TMI Blog2013 (1) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure in a suit arising out of the Maharashtra Rent Control Act ? For giving answers to the above questions, we propose to proceed in the following manner: Image No. 1 FACTS 2. Writ Petition No. 9562 of 2010 challenges the judgment and order dated 29 September 2010 passed by the Small Causes Court, Bombay rejecting application of the petitioner-plaintiff for amendment of the plaint by addition of a party. A preliminary objection was raised on behalf of the respondent-defendants at the hearing of the writ petition against maintainability of the writ petition under Article 227 of the Constitution of India on the ground that the petitioner had an adequate and efficacious alternative remedy available by way of revision under section 34(4) of the Maharashtra Rent Control Act, 1999 (for brevity New Rent Act ). 3. It was thereupon contended by learned advocate for the petitioner that a Revision under section 34(4) of the New Rent Act lies to an Appellate Bench of the Court of Small Causes only in respect of an order passed under the Rent Act and that the revisional jurisdiction does not extend to a procedural order passed under the Code of Civil Procedure, 1908. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rent Act after relying upon the Constitution Bench decision of the Supreme Court in Shankarlal Aggarwala and others Vs. Shankarlal Poddar and others Air 1965 SC 507 and also on two decisions of three Judge Benches of the Supreme Court in Bant Singh Gill Vs. Shanti Devi and others AIR 1967 SC 1360 and in Central Bank of India Limited Vs. Gokal Chand AIR 1967 SC 779. (b) In the aforesaid decision in Bant Singh Gill, Section 34 of the Delhi and Ajmer Rent Control Act, 1952 conferred the right of appeal on an aggrieved person in very wide terms - any person aggrieved by any decree or order of a Court passed under this Act, may in such manner as may be prescribed, prefer an appeal: (i) to the Court of the senior subordinate Judge........, (b) to the Court of the District Judge......... and (c) to the High Court....., (the forum of appeal depending on the value of the case). (emphasis supplied) In spite of the aforesaid wide language, the Supreme Court held that the word order is not wide enough to include every order, whatever be its nature and particularly the orders which only dispose of interlocutory applications. Where there is no final order deciding rights or liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the rights or liabilities of parties. (e) On the basis of the above decisions it was submitted by Mr. Goel and Mr. Dani that though the word order in Section 34(4) is very wide, revisions are not maintainable against interlocutory orders, which are merely procedural orders and, which do not affect the rights and liabilities of the parties. It was submitted that in the above decisions the Supreme Court held that an appeal would not be maintainable against such orders, in spite of wide words used in the section conferring right to appeal. It was, therefore, vehemently submitted that though Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act provide for revision in very wide terms, the same have to be read in light of the principles laid down in the above decisions of the Supreme Court. Therefore, the judgment of the Division Bench in case of Sukhdev Prasad Raghubir 1983 Mh.L.J. 9 based on the above Supreme Court decisions does not require any reconsideration. (f) It was accordingly submitted that on account of non maintainability of revision against such interlocutory orders, there is no equally efficacious alternative remedy available to the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterlocutory order, without examining whether substantive rights of the parties are affected. Submissions on behalf of Respondents 8. On the other hand, the learned counsel for respondents in the writ petitions made following submissions: (i) The very fact that sub-section (4) of section 34 of the New Rent Act and sub-section (3) of section 29 of the Old Rent Act begin with the words where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai , the legislature intended that all non-appealable orders are subject to revision and, therefore, the three Supreme Court decisions relied upon by the writ petitioners cannot apply to revisions at all. If the term order in the aforesaid provisions conferring right of appeal and in the provisions conferring right of revision were to be interpreted identically, then the legislature would not have provided two different remedies of appeals under section 29(1) of the Old Rent Act and section 34(1) of the New Rent Act on the one hand, and revisions under section 29(3) of the Old Rent Act and section 34(4) of the New Rent Act, on the other hand. (ii) Section 34(1) proviso (a) confers a rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Union of India v/s. Hansoli Devi and ors. (2002) 7 SCC 273 and Nathi Devi v/s. Radha Devi Gupta (2005) 2 SCC 271, in support of the contention that when the language of the statute is plain and unambiguous, the Court must give effect to the words used in the statute and it would not be open to the Court to adopt hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. (v) The