DHULIABAI MANA PRAGA Vs. MANIKBAI VITHALRAO BHUSARSTH

JUDGEMENT

(1.) By this writ petition under Article 227 of the Constitution of India the petitioners who are the defendants have challenged the decree of eviction passed against them in a suit filed by the respondents. The suit was filed by the respondents for eviction on various grounds under the Bombay Rents, Hotel and Lodging House Rates Act, 1947 (hereinafter referred to as the said Act of 1947). The suit filed by the respondents was dismissed and by the impugned order of the Appellate Bench of the Court of Small Causes, a decree for possession has been passed against the petitioners. The said decree has been passed on various grounds including the ground of arrears of rent. When a query was made to the learned Counsel appearing for the petitioners as to whether a statutory remedy of filing revision application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) is available to the petitioners, he submitted that the issue of maintainability of writ petition under Article 227 of the Constitution of India on the ground of availability of statutory remedy under Section 115 of the said Code is pending for consideration of the Division Bench of this Court. He submitted that in the light of the reference to a larger bench, it cannot be said that the order dated 24th August 2006 in Writ Petition No. 4138 of 2006 in the case of Sadanand Gangadhar Habbu v. Shri Sidheshwar Devasthan Panch Committee and Ors. is a binding precedent. He invited my attention to order dated 25th July 2007 passed by this Court in Writ Petition No. 1945 of 2007 by which a reference has been made to the larger Bench on maintainability of a writ petition under Article 227 of the Constitution of India when remedy of revision application under Section 115 of the said Code is available. He submitted that by referring the question to a larger bench another single Judge has taken a view which is contrary to the view taken in the case of Sadanand Habbu (supra) in Writ Petition No. 4138 of 2006. The learned Counsel appearing for the petitioner invited my attention to a decision of the Division bench in the case of Dr. Savladas Hasumal Makheja v. Premchand Manikchand Oswal and Ors.,2003 105 BLR 372. He submitted that the same learned Judge who has passed order in Writ Petition No. 4138 of 2006 has taken a contrary view while sitting in a Division Bench wherein it is held that there are two remedies available to a litigant who wants to challenge the order of eviction under the said Act of 1947. One remedy is of filing the revision application and other is of filing the writ petition and it is for the aggrieved party to elect the remedy and hence a writ petition was maintainable. He placed reliance on a decision of the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. He also placed reliance on decision of the another learned single Judge dated 29th January 2003 in Writ Petition No. 7085 of 2002. In the said decision what has been held by this Court is that restriction imposed by 2002 amendment to the said Code would not interfere in exercise of powers under Article 227 of the Constitution of India of this Court.

(2.) I have considered the submissions. In the Writ Petition No. 4138 of 2006 (Sadanand Gangadhar Habbu v. Siddheshwar Devsthan Panch Committee, Solapur and Ors.) and other connected writ petitions, this Court by judgment and order dated 24th August 2006 considered the question whether a writ petition under Article 227 or a writ petition under Article 226 read with Article 227 of the Constitution of India can be entertained when a remedy of filing a revision application under Section 115 of the said Code is available to the petitioner. This Court considered various decisions of this Court as well as Apex Court including decisions of the Apex Court in the case of Sadhana Lodh v. National Insurance Co. Ltd., 2003 3 SCC 524 as well as Shyam Sunder Agarwal & Co. v. Union of India, 1996 2 SCC 132. Based on the said two decisions this Court held that when a statutory remedy of filing a revision application under Section 115 of the said Code was available, a writ petition under Article 227 or a writ petition under Article 226 read with Article 227 of the Constitution of India need not be entertained. In the said order, this Court has referred to a decision of another learned single Judge of this Court in the case of Gurucharansing Hardayalsing Sethi v. Narhari Laxman Shinde and Ors., 1996 1 MhLJ 869 where this Court held that as a remedy of filing a revision application under Section 115 of the said Code is available, a writ petition under Article 226 read with Article 227 need not be entertained. Reliance was placed on another decision of the learned single Judge of this Court in the case of Sarupchand Multanchand Sancheti (dead) through Lrs. v. Gulabchand Jaideo Agarwal (dead) through Lrs Writ Petition No. 2330 of 1998 decided on 26th June 1998. In paragraph 6 of the said decision, this Court held thus:

(3.) It must be stated that though the decision in the case of Dr. Savladas (supra) is by the same learned Judge who has passed order in the Writ Petition No. 4138 of 2006, the subsequent decision in Writ Petition No. 4138 of 2006 has been rendered in the light of the subsequent decision of the Apex Court in the case of Sadhana Lodh (supra). The decision of the Apex Court in the case of Sadhana Lodh (supra) has been delivered after the decision in the case of Dr.Savladas (supra). The judgment in Writ Petition No. 4138 of 2006 also considers the judgment of the Apex Court in the case of Shyam Sundar Agarwal (supra) which was not brought to the notice of the Division Bench when the case of Dr.Savladas Makheja (supra) was decided.