Bombay High Court
Khairunissa vs Anwar Khan Samdullah Khan on 13 December, 2013
Bench: R.M. Savant
WP.5269.1999.916.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5269 OF 1999
Khairunissa w/o. Abdul Rashid :- Petitioner
versus
Anwar Khan Samdullah Khan,
since deceased, through legal heirs :- Respondent
Mr. Sameer R. Bhalekar for the Petitioner.
Mr. M. S. Kadu for the Respondent.
ig CORAM :- R. M. SAVANT, J.
DATED :- DECEMBER 13, 2013
ORAL ORDER :-
The writ jurisdiction of this Court is invoked against the
Judgment and order dated 10th December, 1998 passed by the Bench of
two learned Judges of the Small Causes Court, by which order the
Appeal in question being Appeal No. 313 of 1998 filed by the
Respondent herein i.e. the original defendant came to be allowed and
the Decree passed by the Trial Court came to be set aside and the Suit
came to be remanded to the Trial Court to be proceeded further from
the stage of cross-examination.
2) The challenge in the above Petition is to remand of the Suit
in question to the Trial Court made on the basis of the observations in
Paragraph No. 32 and 33 of the impugned Judgment and order, wherein
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the Bench of two Judges of the Small Causes Court (Appellate Bench for
short) held that the Defendant must be given an opportunity to meet his
case at the trial stage. This was in the context of the fact that the
Defendant's defences were struck of in the Suit in question.
3) The facts necessary to be cited for adjudication of the above
Petition can be stated thus:
The Petitioner is the original Plaintiff who had filed the Suit in
question being L.E.Suit No. 397/536 of 1978 in the Small Causes Court
at Mumbai for possession of the suit premises i.e. Shop admeasuring 14
feet X 16 feet behind Iqbal Laundry on the ground floor of House No.
60-64, Fotowat Manzil, Sankli Street, Byculla, Mumbai. It is not
necessary to go into unnecessary details considering the nature of the
challenge in the above Petition but suffice it to say that the Suit was
founded on the fact that the premises in question along with the
business were given on conducting basis to the Defendant. The case of
the Plaintiff was controverted by the Defendant by filing his Written
Statement by contending that he is in possession of the premises in
question since the year 1969 and that he is a licencee. It appears that in
the said Suit the Plaintiff had filed an application being Interim Notice
No. 81 of 1993 for directing the Defendant to deposit the arrears of rent
in Court. An order came to be passed on 25rd July, 1993 directing the
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Defendant to so deposit the arrears of rent by allowing the said Interim
Notice No. 81 of 1993. The said order it seems was a self operative
order which provided that in default the defences of the Defendant
would be struck of. In view of the fact that the Defendant did not
comply with the said order dated 25 th July, 1993, the defences of the
Defendant were struck of by order dated 5th October, 1993.
An issue of jurisdiction of the Small Causes Court was raised by
the Defendant on the basis that the relationship between the parties is
one of licensor and licencee and therefore, the Small Causes Court
would not have jurisdiction. The said issue was adjudicated upon by
the Small Causes Court by affording opportunity to the parties in the
matter of leading evidence in respect of the said issue and by order
dated 12th March, 1996 it was held that the Small Causes Court had no
jurisdiction to entertain and try the Suit and the Plaint was returned to
the Plaintiff for being presented to the Competent Court. The Small
Causes Court inter alia held that the Defendant has been inducted in the
premises in question on the basis of the conducting agreement and
therefore it would not have the jurisdiction to entertain the Suit.
Against the said order dated 12th March, 1996 passed by the
learned Judge of the Small Causes Court, the Plaintiff preferred an
Appeal being Appeal No. 271 of 1996. The Appellate Bench i.e. the two
Judge Bench of the Small Causes Court allowed the said Appeal and set
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aside the findings of the Trial Court as regards the point of jurisdiction
and the matter was sent back to the Trial Court to record findings on
Issue Nos. 1 to 4 and pass final orders thereon. Whilst allowing the
Appeal, the Appellate Bench inter alia observed as follows:
"..... At the same time we make it clear that the defendant's
defences are already struck off. Therefore, before giving any finding
on Issue Nos. 1 to 4 learned trial Judge will hear the respective
advocates on the basis of the material already on record. The
Parties are not allowed to lead any other evidence ....."