Supreme Court decisions relied upon by the learned counsel for writ petitioners merely interpret the scope of the appellate power under the concerned statutory provisions and not the question of maintainability of revisions. The observations made by the Supreme Court in the above decisions were to impress upon the Appellate Courts not to entertain appeals against interlocutory orders, which are merely procedural and which do not affect any substantive rights or liabilities of the parties, otherwise the parties would be harassed with endless expenses and delay by appeals from such procedural orders. (vi) There are many cases where orders of trial Court during suits under the Rent Act cause irreparable loss to the aggrieved litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r liabilities of the parties. The decision on such question cannot be taken by the registry of the Revisional Court while receiving the memo of the revision petition and, therefore, the revision will have to be heard by the revisional Court at least to decide the question whether any substantive right or liability of a party was affected. It cannot, therefore, be held at the threshold itself that the revision is not maintainable at all. STATUTORY PROVISIONS 9. We may now set out the relevant statutory provisions relating to appeal as well as revision under the Old Rent Act and the New Rent Act. (For the sake of convenience, reference is only to orders of Small Causes Court in Greater Bombay.) Maharashtra Rent Control Act 1999: (New Rent Act) 34. Appeal. (1) Notwithstanding 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, 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) ... Provided that no such appeal shall lie from,- (a) a decree or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, thus, clear that for the purpose of the controversies in this reference the provisions conferring right of appeal and revisional jurisdiction in both the Acts are identical. BROAD ANALYSIS OF RIVAL SUBMISSIONS ON MAINTAINABILITY OF REVISION 10. From the wide canvass of arguments, different scenarios emerge in the matter of interpretation of expression order in Section 34(4) of the New Rent Act of 1999 which is in pari materia with Section 29(3) of the Old Rent Act. A Going by the mere text of Section 34(4) of the New Rent Act and Section 29(3) of the Old Rent Act, all orders may be classified into two categories: (i) appealable orders; (ii) non-appealable and, therefore, revisable orders. As per this literal interpretation, all non-appealable orders including all procedural orders would be revisable. None of the learned counsel have seriously canvassed this interpretation. B It is possible to divide all orders into three categories as (i) appealable orders as provided in Sec. 34(1) of the New Rent Act; (ii) Revisable orders which affect substantive rights and liabilities of parties (iii) orders which are neither appealable nor revisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate jurisdiction of the superior Court, in the wider sense. The basic nature of the revisional proceedings has been explained by a three Judge Bench of the Supreme Court in Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat AIR 1970 SC 1 as under:- 6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. 13. While provisions conferring appellate jurisdiction (in narrower sense) on a superior Court are treated as conferring right of appeal on an aggrieved litigant, the provisions conferring revisional jurisdiction on a superior Court are not treated as conferring a right of revision on the litigant. Revisional jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under:- 38. Time limit for disposal of suits, proceedings or appeals- Notwithstanding anything contained in this Act or in any other law for the time being in force- (a) a suit or proceeding under this Act shall be heard and disposed of as expeditiously as possible and endeavour shall be made to dispose of the case, as far as may be practicable, within a period of twelve months from the date of service of summons, or as the case may be, notice on the defendant; (b) an appeal against the decree or order made by the Court, shall be heard and disposed of as expeditiously as possible and endeavour shall be made to dispose of the appeal, as far as may be practicable, within a period of six months from the, date of service of notice of appeal on the respondent. (emphasis supplied) Thus, legislative anxiety for expeditious hearing and disposal of a suit and expectation from the Court to make an endeavor to dispose of a suit within a period of twelve months from the date of service of summons would, prima facie, indicate that the same Legislature could not have been in favour of providing very wide net of revisable orders, which the wide language of Section 34(4) may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose. 35. More often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the Courts should keep in mind the objectives or purpose for which statute has been enacted. Justice Frankfurter of U.S. Supreme Court in an article titled as Some Reflections on the Reading of Statutes (47 Columbia Law Reports 527), observed that, legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose. 18. The principle