Bombay High Court
Ashok S/O Krishnarao Thugaonkar vs Pannalal S/O Sukhlal Shivhare on 23 July, 1996
Equivalent citations: (1997)99BOMLR267
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. The present order shall govern the, aforementioned matters. A common question has arisen as to whether against an order passed in distress warrant proceedings, an appeal under Section 26A of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act' for the sake of brevity) is possible or whether without preferring an appeal, a revision straightaway is maintainable to this Court. If the appeal is maintainable, then obviously, by passing such appeal, filing of the civil revision could not be possible. It will, therefore, be essential to see whether an appeal against the decision is possible.
2. Presently, the subject of distress warrant proceedings is covered by Chapter IVA of the Act. This remedy of distraining the movables of the tenant for rent which is due for more than three months and less than twelve months is available only in the area within the local limits of the jurisdiction of a Small Cause Court and is restricted to that Court only, meaning thereby that a Judge or a Court other than the Small Cause Court, who is invested with the jurisdiction of the Small Cause Court, does not have a power or authority to issue such distress warrant. Section 27A of the Act is clear enough. This Chapter is a complete Code in itself in respect of the distress warrants. The Chapter provides, inter alia, that a fifteen days notice is a must before making an application for distress warrant. The Chapter further provides for the time for distress, the places that the bailiff may force open, the property which can be seized as also the property which is exempted from being seized. The further provisions in the Chapter also deal with the further procedure after distress, i.e., making inventories, making applications to discharge or suspend the warrant, claim of the strangers to the goods distrained. Under Section 27M, there is a power given to the District Court to transfer the cases to itself where the subject matter of the dispute exceeds the limits of the pecuniary jurisdiction of the Court of Small Causes. The further procedure of the movable properties so distrained etc. is also dealt with in the Chapter; while Section 27R specifically provides that no distress shall be levied for the arrears of rent except under the provisions of Section 27A and, in fact, any person other than a bailiff, a Nazir or an officer of the Court levying or attempting to levy any such distress, shall be liable for punishment on his conviction. In short, the Chapter is a complete Code in itself. This Chapter was introduced by Section 7 of the Bombay Act 87 of 1958. Before this introduction, such distress was unknown to those areas which were not covered by the Presidency Small Cause Courts Act, 1882. Sections 50 to 68 in Chapter VIII deal with the subject of distress in Presidency Small Cause Courts Act and though this remedy to recover the rent from the tenants was available only to the landlords within the ordinary original civil jurisdiction of High Courts of Calcutta, Bombay and Madras, right from the inception of the Presidency Small Cause Courts Act, i.e., from 1882, this remedy was not available to the other landlords outside the original civil jurisdiction of the High Courts. Even though the Act (Provincial Small Cause Courts Act) was enacted in 1887, which established the Small Cause Courts even outside the area covered by the original civil jurisdiction of the High Courts, yet till 1958 when Chapter IV-A was introduced, the remedy of distress warrants was unknown to the landlords and was not within the realm of the Small Cause Courts covered by the Act.
3. Section 25 of the Act provides for the revisional powers of the High Court in respect of the decree and orders of the Small Cause Courts. The orders passed under Chapter IVA dealing with the distress warrant were, thus, revisable under Section 25. Since there can hardly be a dispute with the proposition that an order issuing distress warrant, or under Section 27J and Section 27K, would be 'a case decided.'
