Ansilee S/O Vakayil Verghese vs Ravi Prakash S/O Mohanrao Jangade
2021 Latest Caselaw 13240 Bom

                                1

                                        lpa 495 of 2011 (J).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          NAGPUR BENCH, NAGPUR


     LETTERS PATENT APPEAL NO.495 OF 2011
                      IN
       WRIT PETITION NO.4699 OF 2011 (D)


Ansilee S/o Vakayil Verghese,
Aged about 52 years,
Occ.: Business,
Resident of 5/4, Vali Apartments,
Katol Road, Nagpur.                                      ... Appellant


       Versus


Ravi Prakash S/o Mohanrao Jangade,
Aged about 49 years,
Occ.: Government Service,
Resident of Ram Mandir,
Cement Road, Sadar, Nagpur.                              ... Respondent


Shri Masood Shareef, Advocate for Appellant.
Mrs. Rashi Deshpande, Advocate for Respondent.


       CORAM : A.S. CHANDURKAR &
               PUSHPA V. GANEDIWALA, JJ.

       DATE        : 16th SEPTEMBER, 2021


JUDGMENT (Per A.S. CHANDURKAR, J.) :

1. This Letters Patent Appeal raises a challenge to the

judgment of the learned Single Judge dated 21-9-2011 in Writ

Petition No.4699 of 2011. By the said judgment, the Writ Petition

preferred by the appellant came to be dismissed, consequently

affirming the dismissal of the suit filed by the appellant before

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the Small Causes Court that was upheld in appeal by the District

Court.

2. The appellant is the original plaintiff who had filed a suit

for declaration that he was the lawful tenant of shop block No.4,

admeasuring about 140 square feet in a building, bearing

Municipal House No.684 at Residency Road, Sadar, Nagpur. A

further relief sought was in the nature of perpetual injunction so

as to restrain the respondent-defendant from letting out the

tenanted shop to any other person or disposing of the same.

3. It is not necessary to enter into the merits of the

adjudication of the rival claims. Suffice it to state that the

learned Judge of the Small Causes Court dismissed the suit in

view of the fact that the shop block which was let out to the

plaintiff had been demolished by the Municipal Corporation and

that there was no evidence to show that there was any tenancy

right with regard to the land on which the shop block was

constructed. The judgment of the Trial Court was confirmed in

appeal by the District Court. The dismissal of the Writ Petition

preferred by the appellant has given rise to the present appeal.

4. In the light of the fact that the present appeal arises from

the adjudication undertaken by the Small Causes Court in the suit

lpa 495 of 2011 (J).odt

filed by the appellant and thereafter by the District Court, in the

light of the law laid down by Hon'ble Supreme Court in

Jogendrasinhji Vijay Singhji Vs. State of Gujarat and others,

reported in (2015) 9 SCC 1, the adjudication by the learned Single

Judge will have to be held to be confined as under Article 227 of

the Constitution of India. Following the aforesaid decision, this

Court in Ramdayal S/o Gulabchand Khandelwal and others Vs.

Mahendra S/o Badrinarayan Khandelwal and others, reported in

2021(4) Mh.L.J. 653, has observed that as no writ of certiorari can

be issued for quashing the order passed by the Civil Court, a

Letters Patent Appeal challenging such adjudication by the

learned Single Judge would not be maintainable.

5. Shri Masood Shareef, learned counsel for the appellant,

however, sought to urge that since the adjudication herein was

by the Small Causes Court, which was in the nature of a Tribunal,

the ratio of the aforesaid decision would not be applicable and

the Letters Patent Appeal would be tenable. In that regard, the

learned counsel sought to reply upon the judgment of learned

Single Judge of this Court in Masjid Alfuddin Ahle Hadis Trust,

Nagpur Vs. Jamil Ahamad Driver S/o Abdul Jalil and another,

reported in 2009(5) Mh.L.J. 853, to urge that the Small Causes

Court exercising jurisdiction under the Maharashtra Rent Control

Act, 1999 (for short, 'the Act of 1999') was a 'Tribunal' for that

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purpose. In the light of such contention, the learned counsel

relied upon the decision of the Hon'ble Supreme Court in T.C.

Basappa Vs. T. Nagappa and another, reported in

AIR 1954 SC 440, and the judgment of the Full Bench of this

Court in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare and

others, reported in 2011(2) Mh.L.J. 916, to urge that the Letters

Patent Appeal was maintainable.

