reported/published in http://bombayhighcourt.nic.in/judgements/2013/&fname=CWP2932810.=N
Bombay High Court
WP-9562-2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9562 OF 2010
Bhartiben Shah,
R/o.Rasik Niwas, `F' Road, Marine Lines,
Mumbai-400002. .. Petitioner
versus
Smt.Gracy Thomas and others .. Respondents
Mr. Vikram Goel a/w Ashok K. Goel for petitioner.
Mr. Y.E. Mooman a/w Manisha B. Gawde for respondents 1 and 2.
WITH
WRIT PETTION NO.8029 OF 2010
Dhirajlal Raishi Chheda,
Ghatkopar, Mumbai .. Petitioner
versus
Raishi Shivji Chheda,
Ghatkopar, Mumbai. .. Respondents
Mr. I.K. Tripathi a/w P.A. Sarwankar i/by M/s Sarwankar & Co. for
petitioner.
Mr. G.H. Shukla i/by M/s G.H. Shukla & Co. for respondents.
WITH
Kambli / abs 1 of 75
::: Downloaded on - 03/06/2013 06:51:21 :::Bombay High Court
WP-9562-2010
WRIT PETITION NO.907 OF 2010
M/s.D.V. Sulakhe & Sons,
Second Floor, Kedar Bhavan, 134/2,
Old Hanuman Land, Kalbadevi Road,
Mumbai-400002 .. Petitioner
versus
M/s.Hindustan Trading Corporation
and others .. Respondents
Mr. Prasad S. Dani for petitioner.
Smt. Ranjana Parikh a/w Mr. Vikram Goel and Mr. Ashok K. Goel
for respondent no.1.
CORAM : MOHIT S. SHAH, C.J.,
RANJIT MORE &
N.M.JAMDAR, JJ.
DATE OF PRONOUNCEMENT : 21 JANUARY 2013
JUDGMENT : (Per Chief Justice )
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 ?
Kambli / abs 2 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
2. For giving answers to the above questions, we propose to
proceed in the following manner:
Para Nos. Page Nos.
(i) Indicating brief facts leading to
this reference
3 to 6 4 to 5
(ii) Setting out the rival submissions
of learned counsel for the parties 7 to 9 6 to 15
(iii) Statutory provisions 10 16 to 18
(iv) Giving broad analysis of rival
submissions on maintainability of
revision.
11 18 to 20
(v) Relevant consideration for correct
perspective
12 to 19 20 to 26
(vi) Brief exposition of the principle
on maintainability of revision 20 to 24 26 to 31
(vii) Analysis of case law – five
important judgments
25 to 62 31 to 57
(viii) Conclusions on the question of
maintainability
63 to 68 58 to 60
(ix) Illustrative cases to explain
applicability of the above
conclusions
69 to 74 60 to 65
(x) Discussion on the scope and ambit
of the revisional power 75 to 83 65 to 72
(xi) Answers to both the questions
with illustrations of revisable
orders and orders which are not
revisable
84 to 89 72 to 75
Kambli / abs 3 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
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
Kshampati1
, 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.
1 1983-Mh.L.J.-9 = AIR 1983 Bom. 25
Kambli / abs 4 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Another learned Single Judge of this Court, in Abeda
Iqbal Patel Vs. Cormorant Investment Pvt. Ltd., Mumbai1
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 petitionerplaintiff under Order 18 Rule 16 CPC for directing the defendant to
lead evidence first.
1 2009(2)-Mh.L.J.-446
Kambli / abs 5 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
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
Prasad1
interpreted Section 29(3) of the Old Rent Act after relying
upon the Constitution Bench decision of the Supreme Court in
Shankarlal Aggarwala and others Vs. Shankarlal Poddar and others2
and also on two decisions of three Judge Benches of the Supreme
Court in Bant Singh Gill Vs. Shanti Devi and others3
and in Central
Bank of India Limited Vs. Gokal Chand4
.
(b) In the aforesaid decision in Bant Singh Gill , Section 34
of the Delhi and Ajmer Rent Control Act, 1952 conferred the right of
appeal on an aggrieved person in very wide terms -
"any person aggrieved by any decree or order of a Court
passed under this Act, may in such manner as may be prescribed,
prefer an appeal : (i) to the Court of the senior subordinate
Judge .... ...., (b) to the Court of the District Judge ......... and (c) to
1 1983-Mh. L.J.-9
2 Air 1965 SC 507
3 AIR 1967 SC 1360
4 AIR 1967 SC 779
Kambli / abs 6 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
the High Court .....,( the forum of appeal depending on the value of
the case).”
(emphasis supplied)
In spite of the aforesaid wide language, the Supreme
Court held that the word "order" is not wide enough to include every
order, whatever be its nature and particularly the orders which only
dispose of interlocutory applications. Where there is no final order
deciding rights or liabilities of the parties to the suit, the finding
given by a Court cannot be held to be an order for purposes of
Section 34 of the Act and consequently no appeal against such an
order would be maintainable. The Supreme Court, therefore, held
that the order rejecting application of the appellant to record the
abatement of the suit and directing continuance of the suit, was not an
order of such a nature against which an appeal could be filed under
Section 34 of the Act of 1952.
(c ) In the Central Bank of India Limited Vs. Gokal Chand1
the Supreme Court was concerned with a similar provision in Section
38 of Delhi Rent Control Act, 1958, which was also widely worded
and read as under :
"An appeal shall lie from every order of the Controller
made under this Act to the Rent Control Tribunal
(hereinafter referred to as the Tribunal) consisting of one
person only to be appointed by the Central Government
by notification in the Official Gazette".
(emphasis supplied)
1 AIR-1967-SC-799
Kambli / abs 7 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The Supreme Court held that the object of Section 38(1) is to give a
right of appeal to a party aggrieved by some order which affects his
right or liability. In the context of Section 38(1), the words "every
order of the Controller made under this Act", though very wide, do
not include interlocutory orders, which are merely procedural and do
not affect the rights or liabilities of the parties. The principle was
thus recognized that the word "order" used in such context is not
wide enough to include every order, whatever be its nature, and
particularly orders which only dispose of interlocutory matters.
(d ) In Shankarlal Aggarwala v/s. Shankarlal Poddar1
, the
Supreme Court interpreted Section 202 of the Companies Act, which
reads as under :
"202. Appeals from orders. Re-hearing of, and appeals
from, any order or decision made or given in the matter
of the winding up of a company by the Court may be had
in the same manner and subject to the same conditions
in and subject to which appeals may be had/ heard from
any order or decision of the same Court in cases within
its ordinary jurisdiction".
(emphasis supplied)
The Supreme Court examined the controversy arising from the
conflict of opinion of different High Courts and held that the words
"order or decision" in the first part of Section 202, though wide,
would exclude merely procedural orders or those which do not affect
the rights or liabilities of parties.
1 AIR 1965 SC 507
Kambli / abs 8 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(e) On the basis of the above decisions it was submitted by
Mr. Goel and Mr. Dani that though the word "order" in Section 34(4)
is very wide, revisions are not maintainable against interlocutory
orders, which are merely procedural orders and, which do not affect
the rights and liabilities of the parties. It was submitted that in the
above decisions the Supreme Court held that an appeal would not be
maintainable against such orders, in spite of wide words used in the
section conferring right to appeal. It was, therefore, vehemently
submitted that though Section 29(3) of the Old Rent Act and Section
34(4) of the New Rent Act provide for revision in very wide terms,
the same have to be read in light of the principles laid down in the
above decisions of the Supreme Court. Therefore, the judgment of
the Division Bench in case of Sukhdev Prasad Raghubir1
based on
the above Supreme Court decisions does not require any
reconsideration.
(f) It was accordingly submitted that on account of non
maintainability of revision against such interlocutory orders, there is
no equally efficacious alternative remedy available to the writ
petitioners and, therefore, the writ petition under Article 227 of the
Constitution of India ought to be held to be maintainable, otherwise
the parties would have no remedy to challenge an order, which may
cause miscarriage of justice.
(g) It was lastly submitted that on account of mind boggling
and sky rocketing prices of immovable properties in Mumbai, where
flats are sold in terms of tens of thousands of rupees per sq. foot, the
cases under the Rent Act are fought so hard-tooth and nail that every
1 1983 Mh.L.J. 9
Kambli / abs 9 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
order passed by the Small Causes Court Judge was subjected to
challenge before the higher forum even when revisions were
entertained by the Appellate Bench of the Small Causes Court at
Mumbai. The losing party would then always prefer a writ petition
under Article 227 of the Constitution and, therefore, holding that the
revision is maintainable, as contended by the respondents, would
only prolong the litigation which even otherwise takes decades.
8. Learned counsel for the writ petitioners also submitted
that in the recent order dated 17 January 2012 in writ petition
No.1078 of 2011, a learned single Judge of this Court has made
observation that notwithstanding the binding precedents in the form
of decision of the Division Bench of this Court in Sukhdev Prasad
Raghubir v/s. Rambhujarat Kshampati1
and in another decision Mrs.
Laheribai J. Trivedi (through her LR;s) v/s. Dharamdatta V. Trivedi &
Ors.2
, the Appellate Bench of the Small Causes Court in Mumbai has
been regularly entertaining revision applications in a routine manner
even against orders which are purely of interlocutory nature. A
statement was produced before the learned single Judge showing
large number of revision applications which are pending before the
Appellate Bench, as per the information received under the Right to
Information Act. Even learned counsel appearing for the first
respondent in the said petition accepted that a revision application
was not maintainable against the trial Court's order rejecting an
application for issuing witness summons for production of certain
documents.
1 AIR 1983 Bombay 25
2 Dated 8 October 2009 in writ petition No.3926 of 2008
Kambli / abs 10 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Learned counsel for the writ petitioners, therefore,
submitted that in view of the above observations, the Appellate
Bench does not entertain any revision application merely on the
ground that the revision is directed against an interlocutory order,
without examining whether substantive rights of the parties are
affected.
Submissions on behalf of Respondents
9. On the other hand, the learned counsel for respondents
in the writ petitions made following submissions :
(i) The very fact that sub-section (4) of section 34 of the New
Rent Act and sub-section (3) of section 29 of the Old Rent Act begin
with the words “where no appeal lies under this section from a decree
or order in any suit or proceeding in Brihan Mumbai”, the legislature
intended that all non-appealable orders are subject to revision and,
therefore, the three Supreme Court decisions relied upon by the writ
petitioners cannot apply to revisions at all. If the term “order” in the
aforesaid provisions conferring right of appeal and in the provisions
conferring right of revision were to be interpreted identically, then the
legislature would not have provided two different remedies of appeals
under section 29(1) of the Old Rent Act and section 34(1) of the New
Rent Act on the one hand, and revisions under section 29(3) of the
Old Rent Act and section 34(4) of the New Rent Act, on the other
hand.
Kambli / abs 11 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(ii) Section 34(1) proviso (a) confers a right of appeal where
such an order is appealable under CPC. Appealable orders under
Order 43 Rule 1 of CPC are interlocutory procedural orders not
affecting substantive rights of the parties, such as orders of
injunction, appointment of receiver etc. If that be so, there is no
justification to curtail the scope of revisional powers. The only
conditions laid down by the Legislature for finding out whether the
order is subject to revision under the Rent Act are-
(i) that no appeal should be provided for under
Section 29 itself against such an order under the
Bombay Rent Act (under Sec.34 of the New Rent Act)
(ii) that such order is not according to law.
The phrase “the order is not according to law” has acquired a definite
and precise meaning and has been interpreted by the Supreme Court
in several decisions to mean that the scope of revisional jurisdiction
in such cases is wider than that under Section 115 of the CPC,
following the dictum of Chief Justice Beaumount of this Court in
Bell & Co. Ltd. vs. Waman Hemraj1
(iii) The Division Bench in Sukhdev's case held that the
substantive rights of the parties under the Bombay Rent Act should
be affected. Section 29 of the Old Act does not anywhere restrict the
revisional powers of the appellate Bench under the Bombay Rent
Act. In Pacific Engineering Co. Pvt. Ltd. V/s. East India Hotels
Ltd.,2
Justice S.J. Vazifdar rightly held as follows:
1 Air 1938 Bom.223
2 2004(4)All MR 330
Kambli / abs 12 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
“38(b) Moreover the expression “substantive
rights” used in the authorities I have considered
must be understood in the lexical sense. It ought
not necessarily to be construed as a right created by
a statute or any other law. In other words, to be
revisable it is not necessary that the order must
relate to a provision of substantive law. Even if it
relates to a procedural law it would be revisable if
it affected substantively the rights of a party.”
In view of the above observations of Justice Vazifdar also restrictions
placed by the Division Bench in Sukhdev's case on maintainability of
the revision must be removed, in so far as the Division Bench held
that the revisable order must affect the rights under the Bombay Rent
Act and that the impugned order should bear the imprint of any of the
provisions of the Bombay Rent Act.
(iv) The learned counsel for respondents have also relied
upon the decisions such as decision in Union of India v/s. Hansoli
Devi and ors.1
and Nathi Devi v/s. Radha Devi Gupta2
, in support
of the contention that when the language of the statute is plain and
unambiguous, the Court must give effect to the words used in the
statute and it would not be open to the Court to adopt hypothetical
construction on the ground that such construction is more consistent
with the alleged object and policy of the Act.
(v) The Supreme Court decisions relied upon by the learned
counsel for writ petitioners merely interpret the scope of the
appellate power under the concerned statutory provisions and not the
question of maintainability of revisions.
1 (2002) 7 SCC 273
2 (2005) 2 SCC 271
Kambli / abs 13 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The observations made by the Supreme Court in the
above decisions were to impress upon the Appellate Courts not to
entertain appeals against interlocutory orders, which are merely
procedural and which do not affect any substantive rights or
liabilities of the parties, otherwise the parties would be harassed with
endless expenses and delay by appeals from such procedural orders.
(vi) There are many cases where orders of trial Court during
suits under the Rent Act cause irreparable loss to the aggrieved
litigants and still this Court following the decision of the Division
Bench in Sukhdev's case has held that revisions were not
maintainable. For instance, in J.M. Construction vs. Dr. Rustom
Patel1
, the defendant had sought condonation of delay in filing
written statement. The trial Court refused to condone the delay and
did not take written statement on file. Against that order the
defendant preferred a revision application under Section 34(4) of the
New Rent Act. The revision was allowed by the appellate Bench of
the Small Causes Court and the written statement was taken on file.
Against that order in revision, writ petition was preferred by the
plaintiff and a learned single Judge of this Court held that filing of
the written statement was a procedural order, which did not affect the
substantive rights of parties under the Rent Act and therefore, the
revision application was not maintainable before the appellate Bench
of the Small Causes Court. Consequently the order of the appellate
Bench was set aside. It is submitted that refusal to allow to file
written statement in an eviction suit would definitely affect the
substantive rights of the defendant and lead to miscarriage of justice.
1 2008(5) Bom.CR 598
Kambli / abs 14 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The narrower interpretation of the word “order” results into serious
consequences to the aggrieved party.
(vii) Similarly, in Leheribai J. Trivedi (deceased) through
heirs v/s. Dharamdatta V.Trivedi1
a suit was dismissed under Order 9
Rule 3 of CPC. An application made under Order 9 Rule 4 for
restoration of the suit was rejected by the trial court. Against that
order, revision application was filed. The revision was dismissed as
not maintainable and when that order was challenged in the writ
petition, the learned single Judge held that order refusing to restore
the suit by setting aside the order of dismissal did not affect the
substantive rights of parties under the Bombay Rent Act and
therefore, revision application was not maintainable. Requiring the
parties in far away districts to move this Court in writ petition under
Article 227 everytime for challenging orders having such serious
consequences put the parties to unnecessary and avoidable hardship
and expenses.
(viii) Some judicial forum has to hear a revision to decide
whether the impugned non-appealable order is a mere procedural
order or an order which affects any right or liabilities of the parties.
The decision on such question cannot be taken by the registry of the
Revisional Court while receiving the memo of the revision petition
and, therefore, the revision will have to be heard by the revisional
Court at least to decide the question whether any substantive right or
liability of a party was affected. It cannot, therefore, be held at the
threshold itself that the revision is not maintainable at all.
1 2010(1) Mh.L.J. 597
Kambli / abs 15 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
STATUTORY PROVISIONS
10. We may now set out the relevant statutory provisions
relating to appeal as well as revision under the Old Rent Act and the
New Rent Act. (For the sake of convenience, reference is only to
orders of Small Causes Court in Greater Bombay.)
Maharashtra Rent Control Act 1999:(New Rent Act)
34. Appeal.
(1) Notwithstanding anything contained in any law
for the time being in force, an appeal shall lie
(a) in Brihan Mumbai. from a decree or order made
by the Court of Small Causes. Mumbai, exercising
jurisdiction under section 33, to a bench of two Judges
of the said Court which shall not include the Judge who
made such decree or order;
(b) …....
Provided that no such appeal shall lie from,-
(a) a decree or order made in any suit or
proceeding in respect of which no appeal lies under
the Code of Civil Procedure, 1908;
(b) a decree or order made in any suit or
proceeding (other than a suit or proceeding relating to
possession) in which the plaintiff seeks to recover rent
in respect of any premises and the amount or value of
the subject matter of which
(i) does not exceed Rs.10,000 ( in Brihan Mumbai)
(ii) …....
(c) an order made upon an application for fixing
the standard rent or for determining the permitted
increases in respect of any premises except in a suit or
proceeding in which an appeal lies;
Kambli / abs 16 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(d) an order made upon an application by a tenant
for a direction to restore any essential supply or
service in respect of the premises let to him.
(2) period of limitation
(3) No further appeal shall lie against any decision
in appeal under sub-section (1).
(4) Where no appeal lies under this section from
a decree or order in any suit or proceeding in
Brihan Mumbai, the bench of two Judges …... may,
for the purpose of satisfying itself that the decree or
order made was according to law, call for the case in
which such decree or order was made and the bench
…..... shall pass such order with respect thereto as it
thinks fit.
Bombay Rent Act 1947: (Old Rent Act)
“29. (1) Notwithstanding anything contained in any
law, an appeal shall lie-
(a) in Greater Bombay, from a decree or order
made by the Court of Small Causes, Bombay,
exercising jurisdiction under section 28, to a bench of
two judges of the said Court which shall not include
the Judge who made such decree or order;
(b) …..
Provided that no such appeal shall lie from-
(I) to (IV).....
(I) to (IV) in the Bombay Rent Act are in similar
terms as (a) to (d) of the proviso to Section 34(1) of
the Maharashtra Rent Act, except the amounts in
proviso II and proviso (b) respectively.
Kambli / abs 17 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(1A) Period of limitation
(2) No further appeal shall lie against any
decision in appeal under sub-section (1).
(3) Where no appeal lies under this section from
a decree or order in any suit or proceeding in
Greater Bombay the bench of two judges …... may
for the purpose of satisfying itself that the decree or
order made was according to law, call for the case in
which such decree or order was made and the bench
…....., shall pass such order with respect thereto as it
or he thinks fit.”
It is, thus, clear that for the purpose of the controversies
in this reference the provisions conferring right of appeal and
revisional jurisdiction in both the Acts are identical.
BROAD ANALYSIS OF RIVAL SUBMISSIONS ON
MAINTAINABILITY OF REVISION
11. From the wide canvass of arguments, different scenarios
emerge in the matter of interpretation of expression “order” in
Section 34(4) of the New Rent Act of 1999 which is in paramateria
with Section 29(3) of the Old Rent Act.
A
Going by the mere text of Section 34(4) of the New Rent
Act and Section 29(3) of the Old Rent Act, all orders may be
classified into two categories:
(i) appealable orders;
(ii) non-appealable and, therefore, revisable orders.
As per this literal interpretation, all non-appealable orders including
Kambli / abs 18 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
all procedural orders would be revisable. None of the learned
counsel have seriously canvassed this interpretation.
B
It is possible to divide all orders into three categories as
(i) appealable orders as provided in Sec.34(1) of the
New Rent Act;
(ii) Revisable orders which affect substantive rights
and liabilities of parties
(iii) orders which are neither appealable nor revisable,
i.e. orders which are procedural in nature and
do not affect rights and liabilities of the
parties.
Learned counsel for all the parties are, more or less, agreeable on the
above three categories, but there is sharp difference as to what is
meant by “orders which affect rights and liabilities of the parties.”
B1
Learned counsel for the parties seeking reconsideration
of decision in Sukhdev's case submitted that the orders which affect
the rights and liabilities of parties and which are, therefore, revisable,
need not be confined to orders determining or affecting the rights and
liabilities of parties under the Rent Act, but they may determine or
affect rights and liabilities of parties under any other law or the
general law including procedural law. Learned counsel canvassing
this interpretation have heavily relied upon the decision of the
learned Single Judge of this Court in Hemchand M. Singhania v/s.
Subhkaran Nandlal Bargara1
, on a Division Bench judgment of
1 AIR 1967 Bom.361
Kambli / abs 19 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Gujarat High Court in Natverlal v/s. Khodaji1
, and judgment of
Justice S.J.Vazifdar in Pacific Engineering Co. Pvt. Ltd. V/s. East
India Hotels Ltd.2
B2
Learned counsel for the parties supporting the Division
Bench decision in Sukhdev's case and opposing any reconsideration
of the said decision, submitted that the Division Bench of this Court
has rightly held in Sukhdev's case that rights and liabilities which
may be affected by revisable orders are only the rights and liabilities
of parties under the Rent Act and not under any other substantive or
procedural law. The learned counsel have, besides supporting the
decision in Sukhdev's case, also heavily relied upon the decision of
Justice S.H.Sheth of Gujarat High Court in Shri Maharana Mills
Pvt.Ltd. V/s. Harvadan Manharrai3
.
PERSPECTIVE
12. Before dealing with the rival submissions head on, it
would be necessary to keep in mind the relevant contextual aspects to
look at the issues from the correct perspective, thereafter to make a
brief exposition of the principle and then to test that hypothesis by
analysing the case law and in the process appreciating how the
controversy has evolved.
1 1967 (8) Guj.L.R. 772
2 2005 (1) Bom. C.R. 427
3 AIR 1972 Guj. 226
Kambli / abs 20 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
13. Though appeal and revision are generally considered as
different proceedings in the strict sense of the term, they are both part
of the appellate jurisdiction of the superior Court, in the wider sense.
The basic nature of the revisional proceedings has been explained by
a three Judge Bench of the Supreme Court in Shankar Ramchandra
Abhyankar vs. Krishnaji Dattatraya Bapat1
as under:-
“6. Now when the aid of the High Court is
invoked on the revisional side it is done because it
is a superior court and it can interfere for the
purpose of rectifying the error of the court below.
Section 115 of the CPC circumscribes the limits of
that jurisdiction but the jurisdiction which is being
exercised is a part of the general appellate
jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power
conferred by the Statute; basically and
fundamentally it is the appellate jurisdiction of the
High Court which is being invoked and exercised
in a wider and larger sense.
