w w w . L a w y e r S e r v i c e s . i n



P.T. Gandhi v/s Manjulaben Maganlal Shah (Smt.) & another

    Writ Petition No. 5022 of 1985

    Decided On, 04 July 1988

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE C.S. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE V.S. KOTWAL

    For the Petitioner: K.J. Abhyankar, with Madanlal Shah, Advocate. For the Respondent: S.S. Tijoriwalla & T.S. Tijoriwalla with J.J. Jadeja, Advocate.



Judgment Text

C.S. DHARMADHIKARI, J.


Respondent Landlords Smt. Manjulaben Maganlal Shah and Smt. Nanbai Kalyanji filed a suit against petitioner tenant P.T. Gandhi for possession of the premises on the ground among others that the said premises were required by them reasonably and bona fide for use and occupation by Smt. Manjulaben. The suit was decreed on 31st August, 1978 and the appeal preferred by the tenant was also dismissed on 3rd June, 1981. It is the case of the petitioner that within a short time thereafter he discovered that the respondents had been in occupation of another flat. Therefore he sought to get the order in appeal reviewed on the ground of discovery of fresh material which with due deligence he could not have discovered earlier. The appellate Bench of the Small Cause Court, Bombay by its Judgment and order dated 2nd November, 1985 rejected the review petition on the ground that the same is not maintainable. While passing the order the Appellate Bench of the Small Cause Court relied upon a decision of this Court in (M/s. National Hotel and others v. Mrs. Rukayabai and others)1, 1985(2) Bom.C.R. 499 : A.I.R. 1985 Bom. 403.


2. Being aggrieved by this order the petitioner tenant filed the present writ petition under Article 227 of the Constitution of India. Initially the matter was placed before Single Judge Jahagirdar, J., Since Jahagirdar, J., found that the law laid down by the Single Judge of this Court in National Hotels case is not applicable to the suits governed by Rule 8 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the observations made therein by Shah, J., were obiter or could be said as not relevant to the issue decided in National Hotels case, he thought it fit to refer the matter to the Division Bench, after framing necessary question. This how the matter has been placed before us. The question formulated by Jahagirdar, J., is in the following terms :


?Whether, in view of the provisions contained in Rule 8 and Rule 9 of the Bombay Rent Control Rules, 1948 the provisions relating to review contained in the Code of Civil Procedure are applicable to suits and proceedings other than those referred to in Rules 5 and 7 of the Bombay Rent Control Rules ??


3. For property appreciating the controversy it will be worthwhile of a reference is made to the relevant provisions of the Bombay Rent Act and the Rules framed thereunder. By sections 28 and 29 of the Rent Act exclusive jurisdiction is conferred upon certain courts for deciding suits and appeals. Then comes section 31, which reads as under :


?31 The courts specified in sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing order made by them?


Expression ?prescribed? is defined by sub-section (9) of section 5, which means prescribed by the Rules and ?prescribed? shall be construed accordingly. Thus, it is clear that the expression used in section 31 viz. ?prescribed procedure? would be the procedure prescribed by the Rules made under the Rent Act. Section 49 confers rule-making power on the State Government. In exercising the said power the State Government has framed necessary rules. These rules are divided in chapters. Here, in this case we are concerned with Chapter IV of the Rules, which lays down the procedure to be followed by the Court of Small Causes, Bombay in suits, proceedings, appeals etc. The relevant rules are Rules 5, 7, 8 and 9, which read as under :


?5 Procedure for suits, the value of the subject-matter of which does not exceed Rs. 3000/- and for proceedings for execution of decrees and order passed thereon and for distress warrants. In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely :---


(1) suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount or value of the subject-matter does not exceed Rs. 3,000/-.


?(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and


(3) proceedings for execution of any decree or order passed in any such suit or proceeding,


the Court of Small Causes, Bombay shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof and (b) in the Rules made under section 9 of the said Act.


??.


