1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 614 OF 2008 ALONG WITH CIVIL APPLICATION NO. 1579 OF 2008 Narishala Society ... Appellant v/s Parmanand Bhimandas Talreja & anr. ... Respondent Mr.Ashok Bhatewara for the appellant. Mr.S.S.Kanetkar for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 28TH APRIL, 2010 ORAL JUDGMENT: 1. The appeal has been preferred against the judgment and order passed by the Small Causes Court, Pune in Civil Appeal No.833 of 2007. 2. Respondent No.1 filed R.C.Suit No.50 of 2001 against respondent No.2 before the Small Causes Court which was decreed. The appeal preferred by respondent No.2 was dismissed. A writ petition preferred against that order being 2 Writ Petition No.6330 of 2006 was also dismissed. Therefore, execution proceedings were in motion by the decree holder i.e. respondent No.1 against respondent No.2. In these execution proceedings the appellant filed an obstructionist notice under Order 21 Rule 99 of the Code of Civil procedure. That application was heard and decided by the Trial Court against the present appellant. Being aggrieved by that order, the appellant preferred Civil Appeal No.833 of 2007 which has been dismissed. Hence, the present second appeal. 3. Mr.Kanetkar appearing for the respondents submits that the present second appeal is not maintainable as the lower appellate Court has passed an order under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act (in short, the Rent Act). He points out that the provisions of sub-section (2) of Section 29 which stipulates that no further appeal would lie against any decision in an appeal under sub-section (1). According to Mr.Kanetkar, the obstructionist notice has been decided as a suit under Section 28 of the Rent Act by the Small Causes Court. He submits that the appeal preferred against the order passed by the Trial Court has been preferred under Section 29 of the Rent Act before the District Court sitting in appeal under 3 Section 29 of the Rent Act. According to him, therefore, the second appeal is not maintainable. He places reliance on the judgment of a learned Single Judge of this Court in the case of Vijaykumar Vinayakrao Pathak & anr. v/s Madhukar Dinkar Chitale, reported in 2002(1) All MR 763, and of the Supreme Court in the case of Babulal Bhuramal & anr. v/s Nandram Shivram, reported in AIR 1958 SC 677, in support of his submissions. 4. On the other hand, the learned advocate appearing for the appellant submits that since the order has been passed on an application filed under Order 21 Rule 99 and the appeal has been decided by the lower Appellate Court under Order 21 Rule 103 of the Code of Civil procedure, the present second appeal is maintainable. He submits that the provisions of the Rent Act need not to be considered as they are not material while deciding the obstructionist notice. According to him, once the application has been filed under the provisions of the Code of Civil Procedure, the question of referring to the Rent Act does not arise. He relies on the judgment of a learned Single Judge of this Court in the case of Nusserwanji E. Poonegar & ors. v/s Shirinbai F. Bhesania & ors., reported in Mh.L.J. (1984) 356. He then points out the judgment of the Andhra Pradesh High 4 Court in the case of Bollapalli Venkat Rao v/s chaturvedula Subbaiah & anr., reported in A.I.R. 1983 AP 166 and of the Orissa High Court in the case of Ghasi Sahu v/s Himachal Sahu, reported in A.I.R. (Ori)(1986) 170, which refer to a Privy Council judgment in the case of RMARA Adaikappa Chettiar & anr. v/s V.R. Chandrasekhara Thevar, reported in A.I.R. (35) 1948 Privy Council 12. 5. The jurisdiction of the Small Causes Court is defined in Section 28 of the Rent Act. Any suit or proceeding can be decided by the Small Causes Court, between a landlord and a tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee in respect of recovery of the license fee or charge. The Small Causes Court also has jurisdiction to decide any application made under the Rent Act and to deal with any claim or question arising out of the Rent Act. No other Court has jurisdiction to entertain any such suit or proceeding or application which is maintainable before the Small Causes Court. Mr.Kanetkar has submitted that the Explanation to Section 28 makes it clear that all proceedings including the execution proceedings arising out of a decree passed under the Rent Act would be maintainable before the Small Causes Court. 