14. While provisions conferring appellate jurisdiction (in
narrower sense) on a superior Court are treated as conferring right of
appeal on an aggrieved litigant, the provisions conferring revisional
jurisdiction on a superior Court are not treated as conferring a right of
revision on the litigant. Revisional jurisdiction is treated as
supervisory jurisdiction with power of superintendence to be
exercised in the discretion of the Superior Court. That is why subsection (1) of Section 34 provides that an appeal shall lie
from a decree or order made by the Court of Small Causes to a
Bench of two Judges of the said Court, but sub-section (4) of the
1 AIR 1970 SC 1
Kambli / abs 21 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
same Section ( like Section 115 of the CPC) does not say that a
revision shall lie from an order of the Small Causes Court. Section
34(4), like Section 115 of CPC, merely enables the superior
Court to call for the record of a subordinate Court and
make such orders in the case as the revisional Court
thinks fit in cases of error of the nature contemplated under the
provision and subject to other limitations contained in the provision.
Even though the revisional power of the High Court may be
exercised either suo motu or when a jurisdiction is invoked by a
litigant, nevertheless, revisional jurisdiction is quite different in
quality, content and nature from appellate jurisdiction. While a
person who institutes a suit has a vested right of appeal as per the law
on the date of institution, he has no vested right of revision since
revision is not a continuation of suit and relates to procedural law.
[District Judge Jabalpur v. Krishna Deo Singh, 1995 AIHC 2404,
M.P. High Court as cited in “Code of Civil Procedure” by Justice
C.K. Thakker, 2002 Edition, Vol. 2, pp. 652-653, 665].
15. What weighed with the Supreme Court in the three cases
relied upon by the writ petitioners for reading down the word “order”,
(though the word “order” is wide enough to include procedural order
which does not decide or affect the rights and liabilities of parties to
the suit) was that the wider interpretation of the expression “order”
would result into harassment of parties on account of endless
expenses and delay by appeals from such procedural orders and also
that it is open to any party to set forth the error, defect or irregularity,
if any, in such an order as a ground of objection in his appeal from
the final order in the main proceedings.
Kambli / abs 22 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
For determining how wide is the net of revisable orders,
the same logic should apply while interpreting the word “order” in
section 34(4) of the New Rent Act, more particularly when section
38 of the new Rent Act lays down a time limit of twelve months for
disposal of a suit under the New Rent Act. Section 38 reads as
under:-
38. Time limit for disposal of suits,
proceedings or appeals- Notwithstanding anything
contained in this Act or in any other law for the
time being in force-
(a) a suit or proceeding under this Act
shall be heard and disposed of as expeditiously as
possible and endeavour shall be made to dispose
of the case, as far as may be practicable, within a
period of twelve months from the date of service of
summons, or as the case may be, notice on the
defendant;
(b) an appeal against the decree or order
made by the Court, shall be heard and disposed of
as expeditiously as possible and endeavour shall
be made to dispose of the appeal, as far as may be
practicable, within a period of six months from
the, date of service of notice of appeal on the
respondent.
(emphasis supplied)
Thus, legislative anxiety for expeditious hearing and disposal of a
suit and expectation from the Court to make an endeavor to dispose
of a suit within a period of twelve months from the date of service of
summons would, prima facie, indicate that the same Legislature
could not have been in favour of providing very wide net of revisable
orders, which the wide language of Section 34(4) may otherwise
suggest.
Kambli / abs 23 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
16. The first question referred by the learned Single Judge
pertains to be scope and ambit of power of revision under section
34(4) of the New Act and the second question pertains to question of
maintainability of revision application under the same provisions.
Though these two questions may apparently seem to be logically
distinct and therefore, requiring separate treatment, we cannot
overlook that if the net of revisable orders is taken as very wide and
the scope and ambit of the power of revision under the above
provisions is also taken as very wide, it will be impossible for the
trial courts to complete expeditiously trial of suits under the Rent
Acts as contemplated by Section 38 of the New Rent Act.
Principles for interpretation of statutes
17. The emphasis of the learned counsel for the respondent
is on the text of sub-section (4) of Section 34 of the Maharashtra
Rent Control Act and sub-section (3) of Section 29 of the Bombay
Rent Act. It is submitted that since the power of revision is conferred
in respect of a decree or an order in any suit or proceeding where no
appeal lies under Section 34(1) of the New Act and Section 29(3) of
the Old Act, all non-appeable orders would be revisable. The learned
counsel accordingly invoked the principle of literal interpretation of
statutes.
18. In National Insurance Co. Ltd. v/s. Laxmi Narain Dhut1
the Supreme Court has noted that what was known as the “Golden
rule” of interpretation of statute according to grammatical or literal
1 (2007) 3 SCC 700 (para 27)
Kambli / abs 24 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
meaning of the word has given place to the “rule of legislative
intent”. The world over, the principle of interpretation according to
the legislative intent is accepted to be more logical. The Supreme
Court has also observed in the said decision as under:-
33. It is also well settled that to arrive at the
intention of the legislation depending on the objects for
which the enactment is made, the Court can resort to
historical, contextual and purposive interpretation
leaving textual interpretation aside.
34. Francis Bennion in his book "Statutory
Interpretation" described "purposive interpretation" as
under:
"A purposive construction of an enactment
is one which gives effect to the legislative
purpose by-
(a) following the literal meaning of the
enactment where that meaning is in
accordance with the legislative purpose,
or
(b) applying a strained meaning where the
literal meaning is not in accordance with
the legislative purpose."
35. More often than not, literal interpretation
of a statute or a provision of a statute results in
absurdity. Therefore, while interpreting statutory
provisions, the Courts should keep in mind the
objectives or purpose for which statute has been
enacted. Justice Frankfurter of U.S. Supreme Court in
an article titled as Some Reflections on the Reading of
Statutes (47 Columbia Law Reports 527), observed
that, "legislation has an aim, it seeks to obviate some
mischief, to supply an adequacy, to effect a change of
policy, to formulate a plan of Government. That aim,
that policy is not drawn, like nitrogen, out of the air; it
is evidenced in the language of the statutes, as read in
the light of other external manifestations of purpose".
Kambli / abs 25 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
19. The principle of purposive interpretation has also been
accepted by a Constitution Bench of the Supreme Court in
C.B.Gautam v/s. Union of India1
by relying upon the decision in
K.P.Verghese v/s. Income Tax Officer, Ernakulam2
, wherein the Court
observed that the task of interpretation of a statutory enactment is not
a mechanical task and quoted with approval the following famous
words of Judge Learned Hand of the United States of America:
“...it is true that the words used, even in their literal
sense, are the primary and ordinarily the most reliable
source of interpreting the meaning of any writing; be it
a statute, a contract or anything else. But it is one of
the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have
some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest
guide to their meaning.”
Exposition of the principles
20. There is no dispute about the proposition that for the
purpose of determining maintainability of revision under section
34(4) of the Maharashtra Rent Act, while “decree” finally determines
the substantive rights of parties at the conclusion of the trial, “order”
at the interlocutory stage indicates a formal decision affecting rights
of the parties.
1 (1993) 1 SCC 79
2 (1981) 4 SCC 173
Kambli / abs 26 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
To the question “which rights and liabilities of parties
are to be affected by revisable orders”, there could be three logical
answers:-
(i) rights and liabilities only under the Rent Act;
(as held in Sukhdev's case)
(ii) rights and liabilities under any law including any
statute, general law and even procedural law;
(as held in Pacific Engineering case)
(iii) rights and liabilities under the Rent Act and any
other substantive law, but not under any
procedural law;
(as commends to us)
21. The Legislature while enacting the Bombay Rent Act in
1947 did not incorporate any specific provision laying down the
procedure for conducting suits and proceedings under the Rent Act,
though section 31 and section 49(2)(e) left it to the rule making
authority to prescribe the rules laying down the procedure for trying
such suits and proceedings. Same provisions are to be found in
section 37 and section 57(2)(e) respectively in the New Rent Act of
1999.
“37. Procedure of Courts.- The courts specified
in sections 33 and 34 shall follow the prescribed
procedure in trying and hearing suits, proceedings,
applications and appeals and in executing orders
made by them.”
Kambli / abs 27 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
“57. Power to make rules.- (1) ….
(2) In particular, and without prejudice to the
generality on the foregoing provisions, such rules
may provide for -
(e) the procedure to be followed in trying or
hearing suits, proceedings including
proceedings for execution of decrees and
distress warrants, applications, appeals and
execution of orders.”
In the Rent Acts, the only reference to the Code of Civil Procedure is
to be found in proviso (I) to sub-section (1) of Section 29 of Old Rent
Act, which proviso was added in the year 1953. Reference to the
Code of Civil Procedure in the above proviso is only for the limited
purpose of ensuring that inspite of the wide language of sub-section
(1) of Section 29 in the Old Act and sub-clause (1) in Section 34 in
the New Act, an appeal shall not lie from a decree or an order made
in any suit or proceeding in respect of which no appeal lies under the
Code of Civil Procedure, 1908. Thus, the Legislature clearly gave its
indication for curtailing the previous right of appealing against any
decree or order, to only that decree or order in respect of which an
appeal lies under the Code of Civil Procedure. All that sub-section (3)
of Section 29 and sub-section (4) of Section 34 provide is that the
revisional jurisdiction cannot be exercised by the appellate bench of
the Small Causes Court in Mumbai or the District Courts in other
Districts, in a case where appeal lies. That does not mean that
revisional jurisdiction is to be exercised in respect of all orders which
are not appealable. The question of maintainability of revision,
therefore, has to be decided without being influenced by the wide
Kambli / abs 28 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
language of sub-section conferring revisional jurisdiction on the
appellate bench of the Small Causes Court or the District Court, as
the case may be.
22. In this context the following observations of the
Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania1
on
interpretation of the word “judgment” for the purpose of determining
maintainability of appeal under Clause 15 of the Letters Patent are
quite apposite:-
“114. In the course of the trial, the Trial
Judge may pass a number of orders whereby some
of the various steps to be taken by the parties in
prosecution of the suit may be of a routine nature
while other orders may cause some inconvenience
to one party or the other, e.g., an order refusing an
adjournment, an order refusing to summon an
additional witness or documents, an order refusing
to condone delay in filing documents, after the first
date of hearing an order of costs to one of the
parties for its default or an order exercising
discretion in respect of a procedural matter against
one party or the other. Such orders are purely
interlocutory and cannot constitute judgments
because it will always be open to the aggrieved
party to make a grievance of the order passed
against the party concerned in the appeal against
the final judgment passed by the Trial Judge.
115. Thus, in other words every
interlocutory order cannot be regarded as a
judgment but only those orders would be judgments
which decide matters of moment or affect vital and
valuable rights of the parties and which work
1 AIR 1981 SC 1786
Kambli / abs 29 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
serious injustice to the party concerned. Similarly,
orders passed by the Trial Judge deciding question
of admissibility or relevancy of a document also
cannot be treated as judgments because the
grievance on this score can be corrected by the
appellate court in appeal against the final
judgment.
(emphasis supplied)
For the same reasons, alleged non-compliance with the
provisions of the Code of Civil Procedure or any other procedural
law cannot give rise to a right of revision, because the grievance
against such violation can be made in appeal against the final decree.
23. While we appreciate that for an order to be revisable
under Section 29(3) of the old Rent Act and Section 34(4) of the New
Rent Act, the order must not necessarily relate to recovery of
possession of the premises or recovery or fixing rent/standard rent,
mesne profits etc., it does not mean that any order which may be
passed in course of the trial and which is not appealable is per se
revisable. Though the language of Section 29(3) and Section 34(4) is
very wide, a revisable order would not include interlocutory orders,
which are merely procedural and do not affect the substantive rights
or liabilities of parties. Such a restricted interpretation is required to
be placed on the word “order” in Section 29(3) of the Old Rent Act
and Section 34(4) of the New Rent Act for the same reason for which
restricted interpretation has been placed by the Supreme Court on the
word “order” in Section 38 of the Delhi Rent Control Act, 1958 in
Central Bank of India v/s. Gokal Chand1
, and on the word “order” in
1 AIR 1967 SC 799
Kambli / abs 30 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Section 34 of the Delhi & Ajmer Rent Control Act, 1958 in Bant
Singh Gill vs. Shanti Devi and others1
. The Supreme Court has
consistently held in the aforesaid cases that if going by wide
language, the word “order” is interpreted liberally to include
procedural orders, which do not decide rights and liabilities of parties
to the suit, such wider interpretation would result into harassment of
party on account of delay and expenses of the appeal and also that it
is open to any of the parties to canvass the error, defect or
irregularity, if any, in such an order as ground of objection in his
appeal from the decree/final order in the main proceedings.
24. In our view, revisions under the Rent Acts would be
maintainable only against those orders which affect substantive rights
or liabilities of parties, i.e. rights or liabilities under the Rent Act or
any other substantive law, but not under a procedural law.
ANALYSIS OF CASE LAW
25. We now refer to the case law in chronological order:
Hemchand v/s. Subhkaram's case2
Though this case decided in 1966 did not directly deal
with the controversy arising in this reference, it is required to be
considered at length in view of heavy reliance placed by Justice
Vazifdar in Pacific Engineering on certain observations made in this
judgment.
1 Air 1967 SC 1360
2 AIR 1967 Bom.361
Kambli / abs 31 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
The petitioner-landlord filed an eviction suit against the
respondent-tenant in the Small Causes Court on the ground of default
in payment of rent for more than six months. An exparte decree was
passed. The decree was executed and the landlord obtained
possession. The tenant filed an application for setting aside the
exparte decree and prayed for restoration of possession. That
application was rejected. The tenant, therefore, preferred an appeal
before the bench of two Judges of Small Causes Court. The appeal
Bench allowed the appeal and set aside the order of the trial court and
remanded the case to the trial court for hearing and restored
possession during pendency of the suit. Against that decision, the
plaintiff-landlord filed a civil revision application before the High
Court.
26. The first contention was that once the Bombay Small
Causes Court passed the exparte decree it ceased to exercise
jurisdiction under Section 28 of the Bombay Rent Act. The provisions
of Section 104 and Order 43 Rule 1 of CPC are not applicable to the
Bombay Small Causes Court. Consequently, no appeal would lie
from an order passed by the Bombay Small Causes Court on an
application made under Order 9 Rule 13 of CPC for setting aside an
exparte decree.
The above contention was rejected by V.S.Desai, J. on
the ground that the exparte decree, though passed by the Small
Causes Court, was not passed by it exercising jurisdiction under the
Presidency Small Causes Court Act, but as a Special Court under the
Rent Act. An application to set aside an exparte decree can be made
Kambli / abs 32 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
only to the Court which had passed it and to no other Court. The
Special Court under the Rent Act having passed the exparte decree,
an application to set aside the decree could be made only to that
Court.
27. It was then argued by the learned counsel for the
petitioner (plaintiff-landlord) that :-
“the jurisdiction of the Special Court under Section
28 was to entertain a suit relating to recovery of
rent or possession or to decide any question relating
to the recovery of rent or possession. Its jurisdiction
as a Special court under the Rent Act is confined
only to dealing with questions relating to the
recovery of rent or possession of the suit premises
and that jurisdiction came to an end as soon as the
ex parte decree for eviction was passed in the said
suit in the exercise of the said jurisdiction. The
application, which was made under Order 9 rule 13
of the Civil Procedure Code had not for its subject
matter any question relating to the recovery of rent
or possession of the premises; the subject-matter of
the said application was whether the decree should
be set aside or not. In entertaining the said
application and deciding it, the Special Court did
not exercise jurisdiction under Section 28 of the
Rent Act. Orders of the Special Court, which are
made appealable under Section 29 of the Act are
orders, which are made by such court exercising
jurisdiction under Sec. 28 of the Rent Act and since
in making the order on the application to set aside
the ex parte decree, the Special Court was not
exercising jurisdiction under Section 28 of the Act,
the order is not appealable.”
Kambli / abs 33 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
28. Justice V.S .Desai rejected the above argument by
holding in paragraph 10 that entertainment of the application for
setting aside an exparte decree and the order made thereon by the trial
Court was in its character as a Special Court exercising jurisdiction
under Section 28 of the Act, obviously, because an application to set
aside the exparte decree has to be entertained, heard and decided by
the same Court i.e. by the Special Court exercising jurisdiction under
Section 28. It is in this context that the following observations made
by Justice V.S.Desai in paragraph 9 of the judgment must be read.
Since those observations have been misunderstood, we would like to
set them out in their entirety.
“The Bombay Small Causes Court exercising
jurisdiction under Section 28 is a Special Court set
up by the said section and appealability attaches to
its decree or order under Sec. 29 when it makes a
decree or order as such court. No doubt the
jurisdiction of the Special Court set up under
Section 28 is confined to matters specified therein,
which include, among others, the entertaining and
trying of suits or proceedings between a landlord
and a tenant relating to the recovery of rent or
possession of certain classes of premises. But once
the Special Court entertains and tries a suit or
proceeding which falls within its exclusive
jurisdiction, all orders made by it in the said suit or
proceeding or in relation thereto, are made by it as
Special Court, that is,. a court exercising
jurisdiction under Section 28 and not only such of
them as actually relate to the recovery of rent or
possession. Appeal provided under Section 29 of the
Act is not confined only to the final decree or order
or to an order, which relates to recovery of rent or
possession but it lies against all orders except those
Kambli / abs 34 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
which are excluded under the proviso to the section.
Item (1) from the proviso read with the main section
would show that interlocutory and other orders
which the Special Court can pass in entertaining,
trying and deciding matters within its exclusive
jurisdiction which are appealable under the
provisions of the Code of Civil Procedure will be
appealable under Section 29 of the Rent Act. The
argument of the learned advocate, therefore, that
the order is not appealable because it does not
relate to the recovery of rent or possession, cannot
be sustained. It is also not possible to accept the
argument that the jurisdiction under Section 28 of
the Court ceased on the passing of the ex parte
decree and the order made by it on the application
for setting aside the ex parte decree could not,
therefore, be treated as made by it exercising
jurisdiction under Section 28 of the Act.
(emphasis supplied)
29. In Hemchand case (supra), ultimate conclusion of
V.S.Desai J. was correct, because once an exparte decree was passed
by a Special Court under Section 28 of the Bombay Rent Act, an
application for setting aside the exparte decree could be entertained
only by that Special Court. Justice V.S.Desai, therefore, rightly
rejected contention of the respondent that the jurisdiction under
Section 28 of the Special Court ceased on passing of the exparte
decree and that the order made by it on the application for setting
aside the exparte decree was by a Small Causes Court not acting as a
Special Court. So also the contention that the subject matter of the
exparte decree was not regarding the rights under the Bombay Rent
Act was required to be rejected. The subject matter of the application
for setting aside was an exparte decree passed on the basis of the
provisions of the Bombay Rent act. Hence, the appeal against that
Kambli / abs 35 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
exparte decree or an appeal against an order rejecting the application
for setting aside an exparte decree was certainly maintainable under
Section 29(1) of the Act. The right of the tenant not to be evicted
from the tenanted premises, except in accordance with the provisions
of the Bombay Rent Act, was determined by the exparte decree. The
order rejecting the application for setting aside the exparte decree
was, thus, not a mere procedural order, but an order having direct
consequence of eviction of the tenant from the tenanted premises
without the tenant getting an opportunity to assert his rights under the
Rent Act and contesting the plaintiff-landlord's alleged rights under
the Rent Act.
30. We reserve our comments on the underlined observations
of V.S. Desai, J. at the later stage of this judgment.
Natverlal v/s.Khodaji's case
31. The question came up for consideration before a
Division Bench of the Gujarat High Court in Natvarlal v. Khodaji,1
where in a suit governed by the provisions of the Bombay Rent Act
as applicable to Gujarat, the Small Causes Court at Ahamadabad
passed an exparte decree in favour of the landlord. The defendant's
application for setting aside exparte decree was rejected. The
defendant filed a civil revision application before the Gujarat High
Court challenging this order. It was contended on behalf of the
plaintiff-landlord that the revision application was not competent as
an appeal would lie to the Bench of two Judges of the Small Causes
Court under Section 29(1) of the Bombay Rent Act. The Division
1 (1967) 8 Gul.L.R. 772
Kambli / abs 36 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Bench upheld that contention and agreed with the reasoning of
learned Single of this Court in Hemchand M.Singhania v/s.
Subhkaran Nandlal Bargara1
, by observing as under:-
“Once the Special Court entertained and tried a suit
or a proceeding which fell within its exclusive
jurisdiction, all consequential and incidental orders
made by such a Court in such a suit or proceeding
must be regarded and considered as made by the
Special Court exercising jurisdiction under section
28 of the Rent Act and an appeal provided under
section 29 of the Act lies against all orders made in
such proceedings except those which are excluded
under the proviso to section 29. We are, therefore,
with respect, unable to accept the reasoning adopted
by Raju, J., in the case of (R.C.Trust v. Ramchandra
J. Agarval) VII G.L.R., 401 and we are of the view
that the case was not correctly decided. It may, be
mentioned that in this view of ours, we are supported
by the decision of the High Court of Maharashtra in
(Hemchand M.Singhania v. Subhkaran Nandlal
Bargara), 69 Bom.L.R. 857 and we are in respectful
agreement with the views and reasoning adopted in
that case.”
32. In R. C. Trust v. R. J. Agarwal2
, Justice V.B.Raju of the
Gujarat High Court had taken a view that once an exparte decree was
passed under Section 28 of the Bombay Rent Act, the jurisdiction of
the Special Court came to an end and the subsequent order passed by
the Small Causes Court setting aside the exparte decree was not an
order under Section 28 of the Rent Act, but was an order under order
9 Rule 13 of the CPC, and therefore appeal was not maintainable. In
Natvarlal's case, the Division Bench rightly did not accept the above
view of V.B. Raju J.
1 AIR 1967 Bom. 361
2 (1966) 7 Guj LR
Kambli / abs 37 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Maharana Mills' case
33. Thereafter, in Maharana Mills' case, the question again
came up for consideration before a learned Single Judge of Gujarat
High Court ( Coram S.H.Sheth, J.) in Shri Maharana Mills Pvt.Ltd. v.
Harvadan Manharrai and ors1
,. The respondent-landlord filed a suit
for recovery of possession of the suit premises on grounds of
unlawful subletting and irregularity in payment of rent and
consequent breach of the term of tenancy. Thereafter, application for
amendment of the plaint was allowed for adding one more ground of
eviction. In his further written statement to the amended plaint, the
defendant raised a plea that standard rent of the suit premises be
fixed. The learned trial Judge accordingly framed an issue for fixing
of standard rent. The plaintiff, thereafter, made an application for
deletion of that issue. That application was rejected. The plaintiff
filed a revision application before the District Court challenging that
order. The District Court allowed that revision application and
directed that additional issue be deleted. That order of the District
Court was challenged before the High Court in civil revision
application under section 115 of the CPC.
