Whether all consequential and incidental applications can be made before court having jurisdiction to try said suit?

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 4 of 2004

Decided On: 05.05.2004

Pacific Engineering Co. Pvt. Ltd.
Vs.
East India Hotels Ltd.

Hon’ble Judges/Coram:S.J. Vazifdar, J.

Citation: 2004(40 ALLMR 330

1. 1. The Civil Revision Application impugns the order of a learned Single Judge of the Small Causes Court at Bombay, rejecting the Petitioner’s application for the unconditional withdrawal of R.A.E. Suit No. 503/952 of 1999 filed by it against the Respondent and another Defendant.

2. Mr. Jagtiani submitted that the impugned order is not capable of being revised by the Small Causes Court. The question of law that therefore falls for consideration is whether an order rejecting an application to withdraw a suit unconditionally is capable of being revised by the Small Causes Court under Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “The Bombay Rent Act”). I have come to the conclusion that it does. A consideration of this question necessitates a consideration of a question of law of general importance. It is, whether, as contended by Mr. Jagtiani, only those orders that relate to recovery of possession, or rent or fixation of standard rent for which the Bombay Rent Act was enacted are revisable under Section 29(3).

3. It is true that even assuming that the impugned order is capable of being revised by the Small Causes Court, it will in no way affect this Court’s jurisdiction to entertain and deal with it under its revisional power under Section 115 of the Code of Civil Procedure. However in the facts and circumstances of this case, I do not think it appropriate to entertain the present Civil Revision Application in exercise of my discretion under Section 115 of the Code of Civil Procedure.

4. As I have decided to reject this Civil Revision Application on this preliminary issue, I will state the facts leading to the Civil Revision Application without going into the merits of the disputes between the parties.

5. A leave and licence agreement dated 4th July, 1969 was entered into between the Petitioner/Plaintiff and the Respondent. The Petitioner granted to the Respondent a licence to use and occupy the suit flat on the terms and conditions mentioned therein. On 4th May, 1999, the Petitioner filed the said R.A.E. suit which it now seeks to withdraw. Defendant No. 2 to the suit is one Harvinder Bhatia. The Plaintiff alleged that Defendant No. 1 i.e. the Respondent unlawfully sub-left, gave on licence or parted with the possession of the flat to Defendant No. 2. Defendant No. 2 is not joined as a party Respondent.

6. The plaint proceeds on a concession that the Respondent is a protected licensee or a deemed tenant pursuant to the amendment to the Bombay Rent Act. Under Section 15(A) of the Bombay Rent Act any person who was in occupation of any premises on 1st February, 1973 as a licensee shall be deemed to have become a tenant of the landlord in respect of such premises. The concession was despite the Petitioner’s case that there was no subsisting licence in favour of the Respondent. The suit therefore is clearly under the Bombay Rent Act and not under the Presidency Small Causes Courts Act. I will come to the significance of this later.

7. Let me summarise the Petitioner’s case from the date the suit was filed to the filing of the application which is the subject matter of the present proceedings. From October, 2000, the suit flat had been lying vacant. On 31st March, 2001 some miscreants attempted to break into the suit flat which had been lying vacant and the Petitioner therefore sought the intervention of the police. The miscreants appeared to have duplicate keys. The Petitioner therefore changed the lock of the main entrance and advised the Respondent to collect the duplicate key. The Respondent did not respond to the letter. As there had been no response from the Respondent, the flat had been lying vacant and as no offer of rent or compensation was made by the Respondent, the Petitioner returned the flat to its owner one Nikhil Bhatia, who apparently inherited the flat from his grand-father one S.B. Prakash.

8. On 17th July, 2001, the Respondent filed Int. Notice No. 2732 of 2001 praying that the Petitioner be directed to remove the lock put on the main entrance and be restrained from entering the same.

9. On 31st July, 2001, the Petitioner filed the application for unconditional withdrawal of the suit. By an order dated 19th August, 2001, the application for withdrawal was allowed. On 23rd August, 2001, the Respondent filed an Int. Notice No. 3351 of 2001 for setting aside the order dated 10th August, 2001 permitting the Petitioner to withdraw the suit. By an order dated 7th March, 2002, the Small Causes Court restored the suit to file. The Petitioner challenged this order in Civil Revision Application. Dr. D.Y. Chandrachud, J. by an order dated 30th April, 2002, set-aside both the orders i.e. the orders dated 10th August, 2001 permitting the Petitioner to withdraw the suit and 7th March, 2002 recalling the same and directed the Small Causes Court to proceed to consider the application for withdrawal of the suit filed on 31st July, 2001 after considering the objections thereto. No opinion was expressed on the tenability of the suit, the application for withdrawal or upon the Respondent’s objections thereto. To complete the narration, on 17th October, 2001, the Respondent filed a suit under Section 6 of the Specific Relief Act in this Court. The application for withdrawal of the suit was heard afresh and the impugned order was passed.