On remand, the Trial Court i.e. the learned Judge of the Small
Causes Court by the Judgment and Order dated 8 th December, 1997
decreed the Suit and directed the handing over of possession of the
premises in question. The gist of the reasoning of the Trial Court was
that the authority of the Defendant to occupy the premises on the
agreement coming to an end had ceased to exist and therefore the
Defendant could not continue to occupy the premises in question. The
Trial Court adverted to the fact that though called upon the Defendant
had not vacated the premises in question and therefore the Suit had to
be decreed.
The Defendant, aggrieved by the said Judgment and order dated
8th December, 1997 carried the matter by way of an Appeal to the two
Judge Bench of the Small Causes Court i.e. the Appellate Bench by way
of the instant Appeal being Appeal No. 313 of 1998. However, prior
thereto, the Defendant had filed an Application being Application No.
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454 of 1997 in the Trial Court for setting aside the order striking of his
defences. The Trial Court had rejected the said Application by order
dated 8th December, 1997. In the Appeal therefore, the challenge to the
said order dated 8th December, 1997 was also sought to be raised having
regard to Section 105 of the Civil Procedure Code. The Appellate
Bench, as indicated above, has allowed the Appeal and has remanded
the matter once again back to the Trial Court for a de-novo
consideration. However, as indicated above, by virtue of the
observations made in Paragraph 32 and 33 directed the Trial Court to
give an opportunity to the Defendant to meet the case of the Plaintiff in
the trial. The Appellate Court has also observed in Paragraph No. 33
that the main order passed by the Trial Court about the striking of
defences is liable to be set aside. The Appellate Bench has relied upon
Section 105 of the Civil Procedure Code for setting aside the said order
of striking of the defences. The Appellate Bench, as can be seen from a
reading of the order, has also recorded findings on merits, which, with
the assistance of the learned Counsel for the parties, I have been gone
through. The findings are two fold, that there was no running business
which was given on conducting basis and that the Defendant was in
exclusive possession of the suit premises. As indicated above, it is the
said order dated 10th December, 1998 which is taken exception to by
way of the above Writ Petition.
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4) Heard the learned Counsel appearing for the parties. The
principal contention urged by the learned Counsel appearing for the
Petitioner Shri. Bhalekar is that the coordinate Bench of the Small
Causes Court could not have set aside the order passed by another
Bench, wherein, it had observed that since the defences of the
Defendant had been struck of, the Suit will be proceeded on the said
basis. The learned Counsel would contend that the order passed by the
Appellate Bench restricting the remand in terms of the said order
having not been challenged by the Defendant in the higher court, the
said order had become final and binding. The learned Counsel
contended that the only reason the remand has been ordered by the
Appellate Bench is that the Defendant had not been given an
opportunity as his defence was struck of.
5) Per contra, the learned Counsel appearing for the
Respondent/defendant Shri. Kadu would contend that the said order
striking of defences being an interlocutory order, though confirmed by
the Appellate Bench, would still be open for challenge under Section
105 of the Civil Procedure Code in the Appeal i.e filed against the final
Decree. The learned Counsel, in support of the said contention sought
to rely upon a Judgment of the Division Bench of Calcutta High Court in
the case of Ram Lakshman Singh vs. Girindra Mohan Hazra reported in
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AIR 1963 Calcutta 13. The learned Counsel would contend that since
against the interlocutory order no Appeal was provided, the avenue to
challenge the said order when the Decree is challenged is still open to
the Defendant.
