Bombay High Court
Lilabai (Smt.) Widow Of Rasiklal ... vs Keshaorao Son Of Damaji Tidke on 3 March, 1986
Equivalent citations: 1986(3)BOMCR134
JUDGMENT M.S. Deshpande, J.
1. Civil Revision Application No. 157 of 1986 by the tenant arises out of the decree passed by the Additional Judge, Small Causes Court, Nagpur in Civil Suit No. 317 of 1979 in which a decree for ejectment and arrears of rent came to be passed against him. Civil Revision Application No. 158 of 1986 is by another tenant against whom a decree for ejectment and arrears of rent came to be passed by the same Court in Civil Suit No. 320 of 1979. Appeals were taken by the applicants against the decrees passed against them to the District Court being Civil Appeals Nos. 377 of 1985 and 376 of 1985 respectively under the provisions of section 26-A of the Provincial Small Cause Courts Act. Both these appeals were dismissed by the District Court holding firstly that sub-section (1) of section 26 could not apply in view of sub-section (2) and secondly that no appeal lay to it as the decrees were not passed under section 26 introduce by an amendment, but under Items 4 and 8 of Second Schedule as they stood before the amendment and, therefore, under section 15.
2. Both these appeals were heard by the District Court together and decided by identical judgments. The contentions raised by the learned Counsel appearing for the parties in these revision applications are identical.
3. Before I proceed to consider the merits of the contentions raised, it would be desirable to refer to the provisions as they stood before and after the amendment. Section 15 of the Provincial Small Cause Courts Act runs as follows:
"15(1). A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.
(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed two thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order".
The relevant items of the Second Schedule which have bearing upon the suits for arrears of rent and ejectment are Item Nos. 4 and 8. Under Item No. 4, a suit for the possession of immovable property or for the recovery of an interest in such property is excluded from the cognizance of a Court of Small Causes, if it is not a suit for ejectment where---
(a) The property has been let under a lease made by a written instrument or orally and,
(b) The Court of Small Causes would be competent to take cognizance of a suit for the rent of the property, and
(c) The only substantial issue arising for decision is as to whether the lease has determined by efflux of the time limited thereby or has been determined by a notice in accordance with Clause (h) of section 111 of the Transfer of Property Act, 1882.
Item No. 8 excludes a suit for the recovery of rent, other than house-rent, unless the Judge of the Court of Small Causes has been expressly invested by the State Government with authority to exercise jurisdiction with respect thereto. It would thus be apparent that it is only a limited class of suits for ejectment and rent of which the Court of Small Causes could take cognizance. By Maharashtra Act No. 24 of 1984, which came into force from 1-1-1985, Item Nos. 4 and 8 of the Second Schedule were deleted and Chapter IV-AI was introduced. It is necessary to re-produce sections 26, 26-A and 26-C of the Act as amended, as good deal of argument was based on the newly introduced provisions. They are as follows :
"26. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immoveable property and licence fees 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 the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor 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 the recovery of the licence fee or charges or rent therefore, irrespective of the value of the subject matter of such suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence 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 thirty days from the date of the decree or order, as the case may be:
Provided that, in computing the period of limitation prescribed by this sub-section, the provisions contained in sections 4, 5 and 12 of Limitation Act, 1963, shall 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 purpose of satisfying itself that a decree or order made in any case decided by the Court of small Causes was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it think fits.
26-B: xx xx xx xx 26-C: Notwithstanding anything contained in section 16, all suits and, other proceedings cognizable by the Court of Small Causes under this Chapter and pending in the District Court or the Court of any Civil Judge on the date of coming into force of the Provincial Small Cause Courts and Presidency Small Cause Court (Maharashtra Amendment )Act, 1984, shall be continued and disposed of by the District Court or the Civil Judge, as the case may be, if this Chapter had not been enacted."
The two suits in question were filed in the year 1979 that is before the Amending Act came into force on 1-1-1985 and came to be decided on 30th April, 1985, this is after the Amending Act came into force.
