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Harishankar Hiralal Bohra and ors. Vs. Karsandas Nathubhai Majithia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3486 of 1983
Judge
Reported in1984(1)BomCR266
ActsCode of Civil Procedure (CPC) , 1908 - Sections 97(3) - Order 21, Rules 97 to 106; Code of Civil Procedure (CPC) , (Amendment) Act, 1976; Presidency Small Cause Courts Act, 1882 - Sections 41, 42 and 42(1)
AppellantHarishankar Hiralal Bohra and ors.
RespondentKarsandas Nathubhai Majithia and ors.
Appellant AdvocateH.C. Tunara, B.S. Purohit and ;P.B. Purohit, Advs.
Respondent AdvocateG.P. Bharucha, Adv. for respondents 2, 3 and 4
Excerpt:
.....42 (1) of presidency small causes courts act, 1882 - order passed by appellate court dismissing appeal against obstructionist notice on ground that it was not maintainable - writ petition against such order - an order passed in obstructionist proceedings is an order passed by small causes court while exercising jurisdiction under section 41 read with order 21 rules 97 to 106 - such order is appealable under section 42 (1) - appellate court has failed to exercise jurisdiction vested in it - order passed by appellate court liable to be set aside. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal..........the conclusion that the appellate court has committed an error in coming to the conclusion that an appeal filed by the petitioners was not maintainable.7. it is no doubt true that it contended by mrs. bharucha that in any case this is not a fit case wherein this court should exercise its jurisdiction under article 227 of the constitution of india in favour of the petitioner. in reply to this contention it was contended by shri tunara, learned counsel for the petitioners that the petitioners in this writ petition were not parties to the proceedings before the supreme court, nor had they filed any undertaking. further, to the original proceedings also the petitioners were not parties, nor they are claiming any right through the judgment-debtor. therefore, according to shri tunara, the.....
Judgment:

C.S. Dharmadhikari, J.

1. An Ejectment Application No. 49/215 of 1973 was filed before the Court of Small Causes, Bombay against one Ganpatlal by the Trustees of Ratneshwar temple and Smt. Kesarbai Jamnadas Majithia Hindu Sanatorium Trust. In the said Ejectment Application a decree was passed against Ganpatlal on 19-6-1979. A Darkhast for execution of the decree was then filed on 12th of November, 1979, which was obstructed by the petitioners. Therefore, the Obstructionist Notice No. 362 of 1979 was taken out on 13th November, 1979 and the same was made absolute on 23rd June, 1982. Being aggrieved by the order passed by the trial Court, the petitioners filed an appeal, bearing Appeal No. 337 of 1982, before the Appellate Bench of the Court of Small Causes, which came to be dismissed by the Appellate Bench on the ground that it was not maintainable. It is against this appellate order that the present writ petition is filed by the present petitioners. In view of the narrow controversy involved in this writ petition, it is not necessary to make a detailed reference to the allegations and counter-allegations made in this petition or the affidavits filed in reply.

2. Shri Tunara, learned Counsel appearing for the petitioners contended before me that the Appellate Bench committed an error, apparent on the face of the record in coming to the conclusion that an appeal is not maintainable against the order passed by the trial Court in the obstructionist proceedings. According to him, if interpretation put forward by the Appellate Court is accepted then the order passed by the trial Court becomes final and conclusive in view of the amended provisions of Order 21, Rule 101 of the Code of Civil Procedure, without there being any remedy to the petitioners to challenge the said order or establish their right title or interest in the property either by filling an appeal or by instituting an independent suit. In support of this contention he has placed reliance upon the decision of this Court in Sitaram Hari v. Laxman Rambodh 1980 Bom.C.R. 140 : 1979 M.L.J. 864; Kishan Ranchhoddas v. Laiji Dharamdas : 1982(1)BomCR478 ; Rameshkumar and another v. Rameshwar 1983 Bom.C.R. 283 : 1983 M .L.J. 467; Habib Ahmed v. Abdul Khader etc. : AIR1975Bom41 and Elumalai v. Shri Kundaswami : AIR1961Mad408 . According to Shri Tunara, interpretation put forward by the Appellate Court practically results in undoing the effect of the amended provisions of the Code of Civil Procedure and, therefore, the Appellate Court has failed to exercise the jurisdiction vested in it by law and hence order passed by it is liable to be set aside.

