In the absence of the Court of Small Causes, compliance with the provisions of Section 17(1) proviso of the Provincial Small Cause Courts Act, 1887 is mandatory, as per the provisions of Section 33(1) of the Maharashtra Rent Control Act, 1999.

JUDGEMENT :

Anil S. Kilor, J.

1. This writ petition is placed before us to decide the following question, upon reference being made by the learned Single Judge:

“In the light of the provisions of Section 33(1) of the Maharashtra Rent Control Act, 1999 which confer jurisdiction on the Court of Small Causes and in absence of the Court of Small Causes on the Court of Civil Judge, Junior Division or Civil Judge, Senior Division as the case may be, whether the provisions of Section 17(1) proviso of the Provincial Small Cause Courts Act, 1887 would be required to be complied with in view of the decision in Akbarali Husenali Gulamreza .vs.. Hotel Rexalia Private Ltd.2002 (2) Mh.L.J. 133?”

2. The brief facts which are relevant to decide the question referred for adjudication, are as follows: The respondents herein filed a suit for eviction against the petitioners which was decreed ex parte vide order dated 19/09/2003 passed by the Second Additional Small Causes Court, Nagpur in Regular Civil Suit No. 5 of 2008.

3. The petitioner, feeling aggrieved by the said ex parte order, preferred an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”) along with an application for condonation of delay.

4. The said application was rejected vide order dated 30/06/2014, passed by the learned Additional Judge, Small Causes Court, Nagpur on the ground that requirement of Section 17(1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “the Act of 1887”) as regards pre-deposit of the decretal amount for giving security, had not been complied with.

5. The same was challenged by filing appeal under Section 34 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Act of 1999”), which came to be dismissed vide order dated 27/07/2005, passed by the learned Additional District Judge and Additional Sessions Judge, Nagpur, vide order dated 27/07/2015 passed in M.C.A. No. 206 of 2014.

6. Feeling aggrieved by the aforesaid order dated 27/07/2015, the Writ Petition 4690 of 2015 was preferred. The learned Single Judge on considering the judgment of the Hon’ble Supreme Court of India in the case of Kedarnath vs.. Mohan Lal Kesarwari, (2002) 2 SCC 16, the judgments of single Judge of this Court in the case of Shailesh ..Vs.. Nirmal Kumar, 2006(4) Mh.L.J. 756 and in the case of Akbarali H. Gulamreza ..vs.. Hotel Rezaliya, 2002(4) Bom.C.R. 329, has observed thus :

“7. From the aforesaid decisions in Akbarali Husenali Gulamreza (supra) and Shailesh Sudhir Joglekar (supra) it is apparent that in the former decision the proviso to Section 17 of the Act of 1887 was construed as a part of the Bombay Rent Control Rules and its compliance was not insisted upon. In the latter decision, the provisions of Section 17(1) of the Act of 1887 were held to be mandatory requiring compliance. Moreover, in the case of Kedarnath (supra), the suits were to be tried exclusively by the Court of Small Causes. Hence the decisions rendered by learned Single Judges referred to above cannot be reconciled. The question as to applicability of provisions of Section 17(1) of the Act of 1887 arises in various matters. In the light of the conflict noticed herein above the following question requires adjudication by a larger bench :

“In the light of the provisions of Section 33(1) of the Maharashtra Rent Control Act, 1999 which confer jurisdiction on the Court of Small Causes and in absence of the Court of Small Causes on the Court of Civil Judge, Junior Division or Civil Judge, Senior Division as the case may be, whether the provisions of Section 17(1) proviso of the Provincial Small Cause Courts Act, 1887 would be required to be complied with in view of the decision in Akbarali Husenali Gulamreza vs. Hotel Rexaliya Private Ltd. 2002(2) Mh.L.J 133 ?”

7. The learned Single Judge of this Court in the case of Akbarali (supra) while considering the applicability of Section 17 of the Rent Act, has observed thus :

“33.