of purposive interpretation has also been accepted by a Constitution Bench of the Supreme Court in C.B. Gautam v/s. Union of India (1993) 1 SCC 79 by relying upon the decision in K.P. Verghese v/s. Income Tax Officer, Ernakulam (1981) 4 SCC 173, wherein the Court observed that the task of interpretation of a statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed in trying or hearing suits, proceedings including proceedings for execution of decrees and distress warrants, applications, appeals and execution of orders. In the Rent Acts, the only reference to the Code of Civil Procedure is to be found in proviso (I) to sub-section (1) of Section 29 of Old Rent Act, which proviso was added in the year 1953. Reference to the Code of Civil Procedure in the above proviso is only for the limited purpose of ensuring that inspite of the wide language of sub-section (1) of Section 29 in the Old Act and sub-clause (1) in Section 34 in the New Act, an appeal shall not lie from a decree or an order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908. Thus, the Legislature clearly gave its indication for curtailing the previous right of appealing against any decree or order, to only that decree or order in respect of which an appeal lies under the Code of Civil Procedure. All that sub-section (3) of Section 29 and sub-section (4) of Section 34 provide is that the revisional jurisdiction cannot be exercised by the appellate bench of the Small Causes Court in Mumbai or the District Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree. 22. While we appreciate that for an order to be revisable under Section 29(3) of the old Rent Act and Section 34(4) of the New Rent Act, the order must not necessarily relate to recovery of possession of the premises or recovery or fixing rent/standard rent, mesne profits etc., it does not mean that any order which may be passed in course of the trial and which is not appealable is per se revisable. Though the language of Section 29(3) and Section 34(4) is very wide, a revisable order would not include interlocutory orders, which are merely procedural and do not affect the substantive rights or liabilities of parties. Such a restricted interpretation is required to be placed on the word order in Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act for the same reason for which restricted interpretation has been placed by the Supreme Court on the word order in Section 38 of the Delhi Rent Control Act, 1958 in Central Bank of India v/s. Gokal Chand AIR 1967 SC 799, and on the word order in Section 34 of the Delhi Ajmer Rent Control Act, 1958 in Bant Singh Gill vs. Shanti Devi and others AIR 1967 SC 1360. The Supreme Court has consistently held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CPC for setting aside an exparte decree. 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 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. 26. It was then argued by the learned counsel for the petitioner (plaintiff-landlord) that:- the jurisdiction of the Special Court under Section 28 was to entertain a suit relating to recovery of rent or possession or to decide any question relating to the recovery of rent or possession. Its jurisdiction as a Special court under the Rent Act is confined only to dealing with questions relating to the recovery of rent or possession of the suit premises and that jurisdiction came to an end as soon as the ex parte decree for eviction was passed in the said suit in the exercise of the said jurisdiction. The applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided under Section 29 of the Act is not confined only to the final decree or order or to an order, which relates to recovery of rent or possession but it lies against all orders except those which are excluded under the proviso to the section. Item (1) from the proviso read with the main section would show that interlocutory and other orders which the Special Court can pass in entertaining, trying and deciding matters within its exclusive jurisdiction which are appealable under the provisions of the Code of Civil Procedure will be appealable under Section 29 of the Rent Act. The argument of the learned advocate, therefore, that the order is not appealable because it does not relate to the recovery of rent or possession, cannot be sustained. It is also not possible to accept the argument that the jurisdiction under Section 28 of the Court ceased on the passing of the ex parte decree and the order made by it on the application for setting aside the ex parte decree could not, therefore, be treated as made by it exercising jurisdiction under Section 28 of the Act. (emphasis supplied) 28. In Hemchand case (supra), ultimate conclusion of V.S. Desai J. was correct, because once an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bombay Rent Act. The Division Bench upheld that contention and agreed with the reasoning of learned Single of this Court in Hemchand M. Singhania v/s. Subhkaran Nandlal Bargara AIR 1967 Bom. 361, by observing as under:- Once the Special Court entertained and tried a suit or a proceeding which fell within its exclusive jurisdiction, all consequential and incidental orders made by such a Court in such a suit or proceeding must be regarded and considered as made by the