4. It was contended by Shri Dharmadhikari on behalf of the respondent that in view of the C.P. and the Berar Regulation of Letting of Accommodations Act, 1946 and the C.P. and the berar Letting of Houses and Rent Control Order, 1949 being in force in the area from which this litigation arose by virtue of sub-section (2) of section 26, the provisions of sub-section (1) would not apply and, therefore, no appeal lie to the District Court under the provisions of section 26-A of the Act from the decision of the Court of Small Causes. This argument found favour with the learned Additional District Judge. In order that the provisions of sub-section (2) of section 26 may apply, it is necessary to examine the scope of the expressions "any other law for the time being in force" which has been used in that sub-section. The opening words of sub-section (2) are "nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fees or charges or rent thereof to which the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporation Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, apply". Evidently in order that "any other law for the time being in force " may apply, it would be necessary that such other law should make provision for filing suits or proceedings for the recovery of possession or of licence fees or charges or rent. The reason for excluding the class of case to which this enactments apply is that they may adequate provision for eviction and recovery of rent and licence fee, and prescribe the forum to which such disputes can be taken at which can grant the necessary relief.
5. Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 substantially enacts the same provision as the newly added section 26(1) and creates Tribunals were such suits or proceedings can be filed. Section 29 of the Act also makes a provision for filing appeals against the decision of the Court enumerated in section 28. Similar provisions are to be found in section 4 of the Bombay Government Premises (Eviction) Act and such proceedings can be taken before the competent authority appointed other section 3 of that Act. Section 81-B and 81-C of the Bombay Provincial Municipal Corporations Act, 1949 respectively empower the Commissioner to evicts the person from Corporation premises and to recover rent or damage as arrears of property tax. Provision is made for appeal from Commissioner's orders under section 81-F of that Act Sections 65 and 66 of the Maharashtra Housing and Area Development Act, 1976 provide for appointment of a competent authority, which is clothed with the power under section 66 to evict certain persons from authority-premises and under section (sic) that power is to recover rent, compensation amount, or damages as arrears of land revenue. Provision is made by section 70 of that Act for appeals the decisions of the competent authority.
6. Having regard to the objects and purposes for which Chapter IV-A(1) has been added, it would be apparent that to answer the expression any other law for the time being in force it is necessary that law should provide for the institution of suits for recovery of possessions of immoveable property or licence fees, charges or rent and reference cannot to be any law whatsoever which does not make any such provision.
7. Which dealing with the expression any other law for the time being in force in section 135(a) of the Customs Act, 1962, this Court observed in State of Maharashtra v. Umar Badshah, 76 Bom.L.R. 738 that they refer only to those laws which were are germane to the main objects and process of the Customs Act or Laws which were in the mind of the legislature when this words were enacted, as for instance, the Import and Export Control Act, 1947 or the Foreign Exchange Regulation Act, 1947. In Maxwell on Interpretation of Statutes, Twelfth Edition, it has been stated that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon in which modifies the meaning of the words and even the structure of the sentence. Reference may be made to the passage in Principles of Statutory interpretation by G.P. Singh, Third Edition at page 326, which is as follows :
"When particular word pertaining to a class category or genus are followed by general words, the general words are construed as limited to the things of the same kind as those specified ............. The rule applies when (1) the statute contains an enumeration of specific words : (2) the subjects of enumeration constitute a class or category : (3) that class or category is not exhausted by the enumeration: (4) the general terms follow the enumeration and, (5) there is no indication of a different legislative intent".