10. It would be useful before proceeding further to state the conclusion I have arrived at. They are as follows:-

(I). The Petitioner’s R.A.E. suit was filed under Section 28 of the Bombay Rent Act.

(II)(a). While exercising jurisdiction under Section 28 of the Bombay Rent Act the Small Causes Court functions as a Special Court under that Act and does not exercise its ordinary civil jurisdiction under the Presidency Small Causes Courts Act, 1882.

(b). While entertaining a suit under Section 28 of the Bombay Rent Act the Small Causes Court is required to follow the Bombay Rents, Hotel and Lodging House Rates (Control) Rules, 1948 (hereinafter referred to as the Rent Control Rules) framed under Section 49 of the Bombay Rent Act.

(c). While entertaining a suit such as the present case, for possession under Section 28 of the Bombay Rent Act, the procedure to be followed is the one prescribed by Rule 8 of the Rent Control Rules.

(III). Even while entertaining applications in suits filed under Section 28 of the Bombay Rent Act, the Small Causes Court functions as a Special Court under that Act and the above principles would apply to such applications.

(IV). An application akin to revision under Section 29(3) of the Bombay Rent Act is maintainable only in cases where no appeal lies against the impugned order under Section 29(1) itself and not in case where the appeal therefrom is barred under any other provision.

(V). The applicability of Section 29(3) is not restricted only to orders which relate to those aspects for which the Bombay Rent act was enacted such as orders for possession or rent.

(VI). An order rejecting an application under Order 23 Rule 1 of the C.P.C. to withdraw a suit unconditionally bears the imprint of the provisions of the Bombay Rent Act and the Bombay Rent Control Rules.

(VII). Interlocutory orders that are purely procedural and do not affect the substantive rights of the aggrieved party are neither appealable to nor revisable by the Small Causes Court under Section 29.

(VIII). An order on an application under Order 23 Rule 1 of the C.P.C. to withdraw a suit unconditionally affects the substantive rights of the aggrieved party.

(IX). In the facts of the case the Petitioner ought to in the first instance pursue there remedy under Section 29(3) of the Bombay Rent Act and not approach this Court directly under Section 115 of the Code of Civil Procedure.

Re: CONCLUSION NO. I

11. The Bombay Rent act is an amending and consolidating statute relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses, of evictions and also to control the charges for licence of the premises etc. The Small Causes Court is vested with the exclusive jurisdiction to decide the matters which fall within Section 28(1) of the Bombay Rent Act. Sections 28 and 29 in so far as they are relevant for the present purpose, are as follows:-

“28. Jurisdiction of courts –

[(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 are 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 Causes is established under the Provisional Small Causes as established under the Provincial Small Causes Courts Act, 1887, such Court and]

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which 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 and 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 (or between a licensor and a licensee relating to the recovery of the licence fee or charge) 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, proceedings, or application or to dealt with such claim or question.

29. Appeal – (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 judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, Court of the Civil Judge deemed to be a 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 (or licence fee or charge for a licence in respect of any premises) 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 institute 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 licence fee or charge for a licence) or for determining the permitted increases in respect of any premises except in a suit or proceeding in which 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 sub-section 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 the bench or 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.

12. The suit filed by the Petitioner against the Respondent in the present case falls squarely under Section 28 of the Bombay Rent Act. This is established by the statement in paragraph 2 of the plaint that the Petitioner/Plaintiff has treated the Respondent/Defendant No. 1 as a protected licensee or deemed tenant. The next statement further establishes this point. It reads :- “This suit has been filed under Section – of the Bombay Rent Act for the purpose of affording effective remedy and to avoid multiplicity of litigation”. Though the Section is not mentioned the nature of the suit clearly indicates it to be one under Section 28. In any event the suit admittedly falls under the Bombay Rent Act and not under Presidency Small Causes Court Act. This is clear from the reliefs claimed. The Plaintiff has sought a decree and order against the Defendant to hand over quiet, vacant and peaceful possession of the suit premises and for an injunction restraining the Defendant from inducting third parties therein.

Re: CONCLUSION NO. II

13. Counsel referred to the Presidency Small Causes Court (Bombay) Rules framed under the Presidency Small Causes Courts Act, 1882. It is necessary to determine first which rules would apply when the Small Causes Court exercises jurisdiction under Section 28 of the Bombay Rent Act.

14. Sections 5(9), 31 and 49 of the Bombay Rent Act read as under:-

5(9) “prescribed” means prescribed by rules and prescribed shall be construed accordingly.

“31. Procedure of courts.

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.

49. Rules

(1) 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.

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

…..