34. Justice S.H. Sheth formulated the following question:
“Whether a revision application lies to the District
Court against an order refusing to delete an issue
raised in a suit, which is governed by the Bombay
Rent Act.”
1 AIR 1972 Gujarat 296
Kambli / abs 38 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
After examining the scheme of the Bombay Rent Act
and rules framed thereunder, Justice S.H.Sheth held that section 29(3)
read with section 31 and rule 16 did not confer upon the District
Court revisional jurisdiction in matters which are purely procedural
and which did not bear imprint of provisions of the Bombay Rent
Act. The learned Judge held that following tests may be applied for
determining whether an interlocutory order made in a suit governed
by the Bombay Rent Act is revisable by the District Court.
(i) What is the subject matter of the order?
Is it an order, subject matter of which is governed by the
provisions of the Bombay Rent Act, or
(ii) Does the order, whose revision is sought, affect
substantive rights of the aggrieved party under the
Bombay Rent Act.
If the answer is in the affirmative, then revision will be
maintainable;
and if the answer is in the negative then section 29 will
have no application.
35. The learned Judge then gave following instances of
procedural orders, which do not affect the substantive rights of the
parties under the Bombay Rent Act or the subject matter of which is
not governed by provisions of the Bombay Rent Act, even though the
suit is governed by the Bombay Rent Act:
(1) An order granting or refusing leave to amend the
plaint or written statement;
(2) An order made for production of documents or
discovery or inspection;
Kambli / abs 39 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
(3) An order directing a plaintiff or a defendant to
furnish better and further particulars;
(4) An order issuing or refusing to issue a
commission for examination of witnesses.
The learned Judge held that these are orders which may
be made under the Code of Civil Procedure in a suit governed by the
Bombay Rent Act, but the subject matter of orders cannot be said to
be governed by provisions of the Bombay Rent Act, as such orders do
not affect the substantive rights of parties under the Bombay Rent
Act.
36. The learned Judge then gave the following illustrations
of orders which satisfy the aforesaid tests and therefore, appealable,
even though orders are made under the Code of Civil Procedure:-
(a) an order refusing to set aside an exparte decree on
an application made for that purpose in a suit governed
by the Bombay Rent Act;
(b) an order refusing to restore a suit to file, which
was earlier dismissed and which was governed by the
provisions of Bombay Rent Act.
37. And finally the learned Judge held as under:-
6. It is true that section 29(3) uses the
expression “order”. Orders may be interim or final.
Orders may be such which bear indelible imprint of
the Bombay Rent Act or they may be such which do
not. If there is an interim order or an interlocutory
order which is made in a suit governed by the
Bombay Rent Act and if it affects the substantive
Kambli / abs 40 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
rights of a party under the Bombay Rent Act, the
subject-matter of which is governed by the Bombay
Rent Act, such an order is revisable by the District
Court under Section 29(3). In my opinion,
therefore, purely procedural orders which do not
affect the substantive rights of a party under the
Bombay Rent Act or the Rules made thereunder, or
the subject-matter of which is not governed by the
Bombay Rent Act or the Rules made thereunder are
not the orders which attract the revisional
jurisdiction of the District Court under Section 29
of the Bombay Rent Act.
38. While we agree with the reasons given by Justice S.H.
Sheth for coming to the conclusion that procedural orders to be
revisable must affect substantive rights of parties, we see no reason
why the rights must be under the Rent Act alone and not under any
other substantive law. In fact, we do not agree with the view of the
learned judge that an order refusing leave to amend the plaint or
written statement will not be revisable. That question did not arise
before S.H. Sheth, J. We will, however, give our detailed reasons for
this view while discussing Sukhdev's case.
Madanlal Mulchand Soni's case:
39. In Madanlal Mulchand Soni v. Mainkichand Dhanraj
Gugle1
, Justice B.A. Masodkar of this Court followed the aforesaid
judgment of Justice S.H. Sheth . The order passed by the trial Judge
for issuing process to the income-tax officer at the behest of the
defendant was subjected to revision application before the District
Court under section 29(3) of the Bombay Rent Act. The District
1 1983(1) Bom.C.R. 172
Kambli / abs 41 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Court dismissed the revision as incompetent. Justice Masodkar
upheld that order after making following observations:
“..... It is not as if each and every order made by
the trial Court is intended to be subjected to the
process of revision under sub-section (3). Mere
interlocutory or procedural orders are not the
orders which can be taken up and challenged
under section 29(3) of the Rent Act, unless the
orders formally adjudicate and affect rights of the
parties, including those in the matters of
procedure. It is difficult to conceive that the
remedy under section 29(3) of the Rent Act would
be available, in the context of the entire scheme of
section 29, it appears that the orders, which under
the Rent Act determine substantively the rights of
the parties and because of that are orders or
decrees as such, are in the contemplation of the
legislature. Sub-section (3) does not style it as
power of revision. It is a power akin to it
circumscribed by conditions enacted therein, one
such condition being it is available against only
otherwise non-appealable “decree” or “order”.
Wherever the words “decree or orders” are used
in section 29, it is apparent that it intends to
indicate formal decision affecting rights of the
parties.”
(emphasis supplied)
Justice Masodkar held in the above case that the word
“order” intends to indicate formal decision affecting rights of the
parties, but while rightly reaching the conclusion that the order of the
trial court for issuing process to the Income-tax Officer at the behest
of the defendant was a procedural order, which did not affect the
substantive rights of the parties, erred in making wider observations
to include rights in the matters of procedure, which observations were
obviously not in line with the conclusion.
Kambli / abs 42 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Sukhdev's case1
40. In Sukhdev Prasad Raghubir v/s. Rambhujarat
Ksharmpati2
, the petitioner-landlord filed a suit for eviction of the
respondent-tenant. During pendency of the suit, amendment of the
written statement was permitted. Thereafter, the plaintiff filed an
application proposing to amend the plaint by raising a ground that
the eviction should also be ordered since the defendant-tenant had
denied in the amended written statement the plaintiff's title to the
suit property. The amendment application came to be rejected by the
trial Court. Against that order the plaintiff filed a revision petition
before the Bench of Court of Small Causes under Section 29(3) of
the Old Rent Act. The revision petition was rejected as not
maintainable. When the matter came up for hearing before a learned
Single Judge, in view of importance of question about
maintainability of the revision petition, the matter was referred to a
larger Bench. That is how the Division Bench of this Court (Coram:
C.S. Dharmadhikari and S.P. Kurdukar, JJ.) heard and decided the
writ petition. The Division Bench held that the appellate bench of the
Small Causes Court was right in holding that revision petition was
not maintainable, but on merits of the challenge to the order of the
trial Court rejecting the application for amendment of the plaint, the
Division Bench held that the amendment sought by the plaintiff in
the plaint was obviously consequential to the amendment in the
written statement and the impugned order of the trial Court was
contrary to the well established principles of law and caused
1 1982 (1) Bom.C.R.832
2 1983-Mh.L.J.9 = AIR 1983 Bom.25
Kambli / abs 43 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
miscarriage of justice. Hence, the writ petition was allowed and the
application for amendment filed by the plaintiff was allowed.
41. The Division Bench considered at length the question
about maintainability of the revision after tracing the legislative
history of Section 29 of the Old Rent Act and observed as under:-
“Section 29 came to be amended by Bombay Act
No.61 of 1953 whereby proviso to sub-section (1)
and sub-section (3) were inserted in section 29. The
relevant clause of the Statement of Objects and
Reasons, reads as under:-
“The right of appeal has been curtailed by
eliminating unimportant appeals, and providing
revisional procedure in such cases”
Therefore, if section 29(3) is read with the
Statement of Objects and Reasons, it is quite
obvious that while curtailing the right of appeal by
eliminating unimportant appeals, the legislature
wanted to provide revisional procedure in those
matters only. The intention of the Legislature was
not to expand the scope of revisional jurisdiction of
the Court of Small Causes.”
42. The Division Bench relied upon the aforesaid three
decisions of the Supreme Court and then made the following
observations:
“In our opinion, these observations of the
Supreme Court aptly apply to the present case
also. If the words used in S. 29(1) or (3)
interpreted in its context, then the words "any
order" will not include in its (their?) import the
procedural orders, which do not affect the right
and liabilities of the parties. Therefore,
Kambli / abs 44 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
obviously no revision petition can lie against a
mere procedural order. It is not disputed that
order passed in the present case rejecting the
application for amendment was an interlocutory
order which does not decide finally the right and
liabilities of the parties to the suit. Therefore in
our opinion the Bench of Small Cause Court was
right in holding that the revision petition was not
maintainable.”
43. After referring to a decision of S.H. Sheth, J. of Gujarat
High Court in Maharana Mills Pvt.Ltd. v. Harvadan Maharrai &
ors.1
, the Division Bench observed thus:-
“After analysing the relevant provisions of the Rent
Act as well as the Rules framed thereunder, it is held
by the Gujarat High Court in Maharana Mills case
that purely procedural orders which do not affect the
substantive rights of a party under the Bombay Rent
Act or the rules made thereunder the subject-matter
of which is not governed by the Rent Act or the rules
made thereunder are not the orders which attract the
revisional jurisdiction of the District Court under
section 29(3) of the Act.”
44. The Division Bench also referred to decisions of three
learned Single Judges of this Court [Sapre J., Kantawala, CJ. and
Masodkar J.] from 1977 onwards taking the view that order
dismissing application for amendment of the plaint cannot be treated
as affecting substantive rights of the parties under the Rent Act and
that procedural orders like order granting or rejecting amendment are
not revisable. After considering all these decisions, the Division
Bench made the following observations:
1 AIR 1972 Guj.226
Kambli / abs 45 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
“7. Therefore, all through a consistent view has
been taken by this Court that purely procedural
orders which do not affect the substantive rights of
the parties are not revisable under Section 29(3) of
the Bombay Rent Act. This interpretation, with
which we respectfully agree, is consistent with the
intention of the Legislature as expressed in
Statement of Objects and Reasons. It was not the
intention of the Legislature to widen the scope of
appeal or revision. by amending Act, right of appeal
was curtailed by eliminating unimportant appeals
and providing revisional procedure in such cases.
By adding proviso to Section 29(1) the Legislature
curtailed the right of appeal by laying down that no
appeal shall lie form the orders enumerated in the
said proviso. It is well settled that the normal
function of a proviso is to except something out of
the enactment or to qualify something enacted
therein which but for the proviso would be within
the purview of the enactment. The proviso to
Section 29(1) was deemed necessary because but
for the proviso orders enumerated in Clauses (I) to
(IV) would have been appealable under Section
29(3). [(sic-Section 29(1)] Therefore, by adding
proviso to sub-section (1) of S. 29, it was intended
by the Legislature that right of appeal should be
curtailed by eliminating unimportant appeals and in
such cases only revisional procedure should be
provided, by addition sub-section (3). If under
Section 29(1) no appeal could lie against the
procedural orders then obviously by an indirect
method a further forum was not intended to be
provided by enacting sub-section (3). Therefore, in
our view, the consistent view taken by the single
Benches of this High Court lays down the correct
law on the subject.”
(emphasis supplied)
Kambli / abs 46 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
45. We approve the principles laid down by Justice S.H.
Sheth in Maharana Mills' case (supra), and by the Division Bench of
this Court in Sukhdev's case (supra) that for an order to be revisable
under Section 29(3) of the Bombay Rent Act and therefore also under
Section 34(4) of the Maharashtra Rent Control Act, the order must
not be a mere procedural order, but it must determine or affect the
substantive rights and liabilities of the parties.
46. In Sukhdev's case, the landlord had prayed for eviction
for failure in payment of rent as one of the grounds and the tenant in
his amended written statement denied the plaintiff's title. The
plaintiff-landlord filed an application proposing to amend the plaint
by raising a ground of denial of the plaintiff-landlord's title. The
subject matter of the application for amendment of the plaint was
definitely governed by the provisions of the Bombay Rent Act and,
therefore, the order rejecting the application did affect the plaintiff's
substantive rights under the Rent Act. The Division Bench was,
therefore, not right in taking the view that an order refusing leave to
amend the plaint was not a revisable order.
47. We may hasten to add that an order granting leave to
amend the plaint or written statement would not be revisable, because
that order by itself does not affect the rights and liabilities of the
parties, which are going to be decided at the trial, where evidence
would be led on the basis of the amended pleadings and the Court
would finally determine the rights and liabilities of the parties in the
final judgment in the suit.
Kambli / abs 47 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Merely because after an application for amendment of
the plaint is rejected, the plaintiff-landlord may be in a position to file
another suit for eviction on another ground, it would not mean that
the order does not determine or even affect the rights and liabilities of
the parties under the Rent Act. The order rejecting the application for
amendment of the plaint, does determine, in so far as that particular
suit is concerned, that the plaintiff is not entitled to invoke another
ground of eviction in that particular suit. Similarly, where the Special
Court under the Rent Act refuses leave to amend the written
statement, wherein the tenant is seeking by amendment to add any
defences arising from the provisions of the Bombay Rent Act or
under any other substantive law, such an order would be revisable.
48. In Maharana Mills' case, the order of the trial Court
rejecting the application for deleting an issue did not affect the
substantive rights of the parties, because evidence would be led by
the parties at the trial and the Court would finally determine the
rights and liabilities of the parties qua that issue in the final
judgment. On the other hand, if the trial Court had passed the order
for deleting the issue of standard rent, it would have definitely
affected the substantive rights of the tenant and substantive liabilities
of the landlord under the Rent Act. Hence, the order refusing to
delete the issue was not revisable.
Kambli / abs 48 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Pacific Engineering Co. Pvt.Ltd.'s case1
49. This decision requires detailed consideration. The
plaintiff-Pacific Engineering had filed R.A.E. Suit for eviction of the
defendant on the ground that the plaintiff had granted to the first
defendant (respondent in the revision) a licence to use and occupy the
suit flat, but that defendant unlawfully sublet the flat and gave it on
licencee or parted with possession of the suit flat to the second
defendant. The plaint proceeded on the assumption that the
defendant was a protected licence or a deemed tenant. The plaintiff,
then, applied for unconditional withdrawal of the suit. The Small
Causes Court rejected that application. That order came to be
challenged in the revision application under Section 115 of the CPC
before the High Court. The respondent in the revision (the first
defendant in the suit) contested the CPC revision on the ground that a
revision was maintainable before the appellate bench of the Small
Causes Court under Section 29(3) of the Bombay Rent Act. The
plaintiff contended that a revision was not maintainable before the
appellate Bench under Section 29(3) of the Bombay Rent Act,
because unconditional withdrawal of the suit was a matter governed
by Order 23 Rule 1 of the CPC and, therefore, rejection of the
application under Order 23 Rule 1 of the CPC did not decide any
rights or liabilities under the Bombay Rent Act or under the Bombay
Rent Control Rules.
50. Justice Vazifdar held that interlocutory orders that
are purely procedural and do not affect the substantive rights of
the aggrieved parties are neither appealable nor revisable by the
1 2005 (1) Bom.C.R.427
Kambli / abs 49 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
trial Court under Section 29 of the Bombay Rent Act. But an
order on an application under Order 23 Rule 1 of the CPC to
withdraw a suit unconditionally affects the substantive rights of the
aggrieved party. An order rejecting such application bears an imprint
of the provisions of the Bombay Rent Act and Bombay Rent Control
Rules. On that ground, revision before the appellate Bench of Small
Causes Court was held to be maintainable and on that basis the CPC
revision was dismissed by the High Court as the alternative remedy
was available before the appellate Bench of Small Causes Court.
51. In our opinion, the aforesaid findings of Justice Vazifdar
were absolutely correct, because if an application for unconditional
withdrawal of the suit is granted, the plaintiff is precluded under
Order 23 Rule 4 of CPC from instituting any fresh suit in respect of
such subject matter, (subject matter of the suit was assertion of the
plaintiff's right as a landlord to get the defendant evicted under the
Bombay Rent Act.). Withdrawal of the suit would, therefore,
preclude the plaintiff from asserting his right for eviction of the
defendant on the ground alleged in the plaint. The order on the
application for withdrawal of the suit would, therefore, affect the
rights and liabilities of the parties under the Bombay Rent Act. In
other words, when a plaintiff applies for unconditional withdrawal of
a suit under Order 23 Rule 1 of CPC, the order granting leave would
finally conclude the proceeding under the Rent Act and in that sense
would bring to an end the proceeding under the Bombay Rent Act
and would preclude the plaintiff from filing another suit against the
same defendant on the same subject matter. If such an application is
Kambli / abs 50 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
rejected, it would take away the plaintiff's right not to assert his right
under the Rent Act. On this ground alone it was sufficient for Justice
Vazifdar to hold that revision application against the order of the trial
court rejecting the application for unconditional withdrawal of the
suit was maintainable under Section 29(3) of the Bombay Rent Act,
as it affected the substantive rights of the plaintiff under the Bombay
Rent Act.
Further Discussion
52. In our opinion, it was , therefore, not necessary for
Justice Vazifdar to consider the question of alleged conflict between
the views of Division Bench in Sukhdev's case (supra) on one hand
and the view of a learned Single Judge of this Court in Hemchand
(supra) and of the Division Bench of Gujarat High Court in
Natavarlal (supra) on the other hand.
However, since the views expressed by Justice Vazifdar
in Pacific Engineering's case have given rise to serious doubt about
correctness of the principles laid down by the Division Bench in
Sukhdev's case (supra), we have considered at length all the
judgments.
53. Justice Vazifdar set out the relevant conclusion in
paragraph 10(v) as under:-
“10(V) The applicability of Section 29(3) is not
restricted only to orders which relate to those
aspects for which the Bombay Rent act was enacted
such as orders for possession or rent.”
Kambli / abs 51 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
But the learned Judge expanded the principle in para 38(b) as under:
“38(b) Moreover the expression “substantive
rights” used in the authorities I have considered
must be understood in the lexical sense. It ought
not necessarily to be construed as a right created
by a statute or any other law. In other words, to be
revisable it is not necessary that the order must
relate to a provision of substantive law. Even if it
relates to a procedural law it would be revisable if
it affected substantively the rights of a party.”
(emphasis supplied)
For arriving at this conclusion, Justice Vazifdar relied on the
observations made by the learned Single Judge of this Court in
Hemchand Singhania v/s. Subhkaram Baragra1
, and the Division
Bench of the Gujarat High Court in Natvarlal v/s. Khodaji,2
Justice
Vazifdar took the view that the decision of Justice S.H.Sheth in
Maharana Mills's case was contrary to the judgment of this Court in
Hemchand's case and also contrary to the Division Bench judgment
of the Gujarat High Court in Natvarlal.
54. In our opinion, we do not see any conflict between the
principles laid down by V.S. Desai J. of this Court in Hemchand
(supra) and by the Division Bench of the Gujarat High Court in
Natwarlal (supra) on the one hand and the principles enunciated by
Justice S.H. Sheth in Maharana Mills (supra) on the other hand.
1 AIR 1967 Bom. 361
2 1967(8) Guj.L.R. 772
Kambli / abs 52 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
55. Division Bench of the Gujarat High Court in Natavarlal
(supra) and a Single Judge of this Court in Hemchand (supra) were
dealing with the case where exparte decree was passed by the Small
Causes Court exercising jurisdiction as the Special Court under
Section 28 of the Bombay Rent Act. When the Defendant made an
application for setting aside that exparte decree, the application was
rejected by the trial court and the question was whether an appeal was
maintainable before the appellate Bench of the Small Causes Court
under Section 29(3) of the Bombay Rent Act against such order
rejecting application for setting aside exparte decree.
56. Proviso (a) to Section 29(1) conferring in wide terms
right of appeal from a decree or order made by the Court of Small
Causes before the Bench of two Judges of the same Court, lays down
that “no such appeal shall lie from a decree or order made in any suit
or proceedings in respect of which no appeal lies under the Code of
Civil Procedure, 1908.”
Order 43 Rule 1(d) expressly provides that an appeal
shall lie from an order under Order 9 Rule 13 rejecting an application
for an order to set aside a decree passed exparte. It is, therefore, clear
that an appeal against the order of the Small Causes Court acting as a
Special Court under Section 28 of the Bombay Rent Act rejecting an
application for an order to set aside a decree passed exparte was and
has always been an appealable order. All that this Court in
Hemchand (supra) and the Division Bench of Gujarat High Court in
Natvarlal (supra) held was that the Small Causes Court is a Special
Court exercising powers under the Code of Civil Procedure and that
Kambli / abs 53 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
interlocutory and other orders which the Special Court may pass in
entertaining, trying and deciding the matters within its exclusive
jurisdiction, which are appealable under the provisions of the Code of
Civil Procedure, are appealable under Section 29 of the Bombay Rent
Act.
57. Even Justice S.H. Sheth held that the order of the Presidency
Small Causes Court rejecting an application for setting aside an
exparte decree under the Rent Act is appealable under Section 29 of
the Bombay Rent Act, because the suit is governed by the Bombay
Rent Act and the order affects the substantive rights of the parties
under the Bombay Rent Act. We, therefore, see no conflict between
the view of Justice S.H. Sheth on one hand and the view of the
Division Bench of the Gujarat High Court in Natvarlal (supra) and
the view of the learned Single Judge of this Court in Hemchand
(supra) on the other hand.
58. The view taken by Justice V.S. Desai as well as the
Division Bench of the Gujarat High Court that the order rejecting
application for setting aside exparte decree is appealable under
Section 29(1) of the Bombay Rent Act was the correct view, because
the subject matter of the exparte decree was rights and liabilities of
the plaintiff-landlord and defendant-tenant under the Bombay Rent
Act. An order on the application for setting aside the exparte decree
would directly affect the rights and liabilities of the parties under the
Bombay Rent Act. Justice S.H. Sheth also expressed the same view in
Maharana Mills's case (supra).
Kambli / abs 54 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
59. Having considered all the submissions, we are of the
view that the uncertainty about the legal position in the matter of
maintainability of revision applications under Section 29(3) of the
Old Rent Act and under Section 34(4) of the New Rent Act has arisen
on account of the manner in which the ratio of the V.S. Desai, J. in
Hemchand's case and the ratio of the Division Bench in Sukhdev's
case have been read and applied and not properly appreciated. The
Division Bench in Sukhdev's case(supra) did not hold that to be
revisable an order of the trial Court must be for possession or for
recovery of rent or for fixation of rent. The underlined observations
of the Division Bench in para 7 of it judgment as quoted in para 44
hereinabove contain the ratio of the decision.
60. While the conclusion of Justice Vazifdar in para 10(V) is
correct, we do not approve of the observations made by Vazifdar, J.
in para 38(b) of the judgment in Pacific Engineering case [para 9(iii)]
in so far as they may be read as meaning breach of a procedural law
would also give right of revision, even if the order does not affect
rights under a substantive law.