8. Having regard to these well-settled principles, the enquiry has now to be directed to finding out whether the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 and C.P. and Berar Letting of Houses and Rent Control Order, 1949 answer the test. The position as it obtains now under the aforesaid Act of 1946 and the Rent Control Order of 1949 has been lucidly stated in paragraph 6 of the judgement of this Court in Dhannalal Nandlal Verma v. Additional Magistrate, 1984 Mh.L.J. 959 and it was pointed out that the proceedings under the Rent Control Order do not terminate in an order eviction and only permission is granted to the landlord to give notice of termination which he sought to give. Consequently the proceedings under Clause 13(3) of the Rent Control Order do not terminate in an order of eviction at all and, therefore, section 22(1)(a) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 cannot be attracted at the stage. The Court was examining whether the bar to the institution of suits created by section 22(1)(a) would apply to the filing of an application under Clause 13(3) of the Rent Control Order as the bar was to the institution of a suit or proceeding for obtaining any decree or order for the eviction of any occupier from any building or land in a slum area and it was held that the proceedings for eviction were governed by the Code of Civil Procedure and the Rent Control legislation does not either abrogate or pro tanto repeal the general law and is merely supplementary. It was also held that the special jurisdiction in Rent Control Authorities is vested in respect of only those matters as provided and for the rest of the matters the jurisdiction of the Civil Court is kept intact.
9. Provisions of section 26 which I have reproduced above take into their sweep many more suits which could not have been entertained in view of Items 4 and 8 of the Second Schedule to the Provincial Small Cause Courts Act. In view of the narrow limits within which the suits had to be entertained by the Court of Small Causes, the jurisdiction of the Small Causes Court has now been substantially enlarged in respect of the suits between a licensor and licensee, or a landlord and tenant, the only limitation being that they should be relating to the recovery of possession of any immoveable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes or relating to the recovery of the licence fee or charges or rent therefore, irrespective of the value of the subject matter of such suits or proceedings. The examination of sub-sections (1) and (2) amply shows that the object of excluding different matters governed by the other enactments was that they need not be brought to the Court of Small Causes under sub-section (1) because adequate provision was made in the four Acts which have been specifically referred to in sub-section (2). Having regard to the nature of the provisions of the Central Provinces and Berar Letting of Houses and Rent Control Order, it is obvious that the order does not make provision in the matter as the other Acts do and does not provide for passing of decrees for ejectment or possession or the monetary reliefs based on the relationship which is relevant to sub-section (1) of section 26. There can, therefore, be no doubt that the expression "any other law for the time being in force" would not include the C.P. and Berar Regulation of Letting of Accommodation Act, 1946 and the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The consequences would be that sub-section (1) of section 26 would apply even to any areas where the Rent Control Act and the order would have application, and the Court of Small Causes would have small jurisdiction to entertain the suits under sub-section (1) applicability of those provisions. The learned Additional District Judge was, therefore, in error in holding that as the suit premises were governed by the provisions of the C.P. and Berar Regulation of Letting of Accommodation Act, 1946 and the Rent Control Order, 1949, the provisions of sub-section (1) of section 26 cannot apply to those suits. In fact after the deletion of Item 4 and 8 of the Second Schedule, it would be the Court of Small causes which under section 26(1) of the Act would have jurisdiction in respect of suits or proceedings falling within it. It follows that if section 26 applies, an appeal would lie under section 26-A to the District Court from a decree or order made by the Court of Small Causes exercising the jurisdiction under section 26.
10. Shri Ahmed, learned Advocate for the applicants urged that after deletion of Items 4 and 8 from the Second Schedule, the only provision which would apply to the suits to which Items 4 and 8 formerly applied would be the newly added section 26 of the Act in view of the non-obstante clause and there would be no other provision under which cognizance of such suits could be taken by the Court of Small Causes, though that would be the Court which would have exclusive jurisdiction to entertain the suits or proceedings mentioned in it. He stressed the words "notwithstanding anything contained elsewhere... the Court of Small Causes shall have jurisdiction to entertain and try all suits" and urged that after the deletion of Items 4 and 8, section 26 would apply and, therefore, even though the suits were instituted prior to the coming into force of the Amending Act, the decision of the Court of Small Causes in the present suit would be appealable under section 26-A.