(e) 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;

15. The State Government accordingly made the Bombay Rents, Hotel and Lodging House Rates (Control) Rules, 1948 (hereinafter referred to as the “Rent Control Rules”). As held by a Division Bench of this Court in Habib Ahmed Khudabux v. Abdul Khadar Rahmanji Godiwala and Ors., MANU/MH/0178/1975 : AIR1975Bom41 , the procedure to be followed in a suit for possession under Section 28 of the Bombay Rent Act is the one prescribed by Rule 8 of the Rent Control Rules. Rule 8 reads as under:-

“8. Procedure for other suits.

In suits and proceedings other than those referred to in Rule 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 hours of actual hearing or Rs. 125 if the case is disposed of on the first day.”
16. The view I have taken thus far is in conformity with the judgment of this Court in Habib Ahmed’s case (supra), where the Division Bench of this Court held:-

“10… But it is to be borne in mind that after the passing of the Rent Act the jurisdiction to entertain and try suits, interalia, relating to the recovery of rent or charges is conferred upon the said Court by Section 28(1) of the Rent Act and in so entertaining and trying such suits, the Small Causes Court does not exercise its ordinary civil jurisdiction under the Small Cause Court Act…..”

“11…. From the foregoing discussion it would have been seen that when the Small Cause Court deals with the question of occupier being a protected tenant under Section 42-A, it exercises jurisdiction under the Small Cause Courts Act and not under the Rent Act and that when the Small Cause Court entertains a suit for possession as a Special Court under the said Section 28, no question of any proceeding under Chapter VII of the Small Cause Courts Act arises and, therefore, the procedure to be followed in a suit relating to recovery of possession under the said Section 28 and in executing a decree passed therein is, irrespective of the value of the subject-matter, the one prescribed by Rule 8 of the Rent Control Rules.”

17. It is therefore clear that the present case must be decided keeping in mind the provisions of the Bombay Rent Act and the Rules made thereunder.

Re: CONCLUSION NO. III

18. The Petitioner’s application under Order XXIII Rule 1 of the C.P.C. for unconditional withdrawal of the suit was made under the provisions of the Bombay Rent Act, read with the Bombay Rent Control Rules. Analysing Section 28(1) of the Bombay Rent Act, it is clear that while exercising jurisdiction to entertain and try a suit between a landlord and a tenant relating to recovery of rent or possession of any premises to which the provisions of Part II of the Bombay Rent Act apply, the Court of Small Causes is entitled to decide any application made under the Bombay Rent Act and to deal with any questions arising out of the Bombay Rent Act or any of its provision. The Small Causes Court is conferred exclusive jurisdiction to hear suits and proceedings that fall within the ambit of Section 28 of the Bombay Rent Act. While deciding such suits, it is required by that Statute (Rule 8) to follow the procedure and practice prescribed in another statute viz. the C.P.C. But from that it can hardly be said that an application made in accordance with such provision falls not under the Bombay Rent Act but exclusively under such other statute. To so hold would reduce the Bombay Rent Act unworkable and meaningless. Thus the Small Causes Court has exclusive jurisdiction not only to hear the present suit but also to decide any application made therein. This view is supported by the judgment of a learned Single Judge of this Court in Hemchand v. Subhkaram, MANU/MH/0083/1967 : AIR1967Bom361 which I shall refer to subsequently.

Re: CONCLUSION NO. IV

19. Mr. Jagtiani’s submission that an application under Section 29(3) is maintainable only in cases where no appeal lies against an impugned order under Section 29(1) itself and not where the appeal is barred under any other provision is supported by the judgments of this Court.

20. In The Society of Servants of God v. Major Hanmantrao Narayanrao Jagtap, 1967 BLR 210 V.S. Desai, J. Kept the point open stating that he did not find it necessary to go into the matter and express a final opinion on its as he held that even if it was argued that the order impugned before him was revisable under Section 29(3) of the Rent Act, it would in no way affect the High Court’s jurisdiction to entertain and deal with it under its revisional power under Section 115 of the C.P.C.

21. The point was however decided by R.M. Kantawala, C.J. (as he then was) in Mrs. Juliana Mergarida Coelho by C.A. Peter Coelho v. Makarand Shankar Parnaik, 1979 Bombay Cases Reporter, 587 . In that case the landlady filed a suit for eviction and arrears of rent. The trial Court directed the arrears of rent to be deposited and further directed the Defendants to deposit the amount of arrears from time to time failing which it was ordered that the Defendant would not be initiated to appear in or defend the suit except with the leave of the Court. Despite the Defendant’s failure to deposit the amounts as per the order of the Court, the trial Court granted him leave to defend the suit unconditionally. This order was passed on the Defendant’s application. Against this order a Revision Application was filed, which was decided by the learned judge. One of the contentions raised on behalf of the Respondent was that an appeal lay against the order and that it was not open to the landlady to file a revision application in the High Court. That contention was rejected on the ground that an appeal was barred under Sub-section (5) of Section 11 of the Bombay Rent Act, which provides that no appeal lies from an order under Sub-sections (3) and (4) thereof. It was then argued that it was open to the landlady to make an application under Section 29(3) of the Bombay Rent Act. This submission too was rejected by the learned Judge who held as under:-