Special Court exercising jurisdiction under section 28 of the Rent Act and an appeal provided under section 29 of the Act lies against all orders made in such proceedings except those which are excluded under the proviso to section 29. We are, therefore, with respect, unable to accept the reasoning adopted by Raju, J., in the case of (R.C. Trust v. Ramchandra J. Agarwal) VII G.L.R., 401 and we are of the view that the case was not correctly decided. It may, be mentioned that in this view of ours, we are supported by the decision of the High Court of Maharashtra in (Hemchand M. Singhania v. Subhkaran Nandlal Bargara), 69 Bom. L.R. 857 and we are in respectful agreement with the views and reasoning adopted in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following tests may be applied for determining whether an interlocutory order made in a suit governed by the Bombay Rent Act is revisable by the District Court. (i) What is the subject matter of the order? Is it an order, subject matter of which is governed by the provisions of the Bombay Rent Act, or (ii) Does the order, whose revision is sought, affect substantive rights of the aggrieved party under the Bombay Rent Act. If the answer is in the affirmative, then revision will be maintainable; and if the answer is in the negative then section 29 will have no application. 34. The learned Judge then gave following instances of procedural orders, which do not affect the substantive rights of the parties under the Bombay Rent Act or the subject matter of which is not governed by provisions of the Bombay Rent Act, even though the suit is governed by the Bombay Rent Act: (1) An order granting or refusing leave to amend the plaint or written statement; (2) An order made for production of documents or discovery or inspection; (3) An order directing a plaintiff or a defendant to furnish better and further particulars; (4) An order issuing or refusing to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madanlal Mulchand Soni's case: 38. In Madanlal Mulchand Soni v. Mainkichand Dhanraj Gugle 1983 (1) Bom.C.R. 172, Justice B.A. Masodkar of this Court followed the aforesaid judgment of Justice S.H. Sheth. The order passed by the trial Judge for issuing process to the income-tax officer at the behest of the defendant was subjected to revision application before the District Court under section 29(3) of the Bombay Rent Act. The District Court dismissed the revision as incompetent. Justice Masodkar upheld that order after making following observations: ... It is not as if each and every order made by the trial Court is intended to be subjected to the process of revision under sub-section (3). Mere interlocutory or procedural orders are not the orders which can be taken up and challenged under section 29(3) of the Rent Act, unless the orders formally adjudicate and affect rights of the parties, including those in the matters of procedure. It is difficult to conceive that the remedy under section 29(3) of the Rent Act would be available, in the context of the entire scheme of section 29, it appears that the orders, which under the Rent Act determine substantively the rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for amendment of the plaint, the Division Bench held that the amendment sought by the plaintiff in the plaint was obviously consequential to the amendment in the written statement and the impugned order of the trial Court was contrary to the well established principles of law and caused miscarriage of justice. Hence, the writ petition was allowed and the application for amendment filed by the plaintiff was allowed. 40. The Division Bench considered at length the question about maintainability of the revision after tracing the legislative history of Section 29 of the Old Rent Act and observed as under:- Section 29 came to be amended by Bombay Act No. 61 of 1953 whereby proviso to sub-section (1) and sub-section (3) were inserted in section 29. The relevant clause of the Statement of Objects and Reasons, reads as under:- The right of appeal has been curtailed by eliminating unimportant appeals, and providing revisional procedure in such cases Therefore, if section 29(3) is read with the Statement of Objects and Reasons, it is quite obvious that while curtailing the right of appeal by eliminating unimportant appeals, the legislature wanted to provide revisional proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bombay Rent Act. This interpretation, with which we respectfully agree, is consistent with the intention of the Legislature as expressed in Statement of Objects and Reasons. It was not the intention of the Legislature to widen the scope of appeal or revision by amending Act, right of appeal was curtailed by eliminating unimportant appeals and providing revisional procedure in such cases. By adding proviso to Section 29(1) the Legislature curtailed the right of appeal by laying down that no appeal shall lie form the orders enumerated in the said proviso. It is well settled that the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The proviso to Section 29(1) was deemed necessary because but for the proviso orders enumerated in Clauses (I) to (IV) would have been appealable under Section 29(3). [(sic-Section 29(1)] Therefore, by adding proviso to sub-section (1) of S. 29, it was intended by the Legislature that right of appeal should be curtailed by eliminating unimportant appeals and in such cases only revisional procedure should be provided, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that particular suit is concerned, that the plaintiff is not entitled to invoke another ground of eviction in that particular suit. Similarly, where the Special Court under the Rent Act refuses leave to amend the written statement, wherein the tenant is seeking by amendment to add any defences arising from the provisions of the Bombay Rent Act or under any other substantive law, such an order would be revisable. 