HARISHANKAR HIRALAL BOHRA Vs. KARSANDAS NATHUBHAI MAJITHIA

JUDGEMENT

(1.) An Ejectment Application No. 49/215 of 1973 was filed before the Court of Small Causes, Bombay against one Ganapatlal by the Trustees of Ratneshwar temple and Smt. Kesarbai Jamnadas Majithia Hindu Sanatorium Trust. In the said Ejectment Application a decree was passed against Ganpatlal on 19-6-1979. A Darkhast for execution of the decree was then filed on 12th of November, 1979, which was obstructed by the petitioners. Therefore, the Obstructionist Notice No. 362 of 1979 was taken out on 13th November, 1979 and the same was made absolute on 23rd June, 1982. Being aggrieved by the order passed by the trial Court, the petitioners filed an appeal, bearing Appeal No. 337 of 1982, before the Appellate Bench of the Court of Small Causes, which came to be dismissed by the Appellate Bench on the ground that it was not maintainable. It is against this appellate order that the present writ petition is filed by the present petitioners. In view of the narrow controversy involved in this writ petition, it is not necessary to make a detailed reference to the allegations and counter-allegations made in this petition or the affidavits filed in reply.

(2.) Shri Tunara, learned Counsel appearing for the petitioners contended before me that the Appellate Bench committed an error, apparent on the face of the record in coming to the conclusion that an appeal is not maintainable against the order passed by the trial Court in the obstructionist proceedings. According to him, if interpretation put forward by the Appellate Court is accepted then the order passed by the trial Court becomes final and conclusive in view of the amended provisions of Order 21, Rule 101 of the Code of Civil Procedure, without there being any remedy to the petitioners to challenge the said order or establish their right title or interest in the property either by filling an appeal or by instituting an independent suit. In support of this contention he has placed reliance upon the decision of this Court in (Sitaram Hari v. Laxman Rambodh) 1980 Bom.C.R. 140 : 1979 Mh.L.J. 864; (Kishan Ranchhoddas v. Laiji Dharamdas) 1982(1): 1982 Mh.L.J. 216; (Rameshkumar and another v. Rameshwar): 1983 Mh.L.J. 467; (Habib Ahmed v. Abdul Khader etc.) A.I.R. 1975 Bom. 41 and (Elumalai v. Shri Kundaswami) A.I.R. 1961 Madras 408. According to Shri Tunara, interpretation put forward by the Appellate Court practically results in undoing the effect of the amended provisions of the Code of Civil Procedure and, therefore, the Appellate Court has failed to exercise the jurisdiction vested in it by law and hence order passed by it is liable to be set aside.

(3.) On the other hand, it is contended by Mrs. Bharucha, learned Counsel appearing for the respondents that the petitioners have not approached this Court with clean hands and, therefore, this is not a fit case, wherein this Court should exercise the extra-ordinary jurisdiction under Article 227 of the Constitution of India in favour of the petitioners. According to her, the petitioners have wholly suppressed the fact that the original defendant had filed a leave petition before the Supreme Court which came to be rejected and at that time the Supreme Court has passed a conditional order granting time to the defendant to vacate the premises if he filed an undertaking for and on behalf of himself as well as on behalf of the obstructionist. According to her, the said decision of the Supreme Court also operates as res judicata and therefore it is not open to the petitioners to reagitate the same question over again. In any case the equity is not in favour of the petitioners and entertaining this writ petition will amount to abuse of process of law. So far as the merits of the controversy are concerned, it is contended by her that in the present case the ejectment application was filed in the year 1973, wherein the order of ejectment came to be passed in the year 1979 . Therefore, when the Code of Civil Procedure came to be amended in 1976, the proceedings were still pending. The execution proceeding instituted in the year 1979 was merely a continuation of the old proceedings and, therefore by virtue of the provisions of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 present proceedings are saved and the amended provisions will not apply to these pending proceedings. According to the learned Counsel, the obstructionist proceedings were also taken out in the Darkhast proceedings itself. Therefore, in law said proceedings are also continuation of the initial proceedings which are saved by section 97 of the Amending Act as well as section 46(2) of the Presidency Small Cause Courts Act and, therefore, the Appellate Bench rightly came to the conclusion that the appeal was not maintainable. She also contended that the Appellate Bench was also right in coming to the conclusion that if the original proceedings instituted under section 41 of the Act were not subject to an appeal, then the proceedings taken out in execution are also not open to challenge in an appeal and, therefore, the order passed by the Appellate Bench holding that the appeal itself is not maintainable is perfectly legal and valid. In support of this contention, she has placed reliance upon the decision of this Court in (Maharaj Indrajitsinhaji v. H.H. Maharaja Hadmendrasinhaji) 57 Bom.L.R. 962 and (Gobind Prasad v. Hariday Thakur and others) A.I.R. 1925 Patna 692. Placing reliance upon these decisions, it is contended by Mrs. Bharucha that right of appeal is a substantive right and it cannot be conferred upon a litigant by implication. By section 48 of the Presidency Small Cause Courts Act, the provisions of the Code of Civil Procedure are made applicable, as far as may be and that too to the proceedings instituted in the Court of first instance. Rule 1(ii) of the Presidency Small Cause Court Rules read with the Schedule also made it clear that whole of the Code of Civil Procedure is not made applicable to these proceedings. The provisions of the Code referred to in the Schedule attached to the rules apply with additions alterations and modifications referred to therein. Therefore, the whole of Order XXI of the Code of Civil Procedure is not made applicable to the proceedings instituted under the Presidency Small Cause Courts Act and hence there is not provision in law, which provides for an appeal against the order passed by the Small Court in the obstructionist proceedings.