MADANLAL MULCHAND SONI Vs. MAINKICHAND DHANRAJ GUGLE

JUDGEMENT

(1.) The present petitioner filed Regular Civil Suit No. 780 of 1977 in the Court of the Joint Civil Judge (Junior Division), Ahmednagar. That Court made an order on November 21, 1980 issuing process to the Income-Tax Officer at the behest of the defendents though issuance of such a process was objected on behalf of the plaintiff. The said order made by the learned trial Judge was subjected to an application filed before the Second Extra Assistant Judge, Ahmednagar, purporting to be under section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called "the Rent Act". The said Court dismissed the revision, holding that the same was incompetent. That order is under challenge in this Court and so also order made by the trail Court issuing the process to the Income-tax Officer.

(2.) An far as the tenability of the revision is concerned, it is undoubtedly clear that the provision of sub-section (3) of section 29 of the Rent Act do not provide for any such revision. Section 29 of the Rent Act deals with appeals. Sub-section (1) of section 29 of the Rent Act indicates, by Clauses (a) and (b), the decree and order against which an appeal lies. Provision enacted excepts and indicates the decree or order against which no appeal shall lie. Sub-section (2) enacts that there would be no further appeal against any decisions in the appeal under sub-section. In the context of sub-sections (1) and (2), sub-section (3) has to read and it means that "the orders", which are otherwise non-appealable, are primarily spoken to in sub-section (3) of section 29. 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 effect 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. The decision of the Gujarat High Court in the case of (Maharana Mills v. Maharrai)A.I.R. 1972 Gujarat 226, with respect, is an authority for the proposition that purely procedural orders not affecting the substantive rights of the parties are not within the contemplation of sub-section (3) of section 29. The view taken by the Second Extra Assistant Judge, Ahmednagar, therefore, is, thus correct and the revision filed was rightly rejected.

(3.) Turning to the other submission of the learned Counsel that the process should not have been issued by the trial Judge, it appears that the only opposition recorded was on the ground of delay and that was rejected by the learned trial Judge. If there be any other ground, like the bar of law, to issue such a process, the same has not been raised before the trial Judge if it be raised, the trail Court is bound to consider the same like any other objection. As the point was not raised before the trial judge, it will not be proper to express any view on that aspect.