Bombay High Court
Shri. Salim S/O. Miyan Khan And Another vs Mijlis Madarsa-E-Islamia Society, ... on 27 June, 2022
Author: Anil S. Kilor
Bench: Sunil B. Shukre, Anil S. Kilor
Judgment 1 wp-4690-2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4690 OF 2015
1. Shri Salim S/o. Miyan Khan
Lassiwale, Aged about Major,
Occupation : Business.
2. Smt. Shahzadi Begum W/o. Mohd.
Israil, Aged about : Major, Occupation:
Nil,
Both R/o. House No.1012, Young
Muslim Football Ground, Mominpura,
Nagpur - 18.
.... PETITIONERS.
// VERSUS //
1. Majlis Madarsa-E-Islamia Society,
through its Secretary, Shri Nisar
Ahmad S/o. Mohd. Usman, Aged
about 43 years, Occupation :
Business,
2. Haji Mohd. Yunis Anees Ansari
S/o. Abdul Hafiz, Aged about
Major, Occupation : Retired.
3. Abdul Salam Miaynji S/o. Abdul Sattar
Aged- Major, Occupation -Business,
4. Nisar Ahmad S/o. Mohd. Usman,
Aged- Major, Occupation -Business,
Judgment 2 wp-4690-2015.odt
5. Dastageer Ahmad S/o. Salim Ahmand,
Aged- Major, Occupation -Business,
6. Rahamatulla Rashid S/o. Shukarullah,
Aged- Major, Occupation -Retired,
7. Maulana Mustufa S/o. Abdul Hafiz
(dead)
8. Abdul Kalam S/o. Abdul Karim Ballar,
Aged- Major, Occupation -Retired,
9. Abdul Rasheed S/o. Gulam Rasul,
Aged- Major, Occupation -Retired,
10. Hafiz-Abdul Sattar S/o. Mohd.Siddique,
Aged- Major, Occupation -Service,
11. Iftekhar Nawab S/o. Nabab,
Aged- Major, Occupation -Business,
12. Aainul Abedeen S/o. Illahibux (dead),
13. Mohd.Sagheer S/o. Salim Ahmad,
Aged- Major, Occupation -Business,
14. Iftekhar Anees S/o. Yunus Anees,
Aged- Major, Occupation -Business,
15. Mohd.Afzal S/o. Mohd.Umar,
Aged- Major, Occupation -Business,
16. Zulfequar Annes S/o. Yunus Anees,
Aged- Major, Occupation -Business,
All R/o. Mominpura, Nagpur.
.... RESPONDENTS.
Judgment 3 wp-4690-2015.odt
____________________________________________________
Shri M.A.Qureshi, Advocate for Petitioners.
Shri V.K.Paliwal, Advocate for the Respondent Nos.1 to 3, 5, 10,
13, 14, 15 and 16.
____________________________________________________
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE OF RESERVING THE JUDGMENT : 12/10/2021
DATE OF PRONOUNCING THE JUDGMENT : 27/06/2022
JUDGMENT :(Per : Anil S. Kilor, J)
1. This writ petition is placed before us to decide the following question, upon reference being made by the learned Single Judge:
"In the light of the provisions of Section 33(1) of the Maharashtra Rent Control Act, 1999 which confer jurisdiction on the Court of Small Causes and in absence of the Court of Small Causes on the Court of Civil Judge, Junior Division or Civil Judge, Senior Division as the case may be, whether the provisions of Section 17(1) proviso of the Provincial Small Cause Courts Act, 1887 would be required to be complied with in view of the decision in Akbarali Husenali Gulamreza .vs.. Hotel Rexalia Private Ltd.2002 (2) Mh.L.J. 133?"
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2. The brief facts which are relevant to decide the question referred for adjudication, are as follows:
The respondents herein filed a suit for eviction against the petitioners which was decreed ex parte vide order dated 19/09/2003 passed by the Second Additional Small Causes Court, Nagpur in Regular Civil Suit No. 5 of 2008.
3. The petitioner, feeling aggrieved by the said ex parte order, preferred an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") along with an application for condonation of delay.
