M/S.J.M.Constructions vs Dr.Rustom P. Patel & Ors
2008 Latest Caselaw 112 Bom

                                     1




           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                     CIVIL APPELLATE JURISDICTION




                                                                        
                     WRIT PETITION NO.258 OF 2007

    M/s.J.M.Constructions.                              ..Petitioner.




                                                
    V/s.

    Dr.Rustom P. Patel & Ors.                           ..Respondent.

Mr.P.S.Dani for Petitioner.

Mr.V.R.Walawalkar i/b. Mr.Sameer Bhalekar for Respondent No.1.

CORAM: A.M.KHANWILKAR,J

DATE : AUGUST 5, 2008.

P.C. :

1. Heard Counsel for the parties.

2. Rule. Rule made returnable forthwith by

consent.

3. Mr. Walawalkar waives notice for Respondent

No.1 who is the only contesting respondent for the

purpose of present Writ Petition.

4. As short question is involved, Petition is

heard finally forthwith by consent.

5. This Writ Petition under Article 227 of the

Constitution of India takes exception to the Judgment

and Order passed by the Appellate Bench of Small

Causes Court at Bombay dated 2nd November, 2006 in

Revision Application No.228 of 2005. That Revision

Application was filed by the Respondent No.1 taking

exception to the Judgment and Order passed by the

trial Court dated 9th September, 2005 in Interim

Notice No.82 of 2005 filed in pending RAE No.771/1409

of 2004. The said Interim Notice was taken out by

the Respondent No.1 praying for permission to file

Written Statement ig beyond permissible

other words, the said Application was for condonation period. In

of delay in filing written statement and to take

written statement of the Respondent No.1 on record.

The trial Court by its well reasoned Judgment and

Order dated 9th September, 2005 rejected that

Application. The Respondent No.1 carried the matter

in revision under section 34 of the Maharashtra Rent

Control Act, 1999. The said proceedings were treated

as revision by the Appellate Bench of the Small

Causes Court. The Appellate Bench was pleased to

reverse the opinion recorded by the trial Judge and

instead allowed Interim Notice filed by Respondent

No.1.

6. The principal question raised before this

Court is that the Appellate Bench of the Small Causes

Court had no jurisdiction to entertain Revision

Application preferred by the Respondent No.1. To

consider the correctness of that position, it would

be appropriate to advert to section 34 of the Act,

which reads thus:

"34. Appeal.

(1) Not withstanding anything contained in

any law for the time being in force, an appeal shall lie-

(a) in Brihan Mumbai, from a decree or order made by the Court of Small Causes, Mumbai, Mumbai exercising jurisdiction under section 33, to a bench of two Judges of the said Court which

shall not include the Judge who made such decree or 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, 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 33 or by a Civil Judge exercising such jurisdiction, to the District Court:

Provided that no such appeal shall lie from,-

(a) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908;

(b) 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 in respect of any premises and the amount or value of the subject matter of which does not exceed-

(i) where such suit or proceeding is instituted in Brihan Mumbai-

Rs.10,000; 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;

(c) 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;

(d) 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.

(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 the 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) Where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai, the bench of two

Judges specified in clause (a) of sub-section (1) and elsewhere, the District Court, may, for the purpose of satisfying itself that order was made and the bench or court aforesaid or the District Judge or any Judge to whom the case may be referred by the

District Judge, shall pass such order with respect thereto as it or he thinks fit."

The scope of Section 34 of the Act has already been

considered by the Division Bench of our High Court in

the case of Sukhdev Prasad Raghubir V/s. Rambhujarat

Kshampati @ Rambhujarat Chhampati reported in 1982(1)

Bom.C.R.832. The Division Bench of our High Court

has unambiguously held that the remedy under section

34(4)(old section 29(3) of the Bombay Rents, Hotel

and Lodging House Rates Control Act, 1947) was

available only against the Order which was not a

procedural order, which did not affect rights and

liability of the parties.

7.

therefore, The

is,

limited controversy in the present

whether the order passed on case

the

Interim Notice filed by the Respondent for condoning

delay in filing written statement and to take written

statement on record can be said to be a procedural

order or otherwise. The issue is no more res

integra. The Apex Court in the case of Kailash V/s.

/s.

Nanhku and ors. reported in (2005) 4 Supreme Court

Cases 480, had occasion to deal with the similar

contention. Even in that case, the issue answered by

the Apex Court was whether the Order passed by the

Court conducting election trial declining to extend

time for filing Written Statement, can be said to be

a procedural order. In paragraph-27 of the said

decision after referring to provisions of Order 8

Rule 1 of C.P.Code, the Apex Court has noted that the

said provision clearly indicates that obligation is

cast on the Defendant to file Written Statement

within 30 days from the date of service of summons on

him and within the extended time falling within 90

days. In other words, it is the obligation of the

Defendant to file Written Statement within specified

time. The fact that the Defendant has a right to

file written statement, does not militate against the

argument of the Petitioner that the order passed on

the Interim Notice filed by the Respondent No.1 is a

procedural

revision order

under ig and not amenable to the remedy

section 34(4) of the Act, 1999.

of

Reverting to the decision of the Apex Court in the

case of Kailash(supra) in paragraph-27, the Apex

Court has expounded that the nature of the provision

contained in Order 8 Rule 1 is procedural one. In

view of this dictum of the Apex Court, there is no

manner of doubt that the nature of provision under

section 34(4) of the Act of 1999 would be a

procedural order to be passed on the interim notice

filed by the Respondent No.1 for condoning delay in

filing Written Statement and to take Written

Statement on record. If it is so, no remedy of

revision against such an order under section 34(4) of

the Act of 1999 would be available having regard to

the exposition of the Division Bench of our High

Court in the case of Sukhdev(Supra).

