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High Court of Judicature at Bombay
MOHIT S. SHAH, RANJIT MORE, N.M. JAMDAR, JJ.
Bhartiben Shah & Others
Versus
Smt. Gracy Thomas & Others
Writ Petition No. 9562 of 2010, 8029 of 2010 & 907 of 2010
Decided on : 21-01-2013
Revisional powers are intended to be exercised with a view to subserve and not to defeat ends of justice. - After the revisional Court is satisfied about maintainability of the revision application, the revisional Court will consider whether the impugned order is according to law. However, "according to law" refers to the order as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be, if there is a miscarriage of justice due to mistake of law. Hence, mere breach of, or non-conformity with, the provisions of Code of Civil Procedure or the Evidence Act or similar other procedural laws, will not be a ground for interfering with the impugned order of the trial Court. The revisional powers are intended to be exercised with a view to subserve and not to defeat the ends of justice. As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular.
MAHARASHTRA RENT CONTROL ACT, 1999 - Section 34(4) - Revision application.
A revision application under Section 34(4) of Act, in respect of a procedural order, which not affects right of parties under Act or any after substantial law, not maintainable. - In the present case, a revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999 is not maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of Maharashtra Rent Control Act, if such order does not affect the rights of parties under the Maharashtra Rent Control Act or any other substantive law.
While an order to be revisable need not necessarily be an order for possession or fixation or recovery of rent, nevertheless, the order sought to be revised must directly affect the substantive rights and liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act.
For an order to be revisable under Section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party’s case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.
Following are instances of revisable orders :
(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law
(ii) an order rejecting an application for restoration of the suit under Order IX, Rule 4 of the CPC
(iii) an order allowing or rejecting an application for a declaration that the suit has abated
(iv) an order refusing to extend the time for filing a written statement
(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law.
This list is illustrative and not exhaustive.
Following are instances of orders which would not be revisable orders :
(i) an order granting leave to amend plaint or written statement
(ii) an order granting extension of time to file written statement
(iii) an order raising additional issue
(iv) an order made for production of documents or discovery or inspection.
(v) an order directing a plaintiff/defendant to furnish better and further particulars
(vi) an order issuing or refusing to issue a commission for examination of Witnesses
(vii) an order issuing or refusing to issue summons for additional witness or document
(viii) an order condoning delay in filing documents, after the first date of hearing.
(ix) an order of costs to one of the parties for its default
(x) an order granting or refusing an adjournment
(xi) an order allowing an application for restoration of the suit under Order IX, Rule 4 of CPC.
This list is also illustrative and not exhaustive.
Mohit S. Shah, C.J.
1. The following questions have been referred for our opinion:
(1) What is the scope and ambit of the power of revision under section 34(4) of the Maharashtra Rent Control Act, 1999?
(2) Whether a revision application under section 34(4) of the Maharashtra Rent Control Act, 1999 would be maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of the Maharashtra Rent Control Act ?
2. For giving answers to the above questions, we propose to proceed in the following manner:
FACTS
3. Writ Petition No.9562 of 2010 challenges the judgment and order dated 29 September 2010 passed by the Small Causes Court, Bombay rejecting application of the petitioner-plaintiff for amendment of the plaint by addition of a party. A preliminary objection was raised on behalf of the respondent-defendants at the hearing of the writ petition against maintainability of the writ petition under Article 227 of the Constitution of India on the ground that the petitioner had an adequate and efficacious alternative remedy available by way of revision under section 34(4) of the Maharashtra Rent Control Act, 1999 (for brevity “New Rent Act”).
4. It was thereupon contended by learned advocate for the petitioner that a Revision under section 34(4) of the New Rent Act lies to an Appellate Bench of the Court of Small Causes only in respect of an order passed under the Rent Act and that the revisional jurisdiction does not extend to a procedural order passed under the Code of Civil Procedure, 1908. In support of the said contention, reliance was placed on three judgments of learned Single Judges of this Court, which, in turn, relied upon the decision of Division Bench of this Court in Sukhdev Prasad Raghubir Vs. Rambhujarat Kshampati (1983-Mh.L.J.-9 = AIR 1983 Bom. 25), wherein the scope of revisional power under para materia provision of Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for brevity, `the Old Rent Act') was considered.
Another learned Single Judge of this Court, in Abeda Iqbal Patel Vs. Cormorant Investment Pvt. Ltd., Mumbai (2009 (2) Mh.L.J. 446)took a different view from the view taken by three other learned Single Judges of this Court and that is how when the present writ petition was heard on the question of maintainability and availability of an alternative remedy of revision under section 34(4) of the New Rent Act, Justice D.G. Karnik vide order dated 8 February 2011 referred the above two questions for opinion of the Larger Bench.
5. At the hearing of Writ Petition No.907 of 2010, the attention of the learned Single Judge was invited to the reference made by Justice D.G. Karnik vide order dated 8 February 2011. The learned Single Judge was, however, of the view that since the matter was already covered by decision of Division Bench, it was not necessary to refer the matters to the Larger Bench, and hearing of the writ petition was adjourned.
6. Writ Petition No. 8029 of 2010 challenges the order dated 3 August 2010 of the Appellate Bench of the Court of Small Causes at Bombay in Revision Application under section 34(4) of the New Rent Act setting aside the order of the Small Causes Court by which the trial Court had allowed application of the petitioner-plaintiff under Order 18 Rule 16 CPC for directing the defendant to lead evidence first.
Submissions on behalf of Petitioners
7. Mr. Prasad Dani and Mr. Vikram Goyal, learned counsel appearing on behalf of the writ petitioners, made the following submissions in support of their contention that no revision under section 34(4) of the New Rent Act lies against a procedural order, like allowing or rejecting an application for amendment of a pleading.
(a) Section 34(4) of the New Rent Act is similar to Section 29(3) of the Old Rent Act. The Division Bench, in case of Sukhdev Prasad (1983-Mh.L.J.9)interpreted Section 29 (3) of the Old Rent Act after relying upon the Constituti
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