61. For taking the above view, Justice Vazifdar relied on the
observations of V.S. Desai, J. in Hemchand's case. It needs to be
appreciated that the observations of V.S. Desai, J. relied upon by
Justice Vazifdar merely dealt with the argument of the learned
counsel for the petitioner landlord in that case which is already set
out in para 27 hereinabove. V.S. Desai, J. merely repelled the
Kambli / abs 55 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
contention of the petitioner's counsel that the Special Court under the
Rent Act, while deciding application under Order 9 Rule 13 of the
CPC, was not dealing with the question relating to recovery of rent or
possession of the suit premises. The orders for recovery of
possession of the suit premises are generally passed at the end of the
trial and in the form of a decree. Hence, V.S. Desai, J. was not
required to deal with the question of maintainability of appeal or
revision against an interlocutory order. Generally revisions under
section 34(4) of the Maharashtra Rent Control Act would not pertain
to questions relating to the recovery of possession of the suit
premises which are generally decided at the conclusion of the trial.
The revisable orders are generally made at the interlocutory stage
and, therefore, the question of recovery of possession would not arise
at that stage. For an order to be revisable, therefore, the order may
not determine but must affect some substantive rights and liabilities
of the parties, which position was accepted by Justice Vazifdar also.
The observations of V.S. Desai, J. in Hemchand's case must
accordingly be read in the context of the controversy in that case.
62. In Ashwani Kumar Singh & Ors. vs. U.P. Public Service
Commission & Ors.1
, the Supreme Court observed as under:-
“10. Courts should not place reliance on decisions
without discussing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are
not to be read as Euclid's theorems nor as
provisions of the statute. These observations must
be read in the context in which they appear.
1 (2003) 11 SCC 584
Kambli / abs 56 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Judgments of Courts are no to be construed as
statutes. To interpret words, phrases and provisions
of statute, it may become necessary for Judges to
embark into lengthy discussions, but the discussion
is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments.
They interpret words of statutes; their words are not
to be interpreted as statutes.
In State of Orissa vs. Sudhansu Sekhar Mishra1
, the
Supreme Court quoted the following principles laid down by Earl of
Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:
“Now before discussing the case of Allen v. Flood,
(1898) AC 1 and what was decided therein, there
are two observations of a general character which
I wish to make, and one is to repeat what I have
very often said before, that every judgment must
be read as applicable to the particular facts proved,
or assumed to be proved, since the generality of
the expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of
the case in which such expressions are to be
found. The order is that a case is only an authority
for what it actually decides. I entirely deny that it
can be quoted for a proposition that may seem to
follow logically from it. Such a mode of
reasoning assumes that the law is necessarily a
logical Code, whereas every lawyer must
acknowledge that the law is not always logical at
all.”
1 AIR 1968 SC 647
Kambli / abs 57 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Conclusions on maintainability of Revision
63. We agree that Section 29(3) of the Old Rent Act and
Section 34(4)of the New Rent Act are not restricted only to orders for
possession or rent, but at the same time it does not mean that all nonappealable orders of the Special Court under the Rent Act are
revisable. It is true that orders may not be orders for possession or
fixation or recovery of rent, but the orders must directly affect the
substantive rights of the parties under the Rent Act or some other
substantive law and not merely affect the rights of the parties under a
procedural law like CPC or Evidence Act. Looking to the language
of section 29(3) of the Old Rent Act and section 34(4) of the New
Rent Act (“that the decree or order was made according to law”), we
see no justification for restricting revisions to orders affecting
substantive rights only under the Rent Act.
64. As already indicated earlier, the rationale for narrowly
reading the word “order” in the provision conferring right of appeal
(to avoid harassment of parties on account of delay and endless
expenses) would also apply for narrowly interpreting the word
“order” in section 34(4) of the New Rent Act and section 29(3) of the
Old Rent Act as well and that was the rationale which commended to
the Division Bench in Sukhdev Prasad Raghubir's case in the year
1983 and that is the interpretation which has held the field, in so far
as the State of Maharashtra is concerned, for the last 35 years. If any
other view is taken, purposeful object of speedy trial, as mandated by
section 38 of the Maharashtra Rent Control Act, would be completely
defeated.
Kambli / abs 58 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
65. In case, there is a conflict, as perceived by Justice
Vazifdar, we approve the narrower view taken by the Division Bench
in Sukhdev's case (supra) as indicated at the commencement of para 7
of its judgment as quoted in para 44 hereinabove.
66. Even so, we hold that the Division Bench in Sukhdev's
case was not right in holding that an order of the Rent Court rejecting
an application for amendment of plaint/written statement is not
revisable under section 29(3) of the Bombay Rent Act which is in
parimateria with section 34(4) of the Maharashtra Rent Control Act.
Where the proposed amendment asserts the rights of the
concerned party under the Rent Act or any other substantive law or
liabilities of the other party under the Rent Act, the order rejecting the
application for amendment of plaint/written statement would be
revisable under section 34(4) of the Maharashtra Rent Control Act.
67. 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 and not
merely a procedural order, (not affecting the substantive rights of
parties), which 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.
68. This, discussion, therefore, brings home the point that in
each case the Court has to be careful while applying the settled legal
principles on the question of maintainability of revision application
Kambli / abs 59 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
under Section 29(3) of the Bombay Rent Act and/or under Section
34(4) of the Maharashtra Rent Control Act.' We may, therefore, refer
to a few other cases and at the end of the judgment give illustrations
of cases which are revisable or non-revisable under section 34(4) of
the Maharashtra Rent Control Act, 1999.
A few other cases
69. In Aspi R. Settha v/s. Mr. Sunermal M. Bafna & ors.
dated 19 December 2003 in Civil Revision Application No.489 of
2003, during pendency of a suit for possession under the Bombay
Rent Act, the petitioner took out a notice for a declaration that the suit
had abated in view of the death of the sole defendant and prayed for
stay of further proceeding. The Small Causes Court dismissed the
said interim notice and hence the petitioner preferred civil revision
application under Section 115 of the CPC. The respondent raised a
preliminary objection that the civil revision application under section
115 of the CPC was not maintainable in view of alternate remedy of
revision available under Section 29(3) of the old Rent Act.
. Learned counsel for the petitioner contended that the
subject matter of the impugned order was not covered by the Rent
Act, that the application made by the petitioner for recording
abatement of the suit was merely procedural and substantive rights of
the parties under the Rent Act were not affected and therefore the
revision under Section 29(3) was not maintainable.
. The learned single Judge considered various decisions
including the decision of Division Bench in Sukhdev's case(supra)
and held that if the application had been decided in favour of the
Kambli / abs 60 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
plaintiff, the suit would have been dismissed as having abated and
that order would have been final materially affecting the rights of the
parties. The learned single Judge referred to the decision of the
Supreme Court in Bant Singh Gill v/s. Shantidevi1
, where the
Supreme court observed that if the issue (about maintainability of the
suit on the ground that it had abated) had been decided in favour of
the appellant therein and the suit had been dismissed as having
abated, there would have a final order in the suit having effect of
decree. Hence, such an order on application for declaring the suit as
abated affects substantive rights of the parties and therefore cannot be
considered as mere procedural order. Hence, the revision application
under Section 29(3) under the Bombay Rent Act would be
maintainable before the appellate Bench of the Small Causes. Of
course, such an order was not appealable, because it is not covered by
Order 43 of CPC.
In our view, this judgment also correctly applies the the
test which has commended to us. Besides, that test is also the only
test which is required to be now applied while determining the
maintainability of a revision under section 115 of the Civil Procedure
Code as amended w.e.f. 1 July 2002.
70. In Mohanraj Rupachand Jain v. Kewalchand Hastimal
Jain, 2007 AIHC 1015, the learned Single Judge held that revision
under section 34(4) of the Maharashtra Rent Control Act was not
maintainable against an order of the trial Court rejecting an
application objecting to admissibility of certain documents, which
1 AIR 1967 SC 1360
Kambli / abs 61 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
were sought to be produced on record along with an affidavit under
rule 18 of the CPC. The learned Judge rightly held that the order in
question was only a procedural order, which did not affect the
substantive rights of parties.
71. In J.M. Constructions v/s. Rustom P. Patel, 2008(5)
Bom.C.R. 598, the trial Court passed the order on an application
taken out by the defendant for condoning delay in filing the written
statement and to take written statement on record beyond specified
period. The Revisional Court set aside the order and directed the trial
Court to take the written statement on record. In writ petition
challenging that order, a learned Single Judge of this Court held that
it was essentially a procedural order, against which revision
application was not maintainable under section 34(4) of the
Maharashtra Rent Control Act. On this ground alone the order of the
revisional Court was set aside.
We agree with the submission made by the learned
counsel for the respondents that when the trial Court refused to
condone delay in filing the written statement and to take written
statement on record, the order did affect substantive rights of the
defendant-tenant to plead defences available to him under the Rent
Act and to place on record the material facts in support of those
defences. The impugned order of the trial court was, therefore, not a
mere procedural order not affecting substantive rights of the parties
under the Rent Act. The Revision application in such a case would,
therefore, be maintainable under Section 34(4) of the Maharashtra
Rent Control Act.
Kambli / abs 62 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
72. In Abeda Iqbal Patel vs. Cormorant Investment Pvt.
Ltd.1
, a learned Single Judge of this Court held that for challenging an
order granting and/or refusing amendment of plaint or written
statement, the only remedy is revision. The learned Judge held that
even if it is a procedural order, if the Court is satisfied that it was not
made according to law, the interference is a must. The learned Judge
held that if an appeal is not available, the order is not in accordance
with law and it affects the substantial rights of the parties, revision is
maintainable under section 34(4) of the Maharashtra Rent Control
Act and section 29(3) of the Bombay Rent Act.
73. While we agree, for the reasons recorded earlier that an
order rejecting an application for an amendment of a pleading is
revisable, the order granting such application is not revisable. We
also reiterate that the order refusing leave to amend the plaint or
written statement is revisable not because it is a procedural order, but
because it affects substantial rights of the parties, i.e. rights under a
substantive law.
74. In Laheribai (since deceased) through heirs v/s.
Dharamdatta2
, in a suit for possession under the Rent Act filed in the
year 1982, an application was made by the petitioner (legal
representatives of the original plaintiff) seeking permission to delete
the names of respondents Nos. 2 to 4 in March 2005. The trial court
allowed the application and fourteen days time was granted for
carrying out amendment to the suit. The order was not complied with
1 2009 (2) MLJ 446
2 2010(1) Mh.LJ. 598
Kambli / abs 63 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
and the suit was dismissed for default on the date of hearing. The
petitioners, therefore, took out a notice for restoration of the suit.
The notice was dismissed by the trial Court. The revision application
came to be dismissed by the appellate Bench of the Small Causes
Court on the ground that the order of dismissal of the suit was under
Order 9 Rule 8 of the CPC and therefore against order of the trial
Court dismissing the application for restoration, an appeal was
maintainable.
After hearing the parties, the learned Single judge held
that the suit was dismissed for default of appearance of both the parties
and their advocates. Order 9 Rule 8 of CPC applies to a situation when
the defendant appears and the plaintiff is absent. Order 9 Rule 3
applies to a situation when neither of the parties appears and the court
dismisses the suit. The learned single Judge, accordingly, held that as
the suit was dismissed under Order 9 Rule 3 of the CPC, an application
for restoration was maintainable under Order 9 Rule 4 of the CPC. An
order passed under Order 9 Rule 4 is not appealable. The question,
therefore, was whether the revision was maintainable against the order
of trial Court rejecting an application for restoration under Order 9
Rule 4 of the CPC.
. The learned single Judge following the Division Bench
judgment in Sukhdev (supra) held that the impugned order was a
procedural order, which did not affect substantive rights and
liabilities of the parties under the Rent Act. The learned single
Judge, ultimately examined the challenge to the impugned order
of the trial Court on merits and held that the application for
Kambli / abs 64 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
restoration deserved to be allowed. The learned single Judge
accordingly allowed the writ petition by setting aside the order of the
trial Court.
. Having carefully gone through the said decision, we
agree with the learned counsel for the respondents that, even applying
the principles laid down by the Division Bench in Sukhdev's
case(supra), the order of the trial court rejecting the application for
restoration under Order 9 Rule 4 was not a mere procedural order.
The order did affect the substantive rights of the parties. The order
did cause substantial prejudice to the plaintiff, who had filed the suit
for asserting his rights and liabilities against the the tenant under the
Bombay Rent Act.
Q. No. (i) : Scope & Amit of Power of Revision
75. Coming to the question about the scope and ambit of the
power of revision under Section 34(4) of the New Rent Act, the
learned counsel for respondents have submitted that the scope of
revisional power under Section 34(4) of the New Rent Act, like
Section 29(3) of the Old Rent Act, is very wide and it is not to be
confined to narrower terms as has been done in Section 115 of Civil
Procedure Code.
76. Reliance is placed on the following celebrated
observations of Chief Justice Beaumont of this Court in Bell & Co.
Ltd. v. Waman Hemraj1
, rendered in the year 1937, while interpreting
the provisions of Section 25 of the Provincial Small Causes Courts
Act:
1 AIR 1938 Bombay 223
Kambli / abs 65 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
“The scheme of the Small Causes Courts Act is to
provide a summary remedy for recovering small
sums, and it is an essential part of the scheme that
the Judge's decision is final. Section 27 of the Act
provides : " Save as provided by this Act, a decree
or order made under the foregoing provisions of this
Act by a Court of Small Causes shall be final,"
There is no appeal either on facts or law, but
Section 25 provides : " The High Court, for the
purpose of satisfying itself that a decree or order
made in any case decided by a Court of Small
Causes was according to law, may call for the case
and pass such order with respect thereto as it thinks
fit." In my opinion that section ought not to be
construed as giving the parties a right of appeal on
points of law. The object of Section 25 is to enable
the High Court to see that there has been no
miscarriage of justice, that the decision was given
according to law. The section does not enumerate
the cases in which the Court may interfere in
revision, as does Section 115 of the Civil Procedure
Code, and I certainly do not propose to attempt an
exhaustive definition of the circumstances which
may justify such interference ; but instances which
readily occur to the mind are cases in which the
Court which made the order had no jurisdiction, or
in which the Court has based its decision on
evidence which should not have been admitted, or
cases where the unsuccessful party has not been
given a proper opportunity of being heard, or the
burden of proof has been placed on the wrong
shoulders. Wherever the Court comes to the
conclusion that the unsuccessful party has not had
a proper trial according to law, then the Court can
interfere. But, in my opinion, the Court ought not to
interfere merely because it thinks that possibly the
Judge who heard the case may have arrived at a
conclusion which the High Court would not have
arrived at.
(emphasis supplied)
Kambli / abs 66 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
It is necessary to remember that above observations were made by
Beaumont C.J. after noting that there is no appeal either on facts or
law against the decree or order of the Court of Small Causes and only
a power of revision was conferred under Section 25 of Provincial
Small Causes Courts Act. The underlined words also indicate that
what the learned Chief Justice had in mind was revision after the trial
and not during the trial.
77. Similar words in Section 34 of the Delhi & Ajmer Rent
Control Act, 1952 came up for consideration before the Supreme
Court in Hari Shankar v/s. Rao Girdhari Lal Chowdhuri1
. The
Supreme Court made the following observations:-
“The phrase "according to law" refers to the
decision as a whole, and is not to be equated to
errors of law or of fact simpliciter. It refers to the
overall decision, which must be according to law
which it would not be, if there is a miscarriage of
justice due to a mistake of law. The section is thus
framed to confer larger powers than the power to
correct error of jurisdiction to which s. 115 is
limited. But it must not be overlooked that the
section in spite of its apparent width of language
where it confers a power on the High Court to pass
such order as the High Court might think fit-is
controlled by the opening words, where it says that
the High Court may send for the record of the case
to satisfy itself that the decision is "according to
law". It stands to reason that if it was considered
necessary that there should be a rehearing, a right
of appeal would be a more appropriate remedy, but
the Act says that there is to be no further appeal.”
(emphasis supplied)
1 1962 SCR Supl. (1) 933 = AIR 1963 SC 698
Kambli / abs 67 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
The above observations were also made by the Supreme
Court while examining the scope and ambit of power of revision
against the final order of the Rent Controller.
78. The observations of Beaumont C.J., have, thereafter, also
been approved by the Supreme Court in various other decisions, such
as Malini Ayyappa Naicker v/s. Seth Manghraj Udhavdas Firm1
and
in Shiv Sarup Gupta v/s. Dr.Mahesh Chand Gupta2
. In the latter
decision the Supreme Court examined the scope of revisional power
of the High Court under Section 25-B of the Delhi & Ajmer Rent
Control Act, 1958, which also confers power of revision on the High
Court in the following terms:-
“Provided that the High Court may, for the purpose
of satisfying itself that an order made by the
Controller under this section is according to law (or
not), call for the records of the case and pass such
order in respect thereto as it thinks fit'.
After observing that the revisional jurisdiction exercisable by the
High Court under the above provision is not so limited as is under
Section 115 CPC nor so wide as that of an appellant Court, the
Supreme Court further observed as under:-
“The High Court cannot enter into appreciation or
re-appreciation of evidence merely because it is
inclined to take a different view of the facts as if it
were a court of facts. However, the High Court is
obliged to test the order of the Rent Controller on
the touchstone of "whether it is according to law'.
1 AIR 1969 SC 1344
2 (1999) 6 SCC 222
Kambli / abs 68 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of
ascertaining whether the conclusion arrived at by
the Rent Controller is wholly unreasonable or is one
that no reasonable person acting with objectivity
could have reached that conclusion on the material
available. Ignoring the weight of evidence,
proceeding on wrong premise of law or deriving
such conclusion from the established facts as betray
the lack of reason and/or objectivity would render
the finding of the Controller 'not according to law'
calling for an interference under proviso to subSection (8) of Section 25-B of the Act. A judgment
leading to miscarriage of justice is not a judgment
according to law. [See; Sarla Ahuja Vs. United
India Insurance Co .Ltd. -(1998) 8 SCC 119 and
Ram Narain Arora Vs. Asha Rani and Ors. - (1999)
I SCC 141.]
(emphasis supplied)
79. It is, however, necessary to remember that the above
observations were made in the context of provisions of Section 25-B
of the Delhi & Ajmer Rent Control Act, which provides for a special
procedure to be followed for disposal of an application for eviction
on the ground of bonafide need and this ground of eviction of the
tenant has been treated on a footing different than the one on which
other grounds of eviction of a tenant stand. Sub-section (8) thereof
provides that no appeal or second appeal shall lie even against a final
order for the recovery of possession of any premises made by the
Controller in accordance with the procedure provided in Section
25-B. Only power of revision is provided by proviso to Section 25-
B. It is, thus, necessary to remember that the observations made by
the Supreme Court while interpreting the scope of revision against a
final judgment of eviction cannot be applied verbatim to the
Kambli / abs 69 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
provisions of Section 34(4) of the Maharashtra Rent Control Act,
because sub-section (1) of section 34 confers the rights of appeal
against a decree of eviction and sub-section (4) confers revisional
jurisdiction on the same superior Court for revision against nonappealable orders.
80. In Ram Das v/s. Iswar Chander and ors1
, also the Court
was considering the scope of revision against a decree of eviction and
in that context it was held that Section 15(5) of the E.P. Urban Rent
Restriction Act, 1949 enables the High Court to satisfy itself to the
“legality and propriety” of the order under revision, which is, quite
obviously,a much wider jurisdiction.
81. Having considered the aforesaid decisions and other
judgments cited at the bar, we are of the view that the scope and
ambit of the revisional power under Section 34(4) of the Maharashtra
Rent Control Act and under Section 29(3) of the Bombay Rent Act,
though not as narrow as the scope of the revisional power under
Section 115 of the CPC, at the same time it is not so wide as to enable
the revisional Court to interfere with an order of the trial Court under
the Rent Act, merely on the ground that it is not according to
procedural law. The expression “according to law” has to be
interpreted as “in accordance with the provisions of the Bombay Rent
Act or any other substantive law.” Merely because the revisional
Court comes to the conclusion that an impugned order is not in
conformity with the procedural requirements of CPC, would not be a
ground for revision. As held by the Supreme Court, phrase
1 (1988) 3 SCC 131
Kambli / abs 70 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
“according to law”, refers to the decision as a whole and is not
equated to errors of law or facts simplicitor, it refers to the overall
decision which must be according to law, which it would not be if
there is a miscarriage of justice due to a mistake of law. This would
mean that the revisional Court would not be justified in interfering
with a decision, unless there is miscarriage of justice resulting from a
mistake of law.
82. We have also noticed in a large number of cases that in
writ petitions under Articles 227 of the Constitution challenging
interlocutory orders passed by the trial Court, preliminary objection is
very often raised about maintainability of alternative remedy of
revision under Section 29(3) of the Bombay Rent Act, 1947 or under
Section 34(4) of the Maharashtra Rent Control Act, 1999 and
substantial judicial time and energy are required to be invested in
deciding the question whether the alternate remedy of revision under
the Rent Act is available before the appellate Bench of the Small
Causes Court (or before the District Judge as the case may be).
While it is certainly open to the learned single Judge of this Court
hearing writ petitions under Articles 226/227 of the Constitution to
decline to entertain a writ petition on the ground of availability of
equally efficacious alternate remedy of revision under the Rent Act,
there may be a large number of writ petitions, where the High Court
may consider it appropriate to refuse to entertain the writ petitions, on
the ground that the impugned order is a mere procedural order, which
does not cause any miscarriage of justice, without going into the
question whether the substantive rights of the parties under the Rent
Act are affected or not. It is well settled that the power of
Kambli / abs 71 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
superintendence conferred by Article 227 of the Constitution should
be exercised most sparingly only to keep subordinate courts and
inferior tribunals within the bounds of their authority and not for
correcting errors of fact or of law. A petition under Article 227,
therefore, cannot be treated as an appeal or revision in the nature of
extension of provision conferring such right.
83. The superior Court, whether exercising writ jurisdiction
or revisional jurisdiction has always the discretion to decline to
exercise such jurisdiction in appropriate cases on the ground that it
will be open to the aggrieved party to make a grievance against the
impugned order in the appeal against the final judgment, which may
be passed by the trial Court.
FINAL ANSWERS
84. In the result, therefore, our answer to question No.2
referred for our consideration is as under:-
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
Kambli / abs 72 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
under a procedural law like the Code of Civil Procedure or the
Evidence Act.
85. 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.
86. 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 9 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.
Kambli / abs 73 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
87. 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 9 Rule 4 of CPC
This list is also illustrative and not exhaustive.
88. As regards question No.1 about scope and ambit of
power of revision under Section 34(4) of the Maharashtra Rent
Control Act, 1999, our answer is that after the revisional Court is
Kambli / abs 74 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
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.
89. The writ petitions will now go back to the learned Single
Judge for hearing and deciding them in light of the principles laid
down in this judgment.
CHIEF JUSTICE
RANJIT MORE, J.
N.M. JAMDAR, J.
