed by eliminating unimportant appeals and providing revisional procedure in such cases'.
Therefore, if Section 29(3) is read with the statement of objects and reasons, it is quire obvious that while curtailing the right of appeal eliminating unimportant appeals, the Legislature wanted to provided revisional procedure in those matter only. The intention of the Legislature was not to expand the scope of revisional jurisdiction of the Court of Small Causes.
5. The provisions of Section 29, sub-section (3) came for consideration of this Court in Civil Revn. appln, No. 33 of 1977, Bhagat Singh v. M/s. Prakash Roadlines Pvt. Ltd. decided on 11th March, 1977 decided by Sapre J. Sapre J. agreed with the view taken by the Gujarat High Court in Shri Maharana Mills v. H. Manharrai, : AIR1972Guj226 and held that if the order, whose revision is sought, affects the substantive rights of the parties under the Bombay Rent Act then alone the provision of S. 29(3) will be attracted. This is what Sapre J observed in para 7 of his judgment:
'In my view, the question whether the order disallowing the amendment of the plaint affect the substantive right of the respondent firms, will have to be answered not on the test whether the respondent-firm will be drive to a separate suit to establish its substantive right but whether those substantive rights will be permanently lost to it. It is not disputed before that the case of action of the separate suit referred to above will be the non-carrying out of the obligation by the petitioner undertaken by them to carry out under the consent terms. If, therefore, the respondent -firm does not make a claim for possession of the 1/3rd portion of the go down in its suit in the Court of Small Causes, its separate (suit) mentioned above will not be barred under any provisions of the law. It would have been a different question if in the second suit the respondent-firm were to be face with a bar, such as, the one under Order II, Rule 2 of the code of Civil Procedure or of constructive res judicata. But if it is conceded that in the second suit, if the respondent -firm is compelled to file one to recover possession of the 1/3rd portion of the godown, the cause of action is the non-carrying out of the obligations under the consent terms, which is a totally different action from the one in the suit filed by the respondent -firm in the Court of Small Causes, it is difficult to see how the respondent -firm will be faced with any bar of the abovementioned kind in the second suit because of its not claiming the relief of the possession in respect of the 1/3rd portion of the godown in its suit filed in the Court small Causes. it is, therefore, difficult to see how the order dismissing the application for the amendment of the plaint would affect the substantive right of the respondent -firm under the Bombay Rent Act. if the substantive right are not affected. then the order refusing leave to made the plaint is purely a procedural order not affecting the substantive right of the aggrieved party, and such an order cannot attract the provisions of Section 29(3) of the Bombay Rent Act'.
6. Then, Kantawala, C. J. had an occasion to examine the scope and ambit of S. 29(3) of the Act in 1979 Bom CR 587, Mrs. Julina Margaride Coelhi v. Makarand Shakar (Civil Revn. appln. No. 330 of 1978, decided on 31st of August, 1978). Kantawala, C. J. while analysis the section, observed:
'The opening part of this sub-section clearly shows that the provisions of this sub-section can only be attracted where no appeal lies under Section 29, In the proviso to sub-section (1) of the Section 29, the decrees of orders from which no appeal lies are enumerated. It is not under this proviso that the appeal is incompetent. In the present case, as I have indicated earlier, no appeal is competent against the impugned order in view of the provisions of S. 11(5) of the Act. When such is the case, the power under sub-section (3) of Section 29 cannot be availed of to exercise revisional jurisdiction which is vested in the Bench of two Judge of the Small Cause under sub-section (3) of Section 29. Even apart from that, under Section 115 of the Code of Civil Procedure powers in exercise of revisional jurisdiction can be exercised by the High Court in every case which is decided by the Courts subordinate thereto and in which no appeal lies thereto. In the present case, against the impugned order dated May 5, 1978, no appeal lies to the High court and the revisional jurisdiction that is vested in this High Court can always be invoked'.
Masodkar J. had also on occasion to consider the scope of Section 29(3) in Madanlal Mulchand Soni v. Manikchand Dhanraj Gugle Shope, (Writ Petn No. 3395 of 1981 decided on 8th of March, 1982): reported in 1982 M LJ 313. In that case, the Joint Civil Judge, Junior Division, Ahmadnagar made an order on 21st November, 1980, issuing process to the Income-tax Officer at the behest of the defendants. Against the said order, a revision petitioner was filed purporting to be under Section 29(3) of the Act. The revision petitioner was dismissed as the same incompetent. While negativing the contention raised before him in para 2 of the Judgment, this is what Masodkar J. observed:
'2. As far as the tenability of the revision is concerned, it is undoubtedly clear that the provisions of sub-section (3) of Section 29 of the Rent Act documents not provide for any such revision. Section 29 of the Rent Act deal is with appeals. sub-section (1) of Section 29 of the Rent Act indicates, by Clauses (a) and (b), the decree and order against which an appeal lies. Proviso enacted excepts and indicates the decreed or order against which on appeal shall lie. Sub-section (2) enacted that there would be no further appeal against any decision in the appeal under sub-section. in the context of sub-section (1) and (2), sub-section (3) has to be read, and it means that the orders', which arbitrator otherwise non-appealable, are primarily spoken to in sub-section (3) of the Section 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 under S. 29(3) of the Rent Act. Unless the orders formally adjudicate the affect rights of the parties, including those in the matters of procedure, it is difficult to conceive that the remedy under Section 29(3) of the Rent Act would be available. In the context of entire scheme of Section 29, it appears that the orders, which under the Rent Act determine sub-stantively 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 circumstance by conditions enacted therein, one such condition being it is available against only otherwise non-appealable 'decree or 'order'. Wherever the words 'decree or orders' are used in Section 29, it is apparent that it intends to indicate formal decision affecting right of the parties. The decision of the Gujarat High Court in the case of Shri Maharana Mills v. H,. Manharrai : AIR1972Guj226 with respect, is an authority for the proposition that purely procedural orders not affecting the substantive right of the parties are not within the contemplation of the sub-section (3) of Section 29. The view taken by the 2nd Extra Assistant Judge, Ahmadnagar, therefore, is, thus, correct and the revisional filed was rightly rejected'.
