HABIB AHMED KHUDABUX Vs. ABDUL KABUR REHMANJI GODIWALA

JUDGEMENT

(1.) This Revision Application by one Habib Ahmad Khudabax who had obtained by the Ist respondent against the 2nd respondent is referred to a Division Bench by Mr., Justice Vimadlal as he tough that there was a conflict of decisions of single judges of this Court on the point, namely, whether an appeal lies at a Bench of the Presidency small Cause Court at Bombay from an order made by a single judge of that Court under Order XXI, Rule 98 of the Code of Civil Procedure.

(2.) The first respondent is the owner of a property situate at Victoria Garden second respondent was a monthly tenant of a shop on the ground floor of the said property at a rent of Rs.50/-Per month. In 1962 the first respondent ( original plaintiff) filed a suit , R.A.E. Suit No. 257 of 1962 against the second respondent to recover possession of the said shop in the Small (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (No.LVII of 1947), (hereinafter refereed to as the Rent Act), and April 1965 . Second respondent's appeal to a Bench of the Court of Small Causes against the said decree was dismissed on the 25th February 1969. In November 1971, the first respondent started execution proceeding in the Small Causes Court recover possession of the suit premises. As the present petitioner and his mother , the third respondent, obstructed the execution, the first respondent took out an obstructionist notice. On the 17th February 1972 a single Judge of the Small causes Court to passed an Order under Order XXI Rule 98 of the Code of Civil Procedure, directing the first respondent to be put into possession of the said shop. An appeal preferred by the present petitioner against the said order to a Bench of the Court of Small Causes was dismissed on the 14th July 194 2 on the ground that the said order was petitioner has preferred this revision application.

(3.) In order to decide the point, it is necessary to refer to relevant provisions of law and rules. The Small Causes Court in Bombay is established under the Presidency Small Cause Court Act, 1882 ( here in after referred to a the Small Cause Courts Act.) . Chapter IV containing Section 18 to 22 defines the jurisdiction of the Small Cases Court. Section 18 restricts it to suits of Civil nature when the amount or value of the subject -matter does not exceed Rupees 3,000 /- and section 19 specifies suits in which the Court shall have no jurisdiction. Chapter V containing Section s 23 to 36 lays down the procedure in suits cognizable by the Small Cause Court . Chapter VI contrails. Section 37 to 40 provides for new trial of contested cases. Chapter VII contained Sections 41 to 49 prior to the Maharashtra Amending Act No. XLI of 1963 dealt with recover of possession of immovable property. Chapter VIII provides for issue of distress warrant to recover arrears of rent.