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Panchal Keshavlal Somnath and ors. Vs. Chinubhai Jagjivandas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR772
AppellantPanchal Keshavlal Somnath and ors.
RespondentChinubhai Jagjivandas
Cases ReferredHemchand M. Singhania v. Subhkaran Nandlal Baragra
Excerpt:
- - it would thus appear that in suits falling under rule 5 as well as rule 8, the special court exercising jurisdiction under section 28 of the bombay rent act is empowered to follow the procedure prescribed under order ix, rule 13 of the code of civil procedure and an application to set aside an exparte decree passed in consequence of default of appearance would be an application which was triable by the special court under the rent act......bombay rents, hotel and lodging house rates control act, 1947, refusing to set aside an exparte decree passed by it is appealable under section 29 of the bombay rents, hotel and lodging house rates control act, 1947 to a bench of two judges of the court of small causes as provided under section 29 of the act. the applicants are the original defendants against whom civil suit no. 1299 of 1963 was filed by the opponent for recovery of possession of rented premises, in the court of small causes, ahmedabad. that suit was under the bombay rents, hotel and lodging house rates control act, 1947 as applicable to the state of gujarat (hereinafter referred to as 'the rent act') and the court was exercising jurisdiction while entertaining and deciding the suit under section 28 of the rent act......
Judgment:

A.R. Bakshi, J.

1. In this revision application, the main question for determination is whether an order made under Order IX, Rule 13 of the Civil Procedure Code by a Court exercising jurisdiction under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, refusing to set aside an exparte decree passed by it is appealable under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to a Bench of two Judges of the Court of Small Causes as provided under Section 29 of the Act. The applicants are the original defendants against whom Civil Suit No. 1299 of 1963 was filed by the opponent for recovery of possession of rented premises, in the Court of Small Causes, Ahmedabad. That suit was under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as applicable to the State of Gujarat (hereinafter referred to as 'the Rent Act') and the Court was exercising jurisdiction while entertaining and deciding the suit under Section 28 of the Rent Act. The applicants-defendants did not remain present on the date of hearing and consequently an exparte decree was passed against them. Thereafter, the applicants preferred an application to the Court of Small Causes at Ahmedabad for setting aside the exparte decree that was passed against them and this application was numbered as Miscellaneous Application No. 2196 of 1965 and was rejected by an order dated 7th May 1966. The present revision application is directed against that order passed by the learned Judge of the Court of Small Causes, Ahmedabad, refusing to set aside the exparte decree passed against the applicants.

2. It has been contended on behalf of the opponent that the present revision application is not competent as an appeal would lie to the Bench of two Judges of the Court of Small Causes by virtue of the provisions of Section 29 of the Rent Act. Mr. Y. S. Mankad appearing on behalf of the applicants, on the other hand, contended that an order refusing to set aside an exparte decree passed by a Court exercising jurisdiction under Section 28 of the Rent Act would not be appealable under Section 29 of that Act and no appeal would lie to the Bench of two Judges of the Court of Small Causes, Ahmedabad as provided in Section 29 of the Rent Act. Mr. Mankad in support of his argument has strongly relied on the judgment of Raju J. in the case of R.C. Trust v. Ramchandra J. Agarwal VII G.L.R. 401.

3. According to Mr. Mankad, the relevant provisions of the Code of Civil Procedure regarding appeals were not applicable to cases decided by the Small Causes Court and consequently, no appeal would lie from an order passed by such a Court on an application preferred before it for setting aside an exparte decree under Order IX, Rule 13 of the Civil Procedure Code. If, the order was regarded as one passed by the Court of Small Causes, contended Mr. Mankad, it would not be an appealable order. Mr. Mankad further contended that the order could not be considered to be an order that was made in the exercise of jurisdiction under Section 28 of the Rent Act and consequently, was not appealable. The contention of Mr. Mankad was that the jurisdiction of the Special Court did not extend to entertain and decide a proceeding to set aside an exparte decree passed by it under the Rent Act and since such an order could not be considered as an order passed by a Court exercising jurisdiction under Section 28 of the Rent Act, no appeal was competent under the provisions of Section 29 of that Act.

4. The exparte decree that was passed against the defendants was a decree passed in a suit which fell within the purview of Section 28 of the Rent Act. While proceeding exparte against the defendants and while passing a decree against them, the Court was exercising jurisdiction under Section 28 of the Rent Act and not under the Small Causes Court Act. Section 28 of the Rent Act provides for jurisdiction of Courts and confers exclusive jurisdiction on the Court of Small Causes to entertain and try any suit or proceeding of a specified nature between a landlord and a tenant. The jurisdiction to entertain and try such a suit or a proceeding relates to the recovery of rent or possession of any premises to which the provisions of Part II of the Rent Act applied and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. It is an admitted position that the present suit fell within the purview of Section 28 of the Rent Act and the Court of Small Causes was exercising jurisdiction in the suit as a special Court having jurisdiction under Section 28 of the Rent Act. The exparte decree, therefore, though passed by the Small Causes Court was not a decree passed by it exercising jurisdiction under the Small Causes Court Act, but as a special Court under the Rent Act and an application to set aside an exparte decree could be made to the Court which passed such a decree. The Court which passed the decree was a special Court exercising jurisdiction under the Rent Act and the application to set aside the decree could be made only to that Court i. e. the Special Court having jurisdiction under the Rent Act. The Court of Small Causes will have no jurisdiction to entertain and decide an application to set aside an exparte decree that was passed by a Special Court acting under the Rent Act and the order passed by such a Court cannot be treated as an order passed by the Court in its capacity as a Court of Small Causes. It is clear that the order with which we are concerned cannot be treated as one which was passed by the Court of Small Causes, Ahmedabad.

