Gujarat High Court
Maharaj Shri Nathuram Sharma vs Akhil Bharat Varshiya Audichya Brahm ... on 21 April, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CRA/54/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 54 of 2014
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MAHARAJ SHRI NATHURAM SHARMA....Applicant(s)
Versus
AKHIL BHARAT VARSHIYA AUDICHYA BRAHM SAMAJ THROUGH
SHAILESHBHAI ASHOKBHAI SHUKLA....Opponent(s)
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Appearance:
MR MEHUL S SHAH, ADVOCATE for the Applicant(s) No. 1
MS SD RAMI, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 21/04/2014
ORAL ORDER
Rule. Learned advocate Ms.S.D. Rami waives service of notice of Rule on behalf of the respondent. In the facts and circumstances of the case and with consent of learned advocates for both the sides, the Revision Application is taken up for final consideration, making the Rule returnable forthwith.
2. Heard learned advocate Mr.Mehul S. Shah for the applicant, and learned advocate for the respondent.
3. The applicant-landlord instituted H.R.P. Suit No.575 of 2013 against the respondent-tenant for eviction, before the Small Causes Court. In the said suit, the tenant moved an application (Exh.20) under Section 23 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to Page 1 of 6 C/CRA/54/2014 ORDER as 'the Rent Act' for sake of brevity). In the said application, tenant prayed that the landlord was bound to carry out the tenantable repairs as the premises was rendered in dilapidated condition. It was prayed that completion of repair work which was required to be started by the tenant in view of the condition of the property. The Small Causes Court rejected the said application on 24th October, 2013.
4. Against the aforesaid order of rejection of Exhibit 20 application, the defendant-respondent preferred Miscellaneous Civil Appeal No.32 of 2013. The same came to be allowed by the Appellate Bench of Small Causes Court as per its judgment and order dated 01st February, 2014, and issued direction inter alia allowing the tenant to carry out the tenantable repairing work after obtaining certificate from the Municipal Corporation. It is against the said judgment and order of the Appellate Bench, the present Revision Application is filed before this Court under Section 29(2) of the Rent Act.
5. The original order below Exhibit 20, which was carried before the Appellate Bench, was upon an application of the tenant for permitting tenantable repairs. Learned advocate for the respondent was not in position to dispute that the order below Exhibit 20 application was not an appelleble order under sub- section (1) of Section 29 of the Rent Act.
5.1 Section 29 of the Rent Act is reproduced hereinbelow for ready reference.
Page 2 of 6 C/CRA/54/2014 ORDER"29. Appeal-(1) Notwithstanding anything contained in any law, an appeal shall lie,-
(a) in the City of Ahmedabad, from a decree of order made by the Court of Small Causes, Ahmedabad, exercising jurisdiction under Section 28 to a Bench of two Judges of the said Court which shall not include the Judge who made such decree of order;
(b) elsewhere from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887, (IX of 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:
provided that no such appeal shall lie from-
(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908; (V of 1908) (II) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or value of the subject-
matter of which does not exceed-
(i) where such suit or proceeding is instituted in the City of Ahmedabad, two thousand rupees; and
(ii) where such suit or proceeding is instituted elsewhere the amount upto which the Judge or Court specified in clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for the time being in force;Page 3 of 6 C/CRA/54/2014 ORDER
(iii) an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies;
(iv) an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him.
(1-A) Every appeal under sub-section 91) 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 the Indian Limitation Act, 1908 (IX of 1908) shall, so far as may be, apply.
(2) No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.
(3) Where no appeal lies under this section from a decree of order in any suit or proceeding in the city of Ahmedabad the Bench of two Judges, specified in clause (a) of sub-
section 91) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made 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."
5.2 As the order below Exhibit 20 was not an order against which the appeal could have been preferred, the Civil Miscellaneous Appeal preferred before the Appellate Bench was not competent in law. Against the said order, not an appeal but a Revision Page 4 of 6 C/CRA/54/2014 ORDER Application would be competent as per sub-section (3) of Section 29. Therefore, the Appellate Bench was in jurisdictional error in entertaining Appeal against the order below Exhibit 20. It exercised the jurisdiction not vested in law in it.
6. Therefore, the present Revision Application deserves to be allowed only on the aforesaid ground. Accordingly the judgment and order dated 01st February, 2014 of the Appellate Bench in Miscellaneous Civil Appeal No.32 of 2013 is hereby set aside.
6.1 It is clarified that this Court has not gone into the merits of the subject matter controversy between the parties-Exhibit 20 application-and has not expressed any opinion on merits of the case of either side therein.
6.2 The respondent-tenant is at liberty to challenge the order of the Small Causes Court below Exhibit 20 dated 24th October, 2013 by filing competent proceedings of Revision before the competent Court in accordance with law. It will be decided by the competent Court on its merits and in accordance with law.
6.3 Learned advocate for the respondent requested this Court to give direction to the Court where the respondent would be filing Revision, to decide the same within specified time. In this Revision, such a direction cannot be issued, except however observing that if tenant makes such a request before the Court concerned by filing appropriate Page 5 of 6 C/CRA/54/2014 ORDER application, the same shall be duly considered.
7. The present Revision Application stands allowed in the aforesaid terms. Rule is made absolute accordingly.
(N.V.ANJARIA, J.) Anup Page 6 of 6