Kambli / abs 75 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::
Bombay High Court
WP-9562-2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9562 OF 2010
Bhartiben Shah,
R/o.Rasik Niwas, `F' Road, Marine Lines,
Mumbai-400002. .. Petitioner
versus
Smt.Gracy Thomas and others .. Respondents
Mr. Vikram Goel a/w Ashok K. Goel for petitioner.
Mr. Y.E. Mooman a/w Manisha B. Gawde for respondents 1 and 2.
WITH
WRIT PETTION NO.8029 OF 2010
Dhirajlal Raishi Chheda,
Ghatkopar, Mumbai .. Petitioner
versus
Raishi Shivji Chheda,
Ghatkopar, Mumbai. .. Respondents
Mr. I.K. Tripathi a/w P.A. Sarwankar i/by M/s Sarwankar & Co. for
petitioner.
Mr. G.H. Shukla i/by M/s G.H. Shukla & Co. for respondents.
WITH
Kambli / abs 1 of 75
::: Downloaded on - 03/06/2013 06:51:21 :::Bombay High Court
WP-9562-2010
WRIT PETITION NO.907 OF 2010
M/s.D.V. Sulakhe & Sons,
Second Floor, Kedar Bhavan, 134/2,
Old Hanuman Land, Kalbadevi Road,
Mumbai-400002 .. Petitioner
versus
M/s.Hindustan Trading Corporation
and others .. Respondents
Mr. Prasad S. Dani for petitioner.
Smt. Ranjana Parikh a/w Mr. Vikram Goel and Mr. Ashok K. Goel
for respondent no.1.
CORAM : MOHIT S. SHAH, C.J.,
RANJIT MORE &
N.M.JAMDAR, JJ.
DATE OF PRONOUNCEMENT : 21 JANUARY 2013
JUDGMENT : (Per Chief Justice )
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 ?
Kambli / abs 2 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
2. For giving answers to the above questions, we propose to
proceed in the following manner:
Para Nos. Page Nos.
(i) Indicating brief facts leading to
this reference
3 to 6 4 to 5
(ii) Setting out the rival submissions
of learned counsel for the parties 7 to 9 6 to 15
(iii) Statutory provisions 10 16 to 18
(iv) Giving broad analysis of rival
submissions on maintainability of
revision.
11 18 to 20
(v) Relevant consideration for correct
perspective
12 to 19 20 to 26
(vi) Brief exposition of the principle
on maintainability of revision 20 to 24 26 to 31
(vii) Analysis of case law – five
important judgments
25 to 62 31 to 57
(viii) Conclusions on the question of
maintainability
63 to 68 58 to 60
(ix) Illustrative cases to explain
applicability of the above
conclusions
69 to 74 60 to 65
(x) Discussion on the scope and ambit
of the revisional power 75 to 83 65 to 72
(xi) Answers to both the questions
with illustrations of revisable
orders and orders which are not
revisable
84 to 89 72 to 75
Kambli / abs 3 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
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
Kshampati1
, 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.
1 1983-Mh.L.J.-9 = AIR 1983 Bom. 25
Kambli / abs 4 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Another learned Single Judge of this Court, in Abeda
Iqbal Patel Vs. Cormorant Investment Pvt. Ltd., Mumbai1
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 petitionerplaintiff under Order 18 Rule 16 CPC for directing the defendant to
lead evidence first.
1 2009(2)-Mh.L.J.-446
Kambli / abs 5 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
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
Prasad1
interpreted Section 29(3) of the Old Rent Act after relying
upon the Constitution Bench decision of the Supreme Court in
Shankarlal Aggarwala and others Vs. Shankarlal Poddar and others2
and also on two decisions of three Judge Benches of the Supreme
Court in Bant Singh Gill Vs. Shanti Devi and others3
and in Central
Bank of India Limited Vs. Gokal Chand4
.
(b) In the aforesaid decision in Bant Singh Gill , Section 34
of the Delhi and Ajmer Rent Control Act, 1952 conferred the right of
appeal on an aggrieved person in very wide terms -
"any person aggrieved by any decree or order of a Court
passed under this Act, may in such manner as may be prescribed,
prefer an appeal : (i) to the Court of the senior subordinate
Judge .... ...., (b) to the Court of the District Judge ......... and (c) to
1 1983-Mh. L.J.-9
2 Air 1965 SC 507
3 AIR 1967 SC 1360
4 AIR 1967 SC 779
Kambli / abs 6 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
the High Court .....,( the forum of appeal depending on the value of
the case).”
(emphasis supplied)
In spite of the aforesaid wide language, the Supreme
Court held that the word "order" is not wide enough to include every
order, whatever be its nature and particularly the orders which only
dispose of interlocutory applications. Where there is no final order
deciding rights or liabilities of the parties to the suit, the finding
given by a Court cannot be held to be an order for purposes of
Section 34 of the Act and consequently no appeal against such an
order would be maintainable. The Supreme Court, therefore, held
that the order rejecting application of the appellant to record the
abatement of the suit and directing continuance of the suit, was not an
order of such a nature against which an appeal could be filed under
Section 34 of the Act of 1952.
(c ) In the Central Bank of India Limited Vs. Gokal Chand1
the Supreme Court was concerned with a similar provision in Section
38 of Delhi Rent Control Act, 1958, which was also widely worded
and read as under :
"An appeal shall lie from every order of the Controller
made under this Act to the Rent Control Tribunal
(hereinafter referred to as the Tribunal) consisting of one
person only to be appointed by the Central Government
by notification in the Official Gazette".
(emphasis supplied)
1 AIR-1967-SC-799
Kambli / abs 7 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The Supreme Court held that the object of Section 38(1) is to give a
right of appeal to a party aggrieved by some order which affects his
right or liability. In the context of Section 38(1), the words "every
order of the Controller made under this Act", though very wide, do
not include interlocutory orders, which are merely procedural and do
not affect the rights or liabilities of the parties. The principle was
thus recognized that the word "order" used in such context is not
wide enough to include every order, whatever be its nature, and
particularly orders which only dispose of interlocutory matters.
(d ) In Shankarlal Aggarwala v/s. Shankarlal Poddar1
, the
Supreme Court interpreted Section 202 of the Companies Act, which
reads as under :
"202. Appeals from orders. Re-hearing of, and appeals
from, any order or decision made or given in the matter
of the winding up of a company by the Court may be had
in the same manner and subject to the same conditions
in and subject to which appeals may be had/ heard from
any order or decision of the same Court in cases within
its ordinary jurisdiction".
(emphasis supplied)
The Supreme Court examined the controversy arising from the
conflict of opinion of different High Courts and held that the words
"order or decision" in the first part of Section 202, though wide,
would exclude merely procedural orders or those which do not affect
the rights or liabilities of parties.
1 AIR 1965 SC 507
Kambli / abs 8 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(e) On the basis of the above decisions it was submitted by
Mr. Goel and Mr. Dani that though the word "order" in Section 34(4)
is very wide, revisions are not maintainable against interlocutory
orders, which are merely procedural orders and, which do not affect
the rights and liabilities of the parties. It was submitted that in the
above decisions the Supreme Court held that an appeal would not be
maintainable against such orders, in spite of wide words used in the
section conferring right to appeal. It was, therefore, vehemently
submitted that though Section 29(3) of the Old Rent Act and Section
34(4) of the New Rent Act provide for revision in very wide terms,
the same have to be read in light of the principles laid down in the
above decisions of the Supreme Court. Therefore, the judgment of
the Division Bench in case of Sukhdev Prasad Raghubir1
based on
the above Supreme Court decisions does not require any
reconsideration.
(f) It was accordingly submitted that on account of non
maintainability of revision against such interlocutory orders, there is
no equally efficacious alternative remedy available to the writ
petitioners and, therefore, the writ petition under Article 227 of the
Constitution of India ought to be held to be maintainable, otherwise
the parties would have no remedy to challenge an order, which may
cause miscarriage of justice.
(g) It was lastly submitted that on account of mind boggling
and sky rocketing prices of immovable properties in Mumbai, where
flats are sold in terms of tens of thousands of rupees per sq. foot, the
cases under the Rent Act are fought so hard-tooth and nail that every
1 1983 Mh.L.J. 9
Kambli / abs 9 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
order passed by the Small Causes Court Judge was subjected to
challenge before the higher forum even when revisions were
entertained by the Appellate Bench of the Small Causes Court at
Mumbai. The losing party would then always prefer a writ petition
under Article 227 of the Constitution and, therefore, holding that the
revision is maintainable, as contended by the respondents, would
only prolong the litigation which even otherwise takes decades.
8. Learned counsel for the writ petitioners also submitted
that in the recent order dated 17 January 2012 in writ petition
No.1078 of 2011, a learned single Judge of this Court has made
observation that notwithstanding the binding precedents in the form
of decision of the Division Bench of this Court in Sukhdev Prasad
Raghubir v/s. Rambhujarat Kshampati1
and in another decision Mrs.
Laheribai J. Trivedi (through her LR;s) v/s. Dharamdatta V. Trivedi &
Ors.2
, the Appellate Bench of the Small Causes Court in Mumbai has
been regularly entertaining revision applications in a routine manner
even against orders which are purely of interlocutory nature. A
statement was produced before the learned single Judge showing
large number of revision applications which are pending before the
Appellate Bench, as per the information received under the Right to
Information Act. Even learned counsel appearing for the first
respondent in the said petition accepted that a revision application
was not maintainable against the trial Court's order rejecting an
application for issuing witness summons for production of certain
documents.
1 AIR 1983 Bombay 25
2 Dated 8 October 2009 in writ petition No.3926 of 2008
Kambli / abs 10 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Learned counsel for the writ petitioners, therefore,
submitted that in view of the above observations, the Appellate
Bench does not entertain any revision application merely on the
ground that the revision is directed against an interlocutory order,
without examining whether substantive rights of the parties are
affected.
Submissions on behalf of Respondents
9. On the other hand, the learned counsel for respondents
in the writ petitions made following submissions :
(i) The very fact that sub-section (4) of section 34 of the New
Rent Act and sub-section (3) of section 29 of the Old Rent Act begin
with the words “where no appeal lies under this section from a decree
or order in any suit or proceeding in Brihan Mumbai”, the legislature
intended that all non-appealable orders are subject to revision and,
therefore, the three Supreme Court decisions relied upon by the writ
petitioners cannot apply to revisions at all. If the term “order” in the
aforesaid provisions conferring right of appeal and in the provisions
conferring right of revision were to be interpreted identically, then the
legislature would not have provided two different remedies of appeals
under section 29(1) of the Old Rent Act and section 34(1) of the New
Rent Act on the one hand, and revisions under section 29(3) of the
Old Rent Act and section 34(4) of the New Rent Act, on the other
hand.
Kambli / abs 11 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(ii) Section 34(1) proviso (a) confers a right of appeal where
such an order is appealable under CPC. Appealable orders under
Order 43 Rule 1 of CPC are interlocutory procedural orders not
affecting substantive rights of the parties, such as orders of
injunction, appointment of receiver etc. If that be so, there is no
justification to curtail the scope of revisional powers. The only
conditions laid down by the Legislature for finding out whether the
order is subject to revision under the Rent Act are-
(i) that no appeal should be provided for under
Section 29 itself against such an order under the
Bombay Rent Act (under Sec.34 of the New Rent Act)
(ii) that such order is not according to law.
The phrase “the order is not according to law” has acquired a definite
and precise meaning and has been interpreted by the Supreme Court
in several decisions to mean that the scope of revisional jurisdiction
in such cases is wider than that under Section 115 of the CPC,
following the dictum of Chief Justice Beaumount of this Court in
Bell & Co. Ltd. vs. Waman Hemraj1
(iii) The Division Bench in Sukhdev's case held that the
substantive rights of the parties under the Bombay Rent Act should
be affected. Section 29 of the Old Act does not anywhere restrict the
revisional powers of the appellate Bench under the Bombay Rent
Act. In Pacific Engineering Co. Pvt. Ltd. V/s. East India Hotels
Ltd.,2
Justice S.J. Vazifdar rightly held as follows:
1 Air 1938 Bom.223
2 2004(4)All MR 330
Kambli / abs 12 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
“38(b) Moreover the expression “substantive
rights” used in the authorities I have considered
must be understood in the lexical sense. It ought
not necessarily to be construed as a right created by
a statute or any other law. In other words, to be
revisable it is not necessary that the order must
relate to a provision of substantive law. Even if it
relates to a procedural law it would be revisable if
it affected substantively the rights of a party.”
In view of the above observations of Justice Vazifdar also restrictions
placed by the Division Bench in Sukhdev's case on maintainability of
the revision must be removed, in so far as the Division Bench held
that the revisable order must affect the rights under the Bombay Rent
Act and that the impugned order should bear the imprint of any of the
provisions of the Bombay Rent Act.
(iv) The learned counsel for respondents have also relied
upon the decisions such as decision in Union of India v/s. Hansoli
Devi and ors.1
and Nathi Devi v/s. Radha Devi Gupta2
, in support
of the contention that when the language of the statute is plain and
unambiguous, the Court must give effect to the words used in the
statute and it would not be open to the Court to adopt hypothetical
construction on the ground that such construction is more consistent
with the alleged object and policy of the Act.
(v) The Supreme Court decisions relied upon by the learned
counsel for writ petitioners merely interpret the scope of the
appellate power under the concerned statutory provisions and not the
question of maintainability of revisions.
1 (2002) 7 SCC 273
2 (2005) 2 SCC 271
Kambli / abs 13 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The observations made by the Supreme Court in the
above decisions were to impress upon the Appellate Courts not to
entertain appeals against interlocutory orders, which are merely
procedural and which do not affect any substantive rights or
liabilities of the parties, otherwise the parties would be harassed with
endless expenses and delay by appeals from such procedural orders.
(vi) There are many cases where orders of trial Court during
suits under the Rent Act cause irreparable loss to the aggrieved
litigants and still this Court following the decision of the Division
Bench in Sukhdev's case has held that revisions were not
maintainable. For instance, in J.M. Construction vs. Dr. Rustom
Patel1
, the defendant had sought condonation of delay in filing
written statement. The trial Court refused to condone the delay and
did not take written statement on file. Against that order the
defendant preferred a revision application under Section 34(4) of the
New Rent Act. The revision was allowed by the appellate Bench of
the Small Causes Court and the written statement was taken on file.
Against that order in revision, writ petition was preferred by the
plaintiff and a learned single Judge of this Court held that filing of
the written statement was a procedural order, which did not affect the
substantive rights of parties under the Rent Act and therefore, the
revision application was not maintainable before the appellate Bench
of the Small Causes Court. Consequently the order of the appellate
Bench was set aside. It is submitted that refusal to allow to file
written statement in an eviction suit would definitely affect the
substantive rights of the defendant and lead to miscarriage of justice.
1 2008(5) Bom.CR 598
Kambli / abs 14 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
The narrower interpretation of the word “order” results into serious
consequences to the aggrieved party.
(vii) Similarly, in Leheribai J. Trivedi (deceased) through
heirs v/s. Dharamdatta V.Trivedi1
a suit was dismissed under Order 9
Rule 3 of CPC. An application made under Order 9 Rule 4 for
restoration of the suit was rejected by the trial court. Against that
order, revision application was filed. The revision was dismissed as
not maintainable and when that order was challenged in the writ
petition, the learned single Judge held that order refusing to restore
the suit by setting aside the order of dismissal did not affect the
substantive rights of parties under the Bombay Rent Act and
therefore, revision application was not maintainable. Requiring the
parties in far away districts to move this Court in writ petition under
Article 227 everytime for challenging orders having such serious
consequences put the parties to unnecessary and avoidable hardship
and expenses.
(viii) Some judicial forum has to hear a revision to decide
whether the impugned non-appealable order is a mere procedural
order or an order which affects any right or liabilities of the parties.
The decision on such question cannot be taken by the registry of the
Revisional Court while receiving the memo of the revision petition
and, therefore, the revision will have to be heard by the revisional
Court at least to decide the question whether any substantive right or
liability of a party was affected. It cannot, therefore, be held at the
threshold itself that the revision is not maintainable at all.
1 2010(1) Mh.L.J. 597
Kambli / abs 15 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
STATUTORY PROVISIONS
10. We may now set out the relevant statutory provisions
relating to appeal as well as revision under the Old Rent Act and the
New Rent Act. (For the sake of convenience, reference is only to
orders of Small Causes Court in Greater Bombay.)
Maharashtra Rent Control Act 1999:(New Rent Act)
34. Appeal.
(1) Notwithstanding anything contained in any law
for the time being in force, an appeal shall lie
(a) in Brihan Mumbai. from a decree or order made
by the Court of Small Causes. Mumbai, exercising
jurisdiction under section 33, to a bench of two Judges
of the said Court which shall not include the Judge who
made such decree or order;
(b) …....
Provided that no such appeal shall lie from,-
(a) a decree or order made in any suit or
proceeding in respect of which no appeal lies under
the Code of Civil Procedure, 1908;
(b) a decree or order made in any suit or
proceeding (other than a suit or proceeding relating to
possession) in which the plaintiff seeks to recover rent
in respect of any premises and the amount or value of
the subject matter of which
(i) does not exceed Rs.10,000 ( in Brihan Mumbai)
(ii) …....
(c) an order made upon an application for fixing
the standard rent or for determining the permitted
increases in respect of any premises except in a suit or
proceeding in which an appeal lies;
Kambli / abs 16 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(d) an order made upon an application by a tenant
for a direction to restore any essential supply or
service in respect of the premises let to him.
(2) period of limitation
(3) No further appeal shall lie against any decision
in appeal under sub-section (1).
(4) Where no appeal lies under this section from
a decree or order in any suit or proceeding in
Brihan Mumbai, the bench of two Judges …... may,
for the purpose of satisfying itself that the decree or
order made was according to law, call for the case in
which such decree or order was made and the bench
…..... shall pass such order with respect thereto as it
thinks fit.
Bombay Rent Act 1947: (Old Rent Act)
“29. (1) Notwithstanding anything contained in any
law, an appeal shall lie-
(a) in Greater Bombay, from a decree or order
made by the Court of Small Causes, Bombay,
exercising jurisdiction under section 28, to a bench of
two judges of the said Court which shall not include
the Judge who made such decree or order;
(b) …..
Provided that no such appeal shall lie from-
(I) to (IV).....
(I) to (IV) in the Bombay Rent Act are in similar
terms as (a) to (d) of the proviso to Section 34(1) of
the Maharashtra Rent Act, except the amounts in
proviso II and proviso (b) respectively.
Kambli / abs 17 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
(1A) Period of limitation
(2) No further appeal shall lie against any
decision in appeal under sub-section (1).
(3) Where no appeal lies under this section from
a decree or order in any suit or proceeding in
Greater Bombay the bench of two judges …... may
for the purpose of satisfying itself that the decree or
order made was according to law, call for the case in
which such decree or order was made and the bench
…....., shall pass such order with respect thereto as it
or he thinks fit.”
It is, thus, clear that for the purpose of the controversies
in this reference the provisions conferring right of appeal and
revisional jurisdiction in both the Acts are identical.
BROAD ANALYSIS OF RIVAL SUBMISSIONS ON
MAINTAINABILITY OF REVISION
11. From the wide canvass of arguments, different scenarios
emerge in the matter of interpretation of expression “order” in
Section 34(4) of the New Rent Act of 1999 which is in paramateria
with Section 29(3) of the Old Rent Act.
A
Going by the mere text of Section 34(4) of the New Rent
Act and Section 29(3) of the Old Rent Act, all orders may be
classified into two categories:
(i) appealable orders;
(ii) non-appealable and, therefore, revisable orders.
As per this literal interpretation, all non-appealable orders including
Kambli / abs 18 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
all procedural orders would be revisable. None of the learned
counsel have seriously canvassed this interpretation.
B
It is possible to divide all orders into three categories as
(i) appealable orders as provided in Sec.34(1) of the
New Rent Act;
(ii) Revisable orders which affect substantive rights
and liabilities of parties
(iii) orders which are neither appealable nor revisable,
i.e. orders which are procedural in nature and
do not affect rights and liabilities of the
parties.
Learned counsel for all the parties are, more or less, agreeable on the
above three categories, but there is sharp difference as to what is
meant by “orders which affect rights and liabilities of the parties.”
B1
Learned counsel for the parties seeking reconsideration
of decision in Sukhdev's case submitted that the orders which affect
the rights and liabilities of parties and which are, therefore, revisable,
need not be confined to orders determining or affecting the rights and
liabilities of parties under the Rent Act, but they may determine or
affect rights and liabilities of parties under any other law or the
general law including procedural law. Learned counsel canvassing
this interpretation have heavily relied upon the decision of the
learned Single Judge of this Court in Hemchand M. Singhania v/s.
Subhkaran Nandlal Bargara1
, on a Division Bench judgment of
1 AIR 1967 Bom.361
Kambli / abs 19 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
Gujarat High Court in Natverlal v/s. Khodaji1
, and judgment of
Justice S.J.Vazifdar in Pacific Engineering Co. Pvt. Ltd. V/s. East
India Hotels Ltd.2
B2
Learned counsel for the parties supporting the Division
Bench decision in Sukhdev's case and opposing any reconsideration
of the said decision, submitted that the Division Bench of this Court
has rightly held in Sukhdev's case that rights and liabilities which
may be affected by revisable orders are only the rights and liabilities
of parties under the Rent Act and not under any other substantive or
procedural law. The learned counsel have, besides supporting the
decision in Sukhdev's case, also heavily relied upon the decision of
Justice S.H.Sheth of Gujarat High Court in Shri Maharana Mills
Pvt.Ltd. V/s. Harvadan Manharrai3
.
PERSPECTIVE
12. Before dealing with the rival submissions head on, it
would be necessary to keep in mind the relevant contextual aspects to
look at the issues from the correct perspective, thereafter to make a
brief exposition of the principle and then to test that hypothesis by
analysing the case law and in the process appreciating how the
controversy has evolved.
1 1967 (8) Guj.L.R. 772
2 2005 (1) Bom. C.R. 427
3 AIR 1972 Guj. 226
Kambli / abs 20 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
13. Though appeal and revision are generally considered as
different proceedings in the strict sense of the term, they are both part
of the appellate jurisdiction of the superior Court, in the wider sense.
The basic nature of the revisional proceedings has been explained by
a three Judge Bench of the Supreme Court in Shankar Ramchandra
Abhyankar vs. Krishnaji Dattatraya Bapat1
as under:-
“6. Now when the aid of the High Court is
invoked on the revisional side it is done because it
is a superior court and it can interfere for the
purpose of rectifying the error of the court below.
Section 115 of the CPC circumscribes the limits of
that jurisdiction but the jurisdiction which is being
exercised is a part of the general appellate
jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power
conferred by the Statute; basically and
fundamentally it is the appellate jurisdiction of the
High Court which is being invoked and exercised
in a wider and larger sense.
