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The above contention was rejected by V.S.Desai, J. on the ground that the exparte decree, though passed by the Small Causes Court, was not passed by it exercising jurisdiction under the Presidency Small Causes Court Act, but as a Special Court under the Rent Act. An application to set aside an exparte decree can be made Kambli / abs 32 of 75 WP-9562-2010 only to the Court which had passed it and to no other Court. The Special Court under the Rent Act having passed the exparte decree, an application to set aside the decree could be made only to that Court.

(emphasis supplied)

29. In Hemchand case (supra), ultimate conclusion of V.S.Desai J. was correct, because once an exparte decree was passed by a Special Court under Section 28 of the Bombay Rent Act, an application for setting aside the exparte decree could be entertained only by that Special Court. Justice V.S.Desai, therefore, rightly rejected contention of the respondent that the jurisdiction under Section 28 of the Special Court ceased on passing of the exparte decree and that the order made by it on the application for setting aside the exparte decree was by a Small Causes Court not acting as a Special Court. So also the contention that the subject matter of the exparte decree was not regarding the rights under the Bombay Rent Act was required to be rejected. The subject matter of the application for setting aside was an exparte decree passed on the basis of the provisions of the Bombay Rent act. Hence, the appeal against that Kambli / abs 35 of 75 WP-9562-2010 exparte decree or an appeal against an order rejecting the application for setting aside an exparte decree was certainly maintainable under Section 29(1) of the Act. The right of the tenant not to be evicted from the tenanted premises, except in accordance with the provisions of the Bombay Rent Act, was determined by the exparte decree. The order rejecting the application for setting aside the exparte decree was, thus, not a mere procedural order, but an order having direct consequence of eviction of the tenant from the tenanted premises without the tenant getting an opportunity to assert his rights under the Rent Act and contesting the plaintiff-landlord's alleged rights under the Rent Act.

55. Division Bench of the Gujarat High Court in Natavarlal (supra) and a Single Judge of this Court in Hemchand (supra) were dealing with the case where exparte decree was passed by the Small Causes Court exercising jurisdiction as the Special Court under Section 28 of the Bombay Rent Act. When the Defendant made an application for setting aside that exparte decree, the application was rejected by the trial court and the question was whether an appeal was maintainable before the appellate Bench of the Small Causes Court under Section 29(3) of the Bombay Rent Act against such order rejecting application for setting aside exparte decree.

56. Proviso (a) to Section 29(1) conferring in wide terms right of appeal from a decree or order made by the Court of Small Causes before the Bench of two Judges of the same Court, lays down that "no such appeal shall lie from a decree or order made in any suit or proceedings in respect of which no appeal lies under the Code of Civil Procedure, 1908."

Order 43 Rule 1(d) expressly provides that an appeal shall lie from an order under Order 9 Rule 13 rejecting an application for an order to set aside a decree passed exparte. It is, therefore, clear that an appeal against the order of the Small Causes Court acting as a Special Court under Section 28 of the Bombay Rent Act rejecting an application for an order to set aside a decree passed exparte was and has always been an appealable order. All that this Court in Hemchand (supra) and the Division Bench of Gujarat High Court in Natvarlal (supra) held was that the Small Causes Court is a Special Court exercising powers under the Code of Civil Procedure and that Kambli / abs 53 of 75 WP-9562-2010 interlocutory and other orders which the Special Court may pass in entertaining, trying and deciding the matters within its exclusive jurisdiction, which are appealable under the provisions of the Code of Civil Procedure, are appealable under Section 29 of the Bombay Rent Act.