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Kishan Alias Krishnakant, Ranchhoddas Kapadia and anr. Vs. Lalji Dharmdas Kapadia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2605 of 1981
Judge
Reported in1982(1)BomCR478
ActsPresidency Small Cause Courts Act, 1882 - Sections 41 and 47; Code of Civil Procedure (CPC) , 1908 - Sections 97(1), 97(2) and 97(3) - Order 21, Rules 63 and 98 to 103; Code of Civil Procedure (CPC) (Amendment) Act, 1976; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12; General Clause Act, 1897 - Sections 6
AppellantKishan Alias Krishnakant, Ranchhoddas Kapadia and anr.
RespondentLalji Dharmdas Kapadia and ors.
Appellant AdvocateV.T. Walawalkar and ; B.R. Singh, Advs.
Respondent AdvocateD.M. Vora, Adv.
Excerpt:
.....as amended with effect from february 1, 1977, and which have the effect of taking away the right of suit which was provided for in the earlier provisions in rule 103 cannot be attracted and the petitioners' right must be determined in accordance with the original provisions in rule 103. 7. now it is well known that extensive amendments were made in the code of civil procedure by the amendment act of 1976. so far as is material for the purpose of this case, it is necessary to mention that new sub-rule (2) was added in order 21, rule 97 in place of the original sub-rule (2), order 21, rule 97, as amended, reads as follows :97(1) where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or..........as amended with effect from february 1, 1977, and which have the effect of taking away the right of suit which was provided for in the earlier provisions in rule 103 cannot be attracted and the petitioners' right must be determined in accordance with the original provisions in rule 103.7. now it is well known that extensive amendments were made in the code of civil procedure by the amendment act of 1976. so far as is material for the purpose of this case, it is necessary to mention that new sub-rule (2) was added in order 21, rule 97 in place of the original sub-rule (2), order 21, rule 97, as amended, reads as follows :---'97(1) where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or.....
Judgment:

M.N. Chandurkar, J.

1. The only question which arises in this petition is whether the suit filed by the petitioners to establish their rights of tenancy after an order in an obstructionist proceedings is made against them, is maintainable after the amendment of Order 21, Rule 103 of the Code of Civil Procedure.

2. Admittedly the respondents have obtained an order of ejectment under section 47 of the Presidency Small Cause Courts Act, against on Bhagwandas Ranchhoddas who is the younger brother of petitioner No. 1. When that order was sought to be executed, the petitioners obstructed the execution of the order and obstructionist proceeding was, therefore, taken out by the decree-holders. The obstructionist proceeding terminated with an order against the petitioners and a warrant of possession was directed to be issued.

3. Against the order in the obstructionist proceedings the petitioners had filed an appeal and an objection was raised in that appeal about the maintainability of the appeal before the Appeal Bench of the Small Cause Court. The Appeal 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 and disposing of such an appeal. The Bench took the view that the Appellate Bench constituted by various provisions of the Presidency Small Cause Courts Act and the Bombay Rent Act cannot be taken to be a general Appeal Bench as such entitled to entertain and decide the appeals under Order 21, Rule 103 of the Code of Civil Procedure. Accordingly, the appeal was held to be not maintainable and was summarily dismissed.

4. Admittedly, the petitioners had filed a writ petition against this order, being Writ Petition No. 1896 of 1981, which was, however, withdrawn on July 7, 1981.

5. The petitioners had, however, already filed a suit for a declaration that they were the tenants of the premises in question from which they were sought to be evicted. In that suit, an application for injunction was made restraining the decree-holders from executing the warrant of possession. The learned Judge of the Small Causes Court, apart from holding that the petitioners had failed to establish prima facie title to the suit premises also took the view that the amended provisions of Rule 103 of Order 21 of Code of Civil Procedure would be applicable to the petitioners' case and, therefore, the injunction notice was discharged. Against this order, the petitioners filed an appeal before the Appellate Bench of the Small Cause Court. The Appellate Bench also took the view that the petitioners had no right to file the suit and that the suit would not be maintainable in view of the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure. The Appellate Bench further observed that if the Court could not pass an order of injunction when the suit would be finally disposed of, they also could not do so at the interlocutory stage. The appeal, therefore, came to be dismissed. These orders are now challenged by the petitioners in this petition.