Mrs. Rashi Deshpande, learned counsel for the

respondent, however, relied upon the judgment of this Court in

Ramdayal S/o Gulabchand Khandelwal (supra) to urge that the

Letters Patent Appeal was not maintainable.

6. We have heard the learned counsel for the parties at

length on the aforesaid contention. It is seen that under Section

33 of the Act of 1999, the jurisdiction to decide a suit between

landlord and tenant is conferred on the Court of Small Causes

established under the Provincial Small Causes Courts Act, 1897

amongst others. An appeal from such adjudication lies to the

District Court under Section 34(1)(b) of the Act of 1999. Rule 8 of

the Maharashtra Rent Control Rules, 2017 (for short, 'the Rules of

2017') prescribes the procedure to be followed by the Court

having jurisdiction under Section 33 of the Act of 1999. Such

Courts are required to follow the procedure prescribed by the

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Code of Civil Procedure, 1908 (for short, 'the Code'), as

applicable in the State of Maharashtra. Similarly, the Appellate

Court has also to follow the procedure prescribed by the Code

under Section 34 of the Act of 1999.

7. In Ram Kishan Fauji Vs. State of Haryana and others,

reported in (2017) 5 SCC 533, the Hon'ble Supreme Court in

Paragraph 42.3 has held that a writ petition which assails the

order of a civil court in the High Court has to be understood, in all

circumstances, to be a challenge under Article 227 of the

Constitution of India. On such determination by the High Court,

no intra-court appeal would be maintainable. Reference therein

was made to the decision in Naresh Shridhar Mirajkar Vs. State of

Maharashtra and another, reported in AIR 1967 SC 1, wherein it

was held that writ of certiorari does not lie to challenge the

judgments of inferior courts of civil jurisdiction. It is thus clear

that if any adjudication is undertaken by the Civil Court and the

proceedings reached the High Court, the jurisdiction exercised

while examining the orders passed by the Civil Court would be

only under Article 227 of the Constitution of India and

consequently no Letters Patent Appeal would be maintainable

from such adjudication.

lpa 495 of 2011 (J).odt

8. In the present case, the suit filed by the appellant was

decided by the Small Causes Court. The Small Causes Court was

required to follow procedure prescribed by the Code in view of

the requirement prescribed by Rule 8 of the Rules of 2017. It has

been held in Masjid Alfuddin Ahle Hadis Trust (supra) that when a

suit is filed under the Act of 1999, the Court does not function as

a Small Causes Court but as a Court constituted under the Act of

1999. The Small Causes Court takes cognizance of the suit under

Section 33 of the Act of 1999 and not under Section 26 of the

Provincial Small Causes Courts Act, 1897. Merely because the

expression 'Tribunal' has been employed by the learned Single

Judge, the same would not make the challenge as raised to the

order passed by the Small Causes Court to be one from an order

passed by the Tribunal. The adjudication remains to be that of

the Civil Court and in the light of the ratio of the decisions

referred to hereinabove, a writ of certiorari would not lie while

challenging such orders passed by the Civil Court.

9. In this regard we may refer to the observations in

Harinagar Sugar Mills Limited Vs. Shyam Sunder Jhunjhunwala

and others, reported in AIR 1961 SC 1669 as under :

"(30) ..... All tribunals are not Courts, though all Courts are tribunals. The word "Courts" is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish

lpa 495 of 2011 (J).odt

"wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. .......

(31) When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature". ........

(33) In my opinion, a Court in the strict sense is a tribunal which is a part of the ordinary hierarchy of Courts of Civil Judicature maintained by the State under its constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. ......."

10. In view of aforesaid, the distinction sought to be made out

by the learned counsel for the appellant cannot be accepted. The

Letters Patent Appeal cannot be entertained, as it is not

maintainable. Accordingly, the Letters Patent Appeal is disposed

of as not maintainable. It is open for the appellant to raise

challenge to the order passed by the learned Single Judge in Writ

Petition No.4699 of 2011 in accordance with law. The points

raised in the Letters Patent Appeal are kept open. The parties

shall bear their own costs.

(Pushpa V. Ganediwala, J.) (A.S. Chandurkar, J.)

Lanjewar