1 WP 2188/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2188 OF 2010 Rohit Anantrai Vyas & Ors. .. Petitioners V/s Hasmukh & Co. .. Respondent Mr. Jayen R. Trivedi with Ms. Sarika Meha i/b L.J. Law for the petitioners. Mr. Bharat Joshi for the respondent. CORAM: D.G. KARNIK, J. DATE : 15TH JULY 2010 P.C. : 1. Rule, returnable forthwith. 2. Mr. Joshi waives service for the respondent. 3. By consent, heard forthwith. 4. By this petition, the petitioners challenge the order dated 23 February 2010 passed by an appellate bench of the Small Causes Court, Mumbai, allowing the revision application filed by the respondent-tenant. 5. Petitioners are the owners of the property, bearing building no.306 situated at Kalbadevi, Mumbai. The respondent is a tenant occupying commercial premises 2 WP 2188/10 situated on the ground floor of the petitioners’ building. The petitioners filed a suit, bearing R.A.E. Suit No. 354/606 of 2005 in the Small Causes Court, Mumbai against the respondent for possession on the ground of reasonable and bonafide requirement. The respondent contested the suit and contended that the claim for reasonable and bonafide requirement made by the petitioners was not tenable. It further contended that after the filing of the suit, the petitioners had let out/transferred the tenancies in respect of some other premises in the suit building and it would disprove their claim for reasonable and bonafide requirement. For that purpose, the respondent made an application for issuance of a witness summons to 5 persons who are alleged to be original tenants/ transferees. Request for issuance of witness summons for 4 persons was rejected but request was granted in respect of only one witness. Aggrieved by the order of the trial Judge rejecting the application for issuance of witness summons to 4 persons, the respondent filed a revision bearing Revision Application No.2 of 2010, before a bench of two Judges of the Small Causes Court. By the order dated 23 February 2010, the Revisional Bench allowed the revision application and directed issuance of witness summons to 4 witnesses sought to be examined by the 3 WP 2188/10 respondent. Aggrieved petitioners are before this Court by this writ petition. 6. Relying upon a decision of a Division Bench of this Court in Sukhdev Prasad Raghubir v. Rambhujarat, 1982 (1) Bom. C.R. 832, learned counsel for the petitioners submitted that a revision application against the order of a trial Judge refusing to issue witness summons was not maintainable and, therefore, the appellate bench of the Small Causes Court erred in entertaining the revision application. In the case of Sukhdev Prasad (supra), the Division Bench while considering the scope of revision under section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Bombay Rent Act”) has held that the power to revise any order under section 29(3) of the Bombay Rent Act was restricted to substantive orders only. The Division Bench held that no revision can lie against a mere procedural order under section 29(3) of the Bombay Rent Act. The provision of section 34(4) of the Maharashtra Rent Control Act, 1999 is pari materia with the provision of section 29(3) of the Bombay Rent Act and consequently the principle laid down by the Division Bench in the case of Sukhdev v. Rambhujarat (supra) applies even in respect of a revision application to be filed 4 WP 2188/10 under section 34(4) of the Maharashtra Rent Control Act. In J.M. Constructions v. Rustom P. Patel, 2008 (5) Bom. C.R. 593, a Single Judge of this Court applying the decision of the Division Bench in Sukhdev v. Rambhujarat (supra) and has held that a revision application under section 34(4) of the Maharashtra Rent Control Act would lie only against the substantive orders, and that no revision application would lie in respect of a procedural order. 7. In my view, order directing issuance of witness summons is a procedural order. In a trial of a suit, the Court passes several procedural orders including the order such as directing issuance of witness summons to a witness. Order refusing issuance of witness summons is not a substantive order. Consequently, the Revisional Bench of the Small Causes Court could not have entertained the revision application against the order of the trial Judge refusing issuance of the witness summons. 8. For these reasons, the writ petition is allowed. The impugned order is set aside and the order of the trial Judge is restored. Rule is made absolute accordingly. 5 WP 2188/10 9. Learned counsel for the respondent prays for stay of the suit to enable him to take out appropriate proceedings either challenging the order of the trial court before the appropriate forum or approaching the Supreme Court as the case may be. In my view, the ends of justice require that the respondent must be granted reasonable opportunity. The trial Judge shall not proceed with the hearing of the suit till the end of 5 August 2010. (D.G. KARNIK, J.)