1 lpa-278-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION LETTERS PATENT APPEAL NO.278 OF 2010 WITH CIVIL APPLICATION NO. 342 OF 2010 IN WRIT PETITION NO.4826 OF 2010 Arvind Manilal Mistry and ors. .. Appellants Vs. Amum Builders and anr. .. Respondents Mr. S. U. Kamdar, Sr. Advocate, Mr. Himanshu Pradhan and Ms. Pooja Patil i/by Zohair and Co. for appellants. Mr. R.A. Thorat, Sr. Advocate with Mr. P.K. Dhakephalkar, Sr. Advocate and Mr. P.S. Dani for respondent no.1. Mr. H. S. Shreepad Murthy i/by Mr. Vikrant Narkar for respondent no.2. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: NOVEMBER 25, 2010 PRONOUNCED ON: DECEMBER 2, 2010 2 lpa-278-10.doc mgn P.C. 1. This appeal, filed under Clause 15 of the Latters Patent, is directed against the interlocutory order passed in Writ Petition Nos. 6824/09 and 4826/10 on 27/9/2010 passed by the learned Single Judge. By the said order the petitions came to be admitted and while declining to stay the impugned order passed by the Small Causes Court, the said order was modified. 2. The Appellants claim to be the tenants of the Defendant-Judgment debtor in R.A.E. & R. Suit No.1628/5398 of 1982 and the said suit was decreed on 15th June, 2006 in terms of the consent terms signed between the plaintiffs and the defendants. When the said consent decree was sought to be executed the appellants claimed to have obstructed and, therefore, the successors of the plaintiff filed Obstructionists Notice No.5 of 2007 in R.A.E. & R. Suit No.1628/5398 of 1982. In the said notice the successor plaintiffs filed Miscellaneous Notice No.37 of 2007 seeking 3 lpa-278-10.doc mgn directions against the appellants and the learned Judge of the Small Causes Court by his order dated 28th February, 2008 directed the appellants to pay interim mesne profits to the plaintiffs from the date of the application at the rates specified and based on the evaluation of the market price of the suit shops. The appellants challenged the said order in Appeal No.137 of 2008 before the Division Bench of the Small Causes Court and the said Appeal came to be dismissed as not maintainable on 28th February, 2008. Resultantly the appellants filed Writ Petition No.4826 of 2010 challenging the order dated 28th February, 2008 passed by the Small Causes Court. 3. At the first instance the respondents raised the issue of maintainability of this Letters Patent Appeal and more particularly in view of the judgment of the Supreme Court in the case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, 2010 (7) SCALE 428 and the subsequent judgment of this Court (Division Bench) in the case of Kalpesh Hemantbhai Shah Vs. Manhar Auto Stores rendered on 1st October, 2010 by following the judgment of the Supreme Court in the case of Shalini Shyam Shetty 4 lpa-278-10.doc mgn (supra) that the Letters Patent Appeal against the judgment/order of the learned Single Judge in a petition between the landlord and the tenant and involving the eviction of the tenant is not maintainable. 4. It was further specifically pointed out that Writ Petition No.4826 of 2010 has been filed under Article 227 of the Constitution of India and the substantial relief sought in the said petition does not pray for a writ of certiorari and, therefore, even otherwise the Letters Patent Appeal is not maintainable against any order passed in such a Writ Petition. The relief prayed for in the said Writ Petition reads as under:- “(a) that this Hon'ble Court may be pleased to call for the records and proceedings of Appeal No.262 of 2008 filed by the Petitioners in the Court of Small Causes at Bombay along with the records and proceedings of Exhibit “37” of 2007, filed in Obstructionist Notice No.5 of 2007 and after going through the legality, propriety and validity of the said order dated 21st April, 2010, passed in Appeal No.262 of 2008 read with the order dated 28th February, 2008, passed 5 lpa-278-10.doc mgn in Exhibit No.37 of 2007 the same be set aside quashed and cancelled.” 5. Mr. Kamdar, the learned Senior Counsel appearing for the appellants on the other hand submitted that merely because the Writ Petition has been filed under Article 227 of the Constitution and the petitioners have not prayed for a writ of certiorari, cannot be a reason to hold that the Letters Patent Appeal is not maintainable against any order passed in such a petition. As per Mr. Kamdar, what is required to be seen in the petition either under Article 226 or 227 or under both Articles, is the totality of the facts and circumstances and the pleadings of the parties, the nature of the reliefs claimed and the ultimate order passed by the learned single Judge, so as to decide the maintainability of the L.P.A. He also submitted that the judgment of the Supreme Court in Shalini Shyam Shetty (supra) does not specifically take the view that L.P.A., is not maintainable against any order passed in a Writ Petition between the landlord and tenants and challenging the orders passed under the Rent Act. In addition, the said judgment has not 6 lpa-278-10.doc mgn considered the scheme of Clause 15 of the Letters Patent of this Court as well as a three Judge Bench decision of the Supreme Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania & Anr. vs. Jayaben D. Kania & Anr., AIR 1981 SC 1786. It was further submitted by Mr. Kamdar that another decision of the three Judge Bench in the case of M/s.M.M.T.C. Ltd. vs. Commissioner of Commercial Tax & Ors., 2009 AIR SCW 767 was not cited before the Supreme Court in the case of Shalini Shetty (supra) though the same was cited before the Division Bench of this Court in the case of Kalpesh Shah (supra). 