14. While provisions conferring appellate jurisdiction (in
narrower sense) on a superior Court are treated as conferring right of
appeal on an aggrieved litigant, the provisions conferring revisional
jurisdiction on a superior Court are not treated as conferring a right of
revision on the litigant. Revisional jurisdiction is treated as
supervisory jurisdiction with power of superintendence to be
exercised in the discretion of the Superior Court. That is why subsection (1) of Section 34 provides that an appeal shall lie
from a decree or order made by the Court of Small Causes to a
Bench of two Judges of the said Court, but sub-section (4) of the
1 AIR 1970 SC 1
Kambli / abs 21 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
same Section ( like Section 115 of the CPC) does not say that a
revision shall lie from an order of the Small Causes Court. Section
34(4), like Section 115 of CPC, merely enables the superior
Court to call for the record of a subordinate Court and
make such orders in the case as the revisional Court
thinks fit in cases of error of the nature contemplated under the
provision and subject to other limitations contained in the provision.
Even though the revisional power of the High Court may be
exercised either suo motu or when a jurisdiction is invoked by a
litigant, nevertheless, revisional jurisdiction is quite different in
quality, content and nature from appellate jurisdiction. While a
person who institutes a suit has a vested right of appeal as per the law
on the date of institution, he has no vested right of revision since
revision is not a continuation of suit and relates to procedural law.
[District Judge Jabalpur v. Krishna Deo Singh, 1995 AIHC 2404,
M.P. High Court as cited in “Code of Civil Procedure” by Justice
C.K. Thakker, 2002 Edition, Vol. 2, pp. 652-653, 665].
15. What weighed with the Supreme Court in the three cases
relied upon by the writ petitioners for reading down the word “order”,
(though the word “order” is wide enough to include procedural order
which does not decide or affect the rights and liabilities of parties to
the suit) was that the wider interpretation of the expression “order”
would result into harassment of parties on account of endless
expenses and delay by appeals from such procedural orders and also
that it is open to any party to set forth the error, defect or irregularity,
if any, in such an order as a ground of objection in his appeal from
the final order in the main proceedings.
Kambli / abs 22 of 75
::: Downloaded on - 03/06/2013 06:51:22 :::Bombay High Court
WP-9562-2010
For determining how wide is the net of revisable orders,
the same logic should apply while interpreting the word “order” in
section 34(4) of the New Rent Act, more particularly when section
38 of the new Rent Act lays down a time limit of twelve months for
disposal of a suit under the New Rent Act. Section 38 reads as
under:-
38. Time limit for disposal of suits,
proceedings or appeals- Notwithstanding anything
contained in this Act or in any other law for the
time being in force-
(a) a suit or proceeding under this Act
shall be heard and disposed of as expeditiously as
possible and endeavour shall be made to dispose
of the case, as far as may be practicable, within a
period of twelve months from the date of service of
summons, or as the case may be, notice on the
defendant;
(b) an appeal against the decree or order
made by the Court, shall be heard and disposed of
as expeditiously as possible and endeavour shall
be made to dispose of the appeal, as far as may be
practicable, within a period of six months from
the, date of service of notice of appeal on the
respondent.
(emphasis supplied)
Thus, legislative anxiety for expeditious hearing and disposal of a
suit and expectation from the Court to make an endeavor to dispose
of a suit within a period of twelve months from the date of service of
summons would, prima facie, indicate that the same Legislature
could not have been in favour of providing very wide net of revisable
orders, which the wide language of Section 34(4) may otherwise
suggest.
Kambli / abs 23 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
16. The first question referred by the learned Single Judge
pertains to be scope and ambit of power of revision under section
34(4) of the New Act and the second question pertains to question of
maintainability of revision application under the same provisions.
Though these two questions may apparently seem to be logically
distinct and therefore, requiring separate treatment, we cannot
overlook that if the net of revisable orders is taken as very wide and
the scope and ambit of the power of revision under the above
provisions is also taken as very wide, it will be impossible for the
trial courts to complete expeditiously trial of suits under the Rent
Acts as contemplated by Section 38 of the New Rent Act.
Principles for interpretation of statutes
17. The emphasis of the learned counsel for the respondent
is on the text of sub-section (4) of Section 34 of the Maharashtra
Rent Control Act and sub-section (3) of Section 29 of the Bombay
Rent Act. It is submitted that since the power of revision is conferred
in respect of a decree or an order in any suit or proceeding where no
appeal lies under Section 34(1) of the New Act and Section 29(3) of
the Old Act, all non-appeable orders would be revisable. The learned
counsel accordingly invoked the principle of literal interpretation of
statutes.
18. In National Insurance Co. Ltd. v/s. Laxmi Narain Dhut1
the Supreme Court has noted that what was known as the “Golden
rule” of interpretation of statute according to grammatical or literal
1 (2007) 3 SCC 700 (para 27)
Kambli / abs 24 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
meaning of the word has given place to the “rule of legislative
intent”. The world over, the principle of interpretation according to
the legislative intent is accepted to be more logical. The Supreme
Court has also observed in the said decision as under:-
33. It is also well settled that to arrive at the
intention of the legislation depending on the objects for
which the enactment is made, the Court can resort to
historical, contextual and purposive interpretation
leaving textual interpretation aside.
34. Francis Bennion in his book "Statutory
Interpretation" described "purposive interpretation" as
under:
"A purposive construction of an enactment
is one which gives effect to the legislative
purpose by-
(a) following the literal meaning of the
enactment where that meaning is in
accordance with the legislative purpose,
or
(b) applying a strained meaning where the
literal meaning is not in accordance with
the legislative purpose."
35. More often than not, literal interpretation
of a statute or a provision of a statute results in
absurdity. Therefore, while interpreting statutory
provisions, the Courts should keep in mind the
objectives or purpose for which statute has been
enacted. Justice Frankfurter of U.S. Supreme Court in
an article titled as Some Reflections on the Reading of
Statutes (47 Columbia Law Reports 527), observed
that, "legislation has an aim, it seeks to obviate some
mischief, to supply an adequacy, to effect a change of
policy, to formulate a plan of Government. That aim,
that policy is not drawn, like nitrogen, out of the air; it
is evidenced in the language of the statutes, as read in
the light of other external manifestations of purpose".
Kambli / abs 25 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
19. The principle of purposive interpretation has also been
accepted by a Constitution Bench of the Supreme Court in
C.B.Gautam v/s. Union of India1
by relying upon the decision in
K.P.Verghese v/s. Income Tax Officer, Ernakulam2
, wherein the Court
observed that the task of interpretation of a statutory enactment is not
a mechanical task and quoted with approval the following famous
words of Judge Learned Hand of the United States of America:
“...it is true that the words used, even in their literal
sense, are the primary and ordinarily the most reliable
source of interpreting the meaning of any writing; be it
a statute, a contract or anything else. But it is one of
the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have
some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest
guide to their meaning.”
Exposition of the principles
20. There is no dispute about the proposition that for the
purpose of determining maintainability of revision under section
34(4) of the Maharashtra Rent Act, while “decree” finally determines
the substantive rights of parties at the conclusion of the trial, “order”
at the interlocutory stage indicates a formal decision affecting rights
of the parties.
1 (1993) 1 SCC 79
2 (1981) 4 SCC 173
Kambli / abs 26 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
To the question “which rights and liabilities of parties
are to be affected by revisable orders”, there could be three logical
answers:-
(i) rights and liabilities only under the Rent Act;
(as held in Sukhdev's case)
(ii) rights and liabilities under any law including any
statute, general law and even procedural law;
(as held in Pacific Engineering case)
(iii) rights and liabilities under the Rent Act and any
other substantive law, but not under any
procedural law;
(as commends to us)
21. The Legislature while enacting the Bombay Rent Act in
1947 did not incorporate any specific provision laying down the
procedure for conducting suits and proceedings under the Rent Act,
though section 31 and section 49(2)(e) left it to the rule making
authority to prescribe the rules laying down the procedure for trying
such suits and proceedings. Same provisions are to be found in
section 37 and section 57(2)(e) respectively in the New Rent Act of
1999.
“37. Procedure of Courts.- The courts specified
in sections 33 and 34 shall follow the prescribed
procedure in trying and hearing suits, proceedings,
applications and appeals and in executing orders
made by them.”
Kambli / abs 27 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
“57. Power to make rules.- (1) ….
(2) In particular, and without prejudice to the
generality on the foregoing provisions, such rules
may provide for -
(e) the procedure to be followed in trying or
hearing suits, proceedings including
proceedings for execution of decrees and
distress warrants, applications, appeals and
execution of orders.”
In the Rent Acts, the only reference to the Code of Civil Procedure is
to be found in proviso (I) to sub-section (1) of Section 29 of Old Rent
Act, which proviso was added in the year 1953. Reference to the
Code of Civil Procedure in the above proviso is only for the limited
purpose of ensuring that inspite of the wide language of sub-section
(1) of Section 29 in the Old Act and sub-clause (1) in Section 34 in
the New Act, an appeal shall not lie from a decree or an order made
in any suit or proceeding in respect of which no appeal lies under the
Code of Civil Procedure, 1908. Thus, the Legislature clearly gave its
indication for curtailing the previous right of appealing against any
decree or order, to only that decree or order in respect of which an
appeal lies under the Code of Civil Procedure. All that sub-section (3)
of Section 29 and sub-section (4) of Section 34 provide is that the
revisional jurisdiction cannot be exercised by the appellate bench of
the Small Causes Court in Mumbai or the District Courts in other
Districts, in a case where appeal lies. That does not mean that
revisional jurisdiction is to be exercised in respect of all orders which
are not appealable. The question of maintainability of revision,
therefore, has to be decided without being influenced by the wide
Kambli / abs 28 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
language of sub-section conferring revisional jurisdiction on the
appellate bench of the Small Causes Court or the District Court, as
the case may be.
22. In this context the following observations of the
Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania1
on
interpretation of the word “judgment” for the purpose of determining
maintainability of appeal under Clause 15 of the Letters Patent are
quite apposite:-
“114. In the course of the trial, the Trial
Judge may pass a number of orders whereby some
of the various steps to be taken by the parties in
prosecution of the suit may be of a routine nature
while other orders may cause some inconvenience
to one party or the other, e.g., an order refusing an
adjournment, an order refusing to summon an
additional witness or documents, an order refusing
to condone delay in filing documents, after the first
date of hearing an order of costs to one of the
parties for its default or an order exercising
discretion in respect of a procedural matter against
one party or the other. Such orders are purely
interlocutory and cannot constitute judgments
because it will always be open to the aggrieved
party to make a grievance of the order passed
against the party concerned in the appeal against
the final judgment passed by the Trial Judge.
115. Thus, in other words every
interlocutory order cannot be regarded as a
judgment but only those orders would be judgments
which decide matters of moment or affect vital and
valuable rights of the parties and which work
1 AIR 1981 SC 1786
Kambli / abs 29 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
serious injustice to the party concerned. Similarly,
orders passed by the Trial Judge deciding question
of admissibility or relevancy of a document also
cannot be treated as judgments because the
grievance on this score can be corrected by the
appellate court in appeal against the final
judgment.
(emphasis supplied)
For the same reasons, alleged non-compliance with the
provisions of the Code of Civil Procedure or any other procedural
law cannot give rise to a right of revision, because the grievance
against such violation can be made in appeal against the final decree.
23. While we appreciate that for an order to be revisable
under Section 29(3) of the old Rent Act and Section 34(4) of the New
Rent Act, the order must not necessarily relate to recovery of
possession of the premises or recovery or fixing rent/standard rent,
mesne profits etc., it does not mean that any order which may be
passed in course of the trial and which is not appealable is per se
revisable. Though the language of Section 29(3) and Section 34(4) is
very wide, a revisable order would not include interlocutory orders,
which are merely procedural and do not affect the substantive rights
or liabilities of parties. Such a restricted interpretation is required to
be placed on the word “order” in Section 29(3) of the Old Rent Act
and Section 34(4) of the New Rent Act for the same reason for which
restricted interpretation has been placed by the Supreme Court on the
word “order” in Section 38 of the Delhi Rent Control Act, 1958 in
Central Bank of India v/s. Gokal Chand1
, and on the word “order” in
1 AIR 1967 SC 799
Kambli / abs 30 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Section 34 of the Delhi & Ajmer Rent Control Act, 1958 in Bant
Singh Gill vs. Shanti Devi and others1
. The Supreme Court has
consistently held in the aforesaid cases that if going by wide
language, the word “order” is interpreted liberally to include
procedural orders, which do not decide rights and liabilities of parties
to the suit, such wider interpretation would result into harassment of
party on account of delay and expenses of the appeal and also that it
is open to any of the parties to canvass the error, defect or
irregularity, if any, in such an order as ground of objection in his
appeal from the decree/final order in the main proceedings.
24. In our view, revisions under the Rent Acts would be
maintainable only against those orders which affect substantive rights
or liabilities of parties, i.e. rights or liabilities under the Rent Act or
any other substantive law, but not under a procedural law.
ANALYSIS OF CASE LAW
25. We now refer to the case law in chronological order:
Hemchand v/s. Subhkaram's case2
Though this case decided in 1966 did not directly deal
with the controversy arising in this reference, it is required to be
considered at length in view of heavy reliance placed by Justice
Vazifdar in Pacific Engineering on certain observations made in this
judgment.
1 Air 1967 SC 1360
2 AIR 1967 Bom.361
Kambli / abs 31 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
The petitioner-landlord filed an eviction suit against the
respondent-tenant in the Small Causes Court on the ground of default
in payment of rent for more than six months. An exparte decree was
passed. The decree was executed and the landlord obtained
possession. The tenant filed an application for setting aside the
exparte decree and prayed for restoration of possession. That
application was rejected. The tenant, therefore, preferred an appeal
before the bench of two Judges of Small Causes Court. The appeal
Bench allowed the appeal and set aside the order of the trial court and
remanded the case to the trial court for hearing and restored
possession during pendency of the suit. Against that decision, the
plaintiff-landlord filed a civil revision application before the High
Court.
26. The first contention was that once the Bombay Small
Causes Court passed the exparte decree it ceased to exercise
jurisdiction under Section 28 of the Bombay Rent Act. The provisions
of Section 104 and Order 43 Rule 1 of CPC are not applicable to the
Bombay Small Causes Court. Consequently, no appeal would lie
from an order passed by the Bombay Small Causes Court on an
application made under Order 9 Rule 13 of CPC for setting aside an
exparte decree.
The above contention was rejected by V.S.Desai, J. on
the ground that the exparte decree, though passed by the Small
Causes Court, was not passed by it exercising jurisdiction under the
Presidency Small Causes Court Act, but as a Special Court under the
Rent Act. An application to set aside an exparte decree can be made
Kambli / abs 32 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
only to the Court which had passed it and to no other Court. The
Special Court under the Rent Act having passed the exparte decree,
an application to set aside the decree could be made only to that
Court.
27. It was then argued by the learned counsel for the
petitioner (plaintiff-landlord) that :-
“the jurisdiction of the Special Court under Section
28 was to entertain a suit relating to recovery of
rent or possession or to decide any question relating
to the recovery of rent or possession. Its jurisdiction
as a Special court under the Rent Act is confined
only to dealing with questions relating to the
recovery of rent or possession of the suit premises
and that jurisdiction came to an end as soon as the
ex parte decree for eviction was passed in the said
suit in the exercise of the said jurisdiction. The
application, which was made under Order 9 rule 13
of the Civil Procedure Code had not for its subject
matter any question relating to the recovery of rent
or possession of the premises; the subject-matter of
the said application was whether the decree should
be set aside or not. In entertaining the said
application and deciding it, the Special Court did
not exercise jurisdiction under Section 28 of the
Rent Act. Orders of the Special Court, which are
made appealable under Section 29 of the Act are
orders, which are made by such court exercising
jurisdiction under Sec. 28 of the Rent Act and since
in making the order on the application to set aside
the ex parte decree, the Special Court was not
exercising jurisdiction under Section 28 of the Act,
the order is not appealable.”
Kambli / abs 33 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
28. Justice V.S .Desai rejected the above argument by
holding in paragraph 10 that entertainment of the application for
setting aside an exparte decree and the order made thereon by the trial
Court was in its character as a Special Court exercising jurisdiction
under Section 28 of the Act, obviously, because an application to set
aside the exparte decree has to be entertained, heard and decided by
the same Court i.e. by the Special Court exercising jurisdiction under
Section 28. It is in this context that the following observations made
by Justice V.S.Desai in paragraph 9 of the judgment must be read.
Since those observations have been misunderstood, we would like to
set them out in their entirety.
“The Bombay Small Causes Court exercising
jurisdiction under Section 28 is a Special Court set
up by the said section and appealability attaches to
its decree or order under Sec. 29 when it makes a
decree or order as such court. No doubt the
jurisdiction of the Special Court set up under
Section 28 is confined to matters specified therein,
which include, among others, the entertaining and
trying of suits or proceedings between a landlord
and a tenant relating to the recovery of rent or
possession of certain classes of premises. But once
the Special Court entertains and tries a suit or
proceeding which falls within its exclusive
jurisdiction, all orders made by it in the said suit or
proceeding or in relation thereto, are made by it as
Special Court, that is,. a court exercising
jurisdiction under Section 28 and not only such of
them as actually relate to the recovery of rent or
possession. Appeal provided under Section 29 of the
Act is not confined only to the final decree or order
or to an order, which relates to recovery of rent or
possession but it lies against all orders except those
Kambli / abs 34 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
which are excluded under the proviso to the section.
Item (1) from the proviso read with the main section
would show that interlocutory and other orders
which the Special Court can pass in entertaining,
trying and deciding matters within its exclusive
jurisdiction which are appealable under the
provisions of the Code of Civil Procedure will be
appealable under Section 29 of the Rent Act. The
argument of the learned advocate, therefore, that
the order is not appealable because it does not
relate to the recovery of rent or possession, cannot
be sustained. It is also not possible to accept the
argument that the jurisdiction under Section 28 of
the Court ceased on the passing of the ex parte
decree and the order made by it on the application
for setting aside the ex parte decree could not,
therefore, be treated as made by it exercising
jurisdiction under Section 28 of the Act.
(emphasis supplied)
29. In Hemchand case (supra), ultimate conclusion of
V.S.Desai J. was correct, because once an exparte decree was passed
by a Special Court under Section 28 of the Bombay Rent Act, an
application for setting aside the exparte decree could be entertained
only by that Special Court. Justice V.S.Desai, therefore, rightly
rejected contention of the respondent that the jurisdiction under
Section 28 of the Special Court ceased on passing of the exparte
decree and that the order made by it on the application for setting
aside the exparte decree was by a Small Causes Court not acting as a
Special Court. So also the contention that the subject matter of the
exparte decree was not regarding the rights under the Bombay Rent
Act was required to be rejected. The subject matter of the application
for setting aside was an exparte decree passed on the basis of the
provisions of the Bombay Rent act. Hence, the appeal against that
Kambli / abs 35 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
exparte decree or an appeal against an order rejecting the application
for setting aside an exparte decree was certainly maintainable under
Section 29(1) of the Act. The right of the tenant not to be evicted
from the tenanted premises, except in accordance with the provisions
of the Bombay Rent Act, was determined by the exparte decree. The
order rejecting the application for setting aside the exparte decree
was, thus, not a mere procedural order, but an order having direct
consequence of eviction of the tenant from the tenanted premises
without the tenant getting an opportunity to assert his rights under the
Rent Act and contesting the plaintiff-landlord's alleged rights under
the Rent Act.
30. We reserve our comments on the underlined observations
of V.S. Desai, J. at the later stage of this judgment.
Natverlal v/s.Khodaji's case
31. The question came up for consideration before a
Division Bench of the Gujarat High Court in Natvarlal v. Khodaji,1
where in a suit governed by the provisions of the Bombay Rent Act
as applicable to Gujarat, the Small Causes Court at Ahamadabad
passed an exparte decree in favour of the landlord. The defendant's
application for setting aside exparte decree was rejected. The
defendant filed a civil revision application before the Gujarat High
Court challenging this order. It was contended on behalf of the
plaintiff-landlord that the revision application was not competent as
an appeal would lie to the Bench of two Judges of the Small Causes
Court under Section 29(1) of the Bombay Rent Act. The Division
1 (1967) 8 Gul.L.R. 772
Kambli / abs 36 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Bench upheld that contention and agreed with the reasoning of
learned Single of this Court in Hemchand M.Singhania v/s.
Subhkaran Nandlal Bargara1
, by observing as under:-
“Once the Special Court entertained and tried a suit
or a proceeding which fell within its exclusive
jurisdiction, all consequential and incidental orders
made by such a Court in such a suit or proceeding
must be regarded and considered as made by the
Special Court exercising jurisdiction under section
28 of the Rent Act and an appeal provided under
section 29 of the Act lies against all orders made in
such proceedings except those which are excluded
under the proviso to section 29. We are, therefore,
with respect, unable to accept the reasoning adopted
by Raju, J., in the case of (R.C.Trust v. Ramchandra
J. Agarval) VII G.L.R., 401 and we are of the view
that the case was not correctly decided. It may, be
mentioned that in this view of ours, we are supported
by the decision of the High Court of Maharashtra in
(Hemchand M.Singhania v. Subhkaran Nandlal
Bargara), 69 Bom.L.R. 857 and we are in respectful
agreement with the views and reasoning adopted in
that case.”
32. In R. C. Trust v. R. J. Agarwal2
, Justice V.B.Raju of the
Gujarat High Court had taken a view that once an exparte decree was
passed under Section 28 of the Bombay Rent Act, the jurisdiction of
the Special Court came to an end and the subsequent order passed by
the Small Causes Court setting aside the exparte decree was not an
order under Section 28 of the Rent Act, but was an order under order
9 Rule 13 of the CPC, and therefore appeal was not maintainable. In
Natvarlal's case, the Division Bench rightly did not accept the above
view of V.B. Raju J.
1 AIR 1967 Bom. 361
2 (1966) 7 Guj LR
Kambli / abs 37 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Maharana Mills' case
33. Thereafter, in Maharana Mills' case, the question again
came up for consideration before a learned Single Judge of Gujarat
High Court ( Coram S.H.Sheth, J.) in Shri Maharana Mills Pvt.Ltd. v.
Harvadan Manharrai and ors1
,. The respondent-landlord filed a suit
for recovery of possession of the suit premises on grounds of
unlawful subletting and irregularity in payment of rent and
consequent breach of the term of tenancy. Thereafter, application for
amendment of the plaint was allowed for adding one more ground of
eviction. In his further written statement to the amended plaint, the
defendant raised a plea that standard rent of the suit premises be
fixed. The learned trial Judge accordingly framed an issue for fixing
of standard rent. The plaintiff, thereafter, made an application for
deletion of that issue. That application was rejected. The plaintiff
filed a revision application before the District Court challenging that
order. The District Court allowed that revision application and
directed that additional issue be deleted. That order of the District
Court was challenged before the High Court in civil revision
application under section 115 of the CPC.
34. Justice S.H. Sheth formulated the following question:
“Whether a revision application lies to the District
Court against an order refusing to delete an issue
raised in a suit, which is governed by the Bombay
Rent Act.”
