1 WP.3915/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3915 OF 2010 Brihanmumbai Electric Supply & Transport ...Petitioner V/s. The BEST Employees’ Co-Operative Credit Society Ltd. ...Respondents. ----- Mr. S.G. Aney, Senior Counsel a/w Mr. Harinder Toor and Mr. S.K. Chari i/b M/s M.V. Kini & Co., for the petitioner. Mr. R.S. Ghadge, i/b A.S. Desai, for Respondent No.1. ------ CORAM : A.S. OKA, J. DATED : 6 th OCTOBER, 2010. JUDGMENT: 1] On 6th September 2010 parties were put to notice that the petition will be disposed of finally at the admission stage. 2] The controversy involved in this petition under Article 227 of Constitution of India is very narrow. An appeal was preferred by the first respondent before the City Civil Court at Mumbai for challenging an order of eviction passed against the first respondent 2 WP.3915/2010 under the provision of section 105B of the Mumbai Municipal Corporation Act, 1888 [hereinafter referred to as ‘the said Act of 1888’]. In the appeal, an application was made by the first respondent praying for stay of the proceedings of the appeal till the final disposal of the Writ Petition No.7715 of 2008. By the impugned Order, the learned Judge of the City Civil Court allowed the said application by observing that the broad principles of section 10 will have to be invoked along with section 151 of the Code of Civil Procedure, 1908[hereinafter referred to as ‘the said Code of 1908’] to stay the proceedings of the Appeal. 3] In the application made by the first respondent, it is pointed out that apart from premises in dispute in the appeal subject matter of this writ petition, there were other premises held by the first respondents at various places as licencee of the petitioner. In case of those premises, the Competent Authority passed orders of eviction. The orders of eviction were challenged in appeals by the first respondent. The appeals were allowed by the Appellate Courts. It is pointed out that a writ petition preferred by the petitioner for challenging the orders of the Appellate Court has been admitted for final hearing by this Court and the said writ petition is pending. 3 WP.3915/2010 4] The contention of the first respondent in the application was that issue involved in the pending appeal was already decided in the earlier appeals and as a writ petition involving challenge to the Appellate order was pending in this Court, the proceeding of the appeal was required to be stayed. 5] The learned Senior Counsel appearing for the petitioner relied upon the decision of this Court in the case of Nusli Neville Wadia Vs. New India Assurance Co. Ltd. decided by a Division Bench of this Court on 23rd February 2010. He submitted that the Division Bench has held that the Appellate Authority under the Public Premises(Eviction of Unauthorised Occupants) Act 1971 who is the principal Judge of the City Civil Court at Mumbai is persona designata and not a Civil Court. He submitted in any event, section 10 of the said Code of 1908 will have to no application even assuming that the Appellate Authority is a Civil Court. He submitted that when Section 10 has no application, section 151 of the said Code of 1908 could not have been invoked. 6] The learned counsel for the first respondent supported the impugned order by submitting that the issue involved in the appeal will be decided by this Court in the pending writ petition and 4 WP.3915/2010 therefore, the learned Judge was justified in staying the proceeding of appeal. 7] I have given careful consideration to the submissions made by the leaned senior counsel for the petitioner and the learned counsel for the first respondent. The learned Judge while passing the impugned order has observed thus:- “However, that would be a very technical part and in the totality of circumstances, it will have to be overlooked. Admittedly, in both the notices the same ground of bona fide use and public interest was pressed into service and that is being tested in the writ petition for which the Hon’ble High Court has expedited hearing. Therefore, in such circumstances the broad principles or Section 10 will have to be involved along with section 151 of CPC under the inherent powers of the court and the present proceedings stayed till the decision of the the writ petition.” [Underline supplied] On the face of section 10 of the said Code of 1908, it will have no application as what is pending before the City Civil Court is a statutory appeal against an order of eviction which is not a suit. Stay is sought pending a writ petition under Articles 226 and 227 of Constitution of India. Therefore, section 10 of the said Code of 1908 has no application. 5 WP.3915/2010 8] The law is well settled. The section 10 of the Code of 1908 makes a specific provision under which the power is granted to stay the proceedings of a suit. The section 10 of the said Code has no application in the present case. In view of the decision of the Apex Court in the case of National Institute of Mental Health and Neuro Sciences Vs. C. Parmeshwara [(2005) 2 SCC 256], section 151 of the said Code of 1908 could have been invoked. Moreover, in view of the decision of this Court in the case of Nusli Wadia (Supra), the Appellate Authority under section 105F of the said Act of 1888 is persona designata and not a Civil Court. Thus, the order passed by the learned Judge is completely erroneous and illegal. It deserves to be set aside. 9] Hence, I pass following Order:- i] The impugned Order dated 11th March, 2010 is quashed and set aside; ii] The stay application No.14 of 2010 stands rejected. Iii] The Appellate Court will proceed to decide the appeal in accordance with law. JUDGE 6 WP.3915/2010