4. So far, there was no difficulty as regards any orders passed by the Small Cause Courts, as all the orders passed under the Act were straightaway revisable under Section 25 and the revision lay before the High Court. A new Chapter IVA-1 was introduced by Act 24 of 1984. Sections 26, 26A, 26B and 26C were added by Mah. Act No. 24 of 1984. Original Section 27 was re-numbered as Section 25A. These four sections newly added, have made the difference. This newly added Chapter deals with recovery of possession of immoveable property as also the licence fees and/or rents between the landlords and the tenants or licensors and licensees. Under Section 26, an exclusive jurisdiction was provided in favour of Court of Small Causes to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and a tenant, relating to recovery of possession of any immovable property situated within the territorial jurisdiction of the Small Cause Court, as also relating to the recovery of licence fee or the charges or rent for such property, irrespective of the value of such suits and proceedings under the Act. Sub-section (1) of Section 26, the gist of which has been provided above, was not to be applicable to the suits or proceedings for the recovery of the property or the rent to which the provisions of the Bombay Rents, Hotel and Lodging Houses Rent Control Act and the other enanctments were applicable. Thus, the limitation regarding the pecuniary jurisdiction caused by Sub-sections (2) and (3) of Section 15 of the Act was done away with in case of dispute between the landlord and a tenant or a licensor or a licensee as regards the recovery of possession of the immoveable property or the recovery of licence fee and/or rent thereof.
Section 26A deals with the appeals against the decrees or orders made by the Court of Small Causes Sub-section (1) reads as under:
An appeal shall lie from the decree or order by the Court of Small Causes exercising jurisdiction under Section 26to the District Court.
(Emphasis supplied).
Sub-section (2) of Section 26A deals with the limitation for filing the said appeal, which is 30 days and also provides that provisions contained in Sections 4, 5 and 12 of the Limitation Act, 1963 would apply. Sub-section (3) bars a further appeal against any decision in appeal under Sub-section (1). Sub-section (4) is again important for the purposes of the present controversy and runs as under:
26A.(4). The District Court may for the purposes 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.
5. Thus, an appeal, which was hithterto unknown against the decrees and orders passed by the Small Cause Courts was introduced for the first time by way of Section 26A(1). The other two sections in this Chapter being 26B and 26C are more or the less not relevant for the purposes of the present controversy. Now, therefore, the position is clear that where a Small Cause Court exercises a jurisdiction under Section 26 and passes a decree or order, the appeal would lie to the District Court. The question, therefore, is as to whether an order passed by the Small Cause Court under Chapter IVA can be said to be an order exercising the jurisdiction under Section 26 and, therefore, open to an appeal under Section 26A-I.
6. Considering the importance of the question, a notice was issued to the Bar inviting the Advocates to address on this question and number of Advocates addressed this Court on the question. The Court appreciates the gesture by all those Advocates who addressed it on this point.
7. The learned Counsel, who canvassed that there could be no appeal against the order passed under Chapter IVA, mainly contended that the jurisdiction under Section 26 was distinct and different from the jurisdiction under Chapter IVA. It was, therefore, canvassed that the words appearing in Section 26A(1) "exercising jurisdiction under Section 26" were referrable only to that section and not to Chapter IVA. It was pointed that Chapter IVA was there in the Statute Book right from 1958, while Chapter IVA-1 introducing Section 26A and the other sections was introduced only in 1984. The learned Counsel, therefore, contended that there was an independent jurisdiction available to pass the orders regarding the distress warrants which jurisdiction remained unaffected and a mere introduction of a Chapter creating a new jurisdiction could not be said to engulf Chapter IV A also in its sweep. Therefore, the words "exercising jurisdiction under Section 26" used in Section 26A(1) should be construed to strictly the orders and decrees passed under Section 26(1). The learned Counsel also draw the attention of the Court to the language of Section 27R which creates a bar for any distress under Chapter IVA and claimed that the exclusiveness of the jurisdiction was apparent from the very language of Sections 27A and 27R. It was also stressed that if the Legislature wanted to create a right of an appeal even against the order passed under Chapter IVA, the language of Section 26A(1) would not have been what it is now. The learned Counsel also addressed extensively on the aims and objects of the amending Act No. 24 of 1984 and contended that there was no indication therein to create any additional remedy of appeal. Reliance was placed on the unreported judgment of this Court in Civil Revision Application No. 463 of 1994, decided on 14.9.1994 by Ghodeswar, J, to hold that since the order issuing the distress warrants was passed under the provisions of Section 27C and not under Section 26 of the Act, it is not appealable under Section 26A of the Act. A feeble attempt was, also made to suggest that the proceeding under Chapter IVA-1 was not proceeding as contemplated under Section 26.
