JUDGMENT - C.S. DHARMADHIKARI, J.:---Respondent Landlords Smt. Manjulaben Maganlal Shah and Smt. Nanbai Kalyanji filed a suit against petitioner tenant P.T. Gandhi for possession of the premises on the ground among others that the said premises were required by them reasonably and bona fide for use and occupation by Smt. Manjulaben. The suit was decreed on 31st August, 1978 and the appeal preferred by the tenant was also dismissed on 3rd June, 1981. It is the case of the petitioner that within a short time thereafter he discovered that the respondents had been in occupation of another flat. Therefore he sought to get the order in appeal reviewed on the ground of discovery of fresh material which with due deligence he could not have discovered earlier. The appellate Bench of the Small Cause Court, Bombay by its Judgment and order dated 2nd November, 1985 rejected the review petition on the ground that the same is not maintainable. While passing the order the Appellate Bench of the Small Cause Court relied upon a decision of this Court in (M/s. National Hotel and others v. Mrs. Rukayabai and others)1, 1985(2) Bom.C.R. 499.

2. Being aggrieved by this order the petitioner tenant filed the present writ petition under Article 227 of the Constitution of India. Initially the matter was placed before Single Judge Jahagirdar, J., Since Jahagirdar, J., found that the law laid down by the Single Judge of this Court in National Hotels case is not applicable to the suits governed by Rule 8 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the observations made therein by Shah, J., were obiter or could be said as not relevant to the issue decided in National Hotels case, he thought it fit to refer the matter to the Division Bench, after framing necessary question. This how the matter has been placed before us. The question formulated by Jahagirdar, J., is in the following terms :

“Whether, in view of the provisions contained in Rule 8 and Rule 9 of the Bombay Rent Control Rules, 1948 the provisions relating to review contained in the Code of Civil Procedure are applicable to suits and proceedings other than those referred to in Rules 5 and 7 of the Bombay Rent Control Rules ?”

3. For property appreciating the controversy it will be worthwhile of a reference is made to the relevant provisions of the Bombay Rent Act and the Rules framed thereunder. By sections 28 and 29 of the Rent Act exclusive jurisdiction is conferred upon certain courts for deciding suits and appeals. Then comes section 31, which reads as under :

“31 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 order made by them”

Expression “prescribed” is defined by sub-section (9) of section 5, which means prescribed by the Rules and “prescribed” shall be construed accordingly. Thus, it is clear that the expression used in section 31 viz. “prescribed procedure” would be the procedure prescribed by the Rules made under the Rent Act. Section 49 confers rule-making power on the State Government. In exercising the said power the State Government has framed necessary rules. These rules are divided in chapters. Here, in this case we are concerned with Chapter IV of the Rules, which lays down the procedure to be followed by the Court of Small Causes, Bombay in suits, proceedings, appeals etc. The relevant rules are Rules 5, 7, 8 and 9, which read as under :

“5 Procedure for suits, the value of the subject-matter of which does not exceed Rs. 3000/- and for proceedings for execution of decrees and order passed thereon and for distress warrants. In such of the following suits and proceedings as are cognizable 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 i

Click Here to Read the rest of this document