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F.M. Subbayya Vs. Venkataramana Subrao Barkur - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 423 of 1958
Judge
Reported inAIR1959Kant145; AIR1959Mys145
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 9, 96, 104 and 115; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28, 28(1), 28(2), 29, 29A, 29(1), 31 and 49; Small Cause Courts Act - Sections 25; Provincial Small Cause Courts Act, 1887 - Sections 25; Bombay Rents, Hotel and Lodging House Rates Control Rules - Rules 5, 6, 7, 8, 9, 9A, 9B, 9C, 9D, 10, 11, 12 and 13
AppellantF.M. Subbayya
RespondentVenkataramana Subrao Barkur
Appellant AdvocateM.S. Nesargi, Adv.
Respondent AdvocateT.S. Ramachandra, Adv.
Excerpt:
.....appeal if the conditions prescribed by the code for a second appeal arc satisfied. 11. i am, therefore, clearly of the opinion that the order of the lower court in this case which is the court of a civil judge, junior division, made under section 28 of the act is appealable under section 29 of the act......to the petitioner with arrears of rent and mesne profits. the suit was filed in the court of the civil judge, junior division at sirsi and was numbered as small cause suit no. 119/1957. the court granted decree tor possession to be delivered to the respondent within one month of the decree and also directed payment of rents and mesne profits with liberty to the respondent io take out the amounts deposited in court by the petitioner in satisfaction of the decree, 2. against the said decree or order the petitioner has filed the above civil revision petition under section 25 of the provincial small cause courts act of 1887. one of the principal points argued before me is whether this revision petition is maintainable or competent, the respondent's learned counsel contending that the order.....
Judgment:
ORDER

1. The respondent, who is the landlord, sued the petitioner under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter called the Act) for recovery of possession of the house leased to the petitioner with arrears of rent and mesne profits. The suit was filed in the Court of the Civil Judge, Junior Division at Sirsi and was numbered as Small Cause Suit No. 119/1957. The court granted decree tor possession to be delivered to the respondent within one month of the decree and also directed payment of rents and mesne profits with liberty to the respondent io take out the amounts deposited in Court by the petitioner in satisfaction of the decree,

2. Against the said decree or order the petitioner has filed the above Civil Revision Petition under Section 25 of the Provincial Small Cause Courts Act of 1887. One of the principal points argued before me is whether this revision petition is maintainable or competent, the respondent's learned Counsel contending that the order complained of being one made under Section 28 of the Act the petitioner should have appealed to the District Court under Section 29, and the petitioner's learned Counsel contending that the matter is not covered by Section 29 of the Act and that the suit having been tried as a Small Cause suit, the petitioner was entitled to come to this Court invoicing its jurisdiction under Section 25 of the Provincial Small Cause Courts Act.

3. The Bombay Act was enacted with a view to amend and consolidate the law relating to control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. It makes special provision regarding these subjects and to a considerable extent takes away or restricts or modifies the contractual rights of parties and confers and imposes on them certain special rights and obligations. In other words, it is a special Act dealing with this special subject.

4. Before examining the contentions of the parties before me, it will be desirable to set out certain accepted and well established principles governing the jurisdiction and powers ot courts under special Acts of the nature of the Act with which we are now dealing. When a statute creates special rights and obligations, it may or may not say anything about courts in which such rights and obligations are to be litigated upon.

If it says nothing on the subject, then if the rights created are civil rights the ordinary civil courts will have the general jurisdiction to try suits relating to such rights under Section 9 of the Code of Civil Procedure, unless, of course, the cognizance of such suits by ordinary civil courts is either expressly or impliedly barred. The best example of such implied bar is available where the special Act sets up a special set or hierarchy of tribunals specially empowered to deal with or adjudicate upon the lights and obligations created by the special Act.

Very often when such tribunals are set up by the special Act, the Act itself contains a section imposing a bar on the jurisdiction of ordinary civil courts in respect of matters specially placed within the competence of the tribunals set up by the Act. Even if no such express bar is stated, the very fact of setting up special tribunals and directing that the special rights or obligations shall be adjudicated upon by those tribunals will itself amount to an implied bar against the exercise ot jurisdiction by ordinary courts in respect of those matters.

The special Act instead of creating special tribunals may invest the ordinary courts themselves or some courts selected from among those courts with the jurisdiction to adjudicate upon the special rights or obligations created by the statute. In such cases the jurisdiction conferred by the special Act will be in the nature of a special jurisdiction conferred upon the existing courts or such among them as have been selected by the statute for exercise of that jurisdiction. When such is the situation, two questions arise:

(i) What should be the procedure of the courts while exercising their special jurisdiction; and

(ii) Whether a party aggrieved by any decree or order passed in the exercise of such special jurisdiction has a right of appeal, and if so, in what circumstances and before which court or tribunal.