5. As it appears from the provisions of the Rent Act, special Courts have been established with exclusive jurisdiction to try suits of certain categories under the Rent Act. We have already referred to the provisions of Section 28 of the Rent Act and besides providing for jurisdiction of Courts for the trial of suits falling under the Rent Act, that Act has also provided for the hearing and disposal of appeals from such suits which have been dealt with by the special Courts. Section 29 of the Rent Act confers a right of appeal from a decree or order made by the Courts specified in Section 28 to the Courts specified in Section 29 as it originally stood. That section is as under. The Gujarat amendments to some of the provisions of the above section are not material for the purposes of this application.

(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.

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 of Civil Procedure, 1908:

(II) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or 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 upto which the Judge or Court specified in Clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for the time being in force;

(III) an order made upon an application for fixing the standard rent or for deter mining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies;

(IV)an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him.

(1A) 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 subsection the provisions contained in Sections 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 from a decree or order in any suit or proceeding in Greater Bombay the bench of two judges 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 pass such order with respect thereto as it thinks fit.' It would thus appear that by Section 23, the Rent Act has conferred on the Court of Small Causes a special jurisdiction to try suits between a landlord and a tenant and by Section 29 a right of appeal from a decree or order made by the Court specified in Section 28 to the Courts specified in that section has been provided for and the words 'Notwithstanding anything contained in any law' in Section 29 indicate that the provisions of any other law cannot be imported or resorted to for the purpose of interpreting the section as the section is a self-contained one. The proviso to Section 29 specifies certain matters in which no appeal would lie including the decrees and orders made in a suit or proceeding in respect of which no appeal lies under the Civil Procedure Code. Section 31 of the Rent Act provides that:The Courts specified in Sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.

This section is to be read with Section 49(1) and Sub-clause (iii) of Sub-section (2) of Section 49. Section 49(1) provides that the State Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act and Sub-section (2) of that section provides that:

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for:

XXX XXX XXX XXX XXX XXX XXX

(iii) the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders;

XXX XXX XXX XXX XXX XXX XXX

The State Government, in exercise of its powers conferred under Section 49 has made rules which are called the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 and Rule 5 of those Rules prescribes the procedure for suits the value of the subject matter of which does not exceed Rs. 3000 and for proceedings for execution of decrees and orders passed therein and for distress warrants. That Rule reads as under:

Procedure for suits the value of the subject matter of which does not exceed Rs. 3000 and for proceedings for execution of decrees and orders passed therein and for distress warrants. In such of the following suits and proceeding as are cogniz: able by the Court of Small Causes Bombay, on the date of the coming into force of these Rules, namely:

(1) suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount or value of the subject matter does not exceed Rs. 3000,

(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and

(3) proceedings for execution of any decree or order pissed in any such suit or proceedings, the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI there of, and (b) in the rules made under Section 8 of the said Act.

The procedure for other suits has been prescribed by Rule 8 which runs as under:

procedure for other suits - In and proceeding other than those referred to in rules 5 and 7 the Court of Small Causes, Bombay, shall,, as far as may be and with the necessary modifications, follow the procedure prescribed for a Court of first instance by the Code Including Order XXXVII as modified in its application to the State of Bombay.

Provided that costs in respect of employing a legal practitioner when allowed shall be, in respect of any legal practitioner entitled to appear, not more than Rs. 75 per diem of 5 hoars of actual hearing or Rs. 125 if the case is disposed of on the first day.

The position, therefore, is that if the suit fell under Rule 5, the procedure that should be followed would be the procedure prescribed under the Rules framed under Section 9 of the Presidency Small Cause Courts Act and if the suit were to fall under Rule 8, the procedure prescribed would be the one that is prescribed by the Civil Procedure Code. Section 17 of the Ahmedabad City Courts Act, 1961 provides that:

The Presidency Small Cause Court; Act, 1882 shall extend to and come into force in the City of Ahmedabad on and from the appointed day.