6) Having heard the learned Counsel for the parties, I have
considered the rival contentions. In view of the challenge which is
raised in the above Writ Petition namely as to whether the Appellate
Bench could have set aside the order of striking of the defences of the
Defendant and remand the Suit back to the Trial Court, it is not
necessary for this Court to go into other aspects. In the context of the
said challenge, it would be relevant to note that the defences of the
Defendant were struck of by the Trial Court and thereafter the matter
had reached the Appellate Bench by virtue of the decision rendered on
the preliminary issue by the Trial Court. The Appellate Bench had set
aside the findings of the Trial Court on the preliminary issue as regards
the jurisdiction and had remanded the matter back to the Trial Court,
circumscribing the said remand by the directions contained in the said
order and one of the directions was that since the defences of the
Defendant were struck of the same would continue and that on remand
the Suit would be proceeded with on the basis of there being no Written
Statement filed by the Defendant. The Suit was accordingly proceeded
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with and was decreed by the Trial Court by the Judgment and Order
dated 8th December, 1997. Thereafter, the matter was carried in Appeal
by the Defendant by filing the instant Appeal being Appeal No. 313 of
1998. But, in the interregnum, the Defendant had filed an Application
for setting aside the order of striking of his defences before the Trial
Court. The said Application was rejected by the Trial Court on the
ground that the said order was confirmed by the Appellate Bench.
Hence, in the Appeal the Defendant had by having recourse to Section
105 of the Civil Procedure Code had also raised the challenge to the
said order dated 8th December, 1997 passed by the Trial Court, whereby
the striking of his defences was maintained. The Appellate Bench of the
Small Causes Court has set aside the said order striking of defences by
holding that such a course of action was open in view of Section 105 of
the Civil Procedure Code. In my view, the order of striking of defences
being confirmed by the Appellate Bench whilst remanding the matter
back on the first occasion and which confirmation was not challenged
by the Defendant by taking recourse to any proceedings, the said order
had therefore become final and conclusive insofar as the Defendant is
concerned. The Trial Court, as indicated above, had rejected the
Application for setting aside the said order on the ground that the same
has been confirmed by the Appellate Bench in the first round. However,
the Appellate Bench of the Small Causes Court has set aside the order
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by having recourse to Section 105 of the Civil Procedure Code. In my
view, a Bench of the same Court cannot set aside the order passed by
another Coordinate Bench. The Appellate Bench therefore, whilst
remanding the matter by the impugned order, has erred in observing
that an opportunity would have to be given to the Defendant to
prosecute the matter on merits and that the order striking of the
defences is required to be set aside.
7) Another aspect which is required to be adverted to is the
fact that the Lower Appellate Court has recorded findings on merits
though ultimately it has remanded the matter back to the Trial Court.
In my view, it was not necessary for the Lower Appellate Court to record
exhaustive findings as find a place in the impugned order in respect of
the merits of the case of either side, as ultimately the Lower Appellate
Court has held that the Trial Court has not properly appreciated the
material on record which includes the agreement in question in view of
the fact that the defences of the Defendant were struck of. The
Judgment of the Division Bench of the Calcutta High Court in the case
of Ram Lakshman Singh (supra) has no application, as the Division
Bench has only framed the issue whilst considering whether leave to
appeal to the Supreme Court in respect of the said issue is required to
be granted. Hence, the said judgment does not aid the Respondent in
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any manner.
8) In my view, since the remand is ordered only on the ground
that the Suit has been proceeded with without the Defendant being
allowed his defences and since this Court has set aside the Judgment
and order of the Appellate Bench of the Small Causes Court, whereby
the Defendant was permitted to have his defences, the matter would
have to be relegated back to the Appellate Court for de-novo
consideration of the Appeal in respect of the challenge to the Decree
passed by the Trial Court. Hence the following directions:
(i) The Appellate Bench of the Small Causes Court to
consider the Appeal on the basis that the defences have been
struck of and then adjudicate upon the Decree in question which
has been passed by the Trial Court. The said exercise to be
carried out by the Appellate Bench of the Small Causes Court
within a period of six months of the parties appearing before it.
9) The Writ Petition is accordingly allowed. Rule is
accordingly made absolute in the aforesaid terms with parties to bear
their respective costs of the Petition.
(R. M. SAVANT, J.)
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