SRJ 1 wp-3577-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3577 OF 2009 Shantabai @ Rukmini V. Pawar .. Petitioner vs. Pradeep G. Tandale & Others .. Respondents Mr.G.C.Sawant, for Petitioner. Mr. M.V.Sawant, for Respondents. CORAM :A.S.OKA,J. DATE :1st APRIL,2010 P.C.:- 1] Heard Learned Counsel appearing for the Petitioner. The Order dated 18th March, 2010 passed by this Court reads thus:- Heard learned counsel appearing for the petitioner. By the impugned order delay in preferring an appeal has not been condoned by the Appeal Bench of the Court of Small Causes. The learned counsel appearing for the petitioner states that the appeal is preferred for challenging that part of the order dated 9th April, 2008 by which petitioner has been directed to deposit arrears of rent at the rate of Rs.1,000/- per month. The learned counsel appearing for the petitioner will satisfy this Court as to how appeal before the Appeal Bench was maintainable against order directing SRJ 2 wp-3577-09.sxw deposit of rent. Unless the appeal is maintainable, question of condonation of delay will not arise. Stand Over till 1st April, 2010. The learned Counsel appearing for the Petitioner submitted that appeal preferred by the Petitioner was maintainable in view of clause (b) of sub-section 1 section 34 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said Act of 1999). He submitted that in any event, the appeal is maintainable in view of section 108 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). 2] I have given careful consideration to the submissions. As stated by the learned Counsel appearing for the Petitioner, the appeal preferred by the Petitioner is confined to the direction issued by the Trial Court to the Petitioner to deposit arrears of rent @ Rs.1,000/- per month. The said order has been passed in exercise of power under Order XV-A of the said Code. 3] A reliance was placed by the learned Counsel appearing for the Petitioner on clause (b) of sub-section 1 of the section 34 of the said Act, 1999. However, sub- section 1 will have to be read with the proviso to sub- section 1. Proviso states that an appeal against order passed in the suit under section 33 of the said Act of 1999 will not lie when the said Code does not provide an appeal against such order. SRJ 3 wp-3577-09.sxw 4] In the present case, neither section 104 nor Order XLIII of the said Code provide for an appeal against an order passed under Order XV-A of the said Code. The reliance placed by the learned Counsel appearing for the Petitioner on section 108 of the said code is completely mis-placed. It provides that provisions of the said Code relating to Appeals from original decrees shall, so far as may be, apply to appeals from order. In the present case no appeal is provided in the Code against the order impugned. An appeal is a creation of statute. No appeal is provided in the statute against an order made under Order XV-A of the Code. Thus, the appeal preferred by the Petitioner before the Appeal Bench of Court of Small Causes is not maintainable in law. Therefore,it is not necessary to consider the merits of the impugned order by which application for condonation of delay in preferring appeal has been rejected. 5] Hence, there is no merit in Petition and the same is rejected. However, the remedy of the Petitioner of challenging the order passed by the Trial Court is kept open. If application for condonation of delay is made by the Petitioner while adopting the said remedy, the same shall be decided on its own merits without influenced by the impugned order. (A.S.OKA,J.)