3. On the other hand, it is contended by Mrs. Bharucha, learned Counsel appearing for the respondents that the petitioners have not approached this Court with clean hands and, therefore, this is not a fit case, wherein this Court should exercise the extra-ordinary jurisdiction under Article 227 of the Constitution of India in favour of the petitioners. According to her, the petitioners have wholly suppressed the fact that the original defendant had filed a leave petition before the Supreme Court which came to be rejected and at that time the Supreme Court has passed a conditional order granting time to the defendant to vacate the premises if he filed an undertaking for and on behalf of himself as well as on behalf of the obstructionist. According to her, the said decision of the Supreme Court also operates as res judicator and therefore it is not open to the petitioners to reagitate the same question over again. In any case the equity is not in favour of the petitioners and entertaining this writ petition will amount to abuse of process of law. So far as the merits of the controversy are concerned, it is contended by her that in the present case the ejectment application was filed in the year 1973, wherein the order of ejectment came to be passed in the year 1979 . Therefore, when the Code of Civil Procedure came to be amended in 1976, the proceedings were still pending. The execution proceeding instituted in the year 1979 was merely a continuation of the old proceedings and, therefore by virtue of the provisions of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 present proceedings are saved and the amended provisions will not apply to these pending proceedings. According to the learned Counsel, the obstructionist proceedings were also taken out in the Darkhast proceedings itself. Therefore, in law said proceedings are also continuation of the initial proceedings which are saved by section 97 of the Amending Act as well as section 46(2) of the Presidency Small Cause Courts Act and, therefore, the Appellate Bench rightly came to the conclusion that the appeal was not maintainable. She also contended that the Appellate Bench was also right in coming to the conclusion that if the original proceedings instituted under section 41 of the Act were not subject to an appeal, then the proceedings taken out in execution are also not open to challenge in an appeal and, therefore, the order passed by the Appellate Bench holding that the appeal itself is not maintainable is perfectly legal and valid. In support of this contention, she has placed reliance upon the decision of this Court in Maharaj Indrajitsinhaji v. H.H. Maharaja Hadmendrasinhaji 57 Bom.L.R. 962 and Gobind Prasad v. Hariday Thakur and others : AIR1925Pat692 . Placing reliance upon these decisions, it is contended by Mrs. Bharucha that right of appeal is a substantive right and it cannot be conferred upon a litigant by implication. By section 48 of the Presidency Small Cause Courts Act, the provisions of the Code of Civil Procedure are made applicable, as far as may be and that too to the proceedings instituted in the Court of first instance. Rule 1(ii) of the Presidency Small Cause Court Rules read with the Schedule also made it clear that whole of the Code of Civil Procedure is not made applicable to these proceedings. The provisions of the Code referred to in the Schedule attached to the rules apply with additions alterations and modifications referred to therein. Therefore, the whole of Order XXI of the Code of Civil Procedure is not made applicable to the proceedings instituted under the Presidency Small Cause Courts Act and hence there is not provision in law, which provides for an appeal against the order passed by the Small Court in the obstructionist proceedings.

