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IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Hawabai wd/o Late Suleman Haji.... Appellant.
Versus
Abdul Sattar Suleman Haji Ahmed Oomer and another.... Respondents.
First Appeal Stamp No. 21635 of 1994 in F.A. No. 1020 of 1994 in Suit No. 2653 of 1989, decided on 6-10-1994.
Advocates appeared :
V.T. Walawalkar with Rajiv J. Mane, for appellants.
M.A. Rane with Bajpai, for respondents.
See Specific Relief Act, 1963-Section 6.
Section -Bombay City Civil Court Act, 1948-Section 15 (1)-Scope. On perusal of the above provisions shows that it is a complete Code in itself providing a summary procedure for giving relief to a person in possession who has been dispossessed recently within six months.
It is therefore, seen that the Legislature has provided a summary procedure under certain circumstance. In my view, this section is an exhaustive and complete Code by itself and we cannot go outside Section 6 to find out the rights of parties including a right of appeal.
This is not a suit filed under the ordinary jurisdiction of the City Civil Court under Section 9 of the Civil Procedure Code. This is a special suit under Section 6 of the Act which provides an exhaustive and summary procedure for a particular type of suit. The plaintiff cannot say that he wants to come to Court and ask for the relief for possession under Section 6 (1) of the Act that he is not bound by sub-sections (2) or (3) or (4) of Section 6 of the Act. If the plaintiff wants a summary remedy under Section 6 (1) of the Act and approaches the Court with a special suit under Section 6 (1) of the Act, he is bound by sub-section (2), (3) and (4) of Section 6 of the Act. Having filed a suit under Section 6 (1) of the Act the plaintiff cannot say that the period of limitation is 12 years under Articles 64 or 65 of the Limitation Act for possession of a immovable property, but he has to come to Court within a period of 6 months as provided in sub-section (2) of Section 6 of the Act.
The plaintiff may have a separate remedy to file a title suit for possession within 12 years under Articles 64 or 65 of the Limitation Act, but if he invokes the special jurisdiction of the Court under Section 6 (1) of the Act he will have to file the suit within six months. Similarly, the special provisions made in sub-section (3) will apply to such a suit and consequently no appeal will be against an order passed under the Act. The Legislature intended to create a special jurisdiction in a Court for providing a quicker and summary remedy for a person who has been dispossessed recently within six months. That is why the appeal provision is also taken away, but the legislature has further provided a safeguard namely that an aggrieved party can file a separate title suit and establish his claim. Even though no appeal is provided, the parties are not put to disadvantage since they have a right to file a fresh suit to establish their title in a Court of law.
All laws which were in force prior to the Constitution shall remain in force unless altered or repealed or amended by subsequent law. The Bombay Act of 1948 is pre-constitution law. Therefore, the said Act can continue in force under Article 372 (1) of the Constitution of India unless it is repealed or altered or amended by subsequent Act.
The Parliament has passed a law called the Specific Relief Act, 1963 in which in Section 6 a special forum, a special remedy and a special procedure for a person who is dispossessed from, an immovable property is provided. For such a Suit It is specifically provided that no appeal shall lie from a decree passed under Section 6. If this later law should prevail then we should read Section 15 (1) of the Bombay Act to mean that appeal lies to High Court from every decree passed by a City Civil Court Judge provided an appeal is allowed by law. In other words, the later law impliedly amends or alter Section 15(1) of the Bombay Act to mean that an appeal shall he unless it is barred under any other provision of law. This theory of implied amendment or implied repeal is not a new concept, but it has been recognized, accepted and followed by Indian Courts including the Supreme Court.
In view of the self contained and exhaustive procedure mentioned for a specal1ype of suit filed under Section 6 of the Specific Relief Act, the procedure mentioned in that section will prevent the general provisions of the Bombay City Civil Court Act.
The judgment provided is a recent and final decision by a competent court regarding the specific legal issues addressed, particularly the maintainability of the appeal under section 6 of the Specific Relief Act. Since the court explicitly held that the appeal was not maintainable and rejected it, and there is no indication of subsequent legal developments or appeals challenging this decision, the judgment remains valid and binding unless overturned or modified by a higher court or through legislative changes.
Furthermore, the judgment discusses the applicable legal principles and the interpretation of relevant statutes, affirming its validity within the current legal framework. Unless there has been a subsequent appellate ruling or legislative amendment that supersedes this decision, it continues to be effective and enforceable.
2. The learned Counsel appearing for the respondent raised a preliminary objection that the Appeal is not maintainable. I have heard both the Counsel on the question of maintainability of the Appeal.
3. The Appellant-plaintiff filed the suit in the trial Court under section 6 of the Specific Relief Act for possession of the suit property on the allegation that the defendants dispossessed her from the suit property within 6 months prior to the date of the suit.
The defendants contested the suit by filing written statement.
After trial the learned trial Court dismissed the suit. The trial Court recorded a finding that the plaintiff failed to prove her possession and then dispossesion within 6 months prior to the date of the suit.
Being aggrieved with the dismissal of the suit, the plaintiff has come up with this first appeal.
4. The learned Counsel for the respondents contended that no appeal is provided against an order under section 6 of the Specific Relief Act, 1963 and, therefore, the present appeal is not maintainable. On the other hand, the learned Counsel for the appellant contended that having regard to the provisions of the Bombay City Civil Court Act, an appeal lies against every decree passed by the City Civil Court.
The short point for consideration is whether the present appeal against an order under section 6 of the Specific Relief Act is maintainable or not?
5. Though the learned Counsel appearing for both the parties referred to constitutional provisions and the rights of parties under the Bombay City Civil Court Act, my view is that we have to confine ourselves to section 6 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") to find out as to whether an appeal lies or not. Section 6 of the Act reads as follows:-
"6. Suit by person dispossessed of immovable property---(If) any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof."
6. On perusal of the above provisions shows that it is a complete Code in itself providing a summary procedure for giving relief to a person in possession who has been dispossessed recently within six months.
7. Sub-section (1) provides that any person dispossessed from an immovable property may file a suit for possession under this provision. Then sub-section (2) provides that such a suit must be filed within six months from the date of dispossession. Further such a suit cannot be filed against a Government.
8. Sub-section (3) provides that no Appeal nor review shall lie against any order passed under this section.
9. Then sub-section (4) provides that any order passed under this section will not bar any person to agitate his right in a title suit.
10. It is, therefore, seen that the Legislature has provided a summary procedure under certain circumstances. In my view, this section is an exhaustive and complete code by itself and we cannot go outside section 6 to find out the rights of parties including a right of appeal.
11. This is not a suit filed under the ordinary jurisdiction of the City Civil Court under section 9 of the Civil Procedure Code. This is a special suit under section 6 of the Act which provides an exhaustive and summary procedure for a particular ty
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