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IN THE HIGH COURT OF BOMBAY
(N. P. Nathwani and S. K. Desai JJ.)
HABIB AHMED KHUDABUX Applicant.
v.
ABDUL KHADAR REHMANJI Non-applicant.
Advocate Appeared
For applicant-V.O. Meghani.
For opponent No. 1-J. M. Ratnani,
For opponent No.2-C. R. Menon.
SMALL CAUSE COURTS ACT - RENT ACT - APPEAL - ORDER UNDER ORDER XXI, RULE 98 OF THE CODE OF CIVIL PROCEDURE - WHETHER APPEALABLE - JURISDICTION OF THE SMALL CAUSES COURT - PROCEDURE TO BE FOLLOWED.
Fact of the Case:
The petitioner, Habib Ahmed Khudabux, obstructed the execution of a decree obtained by respondent No. 1 against respondent No.2 in a suit for possession of a shop under section 28 (I) of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 (the Rent Act). The trial Judge passed an order under Order XXI, rule 98 of the Code of Civil Procedure directing respondent No. 1 to be put into possession of the shop. The petitioner appealed to a Bench of the Court of Small Causes, which dismissed the appeal on the ground that the order was not appealable. The petitioner filed a revision application to the High Court.
Finding of the Court:
The High Court held that the order under Order XXI, rule 98 of the Code of Civil Procedure was appealable and that the Bench of Small Causes Court, Bombay was competent to hear it. The Court held that the Small Causes Court, in executing a decree made under the Rent Act, exercises jurisdiction under section 28 (1) of the Rent Act, and that section 29 (1) of the Rent Act provides a general right of appeal from any decree or order made by the Court under section 28. The Court further held that the Explanation to section 28 and the proviso to section 50 of the Rent Act make it clear that execution proceedings in respect of a decree passed under section 28 (1) are included within the scope of section 28 (1).
Issues: 1. Whether an order under Order XXI, rule 98 of the Code of Civil Procedure passed by the Small Causes Court in execution of a decree made under the Rent Act is appealable? 2. Whether the Small Causes Court, in executing a decree made under the Rent Act, exercises jurisdiction under section 28 (1) of the Rent Act?
Ratio Decidendi: 1. Section 28 (1) of the Rent Act confers exclusive jurisdiction on the Bombay Small Causes Court to entertain and try suits and other proceedings specified in section 28 (1), including suits for the recovery of possession of premises to which the Rent Act applies. 2. Section 29 (1) of the Rent Act provides a general right of appeal from any decree or order made by the Court under section 28. 3. The Explanation to section 28 and the proviso to section 50 of the Rent Act make it clear that execution proceedings in respect of a decree passed under section 28 (1) are included within the scope of section 28 (1).
Final Decision: The High Court made the rule absolute and directed the Bench of Small Causes Court to hear the appeal on merits and dispose of the same within two months from the receipt of the order.
NATHWANI J.- This Revision Application by one Habib Ahmed Khudabux who had obstructed the execution of a decree obtained by respondent No. 1 against respondent No.2 is referred to a Division Bench by Mr. Justice Vimadalal as he thought that there were conflicting decisions of single Judges of this Court on the point, namely, whether an appeal lies to a Bench of the Presidency Small Causes Court at Bombay from an order made by a single Judge of the said Court under Order XXI, rule 98 of the Code of Civil Procedure in execution of a decree passed under section 28 (I) of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 (hereinafter referred to as the Rent Act).
2. Respondent No.1 is the owner of a property situate at Victoria Garden Road, Bombay, and, according to him, respondent No.2 was a monthly tenant of a shop on the ground floor of the said property at a rent of Rs. 50 per month. In 1962 respondent No. 1 (original plaintiff) filed R. A. E. Suit No. 257 of 1962 against respondent No.2 to recover possession of the said shop in the Small Causes Court at Bombay under section 28 (I) of the Rent Act and obtained an ejectment decree on April 9, 1965. Respondent No. 2's appeal to the appellate Bench against the said decree was dismissed on February 25, 1969. In November 1971, respondent No. 1 started execution proceedings in the Small Causes Court to recover possession of the suit premises. As the present petitioner and his mother, respondent No.3, obstructed the execution, respondent No. 1 took out an obstructionist notice. On February 17, 1972 the learned trial Judge passed an order under Order XXI, rule 98 of the Code directing respondent No. 1 to be put into possession of the said shop. An appeal preferred by the present petitioner against the said order to a Bench of the Court of Small Causes was dismissed on July 14, 1972 on the ground that the said order was not appealable. Against that order the petitioner has preferred this revision application.
3. In order to decide the point it is necessary to refer to relevant provisions of law and rules. The Small Causes Court in Bombay is established under the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as the Small Cause Courts Act). Chapter IV containing sections 18 to 22 defines the jurisdiction of Small Causes Court. Section 13 restricts it to suits of civil nature when the amount or value of the subject-matter does not exceed Rs. 3,000 and section 19 specifies suits in which the Court shall h:lv~ no jurisdiction. Chapter V containing sections 23 to 36 lays down the procedure in suits cognizable by the Small Causes Court. Chapter VI containing sections 37 to 40 provides for new trials. Section 37 lays down that every decree and order of the Small Causes Court shall be final and conclusive save as otherwise provided in Chapter VI. Section 38 provides for a new trial of contested cases. Chapter VII which contained sections 41 to 49 prior to the Maharashtra Amending Act No. XLI of 1963 deals with recovery of possession of immovable property. Chapter VIII provides for issue of distress warrant to recover arrears of rent.
4. As regards the procedure to be adopted in a suit or proceeding in any Court of Small Causes, section 8 of the Civil Procedure Code, 1908, lays down that save as provided in certain specified sections of the said Code and by the Presidency Small Cause Courts Act, provisions of the said Code shall not extend to any such suit or proceeding provided, however, that the High Court may direct that any such provisions with such modification and adaptations as may be specified shall extend to such suits or proceedings in such Court. Section 9 of the Small Cause Courts Act also empowers the High Court to frame rules and prescribe the procedure to be followed by the Court of Small Causes. Accordingly, in exercise of powers conferred upon it as aforesaid the High Court of Bombay has framed rule~ known as the Presidency Small Cau
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