4. I had an occasion to consider the ambit and scope of the provisions of Chapter VII of the Presidency Small Cause Courts Act. In Sitaram v. Laxman 1979 Mh.L.J. 864. While considering the question as to whether the provisions of Order 21, Rule 100 of the Code of Civil Procedure apply to the proceedings under Chapter VII it was held by me that in view of the specific provisions of section 48 and the Rules framed under the Act. It will not be correct to say that the provisions of the Code of Civil Procedure are not applicable to the proceedings filed under Chapter VII of the Presidency Small Cause Courts Act only because the said proceedings is not a suit, or an order passed therein is not a decree. On the contrary whether the proceedings is a suit, or the order passed is a decree or not is not relevant for deciding the said question in view of the specific provisions of the Act as well as the Rules framed thereunder. It is also held therein that the provisions of Order XXI, Rule 100 of the Code of Civil Procedure will apply to the proceedings instituted under Chapter VII of the Act. Once it is held that the provisions of the Code of Civil Procedure apply to the proceedings instituted under Chapter VII of the Presidency Small Cause Courts Act, then it will have to be seen as to whether there is anything in the Act or Code which expressly or by necessary implication excludes the application of the amended provisions of the Code of Civil Procedure to the proceedings under Chapter VII. To some extent a similar question came up for consideration before Chandukar, J., in Kishan Ranchhoddas and another v. Lalji Dharamdas Kapadia and others 1982 Mh.L.J. 216. In that case also the landlord had obtained an order of ejectment under section 41 of the Presidency Small Cause Courts Act against the tenant. When the order was sought to be executed, the petitioners obstructed execution of the order and the obstructionist proceedings was taken up be the decree-holders. The obstructionist proceeding terminated with the order against the petitioner and a warrant of possession was directed to be issued. It is against that order that an appeal was filed before the Appellate Bench of the Small Causes Court and the Appellate Bench held that even though the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure made the impugned order appealable, still it did not provide for or create a forum for entertaining or disposing of such an appeal and, therefore, the appeal was not maintainable. A revision petition was filed against the said appellate order, which came to be withdrawn. The petitioner has also filed a suit for a declaration that they were the tenants of the promises in question and an application for injunction was also made in the said suit restraining the decree holders from executing the warrant of possession. The notice of injunction was discharged. Against this, an appeal was filed to the Appellate Bench of the Small Causes Court and it took the view that the said appeal was not maintainable. Against these orders a writ petition was filed before this Court in Kishan Ranchhoddas's case. Chandurkar, J., took the view that as a result of amendment to the Codes of Civil Procedure and particularly in view of the amended provisions of Order XXI, Rules 97 to 103 an inquiry into the obstructionist proceeding which was merely a summary in nature has now ceased to be so and after amendment the Court has to investigate fully into the question of right, title and interest of the obstructionist to the property. It is provided under Rule 103 that such an order determining the rights of the parties shall have the same force and be subject to the same conditions as to an appeal or otherwise, as it were a decree. The learned Judge further held that the object of inserting Rule 101 is obviously to do away with the duality of the proceedings, which were contemplated under unamended Code. It was also observed by Chandurkar, J., that the object or enacting the new provisions of Order XXI, Rules 97 to 106 was to expedite the trial of the issues involved in the claim made by the obstructionist to the property in dispute and to see that the execution of the decree is not unnecessarily delayed. In other words, the obstructionist proceeding now contemplated under the amended provisions is really a full fledged trial of the issues relating to the right, title or interest in the property as claimed by the obstructionist and the said decision has now been made expressly appealable as if it were a decree in a suit. Chandurkar, J., had also an occasion to consider the scope and ambit of the obstructionist proceedings instituted in the proceeding filed prior to the amendment to the Code of Civil Procedure in 1976. Construing the provisions of section 97 of the Amending Act, the learned Judge held that whether an obstructionist proceeding is treated as a continuation of original application or a fresh proceeding newly instituted after the commencement of the Amending Act, the provisions of sub-section (3) of section 97 of the Amending Act leave no room for doubt that the amended provisions in Order 21, Rule 98 to Rule 103 will be attracted. Once the provisions of section 97(3) are attracted, it is obvious that the only remedy was by way of appeal against the order of the Court in the obstructionist proceeding and if no appeal is filed then order will become final and an independent suit to establish the right, which has been negatived under Order 21, will not be maintainable. This decision of Chandurkar. J., is approved by the Division Bench of this Court Ramesh Kumar v. Rameshwar and another 1983 Mh.L.J. 167 to which I was a party. In my opinion much of the controversy raised before me in this writ petition is covered by the decision of Chandurkar, J.

5. However, Mrs. Bharucha has placed strong reliance upon the following observations in Kisan Ranchhoddas's case, which read as under :

'Now it has to be pointed out that Rule 108 is a provision of general application and is not restricted to the area of Greater Bombay. The provision will, therefore have to be construed on their terms without reference- to the question as to whether so far as Greater Bombay is concerned, there is any forum provided to which such an appeal can be filed and indeed that question is not required to be debated in this petition. The construction of Rule 103 will not, therefore, depend on whether in the Greater Bombay there is available a forum for appeal or not in the case of an obstructionist proceeding out of an order for eviction under section 41 of the Presidency Small Cause Courts Act, 1882.'