5. So far as the procedure is concerned, the normal rule is that an existing court with its own procedure under any statute or rules applicable to it will continue to follow the same procedure, unless the special Act prescribes a special procedure or contains a special provision inconsistent with the rules of ordinary procedure of the court, in which case such special provision will prevail.

Regarding the right of appeal, it has got to he either conferred by the Statute or must be clearly available under the ordinary statute of procedure governing the court. As to the latter aspect, we have to look into the Code of Civil Procedure, if the court in question is a civil court; under the Code if the adjudication by the civil court in respect of the special statutory right amounts to a decree within the meaning of Section 2(2) of the Code, an appeal would lie under Section 96 of the Code and also a second appeal if the conditions prescribed by the Code for a second appeal arc satisfied.

If, however, such adjudication amounts only to an order and not a decree, then in terms of Section 104 of the Code no appeal will lie, unless it is expressly provided by the special law. When the special law itself contains a provision for appeal, revision or other remedy, then obviously the special provision alone has to be looked into for ascertaining whether, or not a party has a right of appeal and if so before which court or tribunal.

6. We may now examine the provisions of the Act in the light of the principles stated above. Under the Act jurisdiction is specially conferred upon selected courts already functioning under one or other of existing statutes. The particular provision is Section 28(1), which reads as follows:

'28 (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.

(a) in Greater Bombay, the Court of Small Causes, Bombay,

(aa) in any area for which, a Court of Small Cause is established under the Provincial Small Cause Courts Act, 1887, such court and

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area inwhich the premises are situate or, if there is no such civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction 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 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 and subject to the provisions of Sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.'

Sub-section (2) of the same Section empowers District Court to transfer a matter from the file ot a court established under the Provincial Small Cause Courts Act 1887, to the file of a Civil Judge (Senior Division) whereupon the latter Judge is deemed to be the Court of Small Causes under the Act of 1887. This is an instance of conferment of the special jurisdiction under the Act on certain selected existing courts. The concluding portion of the first sub-section of Section 28 takes away the jurisdiction of other courts in respect of the special matters under the Act. This bar on jurisdiction, is, to some extent, qualified by Section 29A, which reads as follows:

'29A. Nothing contained in Section 28 or Section 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises.'

Reading the two provisions together, a Bench of the Bombay High Court in Harswarup Khannamal v. Nandaram Shri Ram : AIR1956Bom656 , has held that the title mentioned in Section 29A must be a title dehors the Act and that if title arises by reason of the provisions of the Act itself such title is obviously a question arising out of the Act and is within the ambit of the special jurisdiction and hence beyond the jurisdiction of ordinary courts.

7. Regarding procedure, a Full Bench of the Bombay High Court in Ranchhodlal Vallabhdas v. Mahendrakumar Ambalal AIR 1950 Bom 481, has stated the principles which I have already summarised above, viz. that the courts should follow their normal procedure except to the extent to which special or other provision is made by the special Act itself. Section 31 of the Act provides that the courts exercising jurisdiction under it are to follow the prescribed procedure, i.e., the procedure prescribed by Rules made under Section 49 of the Act.

Rules 5 to 9 comprised in Chapter IV indicate the procedure to be followed by the Court of Small Causes, Bombay; Rules 9A to 9D comprised in Chap. IVA indicate the procedure to be followed by courts established under the Provincial Small Cause Courts Act, 1887, and Rules 10 to 13 comprised in Chap. V indicate the procedure to be followed by a Court of Civil Judge, Junior or Senior Division.

The general scheme of these Rules is that in respect of matters of the value below a specified amount and certain smaller matters the procedure of a Small Cause Court is to be followed and in other matters the procedure of a Court of first instance, that is to say, a court exercising ordinary original civil jurisdiction, is to be followed.

The purpose obviously is that in smaller matters the speedy procedure of small cause courts should be available to parties, although in cases for recovery of possession the normal procedure is not of a small cause court but of an ordinary court of first instance, but in heavier cases the elaborate procedure of original suits is preserved. This classification under the Rules furnishes, in my opinion, the reason for the nomenclature used by courts for suits under the Act and explains why the suit now in question has been described as a small cause suit. (8) The Act also contains special provision regarding appeals and such provision is contained in Section 29, Section 29(1) reads as follows:

'29 (1). Notwithstanding anything contained in any law, an appeal shall lie-

(a) in Greater Bombay, from a decree or 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 Causes 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 Clause (c) of Sub-section (2) of Section 28 or by a Civil Judge exercising such jurisdiction, to the District Court.'

