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1987 Supreme(Bom) 219
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
H.W. Dhabe H.D. Patel, JJ.
S.V. Kedari Company another..... Appellants.
Versus
Mohammad Ibrahim others..... Respondents.
Letters Patent Appeal No. 38 of 1987, decided on 28-7-87.
Advocates appeared :
J.N. Chandurkar, for appellants.
M.I. Shareef S.G. Shukla, for respondent Nos. 1 to 3.
A.V. Binde, for added parties.
Headnote:PROVINCIAL SMALL CAUSE ACT (AS AMENDED BY MAHARASHTRA) ACT, 1984
Sections 26, 26-A, 15-Bombay Civil Courts Act Section 28 and Civil Procedure Code Section 96 (4)-Irrespective of the limit placed on the jurisdiction of trial Court to take cognizance of small cause snits upto particular value -The Court of Small Causes has jurisdiction to entertain snits mentioned in Section 26 (1)-Appeals can be filed only before District Court.
Section 15 of the Provincial Small Cause Courts Act prohibits a Court of Small Cause from taking cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes, act subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed two thousand rupees shall be cognizable by a Court of Small Causes. Under Section 16, exclusive jurisdiction is conferred on the Court of Small Causes in respect of the suits cognizable by that Court save as expressly provided by this Act or by any other enactment for the time being in force. In view of the non-obstante clause, with which Section 26 begins, evidently nothing to the contrary contained in Sections 15 and 16 would prevent the Court of Small Causes from exercising the jurisdiction to entertain and trying the suits of the description mentioned in Section 26 (I). This means that neither the pecuniary limit mentioned in sub-section (2) of Section 15, nor whatever is mentioned in second schedule would operate to affect the jurisdiction of the Court of Small Causes in respect of the suits to which Section 26 refers. The effect would therefore, be that whatever may be the pecuniary jurisdiction conferred on a Court of Small Causes under Section 28 of the Bombay Civil Courts Act, or Section IS of the Provincial Small Cause Courts Act, it shall have the jurisdiction to entertain and decide the category of suits enumerated in Section 26 of the Provincial Small Cause Courts Act.
It was not disputed that, as the trial Court had inherent jurisdiction to entertain the suit and decide it, whether it decided it as a small cause suit by following summary procedure or by following regular procedure, would not make any difference to the ultimate result and the decree passed by It would not be open to challenge on the ground of want of jurisdiction. Irrespective of the limit placed on the jurisdiction of the trial Court to take cognizance of the small cause suits upto particular value only, its jurisdiction to entertain the suit under Section 26 of the Provincial Small Cause Courts Act, would be unaffected and it would have the jurisdiction to entertain and decide such suits.
The operation of sub-section (4) of Section 96 of the Civil Procedure Code would be restricted only to the other suits enumerated in Sections 15 and 16 of the Provincial Small Cause Courts Act and would have no application to suits under Section 26 of that Act and the District Court would have wider powers in respect of the suits contemplated by Section 26 and decided under it.
Since all the questions of law and facts have been considered as the decision has been rendered on merits, the mere reference to Section 96 would not indicate that the powers under Section 26-A of the Provincial Small Cause Courts Act have not been exercised.
2. The proceedings in this letters patent appeal arise out to the orders passed under the provisions of the C.P. Berar Letting of Houses and Rent Control Order, 1949 (for short "the Rent Control Order"). The respondent Nos. 1 to 3 filed an application before the Rent Controller under Clauses 13(3)(i), (ii) and (vi) of the Rent Control Order seeking permission to give quit notice to the appellant No. 1, which was the tenant in the suit premises. The appellant No. 1 is a registered partnership firm. By its written statement the appellant No. 1 denied the allegation made by respondent Nos. 1 to 3 in their application. After the written statement to add to the original application, Shri S. Narsingrao Kedari, as non-applicant No. 2 on the ground that it was necessary to sue the firm through one of the partners in view of the decision of this Court. The said application for amendment was allowed and S. Narsingrao Kedari, one of the partners of the firm, added as non-applicant No. 2 in the proceedings.
3. The parties led evidence. The learned Rent Controller on the basis of the evidence on record held that the respondents-landlords have not proved there case in regard to any of the ground raised by them. He, therefore, dismissed the said application. The respondents-landlord preferred an appeal and in the appeal as regards the permission sought under Clause 13(3)(ii) the learned Additional District Magistrate, Nagpur set aside the order of the learned have proved their case about the habitual default under Clause 13(3)(ii) of the Rent Control order. He accordingly granted permission to the landlords thereunder to determine the lease of the appellant. He, however, maintained the order of the learned Rent Controller, Nagpur, as regard the permission sought under Clauses 13(3)(i) and (vi) of the Rent Control Order. Feeling aggrieved the tenant preferred a writ petition in this Court, but the some was dismissed. Against the judgment of this Court in the writ petition, the appellants have preferred the instant letters patent appeal.
4. When this letters patent appeal came up for admission, the principal ground urged on behalf of the appellants was that according to the judgment of the Supreme Court in (Chhotelal Pyarelal v. Shikarchand)1, 1984 Maharashtra Law Journal 839, since the Code of Civil Procedure was not applicable to the rent control proceedings, it was necessary for the respondents-landlords to join all the partners of the firm as parties to the proceedings. Notice before admission was issued to the respondents-landlords, who after appearance in this Court filed an application for joining the remaining partners as parties to the original application under Clause 13(3) of the Rent Control Order. After notice to the persons to be added as parties and after hearing all the parties, this Court allowed the said Civil Application No. 1531 of 1987 as a result of which the original application is amended and the remaining partners stand joined as parties to the original application excluding the partner S.G. Kedari, who is reported to be dead. It is thereafter that this letters patent appeal is being heard on merits as well as on the question whether it would be necessary to remand the proceedings to the Rent Controller, Nagpur, with a view to give an opportunity to the added parties to meet the case of the respondents-landlords.
5. As regards the merits, the principal question which is urged by the learned Counsel for the appellants is that the schedule of defaults filed along with the application under Clause 13(3) of the Rent Control Order is not proved. It is also further urged that even if the schedule of defaults is held to be proved, it does not show that the appellants are habitual defaulte
