Wednesday, 30 August 2017

When revision is tenable against orders passed under Maharashtra rent control Act?

For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

85. Following are instances of revisable orders.

(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law

(ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC

(iii) an order allowing or rejecting an application for a declaration that the suit has abated

(iv) an order refusing to extend the time for filing a written statement

(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law

This list is illustrative and not exhaustive.

86. Following are instances of orders which would not be revisable orders:-

(i) an order granting leave to amend plaint or written statement

(ii) an order granting extension of time to file written statement

(iii) an order raising additional issue

(iv) an order made for production of documents or discovery or inspection.

(v) an order directing a plaintiff/defendant to furnish better and further particulars

(vi) an order issuing or refusing to issue a commission for examination of witnesses

(vii) an order issuing or refusing to issue summons for additional witness or document

(viii) an order condoning delay in filing documents, after the first date of hearing.

(ix) an order of costs to one of the parties for its default

(x) an order granting or refusing an adjournment

(xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC

This list is also illustrative and not exhaustive.

87. As regards question No. 1 about scope and ambit of power of revision under Section 34(4) of the Maharashtra Rent Control Act, 1999, our answer is that after the revisional Court is satisfied about maintainability of the revision application, the revisional Court will consider whether the impugned order is according to law. However, "according to law" refers to the order as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be, if there is a miscarriage of justice due to mistake of law. Hence, mere breach of, or non-conformity with, the provisions of Code of Civil Procedure or the Evidence Act or similar other procedural laws, will not be a ground for interfering with the impugned order of the trial Court. The revisional powers are intended to be exercised with a view to subserve and not to defeat the ends of justice. As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular. The writ petitions will now go back to the learned Single Judge for hearing and deciding them in light of the principles laid down in this judgment.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 9562, 8029 and 907 of 2010

Decided On: 21.01.2013

 Bhartiben Shah, 
Vs.
Smt. Gracy Thomas and Others

Hon'ble Judges/Coram: 
M.S. Shah, C.J., R.V. More & N.M. Jamdar, JJ.
Citation:2013(2) ALLMR 9 FB

1. The following questions have been referred for our opinion:

(1) What is the scope and ambit of the power of revision under section 34(4) of the Maharashtra Rent Control Act, 1999 ?

(2) Whether a revision application under section 34(4) of the Maharashtra Rent Control Act, 1999 would be maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of the Maharashtra Rent Control Act ?

For giving answers to the above questions, we propose to proceed in the following manner:


FACTS

2. Writ Petition No. 9562 of 2010 challenges the judgment and order dated 29 September 2010 passed by the Small Causes Court, Bombay rejecting application of the petitioner-plaintiff for amendment of the plaint by addition of a party. A preliminary objection was raised on behalf of the respondent-defendants at the hearing of the writ petition against maintainability of the writ petition under Article 227 of the Constitution of India on the ground that the petitioner had an adequate and efficacious alternative remedy available by way of revision under section 34(4) of the Maharashtra Rent Control Act, 1999 (for brevity "New Rent Act").

3. It was thereupon contended by learned advocate for the petitioner that a Revision under section 34(4) of the New Rent Act lies to an Appellate Bench of the Court of Small Causes only in respect of an order passed under the Rent Act and that the revisional jurisdiction does not extend to a procedural order passed under the Code of Civil Procedure, 1908. In support of the said contention, reliance was placed on three judgments of learned Single Judges of this Court, which, in turn, relied upon the decision of Division Bench of this Court in Sukhdev Prasad Raghubir Vs. Rambhujarat Kshampati MANU/MH/0273/1983 : 1983-Mh.L.J.-9 = AIR 1983 Bom. 25, wherein the scope of revisional power under para materia provision of Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for brevity, 'the Old Rent Act') was considered.

Another learned Single Judge of this Court, in Abeda Iqbal Pate Vs. Cormorant Investment Pvt. Ltd., Mumbai MANU/MH/1474/2008 : 2009 (2)-Mh.L.J.-446 took a different view from the view taken by three other learned Single Judges of this Court and that is how when the present writ petition was heard on the question of maintainability and availability of an alternative remedy of revision under section 34(4) of the New Rent Act, Justice D.G. Karnik vide order dated 8 February 2011 referred the above two questions for opinion of the Larger Bench.

4. At the hearing of Writ Petition No. 907 of 2010, the attention of the learned Single Judge was invited to the reference made by Justice D.G. Karnik vide order dated 8 February 2011. The learned Single Judge was, however, of the view that since the matter was already covered by decision of Division Bench, it was not necessary to refer the matters to the Larger Bench, and hearing of the writ petition was adjourned.