“10. ….. 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 Section 29, the decrees or 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 Section 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 judges of the Court of Small Causes under Sub-section (3) of Section 29.”
22. In the present case, however, an appeal against the impugned order is not maintainable under Section 29(1) of the Bombay Rent Act itself and not by virtue of any other enactment or any other provision of the Bombay Rent Act. This is clear from the proviso to Section 29(1) of the Bombay Rent Act which provides that no appeal shall lie from an order made in a suit in respect of which no appeal lies under the C.P.C. Under Order 43 Rule 1, no appeal lies against an order on an application for unconditional withdrawal of a suit under Order 23 Rule 1. I have already held that the impugned order is in exercise of jurisdiction under Section 28. No appeal would therefore lie under Section 29(1). The bar to the appeal is therefore contained in Section 29(1) itself. The ratio of the above judgment would therefore not come in the way of an application under Section 29(3) against the impugned order.

Re: CONCLUSION NO. V

23. Mr. Jagtiani’s main submission is that the impugned order does not bear the imprint of any of the provisions of the Bombay Rent Act, to wit, it was not an order relating to possession of the premises, or rent or standard rent in respect thereof and such like matters for which the Bombay Rent Act was enacted. It was therefore outside the scope of the Bombay Rent Act and consequently the provisions of Section 29 would not apply thereto.

24. The submission is not well founded. It is also contrary to a judgment of this Court I will refer to soon. The plain language of Section 28 of the Bombay Rent Act does not warrant such a restricted application. Surely if the legislature intended that only orders of a particular nature are appealable or revisable, it would have specified the same. Indeed under Section 29(1) an appeal is not restricted in this manner. What then is thereto suggest that the power akin to revision under Section 29(3) is so restricted? Mr. Jagtiani did not suggest any reasons. I am unable to find any reason either, to uphold his submission. The suit itself, I have held, is one under Section 28 of the Bombay Rent Act. The application for withdrawal of that suit therefore necessarily had to be made to the same Court viz. the Small Causes Court. It would be contrary to common sense to hold that the Small Causes Court while deciding the suit acts as a special Court under the Bombay Rent Act but while deciding the applications therein exercises jurisdiction as an other court. It does not. It continues to exercise jurisdiction as a special Court for the purposes of the applications made in such a suit. It follows logically that once it is held that the suit falls within the exclusive jurisdiction of the Small Causes Court under Section 28 of the Bombay Rent Act, all consequential and incidental applications made by the parties therein must be considered as made in such suit.

25. Mr. Jagtiani did not support his submission with any reasons. He merely relied upon a judgment of a learned Single Judge of the Gujarat High Court which is contrary to the judgment of a learned Single Judge of this Court. It is also contrary to the judgment of a Division Bench of the Gujarat High Court which in turn expressly follows and approves the judgment of this Court. This brings me then to a consideration of the authorities on this point. I must clarify that I am not considering at this stage the finding of the learned Judge that purely procedural matters which do not affect substantive rights of the aggrieved party, are not revisable. I will come to that later.

26. Mr. Jagtiani’s submission is contrary to the judgment of this Court in Hemchand v. Subhkaran, MANU/MH/0083/1967 : AIR1967Bom361 . In that case the Petitioner – landlord filed an R.A.E. suit for ejectment against the Respondent – tenant in the Small Causes Court on the ground that the Respondent had defaulted in payment of rent for more than six months. An ex-parte decree was passed. That decree was executed and the Petitioner obtained possession. The Respondent filed an application for setting aside the ex-parte decree on grounds which are not relevant for the present purpose. The Respondent also prayed for restoration of possession. This application was rejected. The Respondent therefore, preferred an appeal to the appellate bench of the Small Causes Court. The Appeal Court held that the Defendant was not duly served and that in any event the Defendant had good and sufficient reason to be absent when the decree was passed. It therefore, set aside the order of the trial Court refusing to set aside an ex-parte decree and remanded the case to the trial Court for hearing. It also granted the prayer for restoration of possession. Against this decision, the Plaintiff filed a Civil Revision Application to this Court. One of the contentions before this Court was that the appeal to the Appellate Court was not competent. The learned Judge held as under:-