6. A purely legal contention has been raised on behalf of the petitioners by Shri. Walavalkar. His contention is that on the date on which proceeding under section 41 of the Presidency Small Cause Courts Act, was initiated, a right had vested in the present petitioners to file a suit to establish their title as tenants and that this remedy of filing a suit cannot be said to have been taken away and is expressly saved by the provisions of section 6 of the General Clauses Act. In other words, the contention is that the provisions of Order 21, Rule 103 of the Code of Civil Procedure, as amended with effect from February 1, 1977, and which have the effect of taking away the right of suit which was provided for in the earlier provisions in Rule 103 cannot be attracted and the petitioners' right must be determined in accordance with the original provisions in Rule 103.

7. Now it is well known that extensive amendments were made in the Code of Civil Procedure by the Amendment Act of 1976. So far as is material for the purpose of this case, it is necessary to mention that new sub-rule (2) was added in Order 21, Rule 97 in place of the original sub-rule (2), Order 21, Rule 97, as amended, reads as follows :---

'97(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.'

Originally sub-rule (2) reads as follows :

'The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.'

Sub-rule (1) provides that where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and under sub-rule (2) as amended that application has to be adjudicated upon in accordance with the provisions following Rule 97 of the Amended Code. Rule 98 to 103 have been substituted for the old Rules 98 to 103. Rules 104, 105 and 106 have been newly added. An important change which has been made as a result of these amendments is that the inquiry into the obstructionist proceeding, which was of a merely summary nature under the original provisions, ceased to be of a summary nature and in the inquiry, the Court has now to investigate fully into questions of right, title and interest of the obstructionist to the property and 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 if it were a decree. Rule 101, which is now inserted in place of the old rule, specifically provides that all questions (including questions relating to right to title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding any thing to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. The object of inserting new Rule 101 is obviously to do away with the duality of the proceedings which were contemplated under the Unamended Code. The earlier provisions of Rule 103 had expressly provided that the correctness of the order under Rules 98, 99 or 101 was subject to the decision of a suit which a party, not being a judgment-debtor would file to establish his right. Originally Rule 103 provides as follows :

'Any party not being a judgment-debtor against whom an order is made Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive'.

The scheme of the Unamended Code was that the obstructionist not being a judgment-debtor, had two opportunities to establish his rights. If there was an obstruction in the execution of the decree, then a summary inquiry was permissible and if the obstructionist was unsuccessful in that summary inquiry he had the right to have his right to the disputed property established in a regular suit after a full trial and the decision in that suit was appealable in regular course. The new provisions in Rule 103 read as follows :

'Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.'

Thus now under the new Rule 103 the order made on the application under Rule 98 or 100 is itself made appealable as if it were a decree.

8. Now, it has to be pointed out that Rule 103 is a provision of general application and is not restricted to the area of Greater Bombay. The provisions will, therefore, have to be construed on their terms without reference to the question as to whether so far as the 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 proceedings out of an order for eviction under section 41 of the Presidency Small Cause Courts Act, 1882.

9. Now, the jurisdiction of the Court to make an appropriate order in an adjudication upon an application under Rule 97 of Order 21 is regulated by the provisions of Order 21, Rule 98 and one of the orders which the Court can make on determination of the questions referred to in Rule 101 is an order directing the applicant to be put in possession of the property or dismissing the application. Such an order has been made against the present petitioners and the question is whether it is open to the petitioners in the face of this order and the provisions of Order 21, Rule 103 to file a suit to establish their title as tenant. Now it can hardly be disputed that if a person has to establish any right the normal remedy which is always available to such a person is to file a suit. There can be no doubt that if one has to consider the position without looking into the provisions of Order 21, Rule 103, the petitioners will have a right to file a suit in any appropriate Court to claim a declaration that they were tenants of the disputed property. It is, however, very difficult to overlook the fact that the occasion to adjudicate upon the right claimed by the petitioners had arisen by virtue of the obstruction caused by them in the execution of the decree. The obstructionist proceeding would, therefore, have to be regulated by the provisions of Order 21, Rule 97 to Rule 103. Notwithstanding the fact that by virtue of the right claimed as a tenant the petitioners would have normally had a remedy to establish that right by a suit, there is nothing to prevent the Parliament from regulating the exercise of that right of suit and making provisions which will affect such right. It is obvious that the object of enacting the new provisions of Order 21, Rule 97 to Rule 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. That is why an express provision was made in Rule 101 that all questions relating to right, title or interest in the property would also be the subject matter of the enquiry in the obstructionist proceedings. In other words, the obstructionist proceeding now contemplated under the amended provisions was really a full-fledged trial of the issues relating to right, title or interest in the property claimed by the obstructionist. The decision in these proceedings has been now made expressly appealable as if it were a decree in a suit.