Section 18 of that Act further provides that the Presidency Small Cause Courts Act, 1882, and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule. In exercise of its powers conferred by Section 9 of the Presidency Small Cause Courts Act, 1882, the High Court of Gujarat has prescribed the Ahmedabad Small Cause Court Rules regarding the procedure to be followed and the practice to be observed by the Ahmedabad Small Cause Court and by virtue of Sub-rule (2) of Rule 1, it has been prescribed that the portions of the Code of Civil Procedure specified in the Schedule, shall be applied to the Small Cause Court and the procedure prescribed thereby shall be the procedure followed in the Court in all suits cognizable by it and in the Schedule, Order IX regarding appearance of parties and consequences of non-appearance has been included. It would thus appear that in suits falling under Rule 5 as well as Rule 8, the Special Court exercising jurisdiction under Section 28 of the Bombay Rent Act is empowered to follow the procedure prescribed under Order IX, Rule 13 of the Code of Civil Procedure and an application to set aside an exparte decree passed in consequence of default of appearance would be an application which was triable by the Special Court under the Rent Act. Section 29 of the Rent Act which has already been quoted above provides for an appeal from a decree or order made by a Court of Small Causes exercising jurisdiction under Section 28 to a Bench of two Judges of the Court of Small Causes and since the order on the application to set aside the decree that was passed by the Court of Small Causes was in the exercise of its special jurisdiction, it would be an order that was passed by such a Court and therefore, by virtue of Section 29 an appeal would lie from that order to a Bench of two Judges of the Court of Small Causes. In entertaining the application to set aside the exparte decree and in passing an order therein, the Court was acting as a Special Court and was exercising jurisdiction as such under Section 28 of the Rent Act. The Special Court was empowered to entertain a matter falling within its exclusive jurisdiction and an order made by it in such a suit or proceeding or in any matter incidental thereto would be in respect of a matter which could be regarded as one falling within the jurisdiction of the Special Court and an appeal would lie against such order passed in such a matter under Section 29 where the order was not one which was excluded under the proviso to Section 29. All orders such as the present one are orders which arise out of the suit and proceedings relating to matters within the exclusive jurisdiction of the Special Court and are incidental to the proceedings between a landlord and a tenant. It would be obvious that if the application to set aside the exparte decree was granted, the hearing of the suit would be restored and it would be necessary to proceed with the suit inter-parties and that, undoubtedly, would be a proceeding which would fall within the purview of Section 28 and when a decree in such a suit would be passed, ultimately it would also be appealable as a decree passed by a Special Court. The proceedings for the setting aside of the exparte decree are the direct result or the consequence of default of appearance on the part of a party in proceedings which were cognizable and were being tried by the Special Court constituted under Section 28. The passing of the exparte decree thus was a mere consequence of the default of a party to appear and the procedure to be adopted to be relieved of that consequence can only be regarded as a step towards the hearing of the suit in the same proceedings. Such an application has to be heard by the same Court which passed the decree and which exercised jurisdiction under Section 28 of the Rent Act. The Court that was exercising jurisdiction when it heard the application for setting aside the decree, was and must be regarded as the same Court which had exercised jurisdiction while passing the exparte decree and it cannot be considered that the passing of the exparte decree made the Court trying the suit functus officio. The order that has been passed by the Special Court rejecting the application to set aside the exparte decree is appealable under the Civil Procedure Code and therefore, by virtue of Section 29 of the Rent Act, an appeal from such a decree or order would lie to the Appellate Bench of the Small Cause Court. Undoubtedly, therefore, the order that has been passed in the present case is not only an order passed by the Special Court but it would be appealable to the Bench of two Judges of the Small Cause Court under Section 29 of the Rent Act.

6. The suit that was filed was a suit under the Rent Act that was entertalned by the Court of Small Causes as a Special Court under Section 28 of the Rent Act and the proceeding which resulted in the exparte decree was a consequence of non-appearance of a party and it was in those proceedings that the application for setting aside the decree was made. The jurisdiction which the Court was exercising while considering such an application was a jurisdiction which it had exercised when it was trying the suit and the application to set aside the decree was made to the same Court in the exercise of the same jurisdiction. Once the Special Court entertained and tried a suit or a proceeding which fell within its exclusive jurisdiction, all consequential and incidental orders made by such a Court in such a suit or proceeding must be regarded and considered as made by the Special Court exercising jurisdiction under Section 28 of the Rent Act and an appeal provided under Section 29 of the Act lies against all orders made in such proceedings except those which are excluded under the proviso to Section 29. We are, therefore, with respect, unable to accept the reasoning adopted by Raju J. in the case of R.C. Trust v. Ramchandra J. Agarwal VII G.L.R. 401 and we are of the view that that case was not correctly decided. It may be mentioned that in this view of ours, we are supported by the decision of the High Court of Maharashtra in Hemchand M. Singhania v. Subhkaran Nandlal Baragra 68 B.L.R. 857 and we are in respectful agreement with the views and reasoning adopted in that case.

7. The result, therefore, is that an appeal would lie against the order passed by the Court of Small Causes on 7th May 1966 to a Bench of two Judges of that Court and for that reason, the present revision application could not be entertained by this Court. This revision application, therefore, is dismissed, but in view of the fact that there was a decision of this High Court on this question holding that an appeal would not lie to such a Bench, we make no order as to costs.


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