ash 1 wp-7017.10rj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 7017 OF 2010 Mr. Elbert Mathias. .. Petitioner Vs V.P. Mayekar & Another. .. Respondents -- Shri R.A. Thorat for the Petitioner. Shri R.M. Haridas for the Respondents. -- CORAM : A.S. OKA, J DATE ON WHICH SUBMISSIONS WERE HEARD : 23RD DECEMBER, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 11TH MARCH, 2011 JUDGMENT : . By this Petition under Article 227 of the Constitution of India, the challenge is to the judgment and order dated 20th July, 2010 passed by the Appeal Bench of the Court of Small Causes at Bombay. The Petitioner is the obstructionist, the 1st Respondent is the Paintiff and the 2nd Respondent is the Defendant. 2. A suit for eviction was filed by the 1st Respondent against the 2nd Respondent in respect of a Shed No.11 ( hereinafter referred to as “the suit premises”) owned by the Respondent situated at near Bawla Masjid, 634, ash 2 wp-7017.10rj N.M. Joshi Marg, Bombay – 400 011. The suit was filed in the Court of Small Causes under the provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947 ( hereinafter referred to as “the said Act of 1947”.). The suit was decreed. Against the decree for possession, the 2nd Respondent preferred an appeal before the Appeal Bench of the Court of Small Causes. The Appeal was dismissed. 2. The 1st Respondent filed execution application in which warrant of possession was issued. As the warrant of execution was obstructed by the Petitioner, an obstructionist notice was taken out by the 1st Respondent for removal of the obstructionist/Petitioner. In the said obstructionist notice, the Petitioner came out with a case that the warrant was sought to be executed not in respect of Shed No.11 but in respect of an entirely different premises which is neither subject matter of the suit nor the decree. The Petitioner contended that he was carrying on business in the premises at 234, N.M. Joshi Marg, Bombay – 400 011. 3. A Misc. Notice was taken out by the 1st Respondent in the said obstructionist notice seeking rectification and/or correction of the decree passed in the suit as also in the plaint for correction of the decree. There were two prayers in the said application which reads thus:- “(a) The Decree/Drawn Up Order passed in R.A.E. & R. Suit No.713/2240 of 1990 dated 22/3/2001 be ash 3 wp-7017.10rj rectified and corrected and in place of Street No. 634, N.M. Joshi Marg, be corrected as Street No. 234AA, N.M. Joshi Marg; (b) The description of the Suit premises in the body of the Plaint as well as prayer clauses be rectified and/or corrected by deleting No.634 and replacing with correct Street No.234AA” 4. The said application was contested by the Petitioner by filing a reply. By judgment and order dated 22nd June, 2006, the learned Judge of the Small Causes Court discharged the notice. Being aggrieved by the said order, a revision application was preferred by the 1st Respondent purporting to be a revision application under Section 29(3) of the said Act of 1947. By the impugned judgment and award, the revision application was allowed and the aforesaid misc. notice taken out by the 1st Respondent was made absolute. 5. The learned counsel appearing for the Petitioner submitted that apart from the fact tht there was no merit in the misc. notice taken out by the 1st Respondent, a revision under Section 29(3) of the said Act of 1947 was not maintainable. He submitted tht the misc. notice was taken out invoking power of the Court under Section 152 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code”), and therefore, the order impugned in the revision application passed by the Court of Small Causes was purely a procedural order. He submitted that in any event rights of the parties under the said Act were not affected by the impugned order and, therefore, the revision application was not maintainable. He relied upon the ash 4 wp-7017.10rj decision of this Court in the case of Laheribai J. Trivedi (since deceased) Babubhai J. Trivedi & Ors. V. Dharamdatta V. Trivedi & Ors., (210(1)MhLJ 597). The learned counsel appearing for the 1st Respondent submitted that the order passed on the misc. notice cannot be said to be a procedural order. He submitted that the application was filed for correcting the description of the suit premises in respect of which the decree was obtained by the 1st Respondent under the provisions of the said Act. It was, therefore, submitted that the order passed on the misc. notice substantially affects the rights of the parties. It was further submitted that the dispute is in respect of the description of the premises in respect of which the decree was passed, and therefore, the order on misc. notice substantially affects the rights of the parties under the said Act. He submitted that there is purely an inadvertent error which has crept in while typing the plaint. He submitted that though there was an inadvertent error while describing the suit premises, 2nd Respondent had rightly understood the description of the suit premises in the plaint. He submitted that under Section 153 of the said Code, amendment of the plaint has been rightly permitted. 