4. The said application was rejected vide order dated 30/06/2014, passed by the learned Additional Judge, Small Causes Court, Nagpur on the ground that requirement of Section 17(1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "the Act of 1887") as regards pre-deposit of the decretal amount for giving security, had not been complied with.
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5. The same was challenged by filing appeal under Section 34 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the Act of 1999"), which came to be dismissed vide order dated 27/07/2005, passed by the learned Additional District Judge and Additional Sessions Judge, Nagpur, vide order dated 27/07/2015 passed in M.C.A. No. 206 of 2014.
6. Feeling aggrieved by the aforesaid order dated 27/07/2015, the Writ Petition 4690 of 2015 was preferred. The learned Single Judge on considering the judgment of the Hon'ble Supreme Court of India in the case of Kedarnath vs.. Mohan Lal Kesarwari1, the judgments of single Judge of this Court in the case of Shailesh ..Vs.. Nirmal Kumar 2 and in the case of Akbarali H. Gulamreza ..vs.. Hotel Rezaliya3, has observed thus :
"7. From the aforesaid decisions in Akbarali Husenali Gulamreza (supra) and Shailesh Sudhir Joglekar (supra) it is apparent that in the former decision the proviso to Section 17 of the Act of 1887 was construed as a part of the Bombay Rent Control Rules and its compliance was not 1 (2002) 2 SCC 16 2 2006(4) Mh.L.J. 756 3 2002(4) Bom.C.R. 329 Judgment 6 wp-4690-2015.odt insisted upon. In the latter decision, the provisions of Section 17(1) of the Act of 1887 were held to be mandatory requiring compliance. Moreover, in the case of Kedarnath (supra), the suits were to be tried exclusively by the Court of Small Causes. Hence the decisions rendered by learned Single Judges referred to above cannot be reconciled. The question as to applicability of provisions of Section 17(1) of the Act of 1887 arises in various matters. In the light of the conflict noticed herein above the following question requires adjudication by a larger bench :
"In the light of the provisions of Section 33(1) of the Maharashtra Rent Control Act, 1999 which confer jurisdiction on the Court of Small Causes and in absence of the Court of Small Causes on the Court of Civil Judge, Junior Division or Civil Judge, Senior Division as the case may be, whether the provisions of Section 17(1) proviso of the Provincial Small Cause Courts Act, 1887 would be required to be complied with in view of the decision in Akbarali Husenali Gulamreza vs. Hotel Rexaliya Private Ltd. 2002(2) Mh.L.J 133 ? "
7. The learned Single Judge of this Court in the case of Akbarali (supra) while considering the applicability of Section 17 of the Rent Act, has observed thus :
"33. As already observed hereinabove, Section 31 provides for procedure to be followed in the suits and proceedings and, suffice it to reiterate the word Judgment 7 wp-4690-2015.odt "prescribed" referred to in Section 31 of the Bombay Rent Act. The word "prescribed" is defined in Section 5(9) of the said Act means prescribed by rules. If all the Courts specified under Sections 28 and 29 of the Bombay Rent Act are held to be bound by the procedure prescribed by the rules, known as, Bombay Rent Control Rules, framed under the Bombay Rent Act, then only, a similar treatment to all the litigants can be extended. Looked from this aspect, if the application under Order 9 Rule 13 of Civil Procedure Code moved before the Civil Judge (Junior Division or Senior Division) or for that purpose before the Presidency Small Causes Court, is not required to answer the requirement of furnishing security as contemplated by proviso to Section 17 of the said Act, then why the litigant before the Court of Small Causes alone should be held liable to furnish security and answer the requirement of proviso to Section 17 of the said Act. In order to sustain the order of the Courts below, proviso to Section 17 will have to be read as part of the Bombay Rent Control Rules which was never contemplated by the legislature. Reading of proviso in addition to the rules would only amount reading something more in the rules, which is not permissible. It is an established principle of law that the provision should not be construed in such a way that the legislature could not have intended to mean. It is also a settled principle of law that where two alternative constructions are possible, the Court must choose the one which will ensure its smooth and harmonious working and the other, which leads to uneven treatment, absurdity, confusion or friction, contradiction and conflict, should be avoided."