8. Counsel for the Respondent No.1 however, was

at pains to contend that the right to file Written

Statement is a substantive right of the defendant and

pronouncement of the trial court on the said right in

the form of order passed on the interim notice

decided against the Respondent No.1 is impinging upon

the said substantive right which would entitle the

parties such as Respondent no.1 to file appeal within

the meaning of section 34(4) of the Act, 1999.

9. This argument is of no avail. As aforesaid,

the Apex Court in the case of Kailash(Supra) has

taken the view that it is the obligation or duty of

the defendant to file written statement within

specified time. Besides, the Order passed on the

application taken out by the Defendant to condone

delay would be a procedural order to be passed by the

trial Judge. Thus understood, in view of the

exposition of the Division Bench in the case of

Sukhdev Prasad(Supra), the argument of the Respondent

No.1 will have to be stated to be rejected.

10. Counsel for the Respondent No.1 then relied

on another decision of our High Court in the case of

Pacific Engineering Co.Pvt.Ltd. V/s. East India

Hotels Ltd. reported in 2005(1) Bom.C.R.427, in

particular dictum in paragraph-34(a) at page 441.

This Judgment is of no avail to the Respondent No.1,

in view of the direct judgment of the Supreme Court

on the point considering the efficacy of the order

passed on the interim application for condonation of

delay in filing written statement, in the case of

Kailash(Supra).

Kailash(Supra)

11.

rely Counsel igfor the Respondent No.1 would

on the Judgment in the case of Sayarabi also

Sayyad

Abdul Ajij(deceased) through L.Rs. V/s. Shri Abdul

Rashid Abdul Majid reported in 2004(4) All M.R. 581.

In this case, the Order passed by the trial Judge was

on an application for seeking amendment in the

plaint. Efficacy of the order to be passed on such

application whether is procedural order or affecting

the substantive rights as such has been dealt with in

the said decision. Once again this decision will be

of no avail to the Respondent No.1, having regard to

the direct judgment of the Apex Court on the point in

issue in the case of Kailash (Supra).

12. Counsel for the Respondent no.1 at this

stage, furnishes Judgment of the Apex Court in the

case of Sumatibai & Ors. V/s. Paras Finance

Co.Regd.partnership firm reported in (2007) 10 SCC

82. Reliance is placed on paragraph-8 of this

Judgment which takes the view that every party in a

case has a right to file a written statement. This

right is in accordance with natural justice. This

decision is not directly on the point in issue. The

point in issue is whether an order passed on an

application for condoning delay in filing Written

Statement can be said to be a procedural order or

otherwise.

the Defendant

Suffice it to observe that the right

to file Written Statement is hedged of

with the requirement to file the same within

specified time. It is therefore, more an obligation

of the Defendant to file Written Statement within

specified time. That is what has been observed in

paragraph-27 in the case of Kailash(Supra). The

Order passed on the application taken out by the

Defendant for condoning delay in filing Written

Statement and to take Written Statement on record

beyond specified period essentially is a procedural

order. That is the issue that needs to be addressed

in the present Petition.

13. Counsel for the Respondent No.1 has also

relied on the Judgment in the case of Sangram Singh

V/s. Election Tribunal Kotah & Anr. reported in

1955 SC 425. This Judgment has been adverted to by

the Apex Court in the case of Kailash(Supra), Kailash(Supra) as can

be discerned from the paragraph-31 and 33 of the said

Judgment.

14. In the circumstances, I have no hesitation in

taking the view that the Order passed on Interim

Notice by the Trial Judge dated 9th September, 2005

was a procedural Order against which no revision

Section 34(4)

application could be maintained within the meaning of

of the Act of 1999. The Appellate

Bench of the Small Causes Court had no jurisdiction

to entertain revision against such an order, as

observed by the Division Bench of our High Court in

the case of Sukhdev Prasad(Supra).

Prasad(Supra)

15. Accordingly, the Judgment and Order impugned

in this Writ Petition passed by the Appellate Bench

on such Revision Application will have to be set

aside, being without jurisdiction.

16. As the impugned Judgment and Order is

required to be set aside, it is not necessary for me

to enter into controversy on merit of the finding

recorded by the Appellate Bench of the Small Causes

Court in the impugned Judgment and Order, which is

without jurisdiction.

17. Accordingly, Rule is made absolute in this

Writ Petition. The impugned Judgment and Order is

set aside and instead the Judgment and Order passed

by the trial Judge dated 9th September, 2005 in

interim notice No.82 of 2005 is restored. Petition

is allowed with costs.

18.

    No.1
                At    this
                          ig stage, Counsel for     the

submits that the Respondent No.1 may carry Respondent

the

matter in appeal for which reason, the trial Court be

directed to defer the proceedings for a period of six

weeks from today.

19. As Counsel for the Petitioners fairly states

that the request for adjournment if made before the

trial Court will not be opposed, no further orders

are necessary.

(A.M.KHANWILKAR,J)