6. I have given careful consideration to the submissions. The first issue is regarding maintainability of the revision application before the Court of Small Causes. Under the said Act, a revision was provided under Section 29(3) of the said Act of 1947. By the Maharashtra Rent Control Act, 1999, the said Act was repealed. A provision for revision has been made under ash 5 wp-7017.10rj Section 34 of the said Act of 1999 which is pari materia with Section 29(3) of the said Act of 1947. In the case of Laheribai J. Trivedi (supra), this Court considered the scope of revision under Section 29(3) of the said Act of 1947 which is pari materia with Section 34 of the Maharashtra Rent Control Act, 1999. This Court relied upon a decision of a Division Bench in the case of Sukhdev Prasad Raghubir Vs. Rambhujarat Kshampati, (1983 MhLJ 9). This Court held that if an order is passed in a suit under Section 28 of the said Act of 1947 and if the said order does not affect substantive rights of the parties the under the said Act or the rules made thereunder, a revision application under Section 29(3) of the said Act of 1947 will not lie. This Court held that if the impugned order affects rights of the parties under the said Act and the rules framed thereunder, then the revision application will be maintainable. This Court, therefore, held that if there are orders passed under the said Code which do not affect rights of the parties under the said Act of 1947, a revision application under Section 29(3) is not maintainable. Even assuming that the Revision filed by the first Respondent was under Section 34 of the said Act of 1999, the scope of the Revision is the same. 7. Under Section 152 of the said Code, there is a power vested in the Court of correcting clerical or arithmetical mistakes in the judgment and decrees or errors arising therein from any accidental slip or omission. Under Section 153 of the said Code, it is provided that the Court may at any time amend any defect or error in any proceeding in a suit. In the present case, ash 6 wp-7017.10rj contention of the 1st Respondent in the Misc. Notice is that in the body of the plaint in the description of Shed No.11, the number 634 appearing should be replaced by the number 234AA. In the application, it was contended that there was an inadvertent and typographical mistake in the plaint which needed to be corrected. A prayer was made for amending the decree accordingly. The contention of the 1st Respondent is that even the 2nd Respondent was fully aware about the correct description of the suit premises and there was no dispute that the suit was relating to the suit premises. Thereofre, purely a procedural order was sought from the Trial Court in exercise of powers under Section 152 and 153 of the said Code. The order passed on such Misc. Notice will not affect the substantive rights of the parties under the said Act of 1947. Hence, against a purely procedural order, the revision application was not maintainable. The argument that the impugned order is not merely of a procedural nature cannot be accepted for the simple reason that even according to the case of the 1st Respondent- Plaintiff, there was an inadvertent and typographical error while typing the plaint. It is therefore, obvious that the adjudication of an application invoking Sections 152 and 153 of the said Code will not involve adjudication of substantive rights of the parties under the said Act of 1947. Thus, in the light of the decision of this Court in the case of Laheribai J. Trivedi (supra) which follows a binding precedent of the judgment of a Division Bench in the case of Sukhdev Prasad Raghubir (supra), it will have to be held that the revision application preferred by the 1st Respondent was not maintainable ash 7 wp-7017.10rj before the appeal Bench of the Court of Small Causes. Therefore, it is not necessary to go into the merits of the Misc. Notice taken out by the 1st Respondent. Though the impugned order deserves to be set aside, the remedy of the 1st Respondent against the said order of the Trial Court will have to be kept open. 8. Hence, I pass the following order :- (a) The impugned judgment and order dated 20th July, 2010 passed by the Appeal Bench of the Court of Small Causes is quashed and set aside and the Revision Application No. 197 of 2006 is hereby rejected only on the ground that the same was not maintainable. (b) It will be open for the 1st Respondent to adopt appropriate remedy for challenging the impugned order dated 22nd June 2006 passed by the Trial Court in Misc. Notice No. 692 of 2005. (c) All contentions of the parties on merits of the Misc. Notice are kept open. (d) The Writ Petition is partly allowed on above terms. JUDGE