Then follows a proviso which states exceptions to the general right of appeal by providing that no appeal shall lie in certain smaller matters; in such matters Sub-section (3) provides for a revision by the District Court. Sub-section (2) says that no further appeal shall lie against any decision in appeal under Sub-section (1).

This, in my opinion, is a complete and self-contained section dealing with the right of appeal in matters covered by the Act. The Bench of the Bombay High Court in the case reported in : AIR1956Bom656 , already referred to, has described the position under this Act to be one in which special jurisdiction is conferred upon special courts with a special provision regarding appeals.

While expressing my general agreement with the views stated in that judgment of the Bench, I wish to add with great respect that it will be more accurate to state that the courts exercising jurisdiction under the Act are not special courts specially set up under the Act itself, but ordinary courts exercising a special jurisdiction.

The importance of the distinction will become obvious if it is pointed out that because these are ordinary courts which arc subordinate to the High Court, provisions of Section 115 of the Code of Civil Procedure will be attracted empowering the High Court to revise orders when no appeal lies from them. The Bombay High Court it self has entertained and heard several revision petitions under Section 115 of the Civil Procedure Code against appellate orders under Section 29 of the Act, which prohibits second appeals against them.

9. The learned Counsel for the petitioner has argued that Section 29(1) docs not cover cases where original jurisdiction under the Act is exercised under Section 28 of the Act by a Civil Judge under Clause (b) of Sub-section (1) of that section. His contention is that the expression 'a Civil Judge exercising such jurisdiction' in Clause (b) of Sub-section 1 of Section 29 can mean only a Civil Judge exercising small cause jurisdiction, having regard to the enumeration in the earlier part of the same clause of only small cause courts.

I am afraid, this is not a correct way of reading this provision. Section 28 of the Act deals with original jurisdiction under the Act and Section 29 deals with appellate jurisdiction under the Act. Appeals under Section 29 are provided against original orders passed under Section 28. Clause (a) of Section 29(1) referring to the Court of Small Causes, Bombay, describes it as a court exercising jurisdiction under Section 28.

Hence, in my opinion, the term 'exercising such jurisdiction' in Clause (b) of the same Sub-section naturally and necessarily means 'exercising jurisdiction under Section 28.' It follows, therefore, a Civil fudge exercising such jurisdiction referred to in Clause(b) means a Civil Judge exercising jurisdiction under Section 28, which means a Civil Judge, Junior Division or a Civil Judge Senior Division, referred to in Clause (b) of Sub-section (1) of Section 28.

10. No other argument or suggestion has been addressed or made to support the contention that Section 29 does not provide for an appeal against orders made by Civil Judges empowered under Clause (b) of Sub-section (1) of Section 28. The only argument based on interpretation is the one stated above, which I am unable to accept. I have already explained why the suit is described as a small cause suit. According to the Rules made under the Act, two types of procedure are prescribed for two classes of suits.

The more fact that the procedure is different does not affect the nature of the jurisdiction exercised by the Court. That jurisdiction is the special Jurisdiction conferred by Section 28 of the Act. The mere fact that a suit is tried according to the procedure applicable to small cause courts cannot convert that suit into a small cause suit, the order in which is revisable under Section 25 of the Provincial Small Cause Courts Act of 1887: nor will the fact that a suit is tried according to the procedure prescribed for original suits convert that suit into an ordinary original civil suit and make a decree therein appealable under Section 98 of the Civil Procedure Code.

It must be noted that Section 28 confers jurisdiction upon the selected courts to try not merely a suit for recovery of possession but also a proceeding for recovery of possession. In the mofussil courts ordinarily a suit will lie; in the City of Bombay a landlord can start a proceeding and not a suit, under Chap. VII of the Presidency Small Cause Courts Act of 1882 for recovery of possession. Hence, whether the original matter is a suit or a proceeding, ft is tried as a special matter under Section 28 of the Act and the final adjudication or determination in it becomes appealable under Section 29, whether it amounts to a decree within the meaning of the Civil Procedure Code or not.

11. I am, therefore, clearly of the opinion that the order of the lower Court in this case which is the Court of a Civil Judge, Junior Division, made under Section 28 of the Act is appealable under Section 29 of the Act. Hence, this Revision Petition under Section 25 of the Provincial Small Cause Courts Act is not competent. It is accordingly dismissed with costs.

12. Revision dismissed.


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