“(9) It is argued by the learned advocate for the petitioner that the jurisdiction of the Special Court under Section 28 was to entertain a suit relating to recovery of rent or possession or to decide any question relating to the recovery of rent or possession. Its jurisdiction as a Special Court under the Rent Act is confined only to dealing with questions relating to the recovery of rent or possession of the suit premises and that jurisdiction came to an end as soon as the ex parte decree for eviction was passed in the said suit in the exercise of the said jurisdiction. The application, which was made under Order 9 Rule 13 of the Civil Procedure Code had not for its subject-matter any question relating to the recovery of rent or possession of the premises; the subject-matter of the said application was whether the decree should be set aside or not. In entertaining the said application and deciding it the Special Court did not exercise jurisdiction under Section 28 of the Rent Act. Orders of the Special Court, which are made appealable under Section 29 of the Act are orders, which are made by such court exercising jurisdiction under Section 28 of the Rent Act and since in making the order on the application to set aside the ex parte decree, the Special Court was not exercising jurisdiction under Section 28 of the Act, the order is not appealable. I am unable to appreciate the argument. Under Section 29 of the Rent Act, appeal is provided from a decree or order made by the Bombay Small Causes Court exercising jurisdiction under Section 28 subject to the exceptions contained in the proviso to the said section. The Bombay Small Causes Court exercising jurisdiction under Section 28 is a Special Court set up by the said section and appealability attaches to its decree or order under Section 29 when it makes a decree or order as such court. No doubt the jurisdiction of the Special Court set up under Section 28 is confined to matters specified therein, which include, among others, the entertaining and trying of suits or proceedings between a landlord and a tenant relating to the recovery of rent or possession of certain classes of premises. But once the Special Court entertains and tries a suit or proceeding which falls within its exclusive jurisdiction, all orders made by it in the said suit or proceeding or in relation thereto, are made by it as Special Court, that is, a court exercising jurisdiction under Section 28 and not only such of them as actually relate to the recovery of rent or possession. 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. The argument of the learned advocate, therefore, that the order is not appealable because it does not relate to the recovery of rent or possession, cannot be sustained . It is also not possible to accept the argument that the jurisdiction under Section 28 of the Court 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 Section 28 of the Act.”
27. Mr. Jagtiani’s submission is clearly contrary to the judgment and especially the last sentence in the part emphasised above. I am not only bound by but in respectful agreement with the judgment of this Court in Hemchand’s case.

28. A Division Bench of the Gujarat High Court in Natverlal v. Khodaji 1967 (VIII) Gujarat Law Reports 772 , considered whether an order made under Order IX Rule 13 of the Code of Civil Procedure to set-aside an ex-parte decree is appealable under Section 29 of the Bombay Rent Act. The suit was filed under Section 28 of the Bombay Rent Act in which an ex-parte decree was passed. The Defendant’s application for setting aside the same was rejected. The Defendant filed a revision application before the Gujarat High Court challenging this order. It was contended on behalf of the Plaintiff/opponent that the revision application was not competent as an appeal would lie to the bench of two Judges of the Small Causes Court under Section 29 of the Bombay Rent Act. The Division Bench upheld this contention. The Division Bench agreed with the views and the reasonings adopted by this Court in Hemchand’s case (supra). The Division Bench held as under:-

“…..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.

…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 the 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.”

29. I am in respectful agreement with the entire judgment of the Division Bench of the Gujarat High Court.

30. In support of his contention, Mr. Jagtiani relied upon a judgment of the Gujarat High Court in the case of Maharana Mills v. H. Manharai, MANU/GJ/0063/1972 : AIR1972Guj226 . The Defendant in that suit amended the written statement by raising a plea that standard rent of the suit premises be fixed. The learned Judge raised an issue on that point. The Plaintiff made an application for deletion of that issue which was rejected. The Plaintiff, therefore, filed the revision application before the District Court (which is a designated Court under the Bombay Rent Act). The learned District Judge allowed the revision application and set-aside the order and directed that the issue be deleted. That order was challenged by the Respondent by filing the Civil Revision Application before the Gujarat High Court. Mr. Jagtiani relied strongly on the following conclusions of the learned Single Judge:-

“4… In the instant case, what the learned Trial Judge did was to raise an issue relating to standard rent. An attempt was made to seek its deletion. Both the raising of an issue and its deletion are purely procedural matters governed by the provisions of the Code of Civil Procedure. By no stretch of imagination it can be said that they bear the imprint of the provisions of the Bombay Rent Act or the Bombay Rent Rules or that they are otherwise governed by the said Act or the said Rules. The learned District Judge, therefore, had no jurisdiction under Section 29(3) to entertain the revision application and to examine the aforesaid order made by the learned Trial Judge.”
After referring to the judgment in Panchal Keshvlal Somnath v. Chinubhai Jagjivandas (supra), the learned Judge went on to hold as follows :-