After analysing the relevant provisions of the Rent Act. as well as the Rules framed thereunder, it is held by the Gujarat High Court in Shri Maharana Mills case that purely procedural orders which documents not affect the substantive right of a party under the Bombay Rent Act of the Rules made thereunder or the subject matter of which is not governed by the Rent Act or the rules made thereunder are not the order which attract the revisional jurisdiction of the District Court under Section 29(3) of the Act.
7. Therefore, all though a consistent view has been taken by this Court that purely procedural orders which documents not affect the substantive rights of the parties are not revisable under Section 29(3) of the Bombay Rent Act. This interpretation, with which we respectfully agree, is consistent with the intention of the Legislature as expressed in Statement of Objects and Reasons. It was not the intention of the Legislature to widen the scope of appeal or revision. by amending Act, right of appeal was curtailed by eliminating unimportant appeals and providing revisional procedure in such cases. By adding proviso to Section 29(1) the Legislature curtailed the right of appeal by laying down that no appeal shall lie form the orders enumerated in the said proviso. It is well settled that the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The proviso to Section 29(1) was deemed necessary because but for the proviso orders enumerated in Clauses (I) to (IV) would have been appealable under Section 29(3). Therefore, by adding proviso to sub-section (1) of S. 29, it was intended by the Legislature that right of appeal should be curtailed by eliminating unimportant appeals and in such cases only revisional procedure should be provided, by addition sub-section (3). If under Section 29(1) no appeal could lie against t procedural orders then obviously by an indirect method a further forum was not intended to be provided by enacting sub-section (3). Therefore, in our view, the consistent view taken by the single Benches of this High Court lays down the correct law on the subject.
8. It is no doubt true that it is observed by the Division Bench of this High court in : AIR1975Bom41 , Habib Ahmed v. Abdul Khadar that the Bombay Rent Act confers exclusive the and complete jurisdiction on the Bombay small Cause Court to entertain and by try suits and other proceedings specified in Section 28(1) and Section 29 gives rights of appeal and revision from a decree to order made by the Court exercising jurisdiction under Section 28. the terms 'proceeding' is a term of wide import and would include an execution proceeding of a decree passed under Section 28(1). Therefore, the Division Bench held that an appeal lies to a Bench of Small Causes Courts, from an order made by a single Judge of that Court under Order 21, Rule 98 of Civil Procedure Code in execution of a decree passed under Section 28 of the Act. However, the said decision is of little assistance for deciding the question raised before us. similarly, the decision of v. S. Desai J. in Hemachand M. Singhania v. Subharkaran Nandlal reported in : AIR1967Bom361 deals with an order refusing to set aside ex part decree passed under the Rent Act. It was held therein that such an order is appealable under Section 29(3) of the Act. While analysing the provisions of Section 29 Desai J. held that appeal provided under Section 29 of the Act is not confined only to the final decree or order 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. Item (1) from the proviso read with the main section would show that interlocutory and other orders which the Special Court can pass in entertaining, trying and deciding matters within its exclusive jurisdiction which are appealable under the provisions of the code of Civil Procedure will be appealable under Section 29 of the Rent Act. Therefore, it will not be correct to say that the jurisdiction under S. 28 of the Act ceased on the passing of the ex parte decree and the order made by it on the application for setting aside the ex parte decree could not, therefore, be treated as made by it exercising jurisdiction under S. 28 of the Act. In this view of the matter the learned single Judge held that the said order was governed by Section 29 of the Act. Even if it is assumed that the Rent Act is a complete Code still by interpretative process the scope of Section 29(3) cannot be widened so as to cover procedural orders which documents not decide substantive rights of the parties. It is open to any party to set forth the error, defect, or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceedings. In this context, reference could usefully be made to the decision of the Supreme Court in Central Bank of India v. Gokal Chand, : 1SCR310 . While dealing with the provisions of Delhi Rent Control Act, the Supreme Court observed (at p. 800):
'(3) The object of S. 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38(1), the words 'every order of the Controller made under this Act', though very wide, do not include interlocutory orders, which are merely procedural and documents not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witness, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a documents or the relevancy of a question. All these interlocutory orders are steps; taken toward the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the control under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is affect subject to appeal under S. 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal'.
