DILIP BIDESH Vs. SHIVGOPAL MADANGOPAL CHAURASIA

JUDGEMENT

(1.) In this Civil Revision Application under section 115 of Civil Procedure Code, challenge is to the judgment dated 20-3-2003 delivered by Second Additional District Judge, Nagpur in R. C. A. 574/2001 in an appeal under section 26-A of Provincial Small Causes Court Act (referred to as Provincial Act hereafter) whereby said Court has confirmed the judgment and decree dated 30-10-2001 delivered by Additional Judge, Small Causes court Nagpur in Civil Suit No. 1435/1986. The revision applicant is the original tenant and defendant in Civil Suit and appellant in appeal. The present respondent obtained permission from Rent Controller under provisions of c. P. and Berar House Rent Control Order, 1949 and also from Competent authority under the provisions of Slum Act and, then terminated tenancy of present revision applicant by issuing notice under section 106 of Transfer of property Act. When the revision applicant failed to comply with that notice, he filed above referred Civil Suit for his ejectment, for recovery of arrears of rent, notice charges, inquiry into future mesne profits etc. The Small Causes court granted decree of eviction in his favour and the revision applicant/ tenant filed above-mentioned appeal which also came to be dismissed. Thereafter he has filed present civil revision. The revision has been admitted for early final hearing and possession of revision applicant has been protected. The respondent landlord then filed Civil Application 8505 of 2004 for early hearing and that application was rejected on 11-2-2005 as this Court did not found any instance of severe hardship. However at that time respondent/ landlord made grievance that revision itself was not maintainable. Both the counsels agreed to argue the matter on maintainability and accordingly matter was listed from time to time before this Court. After hearing parties on the point of maintainability, Revision was closed for orders on that point.

(2.) Advocate Choube for respondent landlord has invited attention of this court to section 7 of C. P. C. to point out that section 115 thereof is expressly excluded insofar as Small Causes Court is concerned. He contends that a remedy of appeal under Section 26-A of Provincial Act is provided against the judgment of Small Causes Court and the said appellate judgment is final in view of section 27 thereof. Advocate for Revision applicant Shri Moharil argued that section 27 has no application because it does not refer to the appellate order at all and the appeal Court namely the District Court is a Court subordinate to High Court and as such remedy of Revision under section 115 c. P. C. is correctly availed of. In the alternative and by way of abundant precaution he also stated that if this Court ultimately finds that revision under section 115 C. P. C. is not tenable, revision applicant should be permitted to file appropriate writ petition in High Court and till then interim orders operating in revision protecting his possession should be continued.

(3.) The provisions of Provincial Act therefore need to be considered. It is important to note that said provisions are amended by Maharashtra Amendment at No. 24 of 1984 with effect from 1-1-1985. Considering the nature of present controversy, it would be appropriate to first look into the relevant unamended provisions prevalent before said date. Section 24 to section 27 are the relevant sections in this respect. Said sections read as under :- 24. Appeal from certain orders of courts of Small Causes.- Where an order specified in Clause (ff) of Clause (h) of sub-section (1) of section 104 of the Court or Civil Procedure, 1908 is made by a Court of Small causes, an appeal therefore, shall lie to the District Court on the ground on which an appeal from such order would lie under that section. 25. Revision of decrees and orders of Court of Small Causes.-The High court, for the purpose of satisfying itself that a decree or order made in any case decided by Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. 26. Amendment of Second Schedule to the Code of Civil Procedure.- repealed in 1888.27. Finality of decrees and orders.- Save as provided by this Act, a decree on order made under the foregoing provisions of this Act by Court of small causes shall be final. The relevant amended provisions as introduced by Maharashtra Act No. 24 of 1984 with effect from 1-1-1985 read as under :-- 26. The suit or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and license fee or rent, except those to which other Acts apply to lie in Court of small Causes (1) Notwithstanding anything contained elsewhere in this Act, but subject to provisions of sub-section (2) , the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensors and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the court of small causes or relating to recovery of license fee or charges or rent therefor, irrespective of the value of the subject-matter of such suit or proceedings. (2) Nothing contained in sub-section (1) shall apply to suits or proceedings for recovery of possession of any immovable property or of license fee or charges or rent thereof, to which the provisions of the Bombay rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises ( eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, apply. 26-A. Appeal.- (1) An appeal shall lie, from a decree or order made by the court of small causes exercising jurisdiction under section 26 to the district Court. (2) Every appeal under sub-section (1) shall be made within 30 days from the date of decree or order, as the case may be : provided that, in computing the period of limitation prescribed by this subsection, the provisions contained in sections 4, 5 and 12 of Limitation act 1963 shall and, so far as may be, apply. (3) No further appeal shall lie against any decision in appeal under sub-section (1). (4) The District Court may, for the purposes of satisfying itself that a decree on order made in any case decided by the Court of Small Causes was according to law, call for the case in which decree on order was made and pass such order with respect there to as it thinks fit. 26-B: XXXXX XXXXXX 26-C: Notwithstanding anything contained in section 16, all suits and the proceedings cognizable by Court of small causes under this Chapter and pending in District Court or the Court of any Civil Judge on the date of coming into force of the Provincial Small Causes Courts and Presidency small Causes Courts (Maharashtra Amendment) Act, 1984, shall be continued and disposed of by the District Court or the Court of Civil Judge, as the case may be, as if this Chapter had not been enacted. In the background, it is also necessary to book into section 7 C. P. C. it reads:- 7. Provincial Small Causes Courts.- The following provisions shall not extend to courts constituted under the Provincial Small Causes Courts act 1887, or under the Berar small Causes Courts Law 1906, or to courts exercising the jurisdiction of a Court of small causes under the said Act or law or to the courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say (a) so much of the body of the Code as relates to (i) suits excepted from Cognizance of a Court of small causes ; (ii) the execution of decrees in such suits; (iii) the execution of decrees against immovable property; and (b) the following sections, that is to say- section 9, sections 91 and 92, sections 94 and 95 so far as they authorise or relate to (i) orders for attachment of immovable property; (ii) injunctions; (iii) the appointment of a receiver of immovable property; or (iv) the interlocutory orders referred to in Clause (e) of section 94, and sections 96 to 112 and 115.