“5. ….In my opinion, in order to determine whether an interlocutory order made in a suit governed by the Bombay Rent Act is appealable to or revisable by the District Court the test which must be applied is this : What is the subject-matter of the Order ? In the case before the Division Bench to which I have referred the subject-matter of the order was an ex-parte decree governed by the provisions of the Bombay Rent Act. If there is an order the subject-matter of which is governed by the provisions of the Bombay Rent Act, then certainly an appeal therefrom or a revision application against that order will be governed by Section 29. However, the second test, in my opinion, which can be applied is this : Does the order which is sought to be appealed from or whose revision is sought affect substantive rights of the aggrieved party under the Bombay Rent Act. If the answer is in the affirmative, then the provisions of Section 29(3) will be attracted in order to determine whether it is appealable or revisable under the provisions of the said section. If the answer is in the negative, Section 29 will have no application. In the instant case, the subject-matter of the order which was impugned before the learned District Judge did not affect any substantive rights of the aggrieved party under the Bombay Rent Act. The subject-matter of that order order was also not governed by the provisions of the Bombay Rent Act. The subject-matter of that order was whether an issue which was raised earlier should be deleted or not. It cannot conceivably fall under the provisions of the Bombay Rent Act. In a matter of this type no substantive rights of the parties under the Bombay Rent Act are affected. To illustrate this proposition, I may cite a number of instances of procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or the subject-matter of which is not governed by the provisions of the Bombay Rent Act :-

(1) An order granted leave to amend the plaint or written statement or an order refusing leave to amend the plaint or written statement in a suit the subject-matter of which is governed by the Bombay Rent Act.

(2) An order made for production of documents or discovery or inspection in a suit governed under the Bombay Rent Act.

(3) An order directing a plaintiff or defendant to furnish better and further particulars in a suit governed by the Bombay Rent Act.

(4) An order issuing a commission for the examination of witnesses or an order refusing to issue such a commission.

These are some of the orders which may be made under the Code of Civil Procedure and the subject-matter of which is not governed by any of the provisions of the Bombay Rent Act or the Bombay Rent Rules. Such orders do not affect the substantive rights of the parties under the Bombay Rent Act. On the other hand, there are orders which satisfy the aforesaid two tests even though they may be made under the Code of Civil Procedure, e.g., (1) an order refusing to set aside an ex parte decree on an application made for the purpose in a suit governed by the Bombay Rent Act and (2) an order refusing to restore a suit to file which was earlier dismissed and which was governed by the provisions of the Bombay Rent Act. Illustrations can also be cited from the interim orders made in execution proceedings to show that some of them will fall under one category and some of them will fall under another category.

6. It is true that Section 29(3) uses the expression “order”. Orders may be interim or final. Orders may be such which bear indelible imprint of the Bombay Rent Act or they may be such which do not. If there is an interim order an interlocutory order which is made in a suit governed by the Bombay Rent Act and if it affects the substantive rights of a party under the Bombay Rent Act, the subject-matter of which is governed by the Bombay Rent Act, such an order is revisable by the District Court under Section 29(3). In my opinion, therefore, purely procedural orders which do not affect the substantive rights of a party under the bombay Rent Act or the Rules made thereunder or the subject-matter of which is not governed by the Bombay Rent Act or the Rules made thereunder are not the orders which attract the revisional jurisdiction of the District Court under Section 29 of the Bombay Rent Act. The order which the learned District Judge has passed belongs to this category. It was, therefore, not revisable by the learned District Judge. He had no jurisdiction to entertain the revision application and to pass any order on merits therein. In that view of the matter, the impugned order made by the learned District Judge is liable to be set aside.”

31. I am, with great respect, unable to agree with the reasoning of the learned Judge in so far as he holds that an order to be revisable must bear imprint of the provisions of the Bombay Rent Act. It is contrary to the judgment of this Court in Hemchand’s case (supra). It is also contrary to the Division Bench judgment of the Gujarat High Court in Natverlal v. Khodaji (supra). The Division Bench judgment in fact follows the judgment of this Court in Hemchand’s case. I am not only bound by but in respectful agreement with the judgment in Hemchand’s case and Natverlal’s case.

32(a). In an unreported judgment dated 11.3.1977 in C.R.A. No. 33 of 1977 Sapre, J. (as His Lordship then was) considered the judgment of the Gujarat High court in Maharana Mills (supra). V.S. Desai, J’s . judgment in Hemchand’s case was however not brought to the attention of the learned Judge. That, to my mind, however does not make any difference because on a careful reading of the judgment it is clear that the ratio in Maharana Mills case that an order to be revisable under Section 29(3) must bear the imprint of the Bombay Rent Act in that, it must relate to the recovery of possession of the premises, recovery or fixing rent/standard rent, mesne profits etc. was, in fact, not approved. The Civil Revision Application before Sapre, J. was against an order of the Appeal Court of the Small Causes allowing an application to amend the plaint which application was dismissed by the learned Judge of the Small Causes Court. It was held that the order passed by the Appeal court of the Small Cause Court in revision, allowing leave to the Respondents to amend its plaint which leave had been refused by the Single Judge was without jurisdiction and was set aside.