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8. Whereas in the case of Shailesh (supra) learned single Judge has observed thus:
"10. It is evident from the abovereferred observations of the Apex Court that the procedure prescribed in the proviso to Sub-section (1) of Section 17 of the Act is mandatory in nature and therefore application for setting aside ex parte decree must be accompanied by a deposit in the Court of the amount due under the decree if not deposited earlier. Similarly, the application for dispensation can be filed at any time up to the time of presentation of application for setting aside ex parte decree and is not maintainable thereafter."
9. We have heard the learned counsel for the respective parties.
10. The learned counsel for the petitioner submits that the Provincial Small Causes Courts Act, 1887 is an independent Act as such, the Act of 1999 has no connection with the Act of 1887. Thus, he submits that any ex parte decree for ejectment passed by a Judge, Small Causes Court, is an ex parte decree under the Maharashtra Rent Control Act and when it is sought to be set aside under Order 9 Rule 13 of C.P.C., Section 17 of the Act of 1887 has no application.
Judgment 9 wp-4690-2015.odt
11. He further submits that after the Maharashtra Rent Control Act came into force any ex parte decree of ejectment cannot be termed as a decree passed under the provisions of the Act of 1887. Whereas, such decree is under Section 33 of the Act of 1999, therefore, Section 17 of the Act of 1887 has no application at all.
12. He, further submits that the view taken by the learned Single Judge of this Court in the case of Akbar Ali (supra) is the right view, therefore, proviso to Section 17(1) of the Act of 1887 will not apply to the case of the petitioner while seeking setting aside ex parte decree passed by the Small Causes Court.
13. On the other hand, Shri Paliwal, learned counsel for the respondent submits that in the case of Kedarnath (supra), the Hon'ble Supreme Court of India has held that the legislature has chosen to couch the language of the proviso to Section 17 of the Act of 1887, in a mandatory form and it cannot be held that the nature of the proviso as directory. He, therefore, submits that it Judgment 10 wp-4690-2015.odt cannot be said that Section 17 has no application while seeking to set aside ex parte decree passed under Section 33 of the Act of 1999.
14. To consider the rival contentions of the parties, we have gone through the relevant provisions of the Act of 1887 and the Act of 1999 and also perused the relevant judgments on the subject.
15. It is well settled law that most fair and rational method for interpreting a statute is by exploring the intention of the legislature through most natural and probable signs which are either the words, the context, the subject matter, the effect and consequences or the spirit and reasons of the law.
16. Furthermore, it is a settled law that proviso is used to remove special cases from general enactment and provide for them specially.
Judgment 11 wp-4690-2015.odt
17. In the teeth of the above referred well settled law position, we proceed further to consider the relevant provisions of law.
18. Section 5 of the Act of 1887 deals with establishment of Court of Small Causes, which reads thus:
"5. Establishment of Courts of Small Causes. - (1) The State Government may, by order in writing, establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency-town. (2) The local limits of the jurisdiction of the Court of Small Causes shall be such as the State Government may define, and the Court may be held at such place or places within those limits as the State Government may appoint. "
19. As the whole controversy revolves around Section 17 of the Act of 1887, it would be appropriate to refer to Section 17 of the Act of 1887, which reads thus:
"17. Application of the Code of Civil Procedure.--
(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Judgment 12 wp-4690-2015.odt Causes in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by section 145 of the Code of Civil Procedure, 1908 (5 of 1908). "
20. Thus, it is clear that Section 17 of the Act of 1887 deals with procedure and which makes provision of the Code of Civil Procedure applicable to Courts of Small Causes. A plain and literal construction of Section 17 of the Act of 1887 shows that for presentation of an application under Order IX, Rule 13 C.P.C. or review of the judgment, it is mandatory for the applicant at the time of presenting his application, to do either of two things, namely, either deposit with the Court the amount due from him under the decree or give such security for the performance of the decree as the Court may have directed.
Judgment 13 wp-4690-2015.odt
21. Furthermore, the main part of sub-section (1) of Section 17 does not stand out apart from its proviso. Thus, it cannot be held that the main part of Sub-section (1) is referable to practice and procedure and the proviso is not referable to such practice. The entire sub-section, including the proviso, is a part of the procedure to be followed in the Courts of Small Causes. The proviso only cuts down the very wide discretion which courts have under Order IX Rule 13 of the C.P.C. in setting aside an ex parte decree, and imposing terms upon the petitioner.