7 Procedure in applications for fixing standard rent etc.---(1) in miscellaneous applications the Court of Small Causes, Bombay shall follow, as far as may be and with the necessary modifications, the practice and procedure applicable in suits referred to in Rule 5 as if such applications were suits for sums not exceeding Rs. 1000/-.


Provided that costs in respect of employing a legal practitioner when allowed in any such application shall be not more than Rs. 30/.


(2) In applications for fixing standard rent or permitted increase, where a Court in exercise of the powers conferred by Rule 9 of Chapter XXVI of the Code appoints a Commissioner for ascertaining the market value of any premises, the Court may also require the Commissioner to submit the report as to the facts which may enable the Court to ascertain the fair return in respect of such premises by apportionment or otherwise.


8. Procedure for other rules-In suits and proceedings other than those referred to in Rules 5 and 7, the Court of Small Causes Bombay, shall as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code including Order XXXVII, as modified in application to the State of Bombay :


Provided that costs in respect of employing a legal practitioner when allowed shall be, in respect of any legal practitioner entitled to appear, not more than Rs. 75 per diem of 5 hours of actual hearing of Rs. 125 if the case is disposed of on the first day.


?9. Procedure in appeal-(1) in appeals under section 29(1)(a) of the Act the Court shall as far as may be and with the necessary modifications, follow the practice and procedure prescribed for appeals from original decrees by the Code.


(2) If in any such appeal the judges constituting the bench differ, the Chief Judge, if he is one of the Judges, or in his absence, the judge first in rank and precedence shall have the casting voice.


(3) The costs in respect of employing a legal practitioner when allowed shall be on the following scale in respect of any legal practitioner entitled to appear :-


(a) In an appeal from an order Not more than-45


in a miscellaneous


application


(b) In an appeal from a decree According to the


or in a suit or proceeding. scale applicable for


an original suit or


proceeding.


(c) In revisional proceedings Not more than Rs. 45/-?


under sub-section (3) of


section 29.


From the bare reading of these rules it is quite clear that a suit not covered in Rules 5 or 7 would fall within the scope of Rule 8 and the procedure to be followed by the Small Cause Court, Bombay in such suits would be the procedure prescribed for a Court of first instance by the Code of Civil Procedure. So far as the suits or proceedings covered by Rules 5 and 7 are concerned, Small Cause Court, Bombay has to follow the practise and procedure provided for the time being (a) in the said Act viz. Presidency Small Cause Court Act, except Chapter VI thereof and (b) by the rules made under section 9 of the said Act. So far as Rule 8 is concerned, since it covers the suits and proceedings other than those referred to in Rules 5 and 7 the Small Cause Court, Bombay has to follow, as far as may be and with necessary modification, the procedure prescribed for the Court of first instance by the Code of Civil procedure . Therefore by the rules framed under the Bombay Rent Act, different procedure is prescribed for the suits and proceedings covered by Rules 5 ,7 and of the Rules. In M/s. National Hotels case Shah, J., was concerned with a suit proceedings covered by Rules 5 and 7 of the Rules and was not concerned with a suit or proceedings covered by Rules 8 and 9 of the Rules framed under the Rent Act. In Mrs. National Hotels case application for fixation of the standard rent was filed and the Small Cause Court at Bombay had fixed the standard rent under section 11 of the Rent Act. Subsequently an application for review of the standard rent fixed was filed on the ground of discovery of fresh material. It came to be rejected by the trial Court on a preliminary ground that it was barred by limitation. On the revision application preferred before the appellate Bench of the Small Cause Court, Bombay, it held that the application for review was within limitation and therefore the matter came to be remanded back to the trial Court to dispose of the review application on merits. It was this view of the appellate Bench, which was the subject matter of challenge in the petition before Shah, J. Thus, in National Hotels case this Court was concerned with a suit or proceedings for fixation of standard rent. It is no doubt true that in the judgment a reference has been made to Rule 8 of the Rules and combined effect of Rules 5, 7, 8 and 9 come to be considered by Shah, J.


