R.C. Trust vs Ramchandra J. Agarwal

V.B. Raju, J.—Civil Suit No. 3950/1956 filed in the Small Causes Court under the Bombay Rents, Hotel and Lodging House Rates Control

Act, 1947, which will hereinafter be referred to as the Act was decreed ex-parte, and an application to set aside the ex-parte decree was rejected

by the Small Causes Court. But an appeal was allowed by the Extra Assistant Judge at Ahmedabad and the ex-parte decree was set aside. In

revision, it is contended that no appeal lay to the appellate Court, and this is the only question involved in this revision application. The learned

Counsel for the opponent contends that although an appeal does not lie under the ordinary provisions of the Provincial Small Cause Courts Act, an

appeal would lie in this case, as the suit was under a special enactment, namely u/s 28 of the Rent Act.

u/s 7 of the CPC among other things the provisions of Section 104, C.P. Code are not applicable to Provincial Small Cause Courts Act. Order

43, C.P. Code, which provides for orders in which an appeal shall lie under the provisions of Section 104, C.P. Code, therefore, does not apply

to Provincial Small Cause Courts Act.

In regard to appeals, there is a special provision in Section 24 of the Provincial Small Cause Courts Act, which reads as follows:

Where an order specified in Clause (ff) or Clause (h) of Sub-section (1) of Section 104 of the Code of Civil Procedure, 1908, is made by a Court

of Small Causes, an appeal there from shall lie to the District Court on any ground on which an appeal from such order would lie under that

section.

Clause (ff) of Section 104, C.P. Code, refers to orders u/s 35A, C.P. Code. Clause (h) of Section 104, C.P. Code refers to an order under any

of the provisions of the C.P. Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or

detention is in execution of a decree. Apart from Section 24, there is no other provision in the Provincial Small Cause Courts Act relating to

appeals. Therefore, if it was merely an order of the Small Causes Court refusing to set aside an ex-parte decree, no appeal would lie.

But the contention of the learned Counsel for the opponent is that in view of the provisions of the Rent Act, the position is different. Section 28

of the Rent Act enumerates the Courts which have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating

to the recovery of rent or possession of any premises to which any of the provisions of that part of the Rent Act apply and to decide an application

made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. It is further provided that subject to the

provisions of Sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim

or question. Sub-section (2) deals with the powers of the District Court relating to withdrawal of suits, proceeding or application and transferring

the same for trial or disposal to the Court of the Civil Judge, Senior Division, having ordinary jurisdiction in such area. u/s 28 of the Rent Act, the

Court having jurisdiction is the Court of the Small Causes Court established under the Provincial Small Cause Courts Act, 1887.

Apart from the proviso, Section 29 of the Rent Act, so far as material, reads as follows:

(1) Notwithstanding anything contained in any law, an appeal shall lie-

(a) In Greater Bombay, from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction u/s 28, to a bench of two

judges of the said Court which shall not include the Judge who made such decree or order;

(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act,

1887. or by the Court of the Civil Judge deemed to be the Court of Small Causes under Clause (c) of Sub-section (2) of Section 28 or by a Civil

Judge exercising such jurisdiction, to the District Court.

(2) No further appeal shall lie against any decision in appeal under Sub-section (1).

u/s 28 of the Rent Act, the Court has jurisdiction to try any suit, proceeding or application between a landlord and tenant relating to the recovery

of rent or possession etc., and to decide any application made under the Act and to deal with any claim or question arising out of the Act or under

any of its provisions.

No doubt, an order passed by the Small Causes Court refusing to set aside an ex-parte decree is an order passed by the Court of Small Causes

established under the Provincial Small Cause Courts Act. But the question is whether such an order is passed by that Court in the exercise of

jurisdiction u/s 28 of the Rent Act. After the suit has been decided and the decree has been passed, if the Small Causes Court hears an application

to set aside the ex-parte decree, it does not exercise jurisdiction u/s 28 of the Rent Act, and therefore, no appeal lies against that order under the

provisions of Section 29 of the Rent Act.

