PANCHAL KESHAVLAL SOMNATH Vs. CHINUBHAI JAGJIVANDAS

JUDGEMENT

(1.) In this revision application the main question for determination is whether an order made under Order IX rule 13 of the Civil Procedure Code by a Court exercising jurisdiction under sec. 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 refusing to set aside an exparte decree passed by it is appealable under sec. 29 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 to a Bench of two Judges of the Court of Small Causes as provided under sec. 29 of the Act. the applicants are the original defendants against whom Civil Suit No 1299 of 1963 was filed by the opponent for recovery of possession of rented premises in the Court of Small Causes Ahmedabad. That suit was under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 as applicable to the State of Gujarat (hereinafter referred to as the Rent Act) and the Court was exercising jurisdiction while entertaining and deciding the suit under sec. 28 of the Rent Act. The applicants-defendants did not remain present on the date of hearing and consequently an exparte decree was passed against them. Thereafter the applicants preferred an application to the Court of Small Causes at Ahmedabad for setting aside the exparte decree that was passed against them and this application was numbered as Miscellaneous Application No. 2196 of 1965 and was rejected by an order dated 7th May 1966. The present revision application is directed against that order passed by the learned Judge of the Court of Small Causes Ahmedabad refusing to set aside the exparte decree passed against the applicants.

(2.) It has been contended on behalf of the opponent that the present revision application is not competent as an appeal would lie to the Bench of two Judges of the Court of Small Causes by virtue of the provisions of sec. 29 of the Rent Act. Mr. Y. S. Mankad appearing on behalf of the applicants on the other hand contended that an order refusing to set aside an exparte decree passed by a Court exercising jurisdiction under sec. 28 of the Rent Act would not be appealable under sec. 29 of that Act and no appeal would lie to the Bench of two Judges of the Court of Small Causes Ahmedabad as provided in sec. 29 of the Rent Act. Mr. Mankad in support of his argument has strongly relied on the judgment of Raju J. in the case of R. C. Trust v. Ramchandra J. Agarwal VII G.L.R. 401.

(3.) According to Mr. Mankad the relevant provisions of the Code of Civil Procedure regarding appeals were not applicable to cases decided by the Small Causes Court and consequently no appeal would lie from an order passed by such a Court on an application preferred before it for setting aside an exparte decree under Order IX rule 13 of the Civil Procedure Code. If the older was regarded as one passed by the Court of Small Causes contended Mr. Mankad it would not be an appealable order. Mr. Mankad further contended that the order could not be considered to be an order that was made in the exercise of jurisdiction under sec. 28 of the Rent Act and consequently was not appealable. The contention of Mr. Mankad was that the jurisdiction of the Special Court did not extend to entertain and decide a proceeding to set aside an exparte decree passed by it under the Rent Act and since such an order could not be considered as an order passed by a Court exercising jurisdiction under sec. 28 of the Rent Act no appeal was competent under the provisions of sec. 29 of that Act.