The amended provisions of Order 21, Rule 103 of the Code of Civil Procedure barred the petitioners' suit for a declaration of tenancy because the obstructionist proceedings arose out of an order for eviction under section 41 of the Presidency Small Cause Courts Act, 1882.

Headnote:
CIVIL PROCEDURE - ORDER 21, RULE 103 - AMENDMENT - EFFECT - SUIT FOR DECLARATION OF TENANCY - MAINTAINABILITY - OBSTRUCTIONIST PROCEEDINGS - ORDER AGAINST PETITIONERS - APPEALABILITY - FORUM - WITHDRAWAL OF WRIT PETITION - REVIEW - STAY OF OPERATION OF ORDER IN OBSTRUCTIONIST PROCEEDINGS.
Fact of the Case:

Petitioners filed a suit for a declaration of tenancy after an order in obstructionist proceedings was made against them. The suit was dismissed on the ground that the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure barred such a suit. The petitioners challenged this decision, arguing that their right to file a suit was saved by section 6 of the General Clauses Act.
Finding of the Court:

The court held that the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure applied to the petitioners' case and that they had no right to file a suit to establish their tenancy. The court also held that the petitioners' right to appeal the order in the obstructionist proceedings was not affected by the amendment, but that there was no forum available to hear such an appeal under the Presidency Small Cause Courts Act.
Issues: 1. Whether the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure barred the petitioners' suit for a declaration of tenancy? 2. Whether the petitioners had a right to appeal the order in the obstructionist proceedings? 3. Whether there was a forum available to hear such an appeal under the Presidency Small Cause Courts Act?
Ratio Decidendi: 1. The court held that the amended provisions of Order 21, Rule 103 of the Code of Civil Procedure applied to the petitioners' case because the obstructionist proceedings arose out of an order for eviction under section 41 of the Presidency Small Cause Courts Act, 1882. The court found that the object of enacting the new provisions was to expedite the trial of issues involving the obstructionist's claim to the property in dispute and to prevent unnecessary delays in the execution of decrees. 2. The court held that the petitioners had a right to appeal the order in the obstructionist proceedings, but that there was no forum available to hear such an appeal under the Presidency Small Cause Courts Act. The court noted that the Appeal Bench of the Small Cause Court had held that it did not have jurisdiction to entertain and decide such appeals. 3. The court held that there was no forum available to hear an appeal from the order in the obstructionist proceedings under the Presidency Small Cause Courts Act. The court noted that the Appeal Bench of the Small Cause Court had held that it did not have jurisdiction to entertain and decide such appeals.
Final Decision: The court dismissed the petition and held that the petitioners' suit for a declaration of tenancy was not maintainable. The court also stayed the operation of the order in the obstructionist proceedings for two weeks to allow the petitioners to move the court for a review of the order dismissing their writ petition.

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

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

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

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

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

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

Click Here to Read the rest of this document

Judicial Analysis