5. Writ Petition No. 8029 of 2010 challenges the order dated 3 August 2010 of the Appellate Bench of the Court of Small Causes at Bombay in Revision Application under section 34(4) of the New Rent Act setting aside the order of the Small Causes Court by which the trial Court had allowed application of the petitioner-plaintiff under Order 18 Rule 16 CPC for directing the defendant to lead evidence first.

Submissions on behalf of Petitioners

6. Mr. Prasad Dani and Mr. Vikram Goyal, learned counsel appearing on behalf of the writ petitioners, made the following submissions in support of their contention that no revision under section 34(4) of the New Rent Act lies against a procedural order, like allowing or rejecting an application for amendment of a pleading.

(a) Section 34(4) of the New Rent Act is similar to Section 29(3) of the Old Rent Act. The Division Bench, in case of Sukhdev Prasad 1983-Mh.L.J.-9 interpreted Section 29(3) of the Old Rent Act after relying upon the Constitution Bench decision of the Supreme Court in Shankarlal Aggarwala and others Vs. Shankarlal Poddar and others MANU/SC/0026/1963 : Air 1965 SC 507 and also on two decisions of three Judge Benches of the Supreme Court in Bant Singh Gill Vs. Shanti Devi and others MANU/SC/0335/1967 : AIR 1967 SC 1360 and in Central Bank of India Limited Vs. Gokal Chand MANU/SC/0053/1966 : AIR 1967 SC 779.

(b) In the aforesaid decision in Bant Singh Gill, Section 34 of the Delhi and Ajmer Rent Control Act, 1952 conferred the right of appeal on an aggrieved person in very wide terms -

any person aggrieved by any decree or order of a Court passed under this Act, may in such manner as may be prescribed, prefer an appeal: (i) to the Court of the senior subordinate Judge........, (b) to the Court of the District Judge......... and (c) to the High Court....., (the forum of appeal depending on the value of the case).

(emphasis supplied)

In spite of the aforesaid wide language, the Supreme Court held that the word "order" is not wide enough to include every order, whatever be its nature and particularly the orders which only dispose of interlocutory applications. Where there is no final order deciding rights or liabilities of the parties to the suit, the finding given by a Court cannot be held to be an order for purposes of Section 34 of the Act and consequently no appeal against such an order would be maintainable. The Supreme Court, therefore, held that the order rejecting application of the appellant to record the abatement of the suit and directing continuance of the suit, was not an order of such a nature against which an appeal could be filed under Section 34 of the Act of 1952.

(c) In the Central Bank of India Limited Vs. Gokal Chand AIR-1967-SC-799 the Supreme Court was concerned with a similar provision in Section 38 of Delhi Rent Control Act, 1958, which was also widely worded and read as under:

An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette.

(emphasis supplied)

The Supreme Court held that the object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. The principle was thus recognized that the word "order" used in such context is not wide enough to include every order, whatever be its nature, and particularly orders which only dispose of interlocutory matters.

(d) In Shankarlal Aggarwala v/s. Shankarlal Poddar MANU/SC/0026/1963 : Air 1965 SC 507, the Supreme Court interpreted Section 202 of the Companies Act, which reads as under:

202. Appeals from orders. Re-hearing of, and appeals from, any order or decision made or given in the matter of the winding up of a company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had/heard from any order or decision of the same Court in cases within its ordinary jurisdiction.

(emphasis supplied)

The Supreme Court examined the controversy arising from the conflict of opinion of different High Courts and held that the words "order or decision" in the first part of Section 202, though wide, would exclude merely procedural orders or those which do not affect the rights or liabilities of parties.

(e) On the basis of the above decisions it was submitted by Mr. Goel and Mr. Dani that though the word "order" in Section 34(4) is very wide, revisions are not maintainable against interlocutory orders, which are merely procedural orders and, which do not affect the rights and liabilities of the parties. It was submitted that in the above decisions the Supreme Court held that an appeal would not be maintainable against such orders, in spite of wide words used in the section conferring right to appeal. It was, therefore, vehemently submitted that though Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act provide for revision in very wide terms, the same have to be read in light of the principles laid down in the above decisions of the Supreme Court. Therefore, the judgment of the Division Bench in case of Sukhdev Prasad Raghubir 1983 Mh.L.J. 9 based on the above Supreme Court decisions does not require any reconsideration.

(f) It was accordingly submitted that on account of non maintainability of revision against such interlocutory orders, there is no equally efficacious alternative remedy available to the writ petitioners and, therefore, the writ petition under Article 227 of the Constitution of India ought to be held to be maintainable, otherwise the parties would have no remedy to challenge an order, which may cause miscarriage of justice.

(g) It was lastly submitted that on account of mind boggling and sky rocketing prices of immovable properties in Mumbai, where flats are sold in terms of tens of thousands of rupees per sq. foot, the cases under the Rent Act are fought so hard-tooth and nail that every order passed by the Small Causes Court Judge was subjected to challenge before the higher forum even when revisions were entertained by the Appellate Bench of the Small Causes Court at Mumbai. The losing party would then always prefer a writ petition under Article 227 of the Constitution and, therefore, holding that the revision is maintainable, as contended by the respondents, would only prolong the litigation which even otherwise takes decades.