6. In the case of M/s.M.M.T.C. Ltd. (supra), the M.P. High Court considered the following scheme of Section 2 of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005 and held that the L.P.A., was not maintainable against any order passed in exercise of the power of superintendence under Article 227 of the Constitution. Section 2 of the Act reads as follows:- 7 lpa-278-10.doc mgn “2(1) An appeal shall lie from a judgment or order passed by the one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.” Mr. Kamdar, therefore, urged that having regard to the larger Bench decision of the Supreme Court in the case of M/s.M.M.T.C. Ltd. (supra), this L.P.A. cannot be rejected as not maintainable and at the most the issue requires to be referred to larger Bench rather than accepting the view taken by this cout (Nagpur Bench) in Kalpesh Shah's case (supra). 7. Mr. Dhakephalkar, the learned Senior Counsel further urged that even otherwise the impugned order is an interlocutory order passed in Writ Petition filed under Article 227 of the Constitution and, therefore, the 8 lpa-278-10.doc mgn L.P.A., is not maintainable against such discretionary order. However, he also urged that if so required the issue could be referred to a larger Bench and more so when connected issues have already been referred to a Full Bench in Letters Patent Appeal No.261 of 2005. 8. Admittedly, the order sought to be challenged in this appeal is not a final order. It is well settled that a Letters Patent Appeal is not maintainable against an interlocutory order and the law laid down by the Supreme Court in the case of Shah Khimji (Supra) so stated. The Supreme Court set out the illustrations of interlocutory orders which may be treated as judgments and further clarified that the interlocutory order, in order to be a judgment, must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. If the order impugned in this appeal is an interlocutory order, surely this Letters Patent Appeal cannot be entertained. 9 lpa-278-10.doc mgn 9. Let us reproduce the order passed by the learned Single Judge in Writ Petition No. 4826 of 2010 and which order is sought to be challenged: “1. Rule, in both writ petitions. However, there shall be no interim relief. 2. The impugned order has been passed directing the petitioners to pay certain amounts as mesne profits during the pendency of the obstructionist's notice. These amounts, which the Small Causes Court has directed to be paid, are based on the valuation report dated 1.8.2007 and are less than the market value. In fact the Court has fixed the amounts, depending on the location of the shops and residential tenements. In these circumstances, I see no reason to stay the order. 3. The amounts which have been directed to be paid by the Small Causes Court, shall be deposited in that Court during the pendency of the obstructionist's notice. The respondents shall 10 lpa-278-10.doc mgn not withdraw the same during the pendency of the obstructionist's notice. The amounts including the arrears shall be deposited within 12 weeks from today.” It is clear from the said order that while granting Rule, the impugned order therein and passed by the Small Causes Court has not been stayed and on the other hand it has been modified in such a way that the interests of both the parties are protected, subject to the final decision in the writ petition. In the last paragraph of the order, the learned Single Judge has directed that the amount deposited by the appellants shall not be withdrawn by the successor plaintiffs during the pendency of the obstructionist's notice. If the appellants succeed in the petition they would be entitled to withdraw the deposited amount and if the petition fails, the amount would go to the successor plaintiffs. Thus, in the order passed by the learned Single Judge no issues have been finally decided or it cannot be called as an order which has the trappings of deciding finally any questions in controversy between the parties. In our view, the order passed by the learned Single Judge and 11 lpa-278-10.doc mgn sought to be impugned in this appeal is an interlocutory order and, therefore, rather than entering into the controversy as to whether a Letters Patent Appeal is maintainable against the judgjment/order passed in a writ petition between the landlord and tenants, this appeal must fail as not maintainable. 10. Hence, the appeal is dismissed as not maintainable. 11. Civil Application No. 342 of 2010 does not survive and disposed as such. (B. H. MARLAPALLE, J.) (U. D. SALVI, J.)