Therefore, according to Mrs. Bharucha, the said decision is not applicable to the application filed under section 41 of the Presidency Small Cause Courts Act, 1882 within the area of Greater Bombay. It is not possible for me to accept this contention for more than one reason. While construing the provisions of the amended Code of Civil Procedure, it cannot be forgotten that new provisions of Order 21, Rules 97 to 106 are inserted in the code to expedite trial of the issue involved in the claim made by the obstructionist. As the result of the this amendment, inquiry into the question of right, title and interest of the obstructionist to the property is a full fledged inquiry and not, merely summary in the nature. In terms, the object of inserting Rule 101 is to do away with this duality of the proceeding. By section 97 of the Amending Act of 1976 any amendment made or any provision inserted in the principal Act by the State Legislature or High Court before the commencement of the 1976 Act was, except in so far as such amendment or provision is consistent with the provision of the Act, as amendment by this Act stands repealed. Then by sub-section (3) of section 97 it is declared in the clearest terms save as otherwise provided in sub-section (2), the provision of the principal Act as amendment by this Act shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement, not withstanding the fact that the cause of action, in pursuance of which such a suit, proceeding, appeal or application is instituted or filed, has been attracted or obtained before such commencement. Section 97(2) is a saving clause, under sub- Clause (ii) of Clause (Q) a suit instituted before the commencement to establish right to property or under Rule 103 to establish possession is saved. Therefore, if various provision of section 97 are read together and harmoniously, it will have to be held that after the commencement of the 1976 Amending Act subject to the saving clause, various provision stand repealed. Therefore, Chandurkar, J., in Kisan Ranchhoddas's case rightly held that whether the obstructionist proceeding is treated as a continuation of the original application newly instituted after the commencement of the Amending Act, the provision of sub-section (3) of section 97 of the Amending Act leave no room for doubt that the amended provision in Order 21, Rules 98 to 103 will be attracted and once the provision get attracted, then the only remedy is by way of appeal against the order and if no appeal is filed, the order becomes final and is not subject to independent suit. Therefore, the only question which requires consideration in the present writ petition is to find out as to whether no forum is prescribed either under the Presidency Small Cause Court Act or otherwise, for filing an appeal against the order passed by the Small Cause Court in obstructionist proceeding in the area of Greater Bombay. Mrs. Bharucha by placing reliance upon the observation in para 8 of Kisan Ranchhoddas's case has contended that since no forum is provided the matter is governed by the old law and as it stood on the date of filing of the application under section 41 of the Act, as it stood in the year 1973. To say the least, Chandurkar, J., has not decided this question finally. On the other hand, it is made clear by Chandurkar, J., that such a question was not even debated in that petition. Therefore on the basis of the some causal observation made, in Kisan Ranchhoddas's case, it cannot be held that no forum is to provided to which such an appeal will lie, so far as Greater Bombay is concerned. In substance, therefore, the controversy boils down to this, that though the provision of Order 21, Rules 98 to 106 apply and a right of appeal is also conferred upon a litigant an order passed in obstructionist proceeding, still as on forum is provided, the said right is lost. It is difficult for me to accept such a broad proposition. It is well settled principal of interpretation that if a right is created in a litigant, then remedy and forum must be available to him enforce it. A right without corresponding forum to enforce it, is in substance no right at all. A law cannot be construed to result in a situation where a right exists without a corresponding remedy or forum. In the present case right to file an appeal is implicit in Rule 103 of Order XXI of the Code of Civil Procedure. Therefore, it will have to be seen as to whether a forum is also available for filing such an appeal even within the area of Greater Bombay.