The provisions of Order 9, C.P. Code apply to Small Causes Courts. Those provisions are not excluded by Section 7, C.P. Code. Order 9,

C.P. Code is in two parts, one relating to appearance of parties and consequence of non-appearance and the other relating to setting aside ex-

parte decrees. Rules 13 and 14 of Order 9, C.P. Code deal with setting aside ex-parte decrees. The power to act under Order 9, Rule 13, C.P.

Code and Order 9, Rule 14, C.P. Code is, therefore, given to Small Causes Courts, established under the Provincial Small Cause Courts Act.

It is provided in Section 31 of the Rent Act as follows:

The Courts specified in Sections 28 and 29 shall allow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals

and in executing orders made by them.

Section 31 of the Rent Act does not say that the Courts specified in Sections 28 and 29 of the Rent Act have all the powers of the Court of Small

Causes established under the Provincial Small Cause Courts Act. Section 31 of the Rent Act only deals with the procedure of trying and hearing

suits, proceedings, applications and appeals and in executing orders made by them. The word ""applications"" has reference to applications already

described in Section 28 of the Rent Act. However, it is not necessary to further pursue this point and decide whether a Small Causes Court

exercising jurisdiction u/s 28 of the Rent Act can pass an order under Order 9, Rule 13, C.P. Code, because we are only concerned with the

question whether an appeal lies.

The learned Counsel for the opponent wants to rely on two judgments, one of the Supreme Court and the other of the Bombay High Court.

The Supreme Court''s judgment is reported in Importers v. Phiroz 55 Bom. L.R. 271. Their Lordships of the Supreme Court were dealing with the

question of setting aside an ex-parte decree, the question whether a suit against a tenant and also a sub-tenant was a suit against a land lord and a

tenant and the question whether a suit in which compensation for use and occupation was claimed was or was not a suit for the recovery of rent

within the meaning of Section 28 of the Rent Act. Their Lord ships held that the jurisdiction to entertain the suit for possession empowered the

Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. Their Lordships

were dealing with a suit in which one of the reliefs claimed obviously fell within the scope of Section 28 of the Rent Act, and their Lordships held

that the other relief prayed was incidental to the main relief. Their Lordships also held that apart from Section 28 of the Act, the joinder of

defendant No. 2, who was a proper party, could not alter the character of the suit and did not make the suit any the less a suit between the

landlord and the tenant or took it out of Section 28 of the Rent Act. But, in the instant case, we are not dealing with any such questions, and the

question involved in the present proceedings relates to setting aside an ex-parte decree after the decree is passed.

10.1 The learned Counsel for the opponent also relies on Mehersingh Sethi v. Khurshed Satarawalla 56 Bom. L.R. 540. In that case it was

decided by the Bombay High Court that Section 28 confers jurisdiction upon the Special Courts not only to decide questions referred to in the

section, but also all matters which are incidental or ancillary to the determination of those questions, e.g., whether the plaintiff is entitled to a charge

on property situated outside jurisdiction for arrears of rent. But, we are not concerned with that question at all, because in the instant case the

question is whether after the decree is passed and after all the questions and all the ancillary questions and incidental questions are decided, the

Court continues to exercise jurisdiction u/s 28 of the Rent Act. These two judgments have no bearing on the question to be decided in the present

revision application.

Even if a Small Causes Court established under the Provincial Small Cause Courts Act has powers to pass an order under Order 9, Rule 13.

C.P. Code, it does not exercise jurisdiction u/s 28 of the Rent Act while it refuses to set aside the ex-parte decree, and, therefore, no appeal lies

u/s 29 of the Rent Act. The lower appellate Court was, therefore, wrong in deciding the appeal before it, which it was not competent to decide, as

no appeal lay to it.

The revision application is, therefore, allowed and the order passed by the learned Extra Assistant Judge, Ahmedabad, is set aside. No order

as to costs.