11. Before proceeding to consider whether section 26 in Chapter IV-A can have a retrospective operation, it is necessary to bear in mind the difference in the provisions as they existed prior to the amendment, in Items 4 and 8 of the Second Schedule, and the wide jurisdiction conferred by section 26(1) subject only to sub-section (2) thereof. The right of appeal conferred by section 26-A is a corollary to the enlarged jurisdiction that the Court of Small Causes would have under the Amending Act No. 24 of 1984. Under the old section 27, which is now re-numbered as section 25-A, the decree or order made under the provisions of Chapter IV was final. The finality was subject to the provisions of section 25 under which the High Court for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, has the power to call for the case and pass such order with respect thereto as it thinks fit. No right of appeal was provided under the unamended provisions. Under the newly added section 26-A not only is a right of appeal provided, but a further power is given to the District Court under sub-section (4) under which the District Court may for the purpose of satisfying itself that a decree or order made in any case decided by the Court of Small Causes was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit. The purpose of referring to all these provisions is to indicate that the provisions of section 26 cannot be regarded as a continuation of the jurisdiction, however limited, which the Court of Small Causes had under Items 4 and 8 of the Second Schedule, but the object was to create a larger jurisdiction for entertaining the suits and proceedings which till the amendment could not be entertained by the Court of Small Causes and make the orders and decrees of the Court of Small Causes subject to an appeal to the District Court. It would, therefore, be clear that there was a repeal of the original provisions and creation of new jurisdiction in the Court of Small Causes. In the absence of clear and express provisions, it cannot, therefore, be said that what obtained under Items 4 and 8 was still preserved. By enacting section 26 an additional right of appeal was given to a litigant which he did not have when the provisions of Items 4 and 8 of the Second Schedule, were on the statute book.
12. Before proceeding to consider the other contentions, reference may be made to the position which is now firmly settled by the decision of the Supreme Court in Garikapati v. Subbiah Choudhary, the following principles were summarised :
(1) That the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(2) The right of appeal is not a mere matter of procedure but is a substantive right.
(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(4) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(5) This vested right of appeal can be taken away only by subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
13. Under Clause (a) of section 7 of the Bombay General Clauses Act the repeal will not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligations, liability, penalty, forfeiture or punishment and such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. The remedy which the applicants had under the provisions applicable on the date of the institution of the suit was only to apply to the High Court under section 27, as it existed prior to the Amending Act No. 24 of 1984, as the right of appeal was not available at that time and unless the provisions of sections 26 and 26-A of Chapter IV-A1, as introduced by the Amending Act No. 24 of 1984 can be construed to have retrospective operation, no right of appeal would be available to a party, who did not have that right prior to the amendment. For pointing out that the provisions of section 26 were retrospective, Shri Ahmed relied on the words "shall have jurisdiction" in section 26 and referred to the observations of the Patna High Court in Ramsevak v. Sheopujan, where while dealing with the provisions of section 14(1) of the Hindu Succession Act, 1956, it was observed that---
"Just because the words used in section 14(1) are 'shall be held' it does not necessarily follow that merely on that account these words have no reference back to the past. It is well established that when the word 'shall' occurs in a statute, the intention of the Legislature is directed more towards its imperative character, to show command, more that point towards its futurity".
It was further held that although the words are "shall be held" which prima facie may be of a prospective character, nevertheless there are good reasons to give these words also a larger operation. Now it is difficult to see how what was said in respect of the provisions of section 14(1) of the Hindu Succession Act can have application when the words used in section 26 here do not admit of any ambiguity and have reference only to wider jurisdiction which was to be conferred on the Court of Small Causes by the Amending Act. No words have been used there which can be construed as admitting of retrospective operation, and having regard to the larger jurisdiction that was being created, the provisions would be only prospective. When this is the position, a right of appeal which did not exist cannot be said to have been created by the amendment. All that was saved by virtue of section 7 of the General Clauses Act was the right existing on the date when the action was brought.