47. In Maharana Mills' case, the order of the trial Court rejecting the application for deleting an issue did not affect the substantive rights of the parties, because evidence would be led by the parties at the trial and the Court would finally determine the rights and liabilities of the parties qua that issue in the final judgment. On the other hand, if the trial Court had passed the order for deleting the issue of standard rent, it would have definitely affected the substantive rights of the tenant and substantive liabilities of the landlord under the Rent Act. Hence, the order refusing to delete the issue was not revisable. Pacific Engineering Co. Pvt. Ltd.'s case 2005 (1) Bom. C.R. 427 48. This decision requires detailed consideration. The plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject matter, (subject matter of the suit was assertion of the plaintiff's right as a landlord to get the defendant evicted under the Bombay Rent Act.). Withdrawal of the suit would, therefore, preclude the plaintiff from asserting his right for eviction of the defendant on the ground alleged in the plaint. The order on the application for withdrawal of the suit would, therefore, affect the rights and liabilities of the parties under the Bombay Rent Act. In other words, when a plaintiff applies for unconditional withdrawal of a suit under Order 23 Rule 1 of CPC, the order granting leave would finally conclude the proceeding under the Rent Act and in that sense would bring to an end the proceeding under the Bombay Rent Act and would preclude the plaintiff from filing another suit against the same defendant on the same subject matter. If such an application is rejected, it would take away the plaintiff's right not to assert his right under the Rent Act. On this ground alone it was sufficient for Justice Vazifdar to hold that revision application against the order of the trial court rejecting the application for unconditional withdrawal of the suit was maintainable under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice S.H. Sheth in Maharana Mills (supra) on the other hand. 54. 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. 55. 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. in Hemchand's case and the ratio of the Division Bench in Sukhdev's case have been read and applied and not properly appreciated. The Division Bench in Sukhdev's case(supra) did not hold that to be revisable an order of the trial Court must be for possession or for recovery of rent or for fixation of rent. The underlined observations of the Division Bench in para 7 of it judgment as quoted in para 44 hereinabove contain the ratio of the decision. 59. While the conclusion of Justice Vazifdar in para 10(V) is correct, we do not approve of the observations made by Vazifdar, J. in para 38(b) of the judgment in Pacific Engineering case [para 9(iii)] in so far as they may be read as meaning breach of a procedural law would also give right of revision, even if the order does not affect rights under a substantive law. 60. For taking the above view, Justice Vazifdar relied on the observations of V.S. Desai, J. in Hemchand's case. It needs to be appreciated that the observations of V.S. Desai, J. relied upon by Justice Vazifdar merely dealt with the argument of the learned counsel for the petitioner landlord in that case which is already set out in para 27 hereinabov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The order is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all. Conclusions on maintainability of Revision 62. We agree that Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act are not restricted only to orders for possession or rent, but at the same time it does not mean that all non-appealable orders of the Special Court under the Rent Act are revisable. It is true that orders may not be orders for possession or fixation or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, (not affecting the substantive rights of parties), which may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding. 67. This, discussion, therefore, brings home the point that in each case the Court has to be careful while applying the settled legal principles on the question of maintainability of revision application under Section 29(3) of the Bombay Rent Act and/or under Section 34(4) of the Maharashtra Rent Control Act.' We may, therefore, refer to a few other cases and at the end of the judgment give illustrations of cases which are revisable or non-revisable under section 34(4) of the Maharashtra Rent Control Act, 1999. A few other cases 68. In Aspi R. Setha v/s. Mr. Sunermal M. Bafna ors. dated 19 December 2003 in Civil Revision Application No. 489 of 2003, during pendency of a suit for possession under the Bombay Rent Act, the petitioner took out a notice for a declaration that the suit had abated in view of the death of the sole defendant and prayed for stay of further proceeding. The Small Causes Court dismissed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court rejecting an application objecting to admissibility of certain documents, which were sought to be produced on record along with an affidavit under rule 18 of the CPC. The learned Judge rightly held that the order in question was only a procedural order, which did not affect the substantive rights of parties. 