22. Thus, it is clear that if an application for setting aside of an ex parte decree is made without fulfilling either of the aforesaid two conditions, it is not an application under Section 17 of the Act of 1887.
23. The proviso came up for consideration before the Hon'ble Apex Court in the case of Kedarnath ..vs.. Mohanlal Judgment 14 wp-4690-2015.odt Kesarwari (supra) wherein the Hon'ble Supreme Court of India has held thus :
8. A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the court in its discretion subject to a previous application by the applicant seeking direction of the court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex-
parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the court ." (emphasis supplied)
24. Thus, the above referred observations make it clear that proviso to Section 17 is mandatory and not directory.
Judgment 15 wp-4690-2015.odt
25. Moving further, Section 32 of the Act of 1887 deals with application of Act to Courts invested with jurisdiction of Court of Small Causes, which reads thus:
32. Application of Act to Courts invested with jurisdiction of Court of Small Causes. -
(1) So much of Chapters III and IV as relates to
(a) the nature of the suits cognizable by Courts of Small Causes,
(b) the exclusion of the jurisdiction of other Courts in those suits,
(c) the practice and procedure of Courts of Small Causes,
(d) appeal from certain orders of those Courts and revision of cases decided by them, and
(e) the finality of their decrees and orders subject to such appeal and revision as are provided by this Act, applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts.
(2) Nothing in sub-section (1) with respect to Courts invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceedings commenced in those Courts before the date on which they were invested with that jurisdiction."
26. At this juncture, it would also be appropriate to refer to Section 33 of the Maharashtra Rent Control Act, 1999, which reads thus :
Judgment 16 wp-4690-2015.odt "33. Jurisdiction of courts (1) Notwithstanding anything contained in, any law for the time being in force, but subject to the provisions of Chapter VIII, and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdictions,-
(a) in Brihan Mumbai, the Court of Small Causes, Mumbai,
(b) in any area for which a Court of Small Causes is established under the Provincial Small Causes Courts Act, 1887, such court, and
(c) elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall 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 and to decide any application made under this Act (other than the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority); and 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.
(2) (a) Notwithstanding anything contained in clause (b) of sub-section (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Causes Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge Judgment 17 wp-4690-2015.odt (Senior Division) having ordinary jurisdiction in such area;
(b) where any suit, proceeding or application has been withdrawn under clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit proceeding or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn;
(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause
(a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes."
27. Section 33 of the Act of 1999 thus, makes it clear that the jurisdiction within Brihanmumbai lies with the Court of Small Causes, Mumbai and in any area for which a Court of Small Causes is established under the Provincial Small Causes Courts Act, 1887, such Court, whereas, elsewhere the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situated or if there is no such Civil Judge, the Court of the Civil Judge Senior Division, having ordinary jurisdiction, to entertain and try any suit or proceedings between a landlord and a tenant relating to the recovery of rent or possession of any premises and to Judgment 18 wp-4690-2015.odt decide any application made under the Act of 1999, other than the applications which are to be decided by the State Government or an Officer authorized by it or the Competent Authority and subject to the provisions of sub-section (2) no other Court shall have jurisdiction to entertain any such suit, or proceedings or application or to deal with such claim or question.
28. Sub-section (2)(a) of Section 33 of the Act of 1999 empowers the District Court to withdraw any such suit, proceedings or application pending in a Court of Small Causes, at any stage and transfer the same for trial or disposal to the Court of the Civil Judge Senior Division, having ordinary jurisdiction in such area.
29. Here, sub-section (2)(c) of Section 33 of the Act of 1999 without any ambiguity makes it clear that the Court of Civil Judge trying any suit, proceedings or application withdrawn under clause (a) of sub-section (2) of Section 33 of the Act of 1999, from the Court of Small Causes, shall, for the purpose of such suit, Judgment 19 wp-4690-2015.odt proceeding or application as the case may be, be deemed to be the Court of Small Causes.