6. Chapter VII of the Presidency Small Cause Courts Act is a complete Code in itself. The rules framed by the High Court under section 122 of the Code of Civil Procedure prior to Amending Act of 1976 stand repealed by virtue of section 97(1) of the Amending Act, if they are not consistent with the amended provisions. Therefore, nothing will turn on the rules framed under the Presidency Small Cause Courts Act or the Schedule attached to it. Even in the Schedule a reference is made to Order XXI of the Code. Once it is held that Chapter VII of the Presidency Small Cause Courts Act is a Code in itself, then it will have to be seen as to whether either by virtue of section 46(2) or otherwise, an appeal is barred. By section 42 of the Presidency Small Cause Courts Act, an appeal is provided from a decree or order made by the Small Causes Court exercising jurisdiction under section 41. In my opinion, the phraseology used viz. 'exercising jurisdiction under section 41 is significant. If, as contended by Mrs. Bharucha the execution proceedings as well as obstructionist proceedings are a continuation of the proceedings instituted under section 41 of the Act, then it will have to be held that even an order passed in obstructionist proceeding is an order passed by the Small Causes Court while exercising jurisdiction under section 41 read with Order XXI, Rules 97 to 106 of Code of Civil Procedure and, therefore, appealable. In the present case, ejectment order came to be passed in the year 1979. Thereafter the execution proceedings were instituted and obstructionist proceedings were taken. The execution proceedings were instituted after the Code of Civil Procedure was emended and as held by Chandurkar, J, such proceedings are covered by Order XXI, Rules 98 to 106 of the Code. Once it is held that the order passed by the Small Causes Court in obstructionist proceedings is passed in exercise of the powers conferred under section 41, then the provisions of section 42 must apply to an order passed in such prosecution. Therefore, such an order will be appealable to a Bench of two Judges of the said Court under section 42(1) of the Presidency Small Cause Courts Act. Such a construction is inevitable. Otherwise, it will result in anomalous position viz. that though the right to file an appeal exists, law has failed to provide for a remedy. It is well settled rule of construction of statutes that a construction which results in unforeseen hardship and absurdity should be avoided. Normally the words of such statutes should be so construed as to secure that the relief contemplated by the statute is not denied to a class of persons only. This seems to be the reason why in Habib v. Abdul Kader, : AIR1975Bom41 the Division Bench of this Court took a view that an appeal lies to the Appellate Bench of the Small Causes Court from an order made by a Single Judge of the Court under Order 21, Rule 98, Civil Procedure Code in execution of a decree passed under section 28 of the Rent Act. In the result, therefore, I have no hesitation in coming to the conclusion that the Appellate Court has committed an error in coming to the conclusion that an appeal filed by the petitioners was not maintainable.

7. It is no doubt true that it contended by Mrs. Bharucha that in any case this is not a fit case wherein this Court should exercise its jurisdiction under Article 227 of the Constitution of India in favour of the petitioner. In reply to this contention it was contended by Shri Tunara, learned Counsel for the petitioners that the petitioners in this writ petition were not parties to the proceedings before the Supreme Court, nor had they filed any undertaking. Further, to the original proceedings also the petitioners were not parties, nor they are claiming any right through the judgment-debtor. Therefore, according to Shri Tunara, the petitioners have neither suppressed any material facts, nor the order of the Supreme Court operates as res judicata against them. He also contended that it is the petitioners who are the worst sufferers, if the view taken by the Appellate Bench is sustained, because in that case the order passed by the trial Court determining their right, title or interest in the property is neither subject to an appeal, nor is it subject to an independent suit. Since the appeal was disposed of by Appellate Bench on a preliminary point, viz. the maintainability of the appeal, I do not think that it will be fair at this stage to deal with these contentions. To some extent these contentions are relevant while deciding the controversy on merits which the Appellate Court is bound to consider while deciding the appeal. In the result, therefore, the rule is made absolute. The order passed by the Appellate Bench dated 3-11-1982 is set aside and the matter is remitted back to the Appellate Bench for deciding the appeal on merits in accordance with law. Since the matter is pending long, the Appellate Bench is directed to hear and decide the appeal as expeditiously as possible, preferable within a period of three months from the date of the receipt of writ of this Court.

The parties are directed to appear before the Appellate Bench of the Small Causes Court at Bombay on 18th of July, 1983. However, in the circumstances of the case, there will be no order as to costs.


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