8. Some of the learned Counsel also made a reference to the language of Section 26 of the Act and contended that the jurisdiction under Section 26(1) was to entertain and try all suits and proceedings and, in fact, the proceeding under Chapter IVA was not a trial at all. It is also contended that Section 24 of the Act has provided an appeal only from certain orders and the order under Chapter IV-A1 was not included therein. A reference was also made to Section 32.
9. The Counsel, who advocated in favour of an appeal against the orders passed, contended that the very language of Section 26(1) of the Act suggested that the proceeding under Chapter IV-A1 would be covered by that language as it was nothing but a proceeding to recover the rent by a landlord against a tenant. They pointed out that the language of Section 26(1) covered the suits as well as "proceedings" in contradistinction with the language of Section 15 which covers only the suits. They further pointed out that the language of Section 26A(1) refers to the decrees and orders passed by the Court "exercising jurisdiction under Section 26" and not a "decree or order passed under Section 26" of the Act. The subtle difference between these two phrases, according to them, speaks in favour of an appellate remedy. They also pointed out that Section 26A(4) specifically gives a suo motu power to the District Court to question the correctness of the orders passed under Section 26 in any case decided by the Court of Small Causes. According to them, Section 26A(4) operates generally and not only in respect of the decrees or orders passed 'exercising jurisdiction under Section 26' as those words are absent in Sub-section (4). Thus, they argued that where the Court has a revisional power, it would be anamolous to hold that it does not have an appellate power in respect of the orders passed under Chapter IV-A. According to them, in order to solve this anamoly, a harmonious construction will have to be given to the words "exercising jurisdiction under Section 26" by reading those words in accordance with the language of Section 26(1), and the language of Section 26(1) will have to be given a broader scope so as to include the orders passed under Chapter IV-A also. They pointed out that the unreported judgment (cited supra) does not consider the provisions of Section 15 or Sub-section (4) of Section 26A of the Act and, therefore, the said judgment is per incuriam and not binding on this Court. They also argued that the jurisdiction of Section 26 is more extensive than the earlier jurisdiction under Section 15 as the word 'proceedings' is also included therein. On this backdrop of the rival submissions, it is now to be considered as to whether the orders passed by the Small Cause Courts under Chapter IV-A of the Act are appealble or not.
9A. It will be seen that the Chapter dealing with the provisions of distress warrants was, for the first time, introduced in 1958 and from 1958 till 1984 there appears to be no change in the law. It is only by Act No. 24 of 1984 that Chapter IV-A1 came to be introduced. It will be better to see the aims and objects of the amending Act 1984. Act of 1984 has been based on the amendments made to the Presidency Small Cause Courts Act, 1882. The Presidency Small Cause Courts Act was amended by Maharashtra Act No. XIX of 1976. As has already been pointed out, by these amendments an exclusive jurisdiction on the Court of Small Causes, Greater Bombay, was created to try suits and proceedings between the licensors and licensees for recovery of possession of immovable property and also for recovery of licence-fee. The object of the amending Act to the Presidency Small Cause Courts Act was to avoid multiplicity of proceedings in different Courts, waste of public time and money and unnecessary delays and hardships to litigants as also to make supplementary provisions in the principal Act so that all suits and proceedings between the landlord and the tenant, or a licensor or licensee, for recovery of possession of premises or for recovery of rent or licence-fee, irrespective of the value of the subject matter should go to and should be disposed of by the Court of Small Causes. It is stated in the aims and objects of the present amending Act of 1984 that thereafter it was considered desirable to watch the working of new Chapter VII inserted in the Presidency Small Cause Courts Act, 1882 and when they were found to be most satisfactory to the litigants, Judges and Members of Bars, the identical Chapter was decided to be introduced in the Act (i.e. Provincial Small Cause Courts Act, 1887). With that view, not only was the present Chapter introduced but Clauses 4, 8, 25 and 38, were suitably amended. The whole purpose, thus, appears to be to bring the suits and proceedings within the exclusive realm of the Small Cause Court. Undoubtedly, a new jurisdiction has been created in the Court of Small Causes for trying the suits and proceedings of the nature indicated in the amendment. It has already been pointed out that hitherto the jurisdiction was created by Section 15 of the Act and more particularly by Sub-sections (2) and (3) thereof. The jurisdiction conferred by Section 15 was limited to the suits only. The word 'proceedings' was conspicuously absent, which has now been introduced by the amending Act. Thus, the Small Cause Court, which has constraints of the limited pecuniary jurisdiction, was freed from those constraints because of Section 26. Not only this but all the suits as well as proceedings in respect of the recovery of possession and the recovery of rent or the licence-fee, as the case may be, were brought in the exclusive jurisdiction of the Small Cause Court; in that sense, an exclusive new jurisdiction was created. This position is confirmed by this Court in the reported decision of this Court in Lilabai Rasiklal Waghela.v. Keshaorao Domaji Tidke . The following observation in paragraph 11 would highlight this situation:
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.