10. Now it is difficult to see how the learned Counsel for the petitioner can place reliance on reference to section 6 of the General Clauses Act made in section 97 of the Code of Civil Procedure (Amendment) Act, 1976. Section 97(1) is the repealing provision and the saving provision is in sub-section (2). Under section 97(1) of the Amending Act any amendment made by the State legislature or by the High Court in the Code of Civil Procedure before the commencement of the Amending Act were to stand repealed in so far as the amendments were inconsistent with the provisions of the Amending Act. Sub-section (2) provides that certain provisions as amended will not affect certain pending matters. The relevant part of sub-section (3) of section 97 reads as follows :

'(2) Notwithstanding that the provisions of this Act have come into force or the appeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 or the General Clauses Act, 1897 (10 of 1897),---.............

(q) the provisions of Rules 31, 32, 48-A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be substituted or inserted by section 72 of this Act shall not apply to or affect---

(i) any attachment subsisting immediately before the commencement of the said section 72 or

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property and every such attachment, suit or proceeding shall be continued as if the said section 72 had not come into force'.

Now the effect of sub-section (2), in so far as the provisions of Order 21 referred to in Clause (q) are concerned will be that apart from the effect of the general provisions in section 6 of the General Clauses Act, the Parliament has expressly provided inter alia that any suit instituted before the commencement of the Amending Act under Rule 63 of Order 21 to establish right to the attached property or under Rule 103 to establish possession will not be affected by the provisions of the amended Code and they shall be determined as if the provisions mentioned in Clause (q) have not come into force. It is obvious that when reference was made to section 6 of the General Clauses Act, the purpose was merely to indicate that the specific provisions in section 97(2) was being made in addition to the general provision of section 6, General Clauses Act in order to provide that the pending suits under Order 21, Rule 98 or Rule 103 would not be affected by the amended provisions in Rules 97 to 103 of Order 21.

11. The learned Counsel for the petitioners argued that the original proceeding under section 41 of the Presidency Small Causes Courts Act of which the obstructionist proceedings arose commenced prior to the coming into force of the Amending Act and, therefore, the remedy by way of a suit provided by the earlier provision in Rule 103 must be treated as saved by virtue of Clause (e) of section 6 of the General Clauses Act. This argument however must be rejected in view of the express provisions of sub-section (3) of section 97 of the Amending Act which is a complete answer to the contention that the rights of the petitioners are not regulated by the new provisions in Rule 103. Sub-section (3) of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 reads as follows :

'(3) Save as otherwise provided in sub-section (2), the provisions of the Principal Act, as amended 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, notwithstanding the fact that the right or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, has been acquired or had accured before such commencement.'

It is clear from the words of section 97(3) that except for the matters which are mentioned in Clauses (a) to (zb) of section 97(2), all other matters, whether pending or instituted or filed after the commencement of the Amending Act, would be regulated by the amended provisions. Therefore, whether we treat an obstructionist proceeding as a continuation of the original application for eviction or whether we treat that proceeding as 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 in the instant case. Once the provisions of section 97(3) are attracted it is obvious that only remedy was by way of an appeal against the order of the Court in the obstructionist proceeding and under Rule 103 if no such appeal is filed that order will become final and an independent suit to establish the right, which has been negatived under Order 21, Rule 98, will not be maintainable. There is thus no error in the view taken by the Appeal Bench of the Small Causes Court, that the suit filed by the petitioners is not maintainable.

12. As already pointed out above, the petitioners state that they had infact filed a petition challenging the view of the Appeal bench that there was no forum for the appeal under the Presidency Small Cause Courts Act, but that petition was withdrawn. I am now told that the petitioners are seeking a review of that order and there is some substance in the argument that the effect of the judgment in this petition will be that the petitioners will not have any remedy against the order in the obstructionist proceedings. The learned Counsel for the petitioners has, therefore, requested that the operation of the order in the obstructionist proceedings should be stayed for time to enable the petitioners to move this Court for reviewing the petition filed on the Original Side. In view of the difficult situation in which the petitioners find themselves, it is necessary to stay the operation of the order in the obstructionist proceedings for two weeks till 19th October, 1981, from today.

Rule discharged with Costs.


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