1 AIR 1972 Gujarat 296
Kambli / abs 38 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
After examining the scheme of the Bombay Rent Act
and rules framed thereunder, Justice S.H.Sheth held that section 29(3)
read with section 31 and rule 16 did not confer upon the District
Court revisional jurisdiction in matters which are purely procedural
and which did not bear imprint of provisions of the Bombay Rent
Act. The learned Judge held that following tests may be applied for
determining whether an interlocutory order made in a suit governed
by the Bombay Rent Act is revisable by the District Court.
(i) What is the subject matter of the order?
Is it an order, subject matter of which is governed by the
provisions of the Bombay Rent Act, or
(ii) Does the order, whose revision is sought, affect
substantive rights of the aggrieved party under the
Bombay Rent Act.
If the answer is in the affirmative, then revision will be
maintainable;
and if the answer is in the negative then section 29 will
have no application.
35. The learned Judge then gave following instances of
procedural orders, which do not affect the substantive rights of the
parties under the Bombay Rent Act or the subject matter of which is
not governed by provisions of the Bombay Rent Act, even though the
suit is governed by the Bombay Rent Act:
(1) An order granting or refusing leave to amend the
plaint or written statement;
(2) An order made for production of documents or
discovery or inspection;
Kambli / abs 39 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
(3) An order directing a plaintiff or a defendant to
furnish better and further particulars;
(4) An order issuing or refusing to issue a
commission for examination of witnesses.
The learned Judge held that these are orders which may
be made under the Code of Civil Procedure in a suit governed by the
Bombay Rent Act, but the subject matter of orders cannot be said to
be governed by provisions of the Bombay Rent Act, as such orders do
not affect the substantive rights of parties under the Bombay Rent
Act.
36. The learned Judge then gave the following illustrations
of orders which satisfy the aforesaid tests and therefore, appealable,
even though orders are made under the Code of Civil Procedure:-
(a) an order refusing to set aside an exparte decree on
an application made for that purpose in a suit governed
by the Bombay Rent Act;
(b) an order refusing to restore a suit to file, which
was earlier dismissed and which was governed by the
provisions of Bombay Rent Act.
37. And finally the learned Judge held as under:-
6. It is true that section 29(3) uses the
expression “order”. Orders may be interim or final.
Orders may be such which bear indelible imprint of
the Bombay Rent Act or they may be such which do
not. If there is an interim order or an interlocutory
order which is made in a suit governed by the
Bombay Rent Act and if it affects the substantive
Kambli / abs 40 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
rights of a party under the Bombay Rent Act, the
subject-matter of which is governed by the Bombay
Rent Act, such an order is revisable by the District
Court under Section 29(3). In my opinion,
therefore, purely procedural orders which do not
affect the substantive rights of a party under the
Bombay Rent Act or the Rules made thereunder, or
the subject-matter of which is not governed by the
Bombay Rent Act or the Rules made thereunder are
not the orders which attract the revisional
jurisdiction of the District Court under Section 29
of the Bombay Rent Act.
38. While we agree with the reasons given by Justice S.H.
Sheth for coming to the conclusion that procedural orders to be
revisable must affect substantive rights of parties, we see no reason
why the rights must be under the Rent Act alone and not under any
other substantive law. In fact, we do not agree with the view of the
learned judge that an order refusing leave to amend the plaint or
written statement will not be revisable. That question did not arise
before S.H. Sheth, J. We will, however, give our detailed reasons for
this view while discussing Sukhdev's case.
Madanlal Mulchand Soni's case:
39. In Madanlal Mulchand Soni v. Mainkichand Dhanraj
Gugle1
, Justice B.A. Masodkar of this Court followed the aforesaid
judgment of Justice S.H. Sheth . The order passed by the trial Judge
for issuing process to the income-tax officer at the behest of the
defendant was subjected to revision application before the District
Court under section 29(3) of the Bombay Rent Act. The District
1 1983(1) Bom.C.R. 172
Kambli / abs 41 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Court dismissed the revision as incompetent. Justice Masodkar
upheld that order after making following observations:
“..... It is not as if each and every order made by
the trial Court is intended to be subjected to the
process of revision under sub-section (3). Mere
interlocutory or procedural orders are not the
orders which can be taken up and challenged
under section 29(3) of the Rent Act, unless the
orders formally adjudicate and affect rights of the
parties, including those in the matters of
procedure. It is difficult to conceive that the
remedy under section 29(3) of the Rent Act would
be available, in the context of the entire scheme of
section 29, it appears that the orders, which under
the Rent Act determine substantively the rights of
the parties and because of that are orders or
decrees as such, are in the contemplation of the
legislature. Sub-section (3) does not style it as
power of revision. It is a power akin to it
circumscribed by conditions enacted therein, one
such condition being it is available against only
otherwise non-appealable “decree” or “order”.
Wherever the words “decree or orders” are used
in section 29, it is apparent that it intends to
indicate formal decision affecting rights of the
parties.”
(emphasis supplied)
Justice Masodkar held in the above case that the word
“order” intends to indicate formal decision affecting rights of the
parties, but while rightly reaching the conclusion that the order of the
trial court for issuing process to the Income-tax Officer at the behest
of the defendant was a procedural order, which did not affect the
substantive rights of the parties, erred in making wider observations
to include rights in the matters of procedure, which observations were
obviously not in line with the conclusion.
Kambli / abs 42 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Sukhdev's case1
40. In Sukhdev Prasad Raghubir v/s. Rambhujarat
Ksharmpati2
, the petitioner-landlord filed a suit for eviction of the
respondent-tenant. During pendency of the suit, amendment of the
written statement was permitted. Thereafter, the plaintiff filed an
application proposing to amend the plaint by raising a ground that
the eviction should also be ordered since the defendant-tenant had
denied in the amended written statement the plaintiff's title to the
suit property. The amendment application came to be rejected by the
trial Court. Against that order the plaintiff filed a revision petition
before the Bench of Court of Small Causes under Section 29(3) of
the Old Rent Act. The revision petition was rejected as not
maintainable. When the matter came up for hearing before a learned
Single Judge, in view of importance of question about
maintainability of the revision petition, the matter was referred to a
larger Bench. That is how the Division Bench of this Court (Coram:
C.S. Dharmadhikari and S.P. Kurdukar, JJ.) heard and decided the
writ petition. The Division Bench held that the appellate bench of the
Small Causes Court was right in holding that revision petition was
not maintainable, but on merits of the challenge to the order of the
trial Court rejecting the application for amendment of the plaint, the
Division Bench held that the amendment sought by the plaintiff in
the plaint was obviously consequential to the amendment in the
written statement and the impugned order of the trial Court was
contrary to the well established principles of law and caused
1 1982 (1) Bom.C.R.832
2 1983-Mh.L.J.9 = AIR 1983 Bom.25
Kambli / abs 43 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
miscarriage of justice. Hence, the writ petition was allowed and the
application for amendment filed by the plaintiff was allowed.
41. The Division Bench considered at length the question
about maintainability of the revision after tracing the legislative
history of Section 29 of the Old Rent Act and observed as under:-
“Section 29 came to be amended by Bombay Act
No.61 of 1953 whereby proviso to sub-section (1)
and sub-section (3) were inserted in section 29. The
relevant clause of the Statement of Objects and
Reasons, reads as under:-
“The right of appeal has been curtailed by
eliminating unimportant appeals, and providing
revisional procedure in such cases”
Therefore, if section 29(3) is read with the
Statement of Objects and Reasons, it is quite
obvious that while curtailing the right of appeal by
eliminating unimportant appeals, the legislature
wanted to provide revisional procedure in those
matters only. The intention of the Legislature was
not to expand the scope of revisional jurisdiction of
the Court of Small Causes.”
42. The Division Bench relied upon the aforesaid three
decisions of the Supreme Court and then made the following
observations:
“In our opinion, these observations of the
Supreme Court aptly apply to the present case
also. If the words used in S. 29(1) or (3)
interpreted in its context, then the words "any
order" will not include in its (their?) import the
procedural orders, which do not affect the right
and liabilities of the parties. Therefore,
Kambli / abs 44 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
obviously no revision petition can lie against a
mere procedural order. It is not disputed that
order passed in the present case rejecting the
application for amendment was an interlocutory
order which does not decide finally the right and
liabilities of the parties to the suit. Therefore in
our opinion the Bench of Small Cause Court was
right in holding that the revision petition was not
maintainable.”
43. After referring to a decision of S.H. Sheth, J. of Gujarat
High Court in Maharana Mills Pvt.Ltd. v. Harvadan Maharrai &
ors.1
, the Division Bench observed thus:-
“After analysing the relevant provisions of the Rent
Act as well as the Rules framed thereunder, it is held
by the Gujarat High Court in Maharana Mills case
that purely procedural orders which do not affect the
substantive rights of a party under the Bombay Rent
Act or the rules made thereunder the subject-matter
of which is not governed by the Rent Act or the rules
made thereunder are not the orders which attract the
revisional jurisdiction of the District Court under
section 29(3) of the Act.”
44. The Division Bench also referred to decisions of three
learned Single Judges of this Court [Sapre J., Kantawala, CJ. and
Masodkar J.] from 1977 onwards taking the view that order
dismissing application for amendment of the plaint cannot be treated
as affecting substantive rights of the parties under the Rent Act and
that procedural orders like order granting or rejecting amendment are
not revisable. After considering all these decisions, the Division
Bench made the following observations:
1 AIR 1972 Guj.226
Kambli / abs 45 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
“7. Therefore, all through a consistent view has
been taken by this Court that purely procedural
orders which do not affect the substantive rights of
the parties are not revisable under Section 29(3) of
the Bombay Rent Act. This interpretation, with
which we respectfully agree, is consistent with the
intention of the Legislature as expressed in
Statement of Objects and Reasons. It was not the
intention of the Legislature to widen the scope of
appeal or revision. by amending Act, right of appeal
was curtailed by eliminating unimportant appeals
and providing revisional procedure in such cases.
By adding proviso to Section 29(1) the Legislature
curtailed the right of appeal by laying down that no
appeal shall lie form the orders enumerated in the
said proviso. It is well settled that the normal
function of a proviso is to except something out of
the enactment or to qualify something enacted
therein which but for the proviso would be within
the purview of the enactment. The proviso to
Section 29(1) was deemed necessary because but
for the proviso orders enumerated in Clauses (I) to
(IV) would have been appealable under Section
29(3). [(sic-Section 29(1)] Therefore, by adding
proviso to sub-section (1) of S. 29, it was intended
by the Legislature that right of appeal should be
curtailed by eliminating unimportant appeals and in
such cases only revisional procedure should be
provided, by addition sub-section (3). If under
Section 29(1) no appeal could lie against the
procedural orders then obviously by an indirect
method a further forum was not intended to be
provided by enacting sub-section (3). Therefore, in
our view, the consistent view taken by the single
Benches of this High Court lays down the correct
law on the subject.”
(emphasis supplied)
Kambli / abs 46 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
45. We approve the principles laid down by Justice S.H.
Sheth in Maharana Mills' case (supra), and by the Division Bench of
this Court in Sukhdev's case (supra) that for an order to be revisable
under Section 29(3) of the Bombay Rent Act and therefore also under
Section 34(4) of the Maharashtra Rent Control Act, the order must
not be a mere procedural order, but it must determine or affect the
substantive rights and liabilities of the parties.
46. In Sukhdev's case, the landlord had prayed for eviction
for failure in payment of rent as one of the grounds and the tenant in
his amended written statement denied the plaintiff's title. The
plaintiff-landlord filed an application proposing to amend the plaint
by raising a ground of denial of the plaintiff-landlord's title. The
subject matter of the application for amendment of the plaint was
definitely governed by the provisions of the Bombay Rent Act and,
therefore, the order rejecting the application did affect the plaintiff's
substantive rights under the Rent Act. The Division Bench was,
therefore, not right in taking the view that an order refusing leave to
amend the plaint was not a revisable order.
47. We may hasten to add that an order granting leave to
amend the plaint or written statement would not be revisable, because
that order by itself does not affect the rights and liabilities of the
parties, which are going to be decided at the trial, where evidence
would be led on the basis of the amended pleadings and the Court
would finally determine the rights and liabilities of the parties in the
final judgment in the suit.
Kambli / abs 47 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Merely because after an application for amendment of
the plaint is rejected, the plaintiff-landlord may be in a position to file
another suit for eviction on another ground, it would not mean that
the order does not determine or even affect the rights and liabilities of
the parties under the Rent Act. The order rejecting the application for
amendment of the plaint, does determine, in so far as that particular
suit is concerned, that the plaintiff is not entitled to invoke another
ground of eviction in that particular suit. Similarly, where the Special
Court under the Rent Act refuses leave to amend the written
statement, wherein the tenant is seeking by amendment to add any
defences arising from the provisions of the Bombay Rent Act or
under any other substantive law, such an order would be revisable.
48. In Maharana Mills' case, the order of the trial Court
rejecting the application for deleting an issue did not affect the
substantive rights of the parties, because evidence would be led by
the parties at the trial and the Court would finally determine the
rights and liabilities of the parties qua that issue in the final
judgment. On the other hand, if the trial Court had passed the order
for deleting the issue of standard rent, it would have definitely
affected the substantive rights of the tenant and substantive liabilities
of the landlord under the Rent Act. Hence, the order refusing to
delete the issue was not revisable.
Kambli / abs 48 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Pacific Engineering Co. Pvt.Ltd.'s case1
49. This decision requires detailed consideration. The
plaintiff-Pacific Engineering had filed R.A.E. Suit for eviction of the
defendant on the ground that the plaintiff had granted to the first
defendant (respondent in the revision) a licence to use and occupy the
suit flat, but that defendant unlawfully sublet the flat and gave it on
licencee or parted with possession of the suit flat to the second
defendant. The plaint proceeded on the assumption that the
defendant was a protected licence or a deemed tenant. The plaintiff,
then, applied for unconditional withdrawal of the suit. The Small
Causes Court rejected that application. That order came to be
challenged in the revision application under Section 115 of the CPC
before the High Court. The respondent in the revision (the first
defendant in the suit) contested the CPC revision on the ground that a
revision was maintainable before the appellate bench of the Small
Causes Court under Section 29(3) of the Bombay Rent Act. The
plaintiff contended that a revision was not maintainable before the
appellate Bench under Section 29(3) of the Bombay Rent Act,
because unconditional withdrawal of the suit was a matter governed
by Order 23 Rule 1 of the CPC and, therefore, rejection of the
application under Order 23 Rule 1 of the CPC did not decide any
rights or liabilities under the Bombay Rent Act or under the Bombay
Rent Control Rules.
50. Justice Vazifdar held that interlocutory orders that
are purely procedural and do not affect the substantive rights of
the aggrieved parties are neither appealable nor revisable by the
1 2005 (1) Bom.C.R.427
Kambli / abs 49 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
trial Court under Section 29 of the Bombay Rent Act. But an
order on an application under Order 23 Rule 1 of the CPC to
withdraw a suit unconditionally affects the substantive rights of the
aggrieved party. An order rejecting such application bears an imprint
of the provisions of the Bombay Rent Act and Bombay Rent Control
Rules. On that ground, revision before the appellate Bench of Small
Causes Court was held to be maintainable and on that basis the CPC
revision was dismissed by the High Court as the alternative remedy
was available before the appellate Bench of Small Causes Court.
51. In our opinion, the aforesaid findings of Justice Vazifdar
were absolutely correct, because if an application for unconditional
withdrawal of the suit is granted, the plaintiff is precluded under
Order 23 Rule 4 of CPC from instituting any fresh suit in respect of
such subject matter, (subject matter of the suit was assertion of the
plaintiff's right as a landlord to get the defendant evicted under the
Bombay Rent Act.). Withdrawal of the suit would, therefore,
preclude the plaintiff from asserting his right for eviction of the
defendant on the ground alleged in the plaint. The order on the
application for withdrawal of the suit would, therefore, affect the
rights and liabilities of the parties under the Bombay Rent Act. In
other words, when a plaintiff applies for unconditional withdrawal of
a suit under Order 23 Rule 1 of CPC, the order granting leave would
finally conclude the proceeding under the Rent Act and in that sense
would bring to an end the proceeding under the Bombay Rent Act
and would preclude the plaintiff from filing another suit against the
same defendant on the same subject matter. If such an application is
Kambli / abs 50 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
rejected, it would take away the plaintiff's right not to assert his right
under the Rent Act. On this ground alone it was sufficient for Justice
Vazifdar to hold that revision application against the order of the trial
court rejecting the application for unconditional withdrawal of the
suit was maintainable under Section 29(3) of the Bombay Rent Act,
as it affected the substantive rights of the plaintiff under the Bombay
Rent Act.
Further Discussion
52. In our opinion, it was , therefore, not necessary for
Justice Vazifdar to consider the question of alleged conflict between
the views of Division Bench in Sukhdev's case (supra) on one hand
and the view of a learned Single Judge of this Court in Hemchand
(supra) and of the Division Bench of Gujarat High Court in
Natavarlal (supra) on the other hand.
However, since the views expressed by Justice Vazifdar
in Pacific Engineering's case have given rise to serious doubt about
correctness of the principles laid down by the Division Bench in
Sukhdev's case (supra), we have considered at length all the
judgments.
53. Justice Vazifdar set out the relevant conclusion in
paragraph 10(v) as under:-
“10(V) The applicability of Section 29(3) is not
restricted only to orders which relate to those
aspects for which the Bombay Rent act was enacted
such as orders for possession or rent.”
Kambli / abs 51 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
But the learned Judge expanded the principle in para 38(b) as under:
“38(b) Moreover the expression “substantive
rights” used in the authorities I have considered
must be understood in the lexical sense. It ought
not necessarily to be construed as a right created
by a statute or any other law. In other words, to be
revisable it is not necessary that the order must
relate to a provision of substantive law. Even if it
relates to a procedural law it would be revisable if
it affected substantively the rights of a party.”
(emphasis supplied)
For arriving at this conclusion, Justice Vazifdar relied on the
observations made by the learned Single Judge of this Court in
Hemchand Singhania v/s. Subhkaram Baragra1
, and the Division
Bench of the Gujarat High Court in Natvarlal v/s. Khodaji,2
Justice
Vazifdar took the view that the decision of Justice S.H.Sheth in
Maharana Mills's case was contrary to the judgment of this Court in
Hemchand's case and also contrary to the Division Bench judgment
of the Gujarat High Court in Natvarlal.
54. In our opinion, we do not see any conflict between the
principles laid down by V.S. Desai J. of this Court in Hemchand
(supra) and by the Division Bench of the Gujarat High Court in
Natwarlal (supra) on the one hand and the principles enunciated by
Justice S.H. Sheth in Maharana Mills (supra) on the other hand.
1 AIR 1967 Bom. 361
2 1967(8) Guj.L.R. 772
Kambli / abs 52 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
55. Division Bench of the Gujarat High Court in Natavarlal
(supra) and a Single Judge of this Court in Hemchand (supra) were
dealing with the case where exparte decree was passed by the Small
Causes Court exercising jurisdiction as the Special Court under
Section 28 of the Bombay Rent Act. When the Defendant made an
application for setting aside that exparte decree, the application was
rejected by the trial court and the question was whether an appeal was
maintainable before the appellate Bench of the Small Causes Court
under Section 29(3) of the Bombay Rent Act against such order
rejecting application for setting aside exparte decree.
56. Proviso (a) to Section 29(1) conferring in wide terms
right of appeal from a decree or order made by the Court of Small
Causes before the Bench of two Judges of the same Court, lays down
that “no such appeal shall lie from a decree or order made in any suit
or proceedings in respect of which no appeal lies under the Code of
Civil Procedure, 1908.”
Order 43 Rule 1(d) expressly provides that an appeal
shall lie from an order under Order 9 Rule 13 rejecting an application
for an order to set aside a decree passed exparte. It is, therefore, clear
that an appeal against the order of the Small Causes Court acting as a
Special Court under Section 28 of the Bombay Rent Act rejecting an
application for an order to set aside a decree passed exparte was and
has always been an appealable order. All that this Court in
Hemchand (supra) and the Division Bench of Gujarat High Court in
Natvarlal (supra) held was that the Small Causes Court is a Special
Court exercising powers under the Code of Civil Procedure and that
Kambli / abs 53 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
interlocutory and other orders which the Special Court may pass in
entertaining, trying and deciding the matters within its exclusive
jurisdiction, which are appealable under the provisions of the Code of
Civil Procedure, are appealable under Section 29 of the Bombay Rent
Act.
57. Even Justice S.H. Sheth held that the order of the Presidency
Small Causes Court rejecting an application for setting aside an
exparte decree under the Rent Act is appealable under Section 29 of
the Bombay Rent Act, because the suit is governed by the Bombay
Rent Act and the order affects the substantive rights of the parties
under the Bombay Rent Act. We, therefore, see no conflict between
the view of Justice S.H. Sheth on one hand and the view of the
Division Bench of the Gujarat High Court in Natvarlal (supra) and
the view of the learned Single Judge of this Court in Hemchand
(supra) on the other hand.
58. The view taken by Justice V.S. Desai as well as the
Division Bench of the Gujarat High Court that the order rejecting
application for setting aside exparte decree is appealable under
Section 29(1) of the Bombay Rent Act was the correct view, because
the subject matter of the exparte decree was rights and liabilities of
the plaintiff-landlord and defendant-tenant under the Bombay Rent
Act. An order on the application for setting aside the exparte decree
would directly affect the rights and liabilities of the parties under the
Bombay Rent Act. Justice S.H. Sheth also expressed the same view in
Maharana Mills's case (supra).
Kambli / abs 54 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
59. Having considered all the submissions, we are of the
view that the uncertainty about the legal position in the matter of
maintainability of revision applications under Section 29(3) of the
Old Rent Act and under Section 34(4) of the New Rent Act has arisen
on account of the manner in which the ratio of the V.S. Desai, J. in
Hemchand's case and the ratio of the Division Bench in Sukhdev's
case have been read and applied and not properly appreciated. The
Division Bench in Sukhdev's case(supra) did not hold that to be
revisable an order of the trial Court must be for possession or for
recovery of rent or for fixation of rent. The underlined observations
of the Division Bench in para 7 of it judgment as quoted in para 44
hereinabove contain the ratio of the decision.
60. While the conclusion of Justice Vazifdar in para 10(V) is
correct, we do not approve of the observations made by Vazifdar, J.
in para 38(b) of the judgment in Pacific Engineering case [para 9(iii)]
in so far as they may be read as meaning breach of a procedural law
would also give right of revision, even if the order does not affect
rights under a substantive law.