That, there was a creation of a new jurisdiction is clear from the language of the aims and objects of the Act No. 24 of 1984 and the observations made above only buttress the said aims and objects
10. Once it is held that there was a creation of new jurisdiction in respect of subjects of recovery of possession and recovery of rent or the licence-fees, as the case may be, and once it is accepted that this jurisdiction is an enlarged form so that it includes the 'proceedings' also in sharp contradistinction to Section 15 where the 'proceedings' were outside the realm of the jurisdiction, the inference is irresistable that whenever the Small Cause Court intertains the suits or proceedings for recovery of possession, or the rent or licence-fees, as the case may be, it exercises jurisdiction under Section 26(1) of the Act. It is as if the Small Cause Court has been given plenary and exclusive jurisdiction in respect of the suits and proceedings dealing with the subjects of recovery of possession and the rent.
11. Now, there can be no dispute that the proceedings under Chapter IV-A for distress warrants are, in the first place the 'proceedings'. Division Bench of this Court in a reported ruling in Prabhulal Chhogalal v. Bastiram Himatram has observed that a proceeding in a civil action is an act necessary to be done in order to attain a given end. It is prescribed mode of action for carrying into effect a legal right. The Division Bench further goes on to add as under:
In its general acceptation, 'proceedings' means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments and of execution. Ordinary proceedings intend the regular and usual mode of carrying on a suit by due course of common law.
In its general acceptation, a proceeding is an act which is done by the authority or direction of the Court, express or implied; an act necessary to be done in order to attain a given end; a prescribed mode of action for carrying into effect a legal right; performance of an act, wholly distinct from any consideration of an abstract right; the form and manner of conducting judicial business before a Court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action, from its commencement to the execution of judgment.
The Division Bench has further quoted that the word 'proceedings' is a very general one; it is not limited to proceedings other than the civil proceedings, and civil proceedings other than suits. There can be a little doubt that distress warrant proceedings are covered in the term 'proceedings' as it appears in Section 26(1) of the Act. The object of the distress warrant proceeding is to recover the rent by a particular mode. It is only that the said recovery is restricted to the arrears of rent which is for more than three months and less than twelve months. Thus, what the landlord achieves by distress warrant proceedings is the recovery of rent. There is and can be no other purpose for distraining the goods of the tenant.
12. Division Bench of the Calcutta High Court has also taken the similar view, though in a different context. In a reported decision Advertising Consultants v. Mamraj Saraf 1992 Calcutta Weekly Note 13 Chief Justice Mukherjee (as he then was), while considering the question whether proceedings under Chapter VIII of the Presidency Small Cause Courts Act can be equated to the suits, traced the origin of the distress proceedings to the common law of England and also noted that it was held in Lalkrishna Mundhada v. Fatikchand Hajra 1992 Calcutta Weekly Note 13, the Division Bench of the Calcutta High Court has held that the proceedings under Chapter VII of the Presidency Small Cause Courts Act relating, to distress warrant had a character of judicial proceedings. Undoubtedly, in the-said decision, the Calcutta High Court held that Sections 18 and 19, which created jurisdiction in suits did not refer to proceedings under Chapter VII or VIII of the Presidency Small Cause Courts Act and, therefore, the said proceedings were not controlled by those sections. On this back-drop, it is to be seen that now Section 26(1) of the Act specifically refers to the proceedings in addition to the suits in respect of recovery of possession and/or rent.
