CRA. 213-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 213 OF 2011 Mr. Chikapa Gawda & Ors. ...Applicants Vs. Centuries Textiles & Industries Ltd. ...Respondents *** Mr. R. A. Thorat i/b V. K. Gupta, for the Applicants. Mr. Pravin Samdani a/w K. A. Shah, a/w Sumit Shukla & Sumir Karhode i/b Naik Paranjape, for Respondent No. 1. *** CORAM: V. M. KANADE J. DATE : APRIL 18, 2011 P.C. 1. Heard the learned counsel for the applicants and the respondent No.1. Applicants are the obstructionists who had obstructed the execution of decree which was passed in favour of the respondent. The Obstruction Proceeding, initiated as a result of obstruction, was disposed of by the Small Causes Court by judgment and order dated 10-8-2007. Being aggrieved by the said order, the obstructionists applicants herein preferred an appeal before the Division Bench of the Small Causes Court, which was also dismissed and the order passed by CRA. 213-11 - 2 - the trial Court was confirmed. 2. Brief facts of the case are as under- . Respondent No.1 is a company, incorporated under the Companies Act. Respondent No.2 is the original defendant No.2. He was in the employment of respondent No.1 and after his services came to an end, he did not vacate the quarters which were given to him and therefore, a suit for eviction was filed against him. An exparte decree was passed against respondent No.2 (original defendant) on 16-6-2004. The decree when sought to be executed, was obstructed by the applicants. The applicant, according to respondent No.1 was residing in the servant’s quarters. According to them, a driver was employed by respondent No.2. According to the petitioner, however, he was paying rent to respondent No.2. Only the grounds on which the orders passed by both the Courts below, are assailed by the learned counsel appearing on behalf of the applicants, contending that the decree which was passed by the Small Causes Court under the Bomaby Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Bombay Rent Act”) was in nullity since suit was filed on 31st March, 2000. It was submitted that the Bombay Rent Act was repealed on the mid-night of 30th March, 2000 and as such, suit filed on 31st March, 2000 was after the CRA. 213-11 - 3 - commencement of the Maharashtra Rent Control Act, and the suit under the Bombay Rent Act could not have been filed. The learned counsel for the applicants invited my attention to the definition of the word ‘commencement’ as defined in Section 58(2) of the Maharashtra Rent Control Act. He submitted that plain reading of the said Section reveals that the Bombay Rent Act did not exist on 31st March, 2000 and therefore, suit which was filed on 31st March, 2000 is a nullity. Reliance is also placed by the learned counsel in the case of – Somchand Sankharia, Petitioner vs. Sing Light House & Anr, Respondents [2002(Supp.) Bom. C.R. 658] and more particularly paragraph 10 of the said judgment. 3. On the other hand, the learned senior counsel appearing on behalf of respondent No.1 relying upon the judgment of the learned Single Judge of this Court in the case of – Godrej & Boyce Mfg. Co. Ltd., Petitioner vs. Sridhar Jagannath Nerurkar, Respondent [2005(1) Bom. C. R. 839] submitted that provisions of the Bombay Rent Control Act came into force after 31st March 2000 and therefore, suit which was filed on the said date clearly was saved by virtue of provisions of Section 58(2) of the Maharashtra Rent Control Act, 1999. It is also submitted that the suit which was filed under Section 3(1)(f) of the Bombay Rent CRA. 213-11 - 4 - Act which pertains to eviction of persons who are occupying the premises on account of service contract and the said provision was found in Section 16(1)(f). It was verbal reproduction of the provisions of Section 13(1)(f) of the Old Act. It is submitted that therefore, it could not be said that the impugned decree was nullity. 4. I have given my thoughtful consideration to the submissions made by the learned senior counsel for respondent No.1. So far as the judgment in the case of Somchand Sankharia (supra) is concerned, the observations which are made by the learned Single Judge were in the context of a case where an argument was advanced that a writ petition which was filed, challenging an order passed by the Appellate Bench of the Small Causes Court under the Bombay Rent Act was not maintainable, since the Writ Petition was not saved under Section 58(2) of the Maharashtra Rent Control Act, 1999. It is contended that writ petition could not be treated as the continuation of the proceedings of the lower Courts and in this context, the learned Single Judge has made those observations. The issue which is raised in this writ petition, therefore, did not directly fall for consideration before the learned Single Judge. The ratio of this judgment, therefore, would not apply to the facts of the present case. Reliance was also placed by the learned counsel for CRA. 