70. In J.M. Constructions v/s. Rustom P. Patel, 2008 (5) Bom.C.R. 598, the trial Court passed the order on an application taken out by the defendant for condoning delay in filing the written statement and to take written statement on record beyond specified period. The Revisional Court set aside the order and directed the trial Court to take the written statement on record. In writ petition challenging that order, a learned Single Judge of this Court held that it was essentially a procedural order, against which revision application was not maintainable under section 34(4) of the Maharashtra Rent Control Act. On this ground alone the order of the revisional Court was set aside. We agree with the submission made by the learned counsel for the respondents that when the trial Court refused to condone delay in filing the written statement and to take written statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was under Order 9 Rule 8 of the CPC and therefore against order of the trial Court dismissing the application for restoration, an appeal was maintainable. After hearing the parties, the learned Single judge held that the suit was dismissed for default of appearance of both the parties and their advocates. Order 9 Rule 8 of CPC applies to a situation when the defendant appears and the plaintiff is absent. Order 9 Rule 3 applies to a situation when neither of the parties appears and the court dismisses the suit. The learned single Judge, accordingly, held that as the suit was dismissed under Order 9 Rule 3 of the CPC, an application for restoration was maintainable under Order 9 Rule 4 of the CPC. An order passed under Order 9 Rule 4 is not appealable. The question, therefore, was whether the revision was maintainable against the order of trial Court rejecting an application for restoration under Order 9 Rule 4 of the CPC. The learned single Judge following the Division Bench judgment in Sukhdev (supra) held that the impugned order was a procedural order, which did not affect substantive rights and liabilities of the parties under the Rent Act. The learned single Judge, ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Civil Procedure Code, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at. (emphasis supplied) It is necessary to remember that above observations were made by Beaumont C.J. after noting that there is no appeal eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law (or not), call for the records of the case and pass such order in respect thereto as it thinks fit'. After observing that the revisional jurisdiction exercisable by the High Court under the above provision is not so limited as is under Section 115 CPC nor so wide as that of an appellant Court, the Supreme Court further observed as under:- The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an order of the trial Court under the Rent Act, merely on the ground that it is not according to procedural law. The expression according to law has to be interpreted as in accordance with the provisions of the Bombay Rent Act or any other substantive law. Merely because the revisional Court comes to the conclusion that an impugned order is not in conformity with the procedural requirements of CPC, would not be a ground for revision. As held by the Supreme Court, phrase according to law , refers to the decision as a whole and is not equated to errors of law or facts simplicitor, it refers to the overall decision which must be according to law, which it would not be if there is a miscarriage of justice due to a mistake of law. This would mean that the revisional Court would not be justified in interfering with a decision, unless there is miscarriage of justice resulting from a mistake of law. 81. We have also noticed in a large number of cases that in writ petitions under Articles 227 of the Constitution challenging interlocutory orders passed by the trial Court, preliminary objection is very often raised about maintainability of alternative remedy of revision under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent, nevertheless, the order sought to be revised must directly affect the substantive rights and liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act. 84. For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding. 85. Following are instances of revisable orders. (i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law (ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC (iii) an order allowing or rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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