14. The next contention on behalf of the applicants was that under section 27 of the Provincial Small Cause Courts Act there was no finality to the order of the Court of Small Causes and it was subject to the revisional jurisdiction of the High Court under section 25 of the said Act. Reliance was placed on two judgments of the Supreme Court in Moti Ram v. Suraj Bhan, and Keshavlal v. Mohanlal, . In both these cases reference was made to the observations in Indira Sohanlal v. Custodian of Evacuae Property, Delhi, . In Moti Ram's case (supra) the Supreme Court held that the finality of the appellate decision under section 15(4) of the East Punjab Urban Rent Registration Act No. 3 of 1949 before its amendment by Act No. 29 of 1956 could not be invoked by the appellant before the appellate decision was actually recorded. It was further held that if no finality could be claimed at an earlier stage, it is clear that at the time when the appellate authority decided the matter the amending section had come into force and when the appellate order was actually passed, it could not claim the finality under the earlier provision.
15. In Keshavlal's case (supra) the position was that section 29(2) of the Bombay Act, namely Bombay Rents, Hotel and Lodging House Rates Control Act as amended by the Gujarat Act No. 18 of 1965, which confers upon the High Court a jurisdiction wider than the jurisdiction exercisable under section 115 of the Code of Civil Procedure was held as not applying to pending revision under section 115 of the Code of Civil Procedure filed against the appellate order under section 29(1) long before the date of amendment and the revision had to be decided in accordance with the limitations imposed under section 115 of the Code of Civil Procedure. With reference to Moti Ram's case it was observed that on the data on which the order was made the order had acquired no finality for it was subject to an order which may be passed in revision application which may be filed before the High Court under the Amended Act and that Moti Ram's case, therefore, had no application. The difference lies in that there was an enlargement of the High Court's power under section 115 of the Code of Civil Procedure by virtue of the Gujarat amendment and there was no creation of an appellate forum as has been done by Amending Act No. 24 of 1984. Even so it was held that the larger powers conferred on the High Court could not be available in view of the law as it existed previously, the amendment not being retrospective. It is not, therefore, open to the applicants to contend that the finality under section 27 which was subject only to section 25 could be made subject to another remedy of appeal which was not in existence at that time.
16. Shri Ahmed for the applicants tried to draw support from the provisions of section 26-C, which have been extracted above by which a saving clause has been introduced in respect of the proceedings pending in the District Court or the Court of any Civil Judge on the date of the coming into force of the amending Act No. 24 of 1984, which notwithstanding anything contained in section 16 shall be continued and disposed of by the District Court or the Court of Civil Judge, as the case may be, as if the Chapter had not been enacted. Under section 16, the Court of Small Causes had exclusive jurisdiction in respect of matters which were not excepted from its jurisdiction under section 15. In view of the wider provisions of section 26, it was necessary to remove any ambiguity which might arise and, therefore, it was clarified that the proceedings in the District Court or in the Court of Civil Judge had to be continued by making a clear provision. The proceedings pending in the other courts evidently were such as could not be filed in the Court of Small Causes on account of its earlier limited jurisdiction. It is difficult, however, to see how section 26-C can assist the applicants in contending that a right of appeal would be available to them even though section 26 may not be applicable to them. It is clear that the cases which the Court of Small Causes could have entertained under section 15 would be decided by that Court, as the amendment is prospective, on the basis of the law as it existed at the time of the initiation of the proceedings.
17. To sum-up the provisions of the Amending Act No. 24 of 1984 so far as they bear upon Items 4 and 8 of Second Schedule read with section 15 and sections 26 and 26-A of Chapter IV-A1 are prospective and the proceedings entertained by the Court of Small Causes under Items 4 and 8 of the Second Schedule will have to be decided by the Court of Small Causes in accordance with the provisions which existed on the date of the initiation of the proceedings and no right of appeal would be available in respect of the suits or proceedings initiated under the unamended provisions. Secondly, the operation of section 25(1) would not be restricted by reason of the Central Provinces Regulation of Letting of Accommodation Act, 1946 and C.P. and Berar Letting of Houses and Rent Control Order, 1949 being in force in the arrears to which they apply.
18. In this view of the matter the revision applications are dismissed, but there will be no order as to costs.