13. When we consider the specific language of Section 26(1) of the Act, it is seen that the proceedings to recover the rent are covered specifically; nay, an exclusive jurisdiction has been created for that purpose along with others. Therefore, it will have to be held that when the Court recovers the rent by way of distress warrant, it exercise its jurisdiction under Section 26(1) of the Act. Such was clearly not the position before the amendment, because the word 'proceedings' was not used in Section 15 which created Jurisdiction only for the suits. What was contended before the Court by some of the Counsel was that though there is a exclusive jurisdiction in Section 26, the jurisdiction of the Courts to issue a distress warrant was independent of this jurisdiction and, therefore, the two jurisdictions, namely, the jurisdiction in Section 26(1) and the jurisdiction for issuing the distress warrants are two distinct jurisdictions. The learned Counsel suggest that even when in the wake of Section 15 which did not mention the word 'proceedings', the Small Cause Courts right from the introduction of Chapter IVA were entitled to issue the distress warrants and, therefore, their power to issue distress warrants was independent of Section 15 and distinct from it. The argument is undoubtedly correct that the Small Cause Courts had this jurisdiction to issue a distress warrant and the inception of this power can be seen in Chapter IV-A alone. However, it cannot be forgotten now that Section 26(1) is not a continuation of or enlargement of the jurisdiction provided in Section 15. It is entirely a new and exclusive jurisdiction. The basic principle of restriciting the jurisdiction of the Small Cause Courts to relatively lesser pecuniary jurisdictions has been done away with in creation of an unlimited jurisdiction in Small Cause Courts in respect of the two subjects of recovery of possession and recovery of rent. The creation of the new jurisdiction, therefore, will have to be taken note of even in reference to the power of the Small Cause Courts to issue distress warrants, and the provisions of Chapter IV-A will have to be read alongwith the provisions of Chapter IV-A1 and not in juxtaposition of the same. If what the Small Cause Court is doing by issuing a distress warrant is recovering the certain rents from the tenant in favour of the landlord, then this act cannot be read independent of the exclusive jurisdiction created in Section 26(1). Even if, therefore, the Small Cause Court has issued a distress warrant under Chapter IV-A, it will have to be held that it has also exercised jurisdiction under Section 26(1) of entertaining the proceedings between the landlord and tenant for recovery of rent relating to the immovable property situated in the area within the local limits of the jurisdiction.
14. Once it is held that the distress warrant proceedings are 'proceedings' and are also covered in the language of Section 26(1) of the Act, the inference is irresitable that while issuing a distress warrant, the Small Cause Court exercises its jurisdiction under Section 26(1) and, therefore, the orders under that Chapter are appealable under Section 26A(1). Section 26A(1) has already been quoted earlier. The language of the same suggests that an appeal shall lie from the decree or order by the Court of Small Causes exercising jurisdiction under Section 26, to the District Court. It will have to be seen that the term used is "exercising jurisdiction under Section 26" in contradistinction to the term "under Section 26". When a jurisdiction is exercised, the Court exercises its power defined in the particular provision of law. In recovering rent, the Small Cause Court undoubtedly used its powers originally given under Chapter IVA also with the powers in the newly added Chapter IV-A1. In that case, the orders would clearly become appealable under Section 26A(1).