5 He submits that, the very fact that the Explanation provides that the term “proceeding” does not include any execution proceeding arising out of the decree passed prior to the enforcement of the Act, would mean that all decrees which are passed after the Act have come into force, must be executed under the Act. 6. This submission of Mr.Kanetkar is, in my opinion, correct. The term “proceeding” contained in Section 28 would include an “execution proceeding” also of a decree passed under the Rent Act. Besides, it would include any application of whatsoever nature made in the execution proceeding including an application under Order 21 Rule 99. The issue as to whether a person is an obstructionist must be determined in accordance with Order 21 Rule 101 i.e. as if it was a suit. This is so, because the rules framed under the Rent Act prescribe the procedure to be followed while deciding suits and proceedings under the Rent Act. The Rules stipulate that the procedure prescribed under the Code of Civil procedure is to be followed, with the necessary modifications, by the Small Causes Court while dealing with execution proceedings. 7. Therefore, in my opinion, although the procedure is 6 prescribed under the Code of Civil Procedure for adjudication of an obstructionist notice, the Small Causes Court is bound to decide it by exercising the jurisdiction vested in it under Section 28 of the Rent Act. 8. An appeal preferred against the adjudication of an obstructionist notice is filed under Section 29 of the Rent Act. Admittedly, the civil Appeal No.833 of 2007 was filed under the provisions of the Rent Act before the District Court, Pune, in accordance with Section 29(1)(b). Sub-section (2) of this section specifically stipulates that no appeal is maintainable under any decision rendered by the Court under sub-section (1) of Section 29. Section 31 provides that the Small Causes Court and the Appellate Court under the Rent Act shall follow the procedure prescribed, while trying and hearing the suits, proceedings, applications and appeals and any executing orders made by them. The procedure to be followed while deciding appeals is prescribed under the Rules framed under the Act. Obviously, therefore, though the procedure prescribed would be that, as provided under the Code of Civil Procedure, an order on an obstructionist notice would be passed under Section 28 and an appeal would lie under Section 29(1). Therefore, in my opinion, the second appeal is not maintainable in view of Section 29(2). 7 9. In the case of Vijaykumar (supra), a learned Single Judge of this Court had, while considering the provisions of Section 28 of the Rent Act, observed that, though the expression “execution proceedings” had not been specifically used in Section 28, the fact that the provisions of law relating to jurisdiction of the Courts specified in Section 28 also applies to execution proceedings is clear from Section 31 of the Rent Act, which prescribes the procedure to be followed while deciding suits under Section 28 as well as in executing orders passed therein. In the case of Babulal (supra), the Supreme Court has held that, whether the plaintiffs before the Court were tenants would be a plain question arising under the Act and a suit does not cease to be a suit between the landlord and tenant merely because the defendant denies the claim of the plaintiffs. The Court has observed that under Section 29A, any party to a suit who is aggrieved by the determination of the relationship of a landlord and a tenant, or who contends that he is the owner of the property, may establish his title to such premises by virtue of the provisions of Section 29A. In my opinion, therefore, the second appeal is not maintainable. 10. The reliance placed by the learned advocate on the judgment of a learned Single Judge of this Court in the case of Nusseerwanji (supra) is unwarranted. The proposition 8 of law enunciated in that judgment cannot be doubted and indeed I am in respectful agreement with the view taken by the learned Single Judge. However, the learned Single Judge has not in any manner stated that when the executing Court decides all questions including those proceedings which are initiated under Rules 101 and 105 of Order 21 of the Code of Civil Procedure, as a suit, the power vested in the Court to try those issues cannot be exercised under a Special Legislation. Obviously, such a suit will be one which is decided under the provisions of Section 28 of the Rent Act. An execution proceeding though initiated under Order 21 of the Code of Civil Procedure cannot be considered de hors the provisions of the Rent Act. Therefore, the judgment in the case of Nusserwanji (supra), does not help the appellant in any manner. 11. The judgment of the Privy Council does not carry the case of the appellant any further in respect of the maintainability of the appeal. The judgments of the Andhra Pradesh and Orissa High Courts again are not relevant for deciding the present case and the objections raised on behalf of the respondent by Mr.Kanetkar. 12. In my opinion, the second appeal is not maintainable and is, therefore, dismissed. 9 13. In view of dismissal of the second appeal, the civil application also stands dismissed. ..... 10