ANUSAYABAI NARANYANRAO GHATE Vs. MAKTUMBI S NADAF

JUDGEMENT

(1.) BY this Civil Application, the petitioner seeks review of the judgment dated 12th February, 1997 passed in the Writ Petition No.4668 of 1992. By that judgment, the writ petition filed by Smt.Anusayabai, who was petitioner in that writ petition No.4668/92, has been allowed and the order passed by the appellate bench of the Small Causes Court, Bombay, holding that the appeal filed by Anusayabai was not maintainable under section 29 of the Bombay Rent Act, has been set aside the proceedings have been remanded back to the appellate Court for decision of the appeal on merits. It may be pointed out here that the present respondent, the original applicant - Smt. Maktumbi filed an application under Section 41 of the Presidency Small Cause Courts Act, 1882 for an order of eviction against Anusayabai. It was the case of Anusayabai that she is tenant of the premises. Accordingly the preliminary issue was framed and it was decided by the Small Causes Court by an order dated 19.12.1981. The small causes court held by that Anusayabai is not tenant and therefore, she is not entitled to the protection of the Bombay Rent Act. Against this judgment, on the preliminary point, an appeal was preferred by Anusayabai, being Appeal No.44/1982. That appeal was decided by the appellate Court by its judgment dated 7.2.1984 and the appeal was came to be dismissed. Both the orders were challenged before this Court in Writ Petition No. 1728/1984 by Anusayabai. That writ petition was decided on 16.11.1989. This Court dismissed that petition also. Thereafter, the original Ejectment Application No.444/E of 1974 filed by Smt.Muktumbi was taken up for final hearing and decision by the Small Causes Court and that application was allowed by the order dated 25th October 1990 and Anusayabai was directed by the Court to vacate the suit premises. Against that order an appeal was filed before the appellate Court, namely, the Division Bench of the Small Causes Court under section 29 of the Bombay Rent Act. The appeal was registered as appeal No.409/90 and that appeal was held to be not tenable by the appellate court and it is this order of the appellate court, which was challenged by Anusayabai in the writ petition No.4668 of 1992. This court by its judgment dated 12th February 1997, relying on the judgment of the Division Bench of this Court in the Civil Revision Application No.320 of 1949 (A.Dharamsev vs. Mrs. Beatrice Fernandez), decided on 27th July 1949, held that the appeal was tenable and therefore, the appellate court was directed to decide the appeal on merits in accordance with law.

(2.) THE learned counsel appearing for the original applicant/landlady-Maktumbi, urged before me that there is an error apparent on the face of the record in the judgment of this Court dated 12.2.1997. The learned counsel for the landlady submitted that Chapter VII of the Presidency Small Cause Courts Act was amended in the year 1963 and section 42(A) incorporated therein. In the submission of the learned counsel section 42(A) gives a right of appeal against the order on the preliminary point passed by the Small Causes Court by an application filed under section 41 of the Presidency Small Cause Courts Act. There is no provision in Chapter VII of the Presidency Small Causes Courts Act, giving a right of appeal against the final orders passed by the Small Causes Court under section 43 of Presidency Small Causes Court Act. In the submission of the learned counsel Chapter VII of the Presidency Small Causes Court Act, is a code complete in itself and therefore, when section 42(A) of the Act gives only right of appeal against an order on the preliminary point, a right of appeal against the final order made under section 43 cannot be contemplated. In the submission of the learned counsel, in as much as section 42(A) gives right of appeal only against the order on the preliminary point, by the necessary implications, further right of appeal against the final order is ruled out. The learned counsel further urged that reference to the provisions of section 51 of the Bombay Rent Act is not called for because in the submission of the learned counsel, section 51 of the Bombay Rent Act has to be read with reference to the provisions contained in section 50 of the Bombay Rent Act and therefore, in the submission of the learned counsel the provisions of Section 51 are attracted only in a case that was instituted before 1963. The learned counsel further submitted that the present case is not governed by the ratio of the judgment of the Division Bench in A.Dharamsev's case, referred to above, because Court at Bombay is tenable, then under section 42A of the Presidency Small Causes Courts Act, an appeal against an order passed on the preliminary point was also provided for. It is further to be seen here that the Division Bench of this Court in the above referred case, has after considering the provisions of Section 51 of the Bombay Rent Act, has held that as proceedings under Chapter VII of the Presidency Small Causes Courts Act, are deemed to be suits for the purpose of Section 29 of the Bombay Rent Act, an appeal is tenable. In my opinion, therefore, it cannot be said that the judgment looses its effect because of the subsequent amendment in Chapter VII of the Presidency Small Causes Courts Act, by incorporation of Section 42A, which provides an appeal against an order on the preliminary point. It is further pertinent to note here that the net result of the judgment of the Division Bench of this Court is that a licensee or a tenant, who is to be evicted, gets right of one more appeal against the eviction order. In my opinion, therefore, it cannot be said that there is any patent or apparent error of law in the judgment of this Court, which is sought to be reviewed specially when that judgment disposes of the writ petition, solely relying on the judgment of the Division Bench of this Court in A.Dharamsev's case, which is binding on this Court. In this view of the matter, therefore, the Civil Application fails and is hereby dismissed.