61. For taking the above view, Justice Vazifdar relied on the
observations of V.S. Desai, J. in Hemchand's case. It needs to be
appreciated that the observations of V.S. Desai, J. relied upon by
Justice Vazifdar merely dealt with the argument of the learned
counsel for the petitioner landlord in that case which is already set
out in para 27 hereinabove. V.S. Desai, J. merely repelled the
Kambli / abs 55 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
contention of the petitioner's counsel that the Special Court under the
Rent Act, while deciding application under Order 9 Rule 13 of the
CPC, was not dealing with the question relating to recovery of rent or
possession of the suit premises. The orders for recovery of
possession of the suit premises are generally passed at the end of the
trial and in the form of a decree. Hence, V.S. Desai, J. was not
required to deal with the question of maintainability of appeal or
revision against an interlocutory order. Generally revisions under
section 34(4) of the Maharashtra Rent Control Act would not pertain
to questions relating to the recovery of possession of the suit
premises which are generally decided at the conclusion of the trial.
The revisable orders are generally made at the interlocutory stage
and, therefore, the question of recovery of possession would not arise
at that stage. For an order to be revisable, therefore, the order may
not determine but must affect some substantive rights and liabilities
of the parties, which position was accepted by Justice Vazifdar also.
The observations of V.S. Desai, J. in Hemchand's case must
accordingly be read in the context of the controversy in that case.
62. In Ashwani Kumar Singh & Ors. vs. U.P. Public Service
Commission & Ors.1
, the Supreme Court observed as under:-
“10. Courts should not place reliance on decisions
without discussing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are
not to be read as Euclid's theorems nor as
provisions of the statute. These observations must
be read in the context in which they appear.
1 (2003) 11 SCC 584
Kambli / abs 56 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Judgments of Courts are no to be construed as
statutes. To interpret words, phrases and provisions
of statute, it may become necessary for Judges to
embark into lengthy discussions, but the discussion
is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments.
They interpret words of statutes; their words are not
to be interpreted as statutes.
In State of Orissa vs. Sudhansu Sekhar Mishra1
, the
Supreme Court quoted the following principles laid down by Earl of
Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:
“Now before discussing the case of Allen v. Flood,
(1898) AC 1 and what was decided therein, there
are two observations of a general character which
I wish to make, and one is to repeat what I have
very often said before, that every judgment must
be read as applicable to the particular facts proved,
or assumed to be proved, since the generality of
the expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of
the case in which such expressions are to be
found. The order is that a case is only an authority
for what it actually decides. I entirely deny that it
can be quoted for a proposition that may seem to
follow logically from it. Such a mode of
reasoning assumes that the law is necessarily a
logical Code, whereas every lawyer must
acknowledge that the law is not always logical at
all.”
1 AIR 1968 SC 647
Kambli / abs 57 of 75
::: Downloaded on - 03/06/2013 06:51:23 :::Bombay High Court
WP-9562-2010
Conclusions on maintainability of Revision
63. We agree that Section 29(3) of the Old Rent Act and
Section 34(4)of the New Rent Act are not restricted only to orders for
possession or rent, but at the same time it does not mean that all nonappealable orders of the Special Court under the Rent Act are
revisable. It is true that orders may not be orders for possession or
fixation or recovery of rent, but the orders must directly affect the
substantive rights of the parties under the Rent Act or some other
substantive law and not merely affect the rights of the parties under a
procedural law like CPC or Evidence Act. Looking to the language
of section 29(3) of the Old Rent Act and section 34(4) of the New
Rent Act (“that the decree or order was made according to law”), we
see no justification for restricting revisions to orders affecting
substantive rights only under the Rent Act.
64. As already indicated earlier, the rationale for narrowly
reading the word “order” in the provision conferring right of appeal
(to avoid harassment of parties on account of delay and endless
expenses) would also apply for narrowly interpreting the word
“order” in section 34(4) of the New Rent Act and section 29(3) of the
Old Rent Act as well and that was the rationale which commended to
the Division Bench in Sukhdev Prasad Raghubir's case in the year
1983 and that is the interpretation which has held the field, in so far
as the State of Maharashtra is concerned, for the last 35 years. If any
other view is taken, purposeful object of speedy trial, as mandated by
section 38 of the Maharashtra Rent Control Act, would be completely
defeated.
Kambli / abs 58 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
65. In case, there is a conflict, as perceived by Justice
Vazifdar, we approve the narrower view taken by the Division Bench
in Sukhdev's case (supra) as indicated at the commencement of para 7
of its judgment as quoted in para 44 hereinabove.
66. Even so, we hold that the Division Bench in Sukhdev's
case was not right in holding that an order of the Rent Court rejecting
an application for amendment of plaint/written statement is not
revisable under section 29(3) of the Bombay Rent Act which is in
parimateria with section 34(4) of the Maharashtra Rent Control Act.
Where the proposed amendment asserts the rights of the
concerned party under the Rent Act or any other substantive law or
liabilities of the other party under the Rent Act, the order rejecting the
application for amendment of plaint/written statement would be
revisable under section 34(4) of the Maharashtra Rent Control Act.
67. 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 and not
merely a procedural order, (not affecting the substantive rights of
parties), which 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.
68. This, discussion, therefore, brings home the point that in
each case the Court has to be careful while applying the settled legal
principles on the question of maintainability of revision application
Kambli / abs 59 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
under Section 29(3) of the Bombay Rent Act and/or under Section
34(4) of the Maharashtra Rent Control Act.' We may, therefore, refer
to a few other cases and at the end of the judgment give illustrations
of cases which are revisable or non-revisable under section 34(4) of
the Maharashtra Rent Control Act, 1999.
A few other cases
69. In Aspi R. Settha v/s. Mr. Sunermal M. Bafna & ors.
dated 19 December 2003 in Civil Revision Application No.489 of
2003, during pendency of a suit for possession under the Bombay
Rent Act, the petitioner took out a notice for a declaration that the suit
had abated in view of the death of the sole defendant and prayed for
stay of further proceeding. The Small Causes Court dismissed the
said interim notice and hence the petitioner preferred civil revision
application under Section 115 of the CPC. The respondent raised a
preliminary objection that the civil revision application under section
115 of the CPC was not maintainable in view of alternate remedy of
revision available under Section 29(3) of the old Rent Act.
. Learned counsel for the petitioner contended that the
subject matter of the impugned order was not covered by the Rent
Act, that the application made by the petitioner for recording
abatement of the suit was merely procedural and substantive rights of
the parties under the Rent Act were not affected and therefore the
revision under Section 29(3) was not maintainable.
. The learned single Judge considered various decisions
including the decision of Division Bench in Sukhdev's case(supra)
and held that if the application had been decided in favour of the
Kambli / abs 60 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
plaintiff, the suit would have been dismissed as having abated and
that order would have been final materially affecting the rights of the
parties. The learned single Judge referred to the decision of the
Supreme Court in Bant Singh Gill v/s. Shantidevi1
, where the
Supreme court observed that if the issue (about maintainability of the
suit on the ground that it had abated) had been decided in favour of
the appellant therein and the suit had been dismissed as having
abated, there would have a final order in the suit having effect of
decree. Hence, such an order on application for declaring the suit as
abated affects substantive rights of the parties and therefore cannot be
considered as mere procedural order. Hence, the revision application
under Section 29(3) under the Bombay Rent Act would be
maintainable before the appellate Bench of the Small Causes. Of
course, such an order was not appealable, because it is not covered by
Order 43 of CPC.
In our view, this judgment also correctly applies the the
test which has commended to us. Besides, that test is also the only
test which is required to be now applied while determining the
maintainability of a revision under section 115 of the Civil Procedure
Code as amended w.e.f. 1 July 2002.
70. In Mohanraj Rupachand Jain v. Kewalchand Hastimal
Jain, 2007 AIHC 1015, the learned Single Judge held that revision
under section 34(4) of the Maharashtra Rent Control Act was not
maintainable against an order of the trial Court rejecting an
application objecting to admissibility of certain documents, which
1 AIR 1967 SC 1360
Kambli / abs 61 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
were sought to be produced on record along with an affidavit under
rule 18 of the CPC. The learned Judge rightly held that the order in
question was only a procedural order, which did not affect the
substantive rights of parties.
71. In J.M. Constructions v/s. Rustom P. Patel, 2008(5)
Bom.C.R. 598, the trial Court passed the order on an application
taken out by the defendant for condoning delay in filing the written
statement and to take written statement on record beyond specified
period. The Revisional Court set aside the order and directed the trial
Court to take the written statement on record. In writ petition
challenging that order, a learned Single Judge of this Court held that
it was essentially a procedural order, against which revision
application was not maintainable under section 34(4) of the
Maharashtra Rent Control Act. On this ground alone the order of the
revisional Court was set aside.
We agree with the submission made by the learned
counsel for the respondents that when the trial Court refused to
condone delay in filing the written statement and to take written
statement on record, the order did affect substantive rights of the
defendant-tenant to plead defences available to him under the Rent
Act and to place on record the material facts in support of those
defences. The impugned order of the trial court was, therefore, not a
mere procedural order not affecting substantive rights of the parties
under the Rent Act. The Revision application in such a case would,
therefore, be maintainable under Section 34(4) of the Maharashtra
Rent Control Act.
Kambli / abs 62 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
72. In Abeda Iqbal Patel vs. Cormorant Investment Pvt.
Ltd.1
, a learned Single Judge of this Court held that for challenging an
order granting and/or refusing amendment of plaint or written
statement, the only remedy is revision. The learned Judge held that
even if it is a procedural order, if the Court is satisfied that it was not
made according to law, the interference is a must. The learned Judge
held that if an appeal is not available, the order is not in accordance
with law and it affects the substantial rights of the parties, revision is
maintainable under section 34(4) of the Maharashtra Rent Control
Act and section 29(3) of the Bombay Rent Act.
73. While we agree, for the reasons recorded earlier that an
order rejecting an application for an amendment of a pleading is
revisable, the order granting such application is not revisable. We
also reiterate that the order refusing leave to amend the plaint or
written statement is revisable not because it is a procedural order, but
because it affects substantial rights of the parties, i.e. rights under a
substantive law.
74. In Laheribai (since deceased) through heirs v/s.
Dharamdatta2
, in a suit for possession under the Rent Act filed in the
year 1982, an application was made by the petitioner (legal
representatives of the original plaintiff) seeking permission to delete
the names of respondents Nos. 2 to 4 in March 2005. The trial court
allowed the application and fourteen days time was granted for
carrying out amendment to the suit. The order was not complied with
1 2009 (2) MLJ 446
2 2010(1) Mh.LJ. 598
Kambli / abs 63 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
and the suit was dismissed for default on the date of hearing. The
petitioners, therefore, took out a notice for restoration of the suit.
The notice was dismissed by the trial Court. The revision application
came to be dismissed by the appellate Bench of the Small Causes
Court on the ground that the order of dismissal of the suit was under
Order 9 Rule 8 of the CPC and therefore against order of the trial
Court dismissing the application for restoration, an appeal was
maintainable.
After hearing the parties, the learned Single judge held
that the suit was dismissed for default of appearance of both the parties
and their advocates. Order 9 Rule 8 of CPC applies to a situation when
the defendant appears and the plaintiff is absent. Order 9 Rule 3
applies to a situation when neither of the parties appears and the court
dismisses the suit. The learned single Judge, accordingly, held that as
the suit was dismissed under Order 9 Rule 3 of the CPC, an application
for restoration was maintainable under Order 9 Rule 4 of the CPC. An
order passed under Order 9 Rule 4 is not appealable. The question,
therefore, was whether the revision was maintainable against the order
of trial Court rejecting an application for restoration under Order 9
Rule 4 of the CPC.
. The learned single Judge following the Division Bench
judgment in Sukhdev (supra) held that the impugned order was a
procedural order, which did not affect substantive rights and
liabilities of the parties under the Rent Act. The learned single
Judge, ultimately examined the challenge to the impugned order
of the trial Court on merits and held that the application for
Kambli / abs 64 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
restoration deserved to be allowed. The learned single Judge
accordingly allowed the writ petition by setting aside the order of the
trial Court.
. Having carefully gone through the said decision, we
agree with the learned counsel for the respondents that, even applying
the principles laid down by the Division Bench in Sukhdev's
case(supra), the order of the trial court rejecting the application for
restoration under Order 9 Rule 4 was not a mere procedural order.
The order did affect the substantive rights of the parties. The order
did cause substantial prejudice to the plaintiff, who had filed the suit
for asserting his rights and liabilities against the the tenant under the
Bombay Rent Act.
Q. No. (i) : Scope & Amit of Power of Revision
75. Coming to the question about the scope and ambit of the
power of revision under Section 34(4) of the New Rent Act, the
learned counsel for respondents have submitted that the scope of
revisional power under Section 34(4) of the New Rent Act, like
Section 29(3) of the Old Rent Act, is very wide and it is not to be
confined to narrower terms as has been done in Section 115 of Civil
Procedure Code.
76. Reliance is placed on the following celebrated
observations of Chief Justice Beaumont of this Court in Bell & Co.
Ltd. v. Waman Hemraj1
, rendered in the year 1937, while interpreting
the provisions of Section 25 of the Provincial Small Causes Courts
Act:
1 AIR 1938 Bombay 223
Kambli / abs 65 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
“The scheme of the Small Causes Courts Act is to
provide a summary remedy for recovering small
sums, and it is an essential part of the scheme that
the Judge's decision is final. Section 27 of the Act
provides : " Save as provided by this Act, a decree
or order made under the foregoing provisions of this
Act by a Court of Small Causes shall be final,"
There is no appeal either on facts or law, but
Section 25 provides : " The High Court, for the
purpose of satisfying itself that a decree or order
made in any case decided by a Court of Small
Causes was according to law, may call for the case
and pass such order with respect thereto as it thinks
fit." In my opinion that section ought not to be
construed as giving the parties a right of appeal on
points of law. The object of Section 25 is to enable
the High Court to see that there has been no
miscarriage of justice, that the decision was given
according to law. The section does not enumerate
the cases in which the Court may interfere in
revision, as does Section 115 of the Civil Procedure
Code, and I certainly do not propose to attempt an
exhaustive definition of the circumstances which
may justify such interference ; but instances which
readily occur to the mind are cases in which the
Court which made the order had no jurisdiction, or
in which the Court has based its decision on
evidence which should not have been admitted, or
cases where the unsuccessful party has not been
given a proper opportunity of being heard, or the
burden of proof has been placed on the wrong
shoulders. Wherever the Court comes to the
conclusion that the unsuccessful party has not had
a proper trial according to law, then the Court can
interfere. But, in my opinion, the Court ought not to
interfere merely because it thinks that possibly the
Judge who heard the case may have arrived at a
conclusion which the High Court would not have
arrived at.
(emphasis supplied)
Kambli / abs 66 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
It is necessary to remember that above observations were made by
Beaumont C.J. after noting that there is no appeal either on facts or
law against the decree or order of the Court of Small Causes and only
a power of revision was conferred under Section 25 of Provincial
Small Causes Courts Act. The underlined words also indicate that
what the learned Chief Justice had in mind was revision after the trial
and not during the trial.
77. Similar words in Section 34 of the Delhi & Ajmer Rent
Control Act, 1952 came up for consideration before the Supreme
Court in Hari Shankar v/s. Rao Girdhari Lal Chowdhuri1
. The
Supreme Court made the following observations:-
“The phrase "according to law" refers to the
decision as a whole, and is not to be equated to
errors of law or of fact simpliciter. It refers to the
overall decision, which must be according to law
which it would not be, if there is a miscarriage of
justice due to a mistake of law. The section is thus
framed to confer larger powers than the power to
correct error of jurisdiction to which s. 115 is
limited. But it must not be overlooked that the
section in spite of its apparent width of language
where it confers a power on the High Court to pass
such order as the High Court might think fit-is
controlled by the opening words, where it says that
the High Court may send for the record of the case
to satisfy itself that the decision is "according to
law". It stands to reason that if it was considered
necessary that there should be a rehearing, a right
of appeal would be a more appropriate remedy, but
the Act says that there is to be no further appeal.”
(emphasis supplied)
1 1962 SCR Supl. (1) 933 = AIR 1963 SC 698
Kambli / abs 67 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
The above observations were also made by the Supreme
Court while examining the scope and ambit of power of revision
against the final order of the Rent Controller.
78. The observations of Beaumont C.J., have, thereafter, also
been approved by the Supreme Court in various other decisions, such
as Malini Ayyappa Naicker v/s. Seth Manghraj Udhavdas Firm1
and
in Shiv Sarup Gupta v/s. Dr.Mahesh Chand Gupta2
. In the latter
decision the Supreme Court examined the scope of revisional power
of the High Court under Section 25-B of the Delhi & Ajmer Rent
Control Act, 1958, which also confers power of revision on the High
Court in the following terms:-
“Provided that the High Court may, for the purpose
of satisfying itself that an order made by the
Controller under this section is according to law (or
not), call for the records of the case and pass such
order in respect thereto as it thinks fit'.
After observing that the revisional jurisdiction exercisable by the
High Court under the above provision is not so limited as is under
Section 115 CPC nor so wide as that of an appellant Court, the
Supreme Court further observed as under:-
“The High Court cannot enter into appreciation or
re-appreciation of evidence merely because it is
inclined to take a different view of the facts as if it
were a court of facts. However, the High Court is
obliged to test the order of the Rent Controller on
the touchstone of "whether it is according to law'.
1 AIR 1969 SC 1344
2 (1999) 6 SCC 222
Kambli / abs 68 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of
ascertaining whether the conclusion arrived at by
the Rent Controller is wholly unreasonable or is one
that no reasonable person acting with objectivity
could have reached that conclusion on the material
available. Ignoring the weight of evidence,
proceeding on wrong premise of law or deriving
such conclusion from the established facts as betray
the lack of reason and/or objectivity would render
the finding of the Controller 'not according to law'
calling for an interference under proviso to subSection (8) of Section 25-B of the Act. A judgment
leading to miscarriage of justice is not a judgment
according to law. [See; Sarla Ahuja Vs. United
India Insurance Co .Ltd. -(1998) 8 SCC 119 and
Ram Narain Arora Vs. Asha Rani and Ors. - (1999)
I SCC 141.]
(emphasis supplied)
79. It is, however, necessary to remember that the above
observations were made in the context of provisions of Section 25-B
of the Delhi & Ajmer Rent Control Act, which provides for a special
procedure to be followed for disposal of an application for eviction
on the ground of bonafide need and this ground of eviction of the
tenant has been treated on a footing different than the one on which
other grounds of eviction of a tenant stand. Sub-section (8) thereof
provides that no appeal or second appeal shall lie even against a final
order for the recovery of possession of any premises made by the
Controller in accordance with the procedure provided in Section
25-B. Only power of revision is provided by proviso to Section 25-
B. It is, thus, necessary to remember that the observations made by
the Supreme Court while interpreting the scope of revision against a
final judgment of eviction cannot be applied verbatim to the
Kambli / abs 69 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
provisions of Section 34(4) of the Maharashtra Rent Control Act,
because sub-section (1) of section 34 confers the rights of appeal
against a decree of eviction and sub-section (4) confers revisional
jurisdiction on the same superior Court for revision against nonappealable orders.
80. In Ram Das v/s. Iswar Chander and ors1
, also the Court
was considering the scope of revision against a decree of eviction and
in that context it was held that Section 15(5) of the E.P. Urban Rent
Restriction Act, 1949 enables the High Court to satisfy itself to the
“legality and propriety” of the order under revision, which is, quite
obviously,a much wider jurisdiction.
81. Having considered the aforesaid decisions and other
judgments cited at the bar, we are of the view that the scope and
ambit of the revisional power under Section 34(4) of the Maharashtra
Rent Control Act and under Section 29(3) of the Bombay Rent Act,
though not as narrow as the scope of the revisional power under
Section 115 of the CPC, at the same time it is not so wide as to enable
the revisional Court to interfere with an order of the trial Court under
the Rent Act, merely on the ground that it is not according to
procedural law. The expression “according to law” has to be
interpreted as “in accordance with the provisions of the Bombay Rent
Act or any other substantive law.” Merely because the revisional
Court comes to the conclusion that an impugned order is not in
conformity with the procedural requirements of CPC, would not be a
ground for revision. As held by the Supreme Court, phrase
1 (1988) 3 SCC 131
Kambli / abs 70 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
“according to law”, refers to the decision as a whole and is not
equated to errors of law or facts simplicitor, it refers to the overall
decision which must be according to law, which it would not be if
there is a miscarriage of justice due to a mistake of law. This would
mean that the revisional Court would not be justified in interfering
with a decision, unless there is miscarriage of justice resulting from a
mistake of law.
82. We have also noticed in a large number of cases that in
writ petitions under Articles 227 of the Constitution challenging
interlocutory orders passed by the trial Court, preliminary objection is
very often raised about maintainability of alternative remedy of
revision under Section 29(3) of the Bombay Rent Act, 1947 or under
Section 34(4) of the Maharashtra Rent Control Act, 1999 and
substantial judicial time and energy are required to be invested in
deciding the question whether the alternate remedy of revision under
the Rent Act is available before the appellate Bench of the Small
Causes Court (or before the District Judge as the case may be).
While it is certainly open to the learned single Judge of this Court
hearing writ petitions under Articles 226/227 of the Constitution to
decline to entertain a writ petition on the ground of availability of
equally efficacious alternate remedy of revision under the Rent Act,
there may be a large number of writ petitions, where the High Court
may consider it appropriate to refuse to entertain the writ petitions, on
the ground that the impugned order is a mere procedural order, which
does not cause any miscarriage of justice, without going into the
question whether the substantive rights of the parties under the Rent
Act are affected or not. It is well settled that the power of
Kambli / abs 71 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
superintendence conferred by Article 227 of the Constitution should
be exercised most sparingly only to keep subordinate courts and
inferior tribunals within the bounds of their authority and not for
correcting errors of fact or of law. A petition under Article 227,
therefore, cannot be treated as an appeal or revision in the nature of
extension of provision conferring such right.
83. The superior Court, whether exercising writ jurisdiction
or revisional jurisdiction has always the discretion to decline to
exercise such jurisdiction in appropriate cases on the ground that it
will be open to the aggrieved party to make a grievance against the
impugned order in the appeal against the final judgment, which may
be passed by the trial Court.
FINAL ANSWERS
84. In the result, therefore, our answer to question No.2
referred for our consideration is as under:-
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
Kambli / abs 72 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
under a procedural law like the Code of Civil Procedure or the
Evidence Act.
85. 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.
86. 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 9 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.
Kambli / abs 73 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
87. 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 9 Rule 4 of CPC
This list is also illustrative and not exhaustive.
88. As regards question No.1 about scope and ambit of
power of revision under Section 34(4) of the Maharashtra Rent
Control Act, 1999, our answer is that after the revisional Court is
Kambli / abs 74 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::Bombay High Court
WP-9562-2010
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.
89. The writ petitions will now go back to the learned Single
Judge for hearing and deciding them in light of the principles laid
down in this judgment.
CHIEF JUSTICE
RANJIT MORE, J.
N.M. JAMDAR, J.
Kambli / abs 75 of 75
::: Downloaded on - 03/06/2013 06:51:24 :::
