The provisions of the Code of Civil Procedure, 1908, including Order 21, Rule 100, are applicable to proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882, by virtue of section 48 of the Act and the rules framed thereunder.

Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41, 43, 48 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 21, RULE 100 - RESTORATION OF POSSESSION - APPLICABILITY OF ORDER 21, RULE 100 TO PROCEEDINGS UNDER CHAPTER VII OF THE ACT - INTERPRETATION OF SECTION 48 OF THE ACT AND RULES FRAMED THEREUNDER - MAINTAINABILITY OF APPLICATION UNDER ORDER 21, RULE 100 - SCOPE OF JUDICIAL PRECEDENTS - BINDING NATURE OF EARLIER DECISIONS - CONDITIONS FOR DEPARTURE FROM EARLIER PRECEDENTS - PER INCURIAM DECISIONS - IGNORANCE OF STATUTORY PROVISIONS - RELEVANCE OF EARLIER DECISIONS RENDERED WITHOUT CONSIDERATION OF RELEVANT STATUTORY PROVISIONS.
Fact of the Case:

Petitioner challenged the order passed by the Small Causes Court, Bombay, in Miscellaneous Notice No. 960 of 1976, which directed the delivery of possession of a stall to the respondent. The petitioner claimed to be in possession of the stall in his own right and contended that the ex parte order obtained by the respondent in collusion with the heirs of the deceased licensee was illegal. The trial court dismissed the petitioner's application under Order 21, Rule 100 of the Code of Civil Procedure, 1908, holding that such an application was not maintainable in proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882.
Finding of the Court:

The High Court held that the application under Order 21, Rule 100 was maintainable. It interpreted section 48 of the Presidency Small Cause Courts Act, 1882, and the rules framed thereunder to conclude that the provisions of the Code of Civil Procedure, 1908, including Order 21, Rule 100, were applicable to proceedings under Chapter VII of the Act. The court also held that the earlier decision of a coordinate bench, which had taken a contrary view, was rendered per incuriam as it failed to consider the relevant statutory provisions.
Issues: 1. Whether an application under Order 21, Rule 100 of the Code of Civil Procedure, 1908, is maintainable in proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882? 2. Whether the earlier decision of a coordinate bench, which held that Order 21, Rule 100 was not applicable to proceedings under Chapter VII, was binding on the court?
Ratio Decidendi: 1. Section 48 of the Presidency Small Cause Courts Act, 1882, provides that the proceedings under Chapter VII of the Act shall be regulated by the Code of Civil Procedure, 1908. The rules framed by the High Court under the Act also incorporate the provisions of Order 21, Rule 100 of the Code of Civil Procedure, with certain modifications. 2. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statute. In such circumstances, it can be said that the matter was decided per incuriam and is not binding on the court.
Final Decision: The High Court set aside the order of the Small Causes Court and remitted the matter back for a fresh decision on merits, after giving both parties an opportunity to present their cases.

JUDGMENT - C.S. DHARMADHIKARI, J.:---In this writ petition the petitioner has challenged the order passed by the Small Causes Court, Bombay in Miscellaneous Notice No. 960 of 1976, decided on 19th November, 1976. Respondent Laxman Dube filed an application under section 41 of the Bombay Presidency Small Cause Courts Act, 1882 against Smt. Parvati w/o Shankar Salunke and four others, who are heirs and legal representatives of the deceased Shankar Salunke. The said application related to the delivery of possession of the Stall bearing Municipal No. C/2180/3/(A) 86-384-A/86 situate on Jagannath Shankar Sheth Road, Bombay. The said application proceeded ex parte against the legal representatives of Shankar and, therefore, the learned trial Judge made an order in favour of Laxman Dube under section 43 of the Act on 17-9-1975. In execution of that order the present petitioner is dispossessed of the premises. It appears from the record that one Pandurang Koli at the initial stage tried to obstruct the warrant of possession for which the respondent took out obstructionist Notice No. 359 of 1975. The said Pandurang Koli did not appear in Court and, therefore, the said notice was made absolute ex parte removing the obstruction of Pandurang Koli. The present petitioner later on took out a notice on 6th of May, 1975, under Order 21, R. 100 of the Code of Civil Procedure for restoration of possession of Stall.

2. In the said application it was the case of the petitioner that the Stall was initially owned by three brothers viz., Vinayak, Bhalchandra and Vasantrao. In the year 1962 the landlord leased out the stall to him on rental basis as a tenant on a monthly rent of Rs. 25/- and has accordingly received rent from him till 31st of March, 1973, though no receipts are issued for the same. It was also his case that he has paid all along the Municipal Taxes since 1961-62, though the assessment bills were issued in the name of the landlord because he was the owner of the property. He further contanded that he obtained assessment receipts in the year 1969 onwards. It is his case that he is conducting a bidi shop in a part of the stall and in the remaining part of the Stall his son is conducting business in electrical goods. This business of electrical goods was handed over to Pandurang Koli to conduct the same on behalf of his son on certain terms and conditions. In substance, therefore, it is his case that all through he was in possession of the premises in his own right. Before the trial Court he had also made a reference to the letter received by him from the Municipal Corporation some time on or before 25th of May, 1974. According to him the deceased Shankar Salunke was never a licensee of the respondent. It is his specific case that the respondent in collusion with the heirs of Shankar Salunke managed to get an ex parte order in the proceedings instituted by them under section 41 of the Act. He also contended that this ex parte order was obtained in collusion is clear from the fact that the legal representatives of Shankar had chosen not to appear and defend the application. He also contended that respondent No. 1 is merely a rent collector of the landlord and the premises were never in possession of Shankar Salunke as licenses. In these circumstances according to the petitioner he has been wrongly dispossessed by the respondent and hence he is entitled to the restoration of possession of suit premises under Order 21, Rule 100 of the Code of Civil Procedure. As the respondent had parted with the possession of the suit premises subsequently in favour of one Miss Kunda Naik, she was also joined as a co-respondent in this application. However, she remained absent at all the stages and the application filed by the petitioner under Order 21, Rule 100 was only resisted by respondent No. 1. It was contended by the respondent that the application is not maintainable as the provisions of Order 21, R. 100 are not applicable to the summary proce

Click Here to Read the rest of this document