15. There is one more reason why the interpretation suggesting the remedy of the appeal should be accepted. It will be seen that under Sub-section (4) of Section 26A, there is a power given to the District Court to call for the case for the purposes of satisfying itself that the decree or order made in it was according to law, and then to pass such order as it thinks fit. This is a general power of revision. Now, the words "exercising jurisdiction under Section 26", which appear in Sub-section (1) are conspicuously absent in Section 26A(4). Thus, the District Court would have the powers to call for any case to examine the correctness of the decree or order passed in the same; whether such orders are passed in exercise of the jurisdiction under Section 26. An anomalous situation would then be created that while the District Court would have the re visional powers or the powers akin to the revisional powers in respect of the orders passed in Chapter IV-A, it would not have the appellate powers in respect of those orders, because of the language of Section 26A(1). The words "exercising jurisdiction under Section 26" cannot, therefore, be read as the words "orders passed under Section 26". In order to avoid the anomaly, a harmonious construction will have to be adopted for the term "exercising jurisdiction under Section 26", giving a broader scope to those words and including also the orders which are passed under Chapter IV-A1, whereby a recovery of rent is made by a landlord from the tenant.
16. The learned Counsel, who suggested that there is no appeal argued forcefully that Section 26A(4) will have to be essentially read in the light of Section 26A(1). Their contention was that Section 26A(4) would cover only those orders which are passed under Section 26(1) will have to be construed only meaning the orders passed strictly under Section 26(1) and not under any other Chapter. It will be seen that firstly words "exercising jurisdiction under Section 26" are not there in Section 26A(4). That apart, even if it is accepted that Section 26A(4) covers only the orders referred to in Section 26A(1), since the term 'exercising the jurisdiction under Section 26' has to be understood having a broader perspective and, therefore, including the orders passed not only under Section 26 but also orders of the nature provided for under Section 26, such orders would clearly become appelable under Section 26A(1) and revisable under Section 26A(4) of the Act. Again, it will have to be noted that Sub-sections (2) and (3) of Section 26A have a direct reference to the orders passed under Section 26A(1), while no such reference to Sub-section (1) is to be found in the language of Section 26A(4). The only harmonious construction, therefore, is to give a broader meaning to the term "exercising jurisdiction under Section 26" and including the orders passed not only under Section 26 but also of the nature prescribed in Section 26(1). Such harmonious construction would wipe out the anomaly demonstrated earlier.
17. An attempt was made by Mrs. Dharmadhikari to suggest that under Section 26(1), the power was created to entertain and try the suits and proceedings. According to her, there was no trial contemplated under the distress warrant proceedings and, therefore, the distress warrant proceedings would not be said to have been contemplated by the Legislature while enacting Section 26(1). It will be seen that the distress warrant proceedings are judicial proceedings as clearly held in Lalkrishan Mundhada v. Fatikchand Hajra ILR 1973 (1) Calcutta, where the validity of Chapter VIII of the Presidency Small Cause Courts Act dealing with subject of distress was challenged. The Division Bench has clearly held that under Section 54 of the said Act, the Judge or the Registrar has a discretion to issue or not to issue a warrant and, therefore, the said power is a judicial one. Chapter IVA of the Provinicial Small Cause Courts Act is almost identical with the said Chapter VIII of the Presidency Small Cause Courts Act. It will have to be, therefore, held that the proceedings under Chapter IVA are the judicial proceedings and clearly covered under Section 26(1). The word 'try' cannot be read in isolation and the full term 'entertain and try' will have to be read. The argument is, therefore, not sound.
18. Shri Vaidya, learned Counsel suggesting that there was no appeal, laid a great stress on Section 27R of the Act and forcefully argued that the provisions of that section bar the distress in any other manner. He, therefore, suggested that this was an exclusive provision to issue a distress warrant. He is undoubtedly right. However, in the light of the express language of Section 26(1), it will have to be held that after the introduction of Chapter IV-A1, the distress warrant proceedings are included in Section 26(1).
