The amended provisions of Order 21 Rule 103 of the Code of Civil Procedure, which make an order in an obstructionist proceeding appealable as if it were a decree, bar a suit for declaration of tenancy after an order against the obstructionist.

Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT - ORDER 21 RULE 103 - AMENDMENT - SUIT FOR DECLARATION OF TENANCY - MAINTAINABILITY - The amended provisions of Order 21 Rule 103 of the Code of Civil Procedure, which make an order in an obstructionist proceeding appealable as if it were a decree, bar a suit for declaration of tenancy after an order against the obstructionist.
Fact of the Case:

The petitioners, claiming to be tenants, obstructed the execution of an order of ejectment obtained by the respondents under section 47 of the Presidency Small Cause Courts Act against their brother. In the obstructionist proceedings, an order was made against the petitioners, and a warrant of possession was directed to be issued. The petitioners filed a suit for a declaration of their tenancy and an injunction restraining the execution of the warrant of possession. The trial court and the appellate bench of the Small Cause Court held that the suit was not maintainable in view of the amended provisions of Order 21 Rule 103 of the Code of Civil Procedure.
Finding of the Court:

The court held that the amended provisions of Order 21 Rule 103 of the Code of Civil Procedure, which make an order in an obstructionist proceeding appealable as if it were a decree, bar a suit for declaration of tenancy after an order against the obstructionist. The court further held that the petitioners' right to file a suit to establish their tenancy was not saved by the provisions of section 6 of the General Clauses Act, as the amended provisions of Order 21 Rule 103 were expressly made applicable to all suits, proceedings, appeals, or applications pending or instituted after the commencement of the Amending Act.
Issues: 1. Whether the amended provisions of Order 21 Rule 103 of the Code of Civil Procedure bar a suit for declaration of tenancy after an order against the obstructionist? 2. Whether the petitioners' right to file a suit to establish their tenancy is saved by the provisions of section 6 of the General Clauses Act?
Ratio Decidendi: 1. The amended provisions of Order 21 Rule 103 of the Code of Civil Procedure, which make an order in an obstructionist proceeding appealable as if it were a decree, provide a complete and exclusive remedy for the determination of the rights of the obstructionist. The object of these amendments was to expedite the trial of the issues involved in the claim made by the obstructionist to the property in dispute and to see that the execution of the decree is not unnecessarily delayed. 2. The petitioners' right to file a suit to establish their tenancy is not saved by the provisions of section 6 of the General Clauses Act, as the amended provisions of Order 21 Rule 103 were expressly made applicable to all suits, proceedings, appeals, or applications pending or instituted after the commencement of the Amending Act.
Final Decision: The court discharged the rule with costs and stayed the operation of the order in the obstructionist proceedings for two weeks to enable the petitioners to move the court for reviewing the petition filed on the Original Side.

JUDGMENT - Chandurkar M.N., 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 one Bhagwandas Ranchhoddas wh 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 Cause 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 Proce dure 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 inter-locutory 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 I, 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 determi

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Judicial Analysis