213-11 - 5 - the applicants on the observations made by the learned Single Judge wherein it was observed that the Act came into force on the midnight of 30th March, 2000. It is submitted that therefore, the observations of made by the learned Single Judge in the case of Godrej & Boyce Mft. Co. Ltd. (supra) could not be relied upon. 5. In the present case, it is an admitted position that the suit was filed on 31st March, 2000 and the suit was decreed and order of eviction was passed. The Small Causes Court had the jurisdiction to try and decide the case under the Old Rent Act and also under the new Maharashtra Rent Control Act, and it came into force and the date of commencement of the said Act was 31st March, 2000. Some of the provisions of the old Act were changed, and the other provisions, however, were retained. The provisions of Section 13(1)(f) of the Bombay Rent Act retained in the new Act by virtue of Section 16(1)(f). The decree which is passed, therefore, is for eviction on the same ground which existed in the old Act as well as in the new Act. It cannot be said, therefore, that the decree is nullity since in any case provision under the old Act and the new Act is the same. Moreover, another learned Single Judge of this Court in the case of – Godrej & Boyce Mfg. Co. Ltd. (supra) has clearly observed in paragraph 6 as under - CRA. 213-11 - 6 - “6. I would also proceed to consider what would be its effect on second suit, assuming that section 58 of the Maharashtra Rent Act is applicable. Sub-section (1) of section 58 inter alia repeals the Bombay Rent Act. Sub-section (2) of section 58 saves the proceedings which were pending on the date of repeal and lays down that notwithstanding the repeal suits and other proceedings pending on the date of the commencement of the Maharashtra Rent Act in any Court, Controller, Competent Authority or other authority filed under any of the repealed Acts would be continued and disposed of in accordance with the provisions of the Act so repealed as if the repealed Act has been continued to be in force and the Maharashtra Rent Act had not been passed. This provision is made to save the suits filed under any of the repealed Acts and pending on the date of their repeal would have abated unless they were saved under Section 6 of the General Clauses Act or section 7 of the Bombay General Clauses Act. Thus, section 58 of the Maharashtra Rent Act applies essentially to suits or other proceedings instituted under the repealed Acts and which were pending on the date of the coming into force of the Maharashtra Rent Act i.e. 31st March, 2000. Section 58 does not apply to a suit or proceeding filed after 31st March, 2000 under the general law of the land Transfer of Property Act for eviction of a tenant who is not protected under the Maharashtra Rent Act.” 6. This Section of the Maharashtra Rent Act applies essentially CRA. 213-11 - 7 - to suits or other proceedings instituted under the repealed Act which are pending on the date of coming into force of the Maharashtra Rent Act i.e. 31st March, 2000. Section 58 does not apply to suits or proceedings filed after 31st March, 2000. Under the general law Transfer of Property Act – for eviction of tenant who is not protected under the provisions of the Maharashtra Rent Act is maintainable. In this view of the matter, the submissions made by the learned counsel for the petitioners cannot be accepted. Even on merits, perusal of the order of the trial Court and the lower Appellate Court indicates that though it was alleged that the petitioner was tenant of respondent No.2, he could not produce the rent receipts and the submissions made by the petitioner before the trial Court that he had paid rent to respondent No.2 in cash also, is rightly not accepted by the trial Court as well as the lower Appellate Court. 7. Apart from that, the Apex Court in the case of – Rafique Bibi (Dead) by LRs., Appellant vs. Sayed Waliuddin (Dead) by LRs & Ors., Respondents [(2004) 1 Supreme Court Cases 287] has observed in paragraph 8 as under- “8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid CRA. 213-11 - 8 - down by law. A decree suffering from illegality or irregularity of procedure cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.” 8. In my view, ratio of this judgment would squarely apply to the facts of the present case. In this view of the matter, it will not be possible to entertain this application. Civil Revision Application is, therefore, dismissed. 9. At this stage, the learned counsel appearing for the applicants submits that the order passed by both the Courts below may be stayed for a further period of 8 weeks in order to enable the applicants to make an alternate arrangement, since the applicant is residing in the same premises. Four weeks time is given to the applicants to vacate the premises. Therefore, the impugned decree shall not be executed for a period of 4 weeks from today. [ V. M. KANADE J.]