Shaikh Ibrahim Janmohammad vs Tekchand Fakirchand Rathod and others

A.D. Tated, J.—The facts giving rise to this revision application are that the respondents (hereinafter referred to as "the plaintiffs") filed Civil Suit No. 196 of 1984 in the Court of the 3rd Additional Small Cause Judge, Pune, for eviction of the petitioner (hereinafter referred to as "the defendant") for arrears of rent. The suit was decreed ex parte on 20th September 1984, as neither the defendant nor his Counsel appeared. The defendant preferred an appeal on 7th October 1985 and along with the memo of appeal he filed an application for condonation of delay. He also applied for interim stay of execution of the ex parte decree. Interim stay was granted on 9th October 1985. Notice of the application for condonation of delay was issued to the plaintiffs. The learned Counsel for the plaintiffs opposed stay of execution pending the decision on the application for condonation of delay. The learned trial Judge, on hearing the parties, passed the order in the following terms rejecting the said application and vacated the ad interim stay earlier granted by him : -

The mandatory provisions as laid down under Order 41, Rule 3A(3) of the CPC do not allow this Court to make an order for stay of execution of the decree under challenge though there is a bona-fide mistake as argued before this Court by the learned Advocate for the appellant. The words used in Order 41, Rule 3A(3) material for our purposes are

''the Court shall not make an order for stay of execution....

These words leave no doubt to conclude that the application deserves to be rejected at this stage, however good grounds the applicant may have to agitate in appeal.

The learned Counsel for the defendant, contends that the learned trial Judge was not right in applying the provisions of sub-rule (3) of rule 3A of Order XLI CPC and rejecting the application for stay. According to him, rule 3A was inserted in Order XLI CPC by Bombay High Court Notification No. P. 6324/60 dated 30th September 1968, Clause 103. He submits that the object behind inserting the provision of rule 3A in Order XLI CPC was that the practice of admitting the appeal subject to the provisions as to limitation was disapproved by the Privy Council and, therefore, it was considered necessary to adopt a procedure for securing final determination of the question as to limitation at the stage of admission itself. He also submits that with the same object Order XLI CPC was amended by Act 104 of 1976 and thereby rule 3A was inserted in Civil Procedure Code. He submits that by section 97 of the Amending Act 104 of 1976 the State amendments which were not inconsistent with the provisions of the Principal Act, as amended by Act 104 of 1976, were retained. Thus, according to the learned Counsel, the amendment made by the Bombay High Court by inserting rule 3A in Order XLI CPC being consistent with the Principal Act as amended, does not stand repealed. He submits that as per the Bombay amendment rule 3A does not require that the Court shall not make any order for stay of execution before admitting the appeal, pending the decision of the application for condonation of delay, and, therefore, the order passed by the learned trial Judge, without noticing the State amendment, is . bad in law.

The learned Counsel for the plaintiffs, on the other hand, contends that the Bombay High Court had amended Order XLI CPC by inserting rule 3A in the year 1966. The Central Government extensively amended the Code of Civil Procedure, 1908, in the year 1976 by enacting Act 104 of 1976 and by that Act rule 3A was inserted and it came into force from 1st February 1977. According to him, the subsequent amendment by the Central Government to the CPC overrides the earlier Bombay High Court amendment to the Code of Civil Procedure.

The CPC was extensively amended by Act 104 of 1976 and rule 3A was inserted in Order XLI of the Code. The said rule reads as follows : -

3A. Application for condonation of delay.

(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.

The Bombay State Amendment to the CPC by Bombay High Court Notification No. P. 6324/60 dated 30th September 1966, clause 103, reads as follows : -

3A.Procedure where appellant applies for condonation of delay in filing the appeal.

Where an appellant applies for delay in filing the appeal to be excused, notice to show cause shall be issued to the respondent and the application shall be decided before notice is issued to the Court, from whose decree the appeal is preferred, under rule 13.

Sub-section (1) of section 97 of Central Act 104 of 1976 reads as follows : -

Repeal and savings - (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with he provision of the principal Act as amended by this Act, stand repealed.