The view taken in this case reaffirmed by the Supreme Court in : 3SCR59 . Basantsingh Gill v. Shantidevi. This is what the Supreme Court has observed in para 3 of the said judgment:
'(3). It was urged that the order, rejecting the application of the appellant to record the abatement of the suit and directing continuance of the suit, was not an order of such a nature against which an appeal could be filed under S. 34 of the Act of 1952. The word 'order' is used in S. 34 without any limitations, with the exception that it must be an order of the Court passed under the Act of the 1952; but it is contended that this word cannot be interpreted so widely as to included all interlocutory order or other similar orders passed in the course of the trial of the suit. This aspect came up for the consideration before this Court when interpreting S. 38(1) of the Act of 1958 in which also a provision for appeals has been made, and the language used is very wide inasmuch as it is laid down that 'an appeal shall lie form every order of the controller made under this Act ......... ' The extent of this right of appeal under S. 38(1) was considered by this Court in the Central Bank of India Ltd., v. Gokal Chand, Civil Appeal No.1339 of 1956, D/- 12-9-1966: (Reported in : 1SCR310 ) and it was held that 'the object of S. 38(1) is to give a right of appeal to a party aggrieve by some order which affects his right or liability. In the context of S. 38(1), the words 'every order of the controller made under this Act' though very wide, documents not include interlocutory orders, which are merely procedural and documents not affect the right of liabilities of the parties. The principle was thus recognised that the word 'order' used in such context is not wide enough to include every order, whatever be its nature, and particularly order which only dispose of interlocutory matters. In the case before us also, all that was done by the application presented by the appellant on the 13th March, 1961, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of S. 50(2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Charan Das v. Hira Nana AIR 1945 Lah 298 . On the other, hand if, as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the right or liabilities of parties to the suit. The rights and liabilities have yet to be decided after full trial has been gone though. The decision by the Court is only in the nature of a finding on the preliminary issue on which would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of S. 34 of the Act of 1952, and, consequently, on appeal against such an order would be maintainable. It was indicated by the Court in the case of the Central Bank of India Ltd., Civil Appeal No. 1339 of 1966, D/- 12-9-1966: (reported in : 1SCR310 ) (supra) that, in such a case, it is open to the appellant to canvass the error, defect, or irregularity, if any, in the order in an appeal from the final order passed in the proceedings for eviction. In the present case also, therefore, it is clearly open to the appellant to raise this plea of abatement of the suit, if and when he filed an appeal against a decree for eviction passed by the trial Court'.
In our opinion these observations of the Supreme Court aptly apply to the present case also. If the words used in S. 29(1) or (3) interpreted in its context, then the words 'any order' will not include in its (their?) import the procedural orders, which do not affect the right an d liabilities of the parties. Therefore, obviously no revision petitioner can lie against a mere procedural order. It is not disputed that order passed in the present case rejecting the application for amendment was an interlocutory order which does not decide finally the right and liabilities of the parties to the suit. Therefore in our opinion the Bench of Small Cause Court was right holding that the revision petitioner was not maintainable.
9. So far as the merits of the controversy is (are?) concerned in our view, the Small Causes Court committed error in rejecting the application filed by the plaintiff for amending his plaint. After the permission to amend written statement was granted to the defendants on 10th Sept., 1975 the plaintiff filed the present application for amendment of his plaint. By this application plaintiff wanted to raised an additional to him, in view of denial of his titled, by amendment to written statement. As observed by the Supreme Court in Suraj Prakash v. Raj Rani, : AIR1981SC485 :
'It is well know that amendments of pleadings are within the discretion of the Court although judicial discretion is not wild humour. Justice Cardozo, with jurisdiction accuracy and literary felicity, expressed exquisitely the principles governing judicial discretion:' The nature of the judicial process, Yale University Press (1921).
The Judge, even when he is free, is still not wholly free. He is not o innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to drawn his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a (discretion) disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.'
The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in M Shwe Mya v. Maung Ho Hnaung AIR 1922 PC 249 : See pp. 1283-84 of AIR (1908) CPC .
All rules of Court are nothing but the provisions indicated to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, by nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.'
In the present case after the amendment to the written statement was allowed, the plaintiff wanted to add one more ground by amending his plaint. Thus, the amendment was obviously consequential in nature. The learned Judge has rejected the application on the ground that it is uncalled for and belated. The reasons given but the learned Judge are obviously contrary to the well established principles of law and therefore, it can safely be said that the Court below has acted in the exercise of its jurisdiction illegally or with material irregularity which has resulted in miscarriage of justice. It can also safely be held that the said order is vitiated by an error apparent on the face of the record. Hence, the application for amendment filed by the plaintiff for amending his plaint deserves to be allowed.
10. Hence Rule is made absolute and the order passed by the learned Judge of the Court of Small Causes dated 21st of Sept., 1976 is set aside and the application for amendment filed by the plaintiff is allowed. However, in the circumstances, there will be no order as to costs.
11. Ordered accordingly.