(b). The Civil Revision Application was not allowed merely because the Appeal Court interfered with the order allowing an application for amendment. This is clear from the fact that at pages 10 to 12 (of the original judgment in the record of this Court) the learned Judge has in fact held that in considering an application for revision from an order on an application to amend the plaint, the question to be considered would be whether the order affects the substantive rights of the party. Indeed, it is further observed that the subject matter of the amendment sought by the Respondent could well be raised in a separate suit as in the facts of that case, it was held that if the Respondent filed a separate suit for enforcement of the consent terms, it was difficult to see how the Respondent-firm would be faced with a bar in the second suit because of its not claiming the relief in this suit. In these circumstances, it was held that it was difficult to see how the order dismissing the application for the amendment of the plaint would affect the substantive rights of the Respondents under the Bombay Rent Act.

(c). It is however important to note that the learned Judge himself observed that it would have been a different question if in the second suit the Respondent was to be faced within a bar, such as, the one under Order II Rule 2 of the C.P.C. or of constructive res-judicata.

(d). It was also held that even an order or an application for an amendment affecting the substantive rights of the parties would be under the Bombay Rent Act. Thus, the ratio of the Gujarat High Court in Maharana Mills presently under consideration was not only not endorsed but in fact a different view was taken.

33. A Division Bench of this Court in Habib Ahmed Khudabux v. Abdul Khadar Rehmanji Godiwala and Ors., MANU/MH/0178/1975 : AIR1975Bom41 referred to the judgment in Hemchand’s case but observed that V.S. Desai, J. was not dealing with the question before the Division Bench viz. whether the execution of a decree is a proceeding within the meaning of Section 28(1). In paragraph 15 the Division Bench observed that Hemchand’s case however an authority for the proposition that the Small Causes Court in exercising its exclusive jurisdiction under Section 28 is not exercising its ordinary jurisdiction under the Presidency Small Cause Courts Act and the decrees or orders passed by the Special Court under Section 28(1) are appealable under Section 29(1) of the Bombay Rent Act. Even if this observation does not expressly confirm the entire ratio of the judgment in Hemchand’s case, the least that can be said is that the ratio in Hemchand’s case was not overruled.

34(a). In Sukhdev Prasad v. Rambhujarat, 1983 Maharashtra law Journal, 9 the Division Bench considered the judgment of the Gujarat High Court in Maharana Mills case as well as the unreported judgment of Sapre, J. The observations of Sapre, J. I have referred to earlier were expressly approved by the Division Bench. In paragraph 6 of the judgment the Division Bench observed as under:

“6. …..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 Maharana Mills case that purely procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or 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 orders which attract the revisional jurisdiction of the District Court under Section 29(3) of the Act.

7. Therefore, all through a consistent view has been taken by this Court that purely procedural orders which do 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. …..”

(b) Thus, the ratio of the Gujarat Court in Maharana Mills was approved only on the point that purely procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or the Rules made thereunder are not revisable under Section 29(3). The expression “substantive rights of a party under the Bombay Rent Act or the rules made thereunder” in this context mandates the impugned order affecting substantive rights of the party to be appealable to or revisable by the Small Causes Court under Section 29 and not that the order ought to be one for recovery of possession of rent.

35(a).In an unreported judgment dated 19th December, 2003 in Aspi R. Sattha v. Mr. Sunermal M. Bafna and Ors., Civil Revision Application No. 489 of 2003, Smt. Ranjana Desai, J. held that an order dismissing an application for bringing a party on record as a legal representative and an heir of a deceased Defendant in an R.A.E. Suit filed in the court of Small Causes was not a mere procedural order. A careful reading of the judgment shows that the judgment of the Gujarat High Court in Maharana Mills was referred to by the learned Judge and approved only on the point that mere interlocutory or procedural orders which do not affect the substantive rights of the aggrieved party under the Bombay Rent Act or not revisable under Section 29(3).

(b). Now, an application for impleading a party as a party Defendant is also under the C.P.C. Despite that, the learned Judge observed in paragraph 19 as under :

“In this case also, if the impugned order had been passed in favour of the petitioner, the suit would have abated. A final disposal of the suit would have resulted in materially affecting the rights of the parties in the suit particularly the right of the respondents-landlords. Such an order which affects the substantive rights of the parties cannot be called a procedural order. If it is merely a procedural order as contended by Ms. Godse then, the instant civil revision application would also not be maintainable.”
It is therefore once again clear that the learned Judge did not endorse the wider proposition in Maharana Mills case.