4. However, in the facts of the case before Shah, J., a reference of Rules 8 and 9 was wholly uncalled for in the Judgment. Therefore, in our view the law laid down by shah, J., in M/s. National Hotels case is confined to the proceedings covered by Rules 5 and 7 of the rules only and it has nothing to do with the suits and proceedings covered by Rules 8 of the rules which mandates that the Court of Small Causes, Bombay shall, as far as may be, and with necessary modification, follow the procedure prescribed for the Court of first instance by the Code of Civil procedure. As in the case of Rule 5, Rule 8 makes no reference to the provisions of the Presidency Small Cause Courts Act or the rules framed under section 9 of the said Act. As per section 31 the courts specified in section 28 and 29 have to follow the prescribed procedure in trying and hearing suits, proceedings, applications appeals and in executing order made by them. In terms the Rules have been framed under section 49 of the Rents Act. By Rules 5 and 7 of the rules, the procedure prescribed by the presidency Small Cause Courts Act and the rules under section 9 of the said Act, are incorporated in Rules 5 and 7. That is not the position so far as the suits and proceedings by Rule 8 are concerned.


5. The suit, with which we are concerned, in this writ petition, is covered by Rule 8 and not but Rules 5 and 7 of the Rules. Therefore, while deciding a suit or suits or proceedings covered by Rule 8 the Court of Small Causes at Bombay has to follow, as far as may be and with necessary modifications, the procedure prescribed for the Court of first instance by the Code of Civil Procedure. Rule 9 lays down the procedure for appeals, which also in terms makes a reference to the practice and procedure prescribed for appeals from the originals decreed by the Code of Civil Procedure. If this is so, then it is the Code of Civil Procedure, which is relevant for deciding the question referred to the Division Bench. Similar view seems to have been taken by the Gujarat High Court in (Motibhai Ramabhai v. Panachand Mohanlal Shah and another)2, (1972)13 Gujarat Law Reports page 508, though in different context.


6. It is no doubt true as observed in (Patel Narshi Thakershi and others v. Pradyumnasinghji Arjunsinghji)3, A.I.R. 1970 S.C. 1273 the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. As to what will be the area of review is also considered by the Supreme Court in (Arbam Tuleshwar Sharma & others v. Arbam Pathak)4, A.I.R. 1979 S.C. 1047.


7. Therefore the only question, which requires further probe, is to find out whether by Rule 8 of the Rules either specifically or by necessary implication power of review has been conferred upon the Court of Small Causes, Bombay. It cannot be disputed that the Court of first instance constituted under the Code of Civil Procedure has power of review under section 114 and under Order XLVII of the Code of Civil Procedure. If under Rule 8 the Court of Small Causes, Bombay has to follow the procedure prescribed by the Code of Civil Procedure, then obviously it wi

Please Login To View The Full Judgment!

ll have the power of review. Exclusion of the said power by the Rules framed by the High Court under section 9 of the Presidency Small Causes Courts Act is not relevant for deciding the question since, Rule 8 makes no reference to the said Act or Rules framed thereunder. Rule 8 in terms contemplates that the procedure to followed should be the procedure as prescribed by the Code of Civil Procedure. Under the Code of Civil Procedure the Court has power of review, and said power is not taken away by Rule 8 or Rule 9 of the Rules. Therefore, it will have to be held that while dealing with suits or proceedings covered by Rule 8 of the Rules the Court of Small Causes, Bombay will have the power of the review. It is needless to say that the said power of review is limited and circumscribed by the provisions of the Code of Civil Procedure viz. section 114 and Order XLVII of the Code as well as various judicial ronouncements. 8. Therefore, we answer the question referred to us in the affirmative, holding that in view of the provisions contained in Rules 8 and 9 of the Bombay Rent Control Rules the provisions relating to review are applicable to the suits and proceedings other than those referred to in Rules 5 and 7 of the Bombay Rent Control Rules. 9. The writ petition is, therefore, directed to be placed before Single Judge for further hearing and disposal, according to law. Order accordingly.
O R