30. In the above referred backdrop, it would be appropriate to refer to Section 28 of the Maharashtra Civil Courts Act, 1869 (hereinafter referred to as the "Act of 1869"), which reads thus:
"28. Power to invest Civil Judges with small cause powers. - (1) The High Court may invest any Civil Judge with the jurisdiction of a Court of Small Causes for the trial of suits cognizable by such courts upto such amount as it may deem proper, not exceeding in the case of a Civil Judge (Senior Division) [twelve thousand rupees] and in the case of a Civil Judge (Junior Division) [Six thousand rupees].
(2) A Civil Judge (Senior Division) or a Civil Judge (Junior Division), who is invested with the jurisdiction of a Court of Small Causes under sub-
section (1), shall continue to have such jurisdiction within the local limits of his ordinary jurisdiction so long and as often as he may fill the office of Civil Judge (Senior Division) or Civil Judge (Junior Division), as the case may be, without reference to the District in which he may be employed.
(3) The High Court may, whenever it thinks fir, withdraw such jurisdiction from any Civil Judge so invested."
31. It is thus, clear from the provision of Section 33(2)(c) of the Act of 1999 and Section 28 of the Act of 1869 that Civil Judgment 20 wp-4690-2015.odt Judge Junior Division invested with jurisdiction of Small Cause Court under Section 28 of the Act of 1869 by High Court or the Civil Judge to whom District Judge transfers the proceedings from such Small Cause Court, become a Court of Small Cause for the purpose of Act of 1887, though it is not established as such under that Act.
32. Moving further Order L of the C.P.C. deals with Provincial Small Cause Courts, which reads thus:
1. Provincial Small Cause Courts. - The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law] [or to Courts in ][any part of India to which the said Act does not extend][exercising a corresponding jurisdiction] that is to say-
(a) so much of this Schedule as relates to-
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and orders:-
Judgment 21 wp-4690-2015.odt Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment; Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2, 3, 5, 6, 7 (review);
Order LI."
33. Order L of Civil Procedure Code gives a list of certain provisions which are not applicable to Small Cause Courts, which makes it clear that the Civil Procedure Code itself governs the procedure of Small Cause Courts to some extent and the provisions not included in the list under Order L of C.P.C., apply to Small Cause Courts.
34. Order IX Rule 13 is one of such provisions not included in the list and, therefore, when a Small Cause Court sets aside an ex parte decree it is under Order IX Rule 13 of C.P.C.
35. Thus, on contemplation of above referred relevant provisions of the Act of 1887, Act of 1999, Act of 1869 and the Code of Civil Procedure, it is clear that powers under Section 33 of Judgment 22 wp-4690-2015.odt the Act of 1999 can be exercised by the Small Cause Court established under Section 5 of the Act of 1887 or the Civil Judge invested with powers of Small Cause Court under Section 28 of the Act of 1869, by the High Court or by the Civil Judge to whom District Judge transfers the proceedings from such Small Cause Court under Section 33(2)(c) of the Act of 1999 and therefore, any such Court invested with the powers of Small Causes Court is the Small Cause Court and application under Order IX Rule 13 of C.P.C. shall be referable to Section 17(1) of the Act of 1887.
36. In the above referred legal position and considering the observations made in the judgments of Kedarnath (supra), Akabar Ali (supra) and Shailesh (supra) we have arrived at the conclusion that the view taken in the case of Akbar Ali (supra) is not a good law.
37. Accordingly, in the light of observations made herein above, we answer the reference in the following terms:
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(i) In the light of the provisions of Section 33(1) of the Act of 1999 which confer jurisdiction on the Court of Small Causes and in absence of the Court of Small Causes on the Court of Civil Judge Junior Division or Civil Judge Senior Division, as the case may be, provisions made in proviso to Section 17(1) of the Provincial Small Causes Courts Act, 1887 would be required to be complied with mandatorily.
38. The papers be placed before the Single Bench for further consideration of the writ petition.
( ANIL S. KILOR, J ) ( SUNIL B.SHUKRE, J )
RRaut...
Signed By:RAJIV BABARAO RAUT
PRIVATE SECRETARY
Signing Date:27.06.2022 17:51