Re : CONCLUSION NO. VI

36. Mr. Jagtiani’s submission is unfounded even if the ratio of the judgment in Maharana Mills I have dissented from is applied. It is necessary here to consider the nature of the application under Order XXIII Rule 1 of the C.P.C. and the effect of the impugned order thereon. The learned Judge following the judgment in Natverlal’s case also took the view that the subject matter of an order setting aside an ex-parte decree in an application under Order IX Rule 13 of the C.P.C. was an ex-parte decree governed by the provisions of the Bombay Rent Act. It therefore, bears the imprint of the provisions of the Bombay Rents Act. The subject matter of the order impugned before me is the suit itself which is filed under the provisions of the bombay Rent Act. The effect of an order on the application is either the termination or continuance of the suit itself. On a parity of reasoning therefore, the same also bears the imprint of the provisions of the bombay Rent Act. Thus, in any view of the matter, Mr. Jagtiani’s contentions are unfounded. An application for revision under Section 29(3) of the Bombay Rent Act against the impugned order would be maintainable.

Re : CONCLUSION NO. VII

37. On this question, this leaves me with one further aspect. It appears to have been consistently held both by the Gujarat High Court and this Court that purely procedural orders which do not affect the substantive rights of parties are not revisable under Section 29(3) of the bombay Rent Act. This is the ratio of the judgment of the Division Bench of this court in Sukhdev Prasad Raghubir v. Rambhujarat Kshampati, 1983 M.L.J.9 . In that case, the impugned order rejected an application for amendment. It was held that the suit did not decide finally the rights and liabilities of the parties. As we have seen, this Court held that certain orders rejecting an application for amendment are capable of being challenged under Section 29.

Re : CONCLUSION NO. VIII

38.(a) The order under Order XXIII Rule 1 of the C.P.C. is different from other orders, in the sense that it does not adjudicate upon the lis between the parties to the suit. An order rejecting an application under Order XXIII Rule 1 of the C.P.C. must be considered differently from other orders while deciding whether or not the order affects the substantive rights of a party. A party has a right to file a suit subject to certain exceptions. He has also a right not to continue with the suit, except in certain circumstances. Whether or not the exceptions apply is a question I am not considered with presently. That will be decided when the application is heard on merits. If the order was granted, it would have brought the suit to an end. The implications of a litigant being forced to pursue a litigation are too obvious to warrant them being listed.

(b) Moreover the expression “substantive rights” used in the authorities I have considered must be understood in the lexical sense. It ought not necessarily to be construed as a right created by statute or any other law. In other words, to be revisable it is not necessary that the order must relate to a provision of substantive law. Even if it relates to a procedural law it would be revisable if it affected substantively the rights of a party.

(c). It must for these reasons be held that an order rejecting an application to withdraw a suit unconditionally would affect the substantive rights of the Plaintiff.

39. Mr. Jagtiani did not and could not dispute this proposition for in that event in view of the decisions of this Court and the plain language of Section 115 of the C.P.C., the present revision application would itself not maintainable.

Re : CONCLUSION NO. IX

40. Finally Mr. Jagtiani submitted that I ought to hear the Civil Revision Application on merits even assuming that the impugned order can be challenged under Section 29. That I have the power to do so is clear. The only question is whether in the facts of this case, I ought to exercise the jurisdiction to hear the matter on merits. I think not. There are no special circumstances which induced me not to permit the matter to be heard by the first Court entitled to do so. It was not suggested that the question on merits arises or is likely to arise frequently before the Small Causes Court in circumstances such as those in this case. Nor does the question on merits warrant interference by this Court bypassing the machinery under Section 29. The Small Causes Court has been constituted as a Special Court with exclusive jurisdiction to hear these matters. In the absence of compelling circumstances, I see no reason why this Court ought to permit a party to short circuit the procedure and approach this Court directly under Section 115 of the C.P.C. Propriety at least demands that in the absence of any special circumstances I ought to let the Small Causes Court decide the matter.

41. There is in fact good reason why in the present case this Court ought not to exercise discretion to hear the Civil Revision Application. The Petitioner has now admittedly no interest in the suit flat, having handed over the possession thereof to the owner of the flat, one Nikhil Bhatia. Nikhil Bhatia has in turn inducted a third party in the suit flat. The only person that can be aggrieved today is Nikhil Bhatia and not the Petitioner. The Petitioner’s contention is that it rightly took possession of the suit premises and handed over the same to Nikhil Bhatia. For all practical purposes therefore the Petitioner’s interest in this litigation is purely academic.

42. Further no prejudice is caused to the Petitioner who is not left without any remedy. The Petitioner has a remedy under Section 29(3) of the Bombay Rent Act. I have no reason to believe that the present Civil Revision Application was not filed bona-fide. In fact I believe it was filed under a bona-fide misapprehension of the law, which was not free of complication. That too however does not warrant interference under Section 115 of the C.P.C. at this stage.

43. In the circumstances, the Civil Revision Application is dismissed with no order as to costs.

44. At the request of Mr. Jagtiani, the operation of this order is stayed till 15th August, 2004 to enable the Petitioner to carry the matter higher.

Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar/Court Stenographer of this Court.

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