Sub-sections (2) and (3) of the said section 97 are not relevant for the purposes of this revision application and hence they are not reproduced. Now the question for decision is whether the provision made by the High Court amendment in rule 3-A is in any way inconsistent with the provision brought in force by the Amending Act of 1976. As stated earlier, the object behind inserting the provision of rule 3-A of Order XLI CPC was that the practice of admitting the appeal subject to the objection as to limitation was disapproved by the Privy Council and, therefore, it was considered necessary to adopt a procedure for securing final determination of the question as to limitation at the stage of admission itself. This was the only object behind the provision. The same object was achieved by the Bombay High Court by inserting rule 3-A in Order XLI CPC as back as 1966. Under the State amendment as well as the Central amendment an application for condonation of delay in filing an appeal has to be decided before admitting the appeal and issuing notice to the Court below under rule 13 of Order XLI CPC As per both the provisions, an application for condonation of delay must be decided first and, thereafter, after hearing the appellant under rule 11 of Order XLI CPC the Court has to decide whether the appeal should be admitted. If on hearing the appellant under rule 11 of Order XLI CPC the Court finds that there is no substance in the appeal, the Court can dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. Where the appeal is not dismissed under rule 11 of Order XLI Civil Procedure Code, the appellate Court has to issue notice of the appeal under rule 13 of Order XLI CPC to the Court from whose decree the appeal is preferred Thus, on comparing the provisions of rule 3-A of Order XLI CPC appearing in the amendment of the Bombay High Court and also in the amendment by Central Act 104 of 1976, I find that the Bombay High Court amendment is consistent with the provisions of the Principal Act as amended by Central Act 104 of 1976. Therefore, the Bombay High Court amendment does not stand repealed u/s 97 of the Central Act 104 of 1976. Consequently, the learned trial Judge was not right in applying the provisions of rule 3-A (3) of Order XLI CPC as amended by Central Act 104 of 1976, It appears that the Bombay amendment to Order XLI CPC whereby rule 3-A was inserted was not brought to the notice of the trial Court and, therefore, he applied the provisions of rule 3-A inserted in Order XLI CPC by Central Act 104 of 1976.

The learned Counsel for the defendant further contends that the appeal preferred by him in the Court below is not u/s 96 CPC but it is u/s 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Bombay Rent Act"), and, therefore, the provisions of Order XLI, rule 3-A (3) CPC are not applicable. According to him, the procedure applicable to the courts entertaining an appeal u/s 29 is laid down in section 31 of the Bombay Rent Act. Section 31 of the Bombay Rent Act reads as follows :-

The courts specified in sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.

The learned Counsel for the plaintiff, on the other hand, contends that section 29 of the Bombay Rent Act specifies the courts to which the appeal from the decree passed by the Court of Small Causes lies, but it does not provide any other procedure to be followed in entertaining and hearing those appeals, and the procedure laid down in the CPC is applicable for admission and hearing of those appeals. He submits that once the appeal is admitted by the court specified in section 29 of the Bombay Rent Act against a decree of the Court trying suits u/s 28 of that Act, that Court has to follow the procedure laid down in the Code of Civil Procedure, and, therefore, the provisions of sub-rule (3) of rule 3-A of Order XLI CPC would be applicable. I have already taken a view, on considering the Bombay amendment and the Central amendment to the Code of Civil Procedure, that the Bombay amendment is still in force and, therefore, it is unnecessary for the decision of this revision application to decide whether the provisions of Order XLI CPC do not apply to the appeals preferred u/s 29 of the Bombay Rent Act.

The learned Counsel for the defendant next contends that the learned trial Judge, in view of the provisions of section 94(e) read with section 107(2) CPC was empowered to stay execution of the decree pending decision of the application for condonation of delay in preferring the appeal. Section 94(e). CPC reads as follows : -

In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, -

(e) make such other interlocutory order as may appear to the Court to be just and convenient.

Section 107 CPC reads as follows : -

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.

A person against whom a decree is passed ex parte can prefer an appeal against that decree. In case he is not able to prefer an appeal within the specified period of limitation, he can prefer an appeal even beyond the period of limitation and can seek condonation of delay in preferring the appeal. He can claim for condonation of delay u/s 5 of the Limitation Act, 1963. It is true that in view of the Bombay amendment and also as per the Central amendment to the CPC the appeal cannot be admitted without first deciding the application for condonation of delay in preferring the appeal. If the Court finds that there is sufficient cause for the delay in preferring the appeal, the Court can condone the delay and hear the appellant under rule 11 of Order XLI Civil Procedure Code, and if the Court does not dismiss the appeal under that rule, the Court has to admit it and issue notices to the Court below and the respondent and hear the appeal on merits. It may be that for hearing and deciding an application for condonation of delay the Court may require some time and in case stay of execution proceedings is not granted and the decree is executed, the very purpose of preferring the appeal is likely to be defeated, and where there is a decree for eviction of a tenant, the tenant would be put to a great hardship which cannot be compensated in case he succeeds in his application for condonation of delay and also in the appeal. Therefore, it can never be construed that the appellate Court is prevented from granting stay of execution of the decree pending hearing of the application for condonation of delay.

In this view of the matter, the revision application is allowed. The order of the trial Court dated 7th November 1985 vacating the ad interim stay granted by him on 9th October 1985 is not aside of the decree is stayed till the decision of the application for condonation of delay. Further hearing of the matter shall be expedited. In the circumstances of the present case there shall be no order as to costs of this revision application.