19. An argument was also raised on the basis of Section 27M, which provides for a power to transfer to the District Court cases where the subject matter in dispute exceeded the pecuniary jurisdiction of the Small Cause Court. It was suggested that if the District Court had this power, to call the cases under Sections 27-J and K, if the value of the subject matter exceeded the limits of the pecuniary jurisdiction, there could be no appeal against the other orders passed under this Chapter. The argument is clearly incorrect. Section 27M is a special power while the appellate powers under Section 26A are the general powers. Again, Section 27M depends on a particular contingency of the subject matter of dispute exceeding the limits of the pecuniary jurisdiction. Even if District Court transfers such cases to itself and passes orders, there is undoubtedly a further revision provided under Section 25 of the Act. Therefore, nothing would depend upon Section 27, and the two provisions are quite apart.
20. It is further tried to be suggested that as per Section 32, Chapters III, IV and IVA1, insofar as they relate to the subjects mentioned in Section 32(1)(a) to (b) were applicable also to the Courts invested with the jurisdiction of Small Cause Courts and in this Chapter IV-A was conspicuously absent. From this, it was tried to be suggested that Chapter IVA was distinct from Chapter IV-A1. There is no doubt that these are the two distinct Chapters. However, the argument is incorrect. Chapter IVA is not mentioned in Section 32, for the simple reason that the powers to issue distress warrant are restricted only to the Courts of Small Causes and not to the other Courts who are invested with the jurisdiction of the Small Cause Court. Proviso (1) to Section 27A is clear enough. The argument, therefore, has to be rejected.
21. Lastly, a reference was made to the unreported judgment of this Court in Shri Jayesh Kishorlal Dawada v. Shri Sunderdas s/o Maganmal Amesar (Civil Revision Application No. 463 of 1994), decided on 14.9.1994 (Ghodeswar, J.). The learned Single Judge has, in that judgment, held that where the Judge, Small Cause Court, has exercised jurisdiction under Section 27 of the Act, the provisions of Section 26A are not attracted. The learned Counsel canvassing that the appeal is not maintainable, very strongly relied on this Judgment. Unfortunately, in that case, the provisions of Section 15 and Section 26A(4) were not brought to the notice of the Court. It has already been pointed out that Section 15 created the jurisdiction only for the suits and the word 'proceedings' was conspicuously absent in that section. The addition of the word 'proceedings' now introduced by Chapter IVA1 would make a vital difference and the jurisdiction, which was restricted only to the suit, would also engulf the proceedings between the landlords and tenants for recovery of the rent. Again, the provisions of Section 26A(4) were also not brought to the notice of the Court and if a narrow interpretation is given to the words "exercising jurisdiction under Section 26" as used in Section 26A, an anomalous position would be created, inasmuch as while a revision against any order passed by the Small Cause Court which also includes the order passed under Chapter IVA, would be maintainable to the District Court and appeal would, however, not lie. Since these vital provisions were not brought to the notice of the Court, the Judgment would be rendered per Incurium, as per the law laid down in Kashibai v. State of Maharashtra 1993 Mah. L.J. 1168. In that case also the Division Bench had declared the earlier judgment to be per incuriam of the provisions of the Act, relying on the Supreme Court Judgment in State of M.P. v. Synthetic and Chemicals Ltd.
22. For all these reasons, it will have to be held that an order whereby another passed under Chapter IVA of the Act would also be appealable.
23. In the result, all the Civil Revision Applications where no appeal was filed would not lie straightaway before this Court under Section 25 of the Act. However, it would not be proper to reject these revisions solely on the ground of tenability, and instead a liberty could be given to the applicants to present an appeal before the District Court. Considering that the revisions are filed within the limitation, the time spent to prosecute in this remedy can be condoned under Section 14 of the Indian Limitation Act. These revisions shall, therefore, be returned for being presented to the District Court as appeals. In Civil Revision Application No. 494/96 the appeal was filed but was held as not maintainable. Civil Revision Application No. 494/96 is, therefore, remanded to the District Judge for disposing the appeal on merits. In Civil Revision Application No. 545/96 the appeal has been allowed and the distress warrant ordered to be issued. This Civil Revision Application shall be delinked and shall be placed for admission. With these observations, all the revisions are being disposed of. No costs.