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2005 Supreme(Bom) 680
IN THE HIGH COURT OF BOMBAY
Dilip Bidesh
Versus
Shivgopal Madangopal Chaurasia
Decided on 6.6.2005
Headnote:Civil Procedure Code, 1908 -Sections 2(18) and 129 - Letters Patent (Bom) Clause 37 - Power of High Court - To frame rules on its original side - Words "as far as possible" used in Clause 37 of Letters patent - Interpretation of - Would be consistent with amplitude of words used in Section 129 of CPC - High Court competent to make rules not inconsistent with Letters Patent - Not rules under Code - Letters Patent and Rules made thereunder recognised and specifically protected by Section 129 of Code cannot be relegated to a subordinate Status. - This Court think is the correct view to be taken in interpreting the words ’as far as possible’ in Clause 37 of the Letters Patent. This interpretation would be consistent with the amplitude of the words used in Section 129 of the CPC by which the High Court is empowered to make rules "not inconsistent with the letters patent to regulate its own procedure in the exercise of its original jurisdiction as it shall think fit."
In the first place Section 2(8) of the CPC defines ’rules’ to mean ’rules and forms contained in the First Schedule or made under Section 122 or Section 125. The conspicuous absence of reference to the rules regulating the procedure to be followed on the original side of a Chartered High Court makes it clear that those rules are not ’rules as defined in the Code of Civil Procedure, 1908, Secondly, it is not possible to accept the contention that the letters patent and rules made thereunder which are recognised and specifically protected by Section 129 are relegated to a subordinate status.
[Iridium India Telecom Ltd. v. Motorola Inc., 2005 (1) Bom LR 967 at 979, 981 (SC)].
Sections 7 and 115. - See Provincial Small Cause Court Act, Section 26-A.
Provincial Small Cause Courts Act, 1887 - Section 26-A - Civil Procedure Code, Sections 7 and 115 - Appellate orders passed under Section 26-A of Act, 1887. - Appellate orders passed under Section 26-A of Act, 1887 are not revisable by High Court under Section 115 of CPC. - The Provincial Act is a separate Code complete in itself. Scheme in various sections like forums, limitation, finality and other provisions in the Act like Section 17, Chapter IV-A introduced in Maharashtra about distress warrants, Sections 28, 29, 30, 31 and 32 all support this. This Provincial Act still contains a provision for revision in High Court in other matters. In landlord-tenant or licensor-licensee matters appeal has been provided with revisional powers to the same Court. By 1984 amendment, the District Court has been given power under Section 26-A(4) to do that which High Court could have done under Section 25. Language of Sections 25 and 26-A(4) is similar. Thus while providing a remedy of appeal which did not exist until then, the Legislature also conferred revisional powers upon District Court. Forum for filing appeal and for filing revision is same. No limitation has been prescribed in Section 26-A(4) for exercise of that power. Thus the intention of legislature to expedite the final ad judication of disputes between landlord and tenant or licensor and licensee and to limit statutory challenges to it till level of District Court is obvious. Because of Section 27 (now Section 25-A) decree or order made by Court of Small Causes is final and it can be challenged only in manner provided under the Provincial Act. The Provincial Act contemplates approach in appeal to District Court. It also enables District Court to exercise revisional powers in certain circumstances. Thus, judgment and decree of Small Causes Court is final subject to this appeal or revision. Section 7 of Civil Procedure Code expressly rules out revision under Section 115 against orders of Courts constituted under Provincial Act. The Court to which appeal is to be filed is provided under Provincial Act. Perusal of Section 33 of Provincial Act shows that if a Single Court is invested with the jurisdiction of Court of Small Causes as also ordinary Civil jurisdiction, such Court is deemed to be different Court for the purposes of Provincial Act and Code of Civil Procedure. Thus, the District Court functioning as Appellate Court under Section 26-A is subject to all restrictions imposed by Provincial Act. It is not functioning as such under Code of Civil Procedure and it cannot be said that its appellate orders are revisionable by High Court under Section 115 of Civil Procedure Code. When in disputes between landlord-tenant or licensor-licensee, revision under Section 25 to this Court is not available, it cannot be introduced by making Section 115, Civil Procedure Code applicable to such new and exclusive jurisdiction.
B. P. DHARMADHIKARI, J.
( 1 ) IN this Civil Revision Application under section 115 of Civil Procedure Code, challenge is to the judgment dated 20-3-2003 delivered by Second Additional District Judge, Nagpur in R. C. A. 574/2001 in an appeal under section 26-A of Provincial Small Causes Court Act (referred to as Provincial Act hereafter) whereby said Court has confirmed the judgment and decree dated 30-10-2001 delivered by Additional Judge, Small Causes court Nagpur in Civil Suit No. 1435/1986. The revision applicant is the original tenant and defendant in Civil Suit and appellant in appeal. The present respondent obtained permission from Rent Controller under provisions of c. P. and Berar House Rent Control Order, 1949 and also from Competent authority under the provisions of Slum Act and, then terminated tenancy of present revision applicant by issuing notice under section 106 of Transfer of property Act. When the revision applicant failed to comply with that notice, he filed above referred Civil Suit for his ejectment, for recovery of arrears of rent, notice charges, inquiry into future mesne profits etc. The Small Causes court granted decree of eviction in his favour and the revision applicant/ tenant filed above-mentioned appeal which also came to be dismissed. Thereafter he has filed present civil revision. The revision has been admitted for early final hearing and possession of revision applicant has been protected. The respondent landlord then filed Civil Application 8505 of 2004 for early hearing and that application was rejected on 11-2-2005 as this Court did not found any instance of severe hardship. However at that time respondent/ landlord made grievance that revision itself was not maintainable. Both the counsels agreed to argue the matter on maintainability and accordingly matter was listed from time to time before this Court. After hearing parties on the point of maintainability, Revision was closed for orders on that point.
( 2 ) ADVOCATE Choube for respondent landlord has invited attention of this court to section 7 of C. P. C. to point out that section 115 thereof is expressly excluded insofar as Small Causes Court is concerned. He contends that a remedy of appeal under Section 26-A of Provincial Act is provided against the judgment of Small Causes Court and the said appellate judgment is final in view of section 27 thereof. Advocate for Revision applicant Shri Moharil argued that section 27 has no application because it does not refer to the appellate order at all and the appeal Court namely the District Court is a Court subordinate to High Court and as such remedy of Revision under section 115 c. P. C. is correctly availed of. In the alternative and by way of abundant precaution he also stated that if this Court ultimately finds that revision under section 115 C. P. C. is not tenable, revision applicant should be permitted to file appropriate writ petition in High Court and till then interim orders operating in revision protecting his possession should be continued.
( 3 ) THE provisions of Provincial Act therefore need to be considered. It is important to note that said provisions are amended by Maharashtra Amendment at No. 24 of 1984 with effect from 1-1-1985. Considering the nature of present controversy, it would be appropriate to first look into the relevant unamended provisions prevalent before said date. Section 24 to section 27 are the relevant sections in this respect. Said sections read as under :- 24. Appeal from certain orders of courts of Small Causes.- Where an order specified in Clause (ff) of Clause (h) of sub-section (1) of section 104 of the Court or Civil Procedure, 1908 is made by a Court of Small causes, an appeal therefore, shall lie to the District Court on the ground on which an appeal from such order would lie under that section. 25. Revision of decrees and orders of Court of Small Causes.-The High court, for the purpose of satisfying itself that a decree or order made in any