7. Learned counsel for the writ petitioners also submitted that in the recent order dated 17 January 2012 in writ petition No. 1078 of 2011, a learned single Judge of this Court has made observation that notwithstanding the binding precedents in the form of decision of the Division Bench of this Court in Sukhdev Prasad Raghubir v/s. Rambhujarat Kshampati MANU/MH/0273/1983 : AIR 1983 Bom. 25 and in another decision Mrs. Laheribai J. Trivedi (through her LR;s) v/s. Dharamdatta V. Trivedi & Ors. Dated 8 October 2009 in writ petition No. 3926 of 2008, the Appellate Bench of the Small Causes Court in Mumbai has been regularly entertaining revision applications in a routine manner even against orders which are purely of interlocutory nature. A statement was produced before the learned single Judge showing large number of revision applications which are pending before the Appellate Bench, as per the information received under the Right to Information Act. Even learned counsel appearing for the first respondent in the said petition accepted that a revision application was not maintainable against the trial Court's order rejecting an application for issuing witness summons for production of certain documents.

Learned counsel for the writ petitioners, therefore, submitted that in view of the above observations, the Appellate Bench does not entertain any revision application merely on the ground that the revision is directed against an interlocutory order, without examining whether substantive rights of the parties are affected.

Submissions on behalf of Respondents

8. On the other hand, the learned counsel for respondents in the writ petitions made following submissions:

(i) The very fact that sub-section (4) of section 34 of the New Rent Act and sub-section (3) of section 29 of the Old Rent Act begin with the words "where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai", the legislature intended that all non-appealable orders are subject to revision and, therefore, the three Supreme Court decisions relied upon by the writ petitioners cannot apply to revisions at all. If the term "order" in the aforesaid provisions conferring right of appeal and in the provisions conferring right of revision were to be interpreted identically, then the legislature would not have provided two different remedies of appeals under section 29(1) of the Old Rent Act and section 34(1) of the New Rent Act on the one hand, and revisions under section 29(3) of the Old Rent Act and section 34(4) of the New Rent Act, on the other hand.

(ii) Section 34(1) proviso (a) confers a right of appeal where such an order is appealable under CPC. Appealable orders under Order 43 Rule 1 of CPC are interlocutory procedural orders not affecting substantive rights of the parties, such as orders of injunction, appointment of receiver etc. If that be so, there is no justification to curtail the scope of revisional powers. The only conditions laid down by the Legislature for finding out whether the order is subject to revision under the Rent Act are-

(i) that no appeal should be provided for under Section 29 itself against such an order under the Bombay Rent Act (under Sec. 34 of the New Rent Act)

(ii) that such order is not according to law.

The phrase "the order is not according to law" has acquired a definite and precise meaning and has been interpreted by the Supreme Court in several decisions to mean that the scope of revisional jurisdiction in such cases is wider than that under Section 115 of the CPC, following the dictum of Chief Justice Beaumount of this Court in Bell & Co. Ltd. vs. Waman Hemraj MANU/MH/0120/1937 : Air 1938 Bom. 223

(iii) The Division Bench in Sukhdev's case held that the substantive rights of the parties under the Bombay Rent Act should be affected. Section 29 of the Old Act does not anywhere restrict the revisional powers of the appellate Bench under the Bombay Rent Act. In Pacific Engineering Co. Pvt. Ltd. V/s. East India Hotels Ltd., MANU/MH/0240/2004 : 2004 (4) All MR 330 Justice S.J. Vazifdar rightly held as follows:

38(b) Moreover the expression "substantive rights" used in the authorities I have considered must be understood in the lexical sense. It ought not necessarily to be construed as a right created by a statute or any other law. In other words, to be revisable it is not necessary that the order must relate to a provision of substantive law. Even if it relates to a procedural law it would be revisable if it affected substantively the rights of a party.
In view of the above observations of Justice Vazifdar also restrictions placed by the Division Bench in Sukhdev's case on maintainability of the revision must be removed, in so far as the Division Bench held that the revisable order must affect the rights under the Bombay Rent Act and that the impugned order should bear the imprint of any of the provisions of the Bombay Rent Act.

(iv) The learned counsel for respondents have also relied upon the decisions such as decision in Union of India v/s. Hansoli Devi and ors. MANU/SC/0768/2002 : (2002) 7 SCC 273 and Nathi Devi v/s. Radha Devi Gupta MANU/SC/1071/2004 : (2005) 2 SCC 271, in support of the contention that when the language of the statute is plain and unambiguous, the Court must give effect to the words used in the statute and it would not be open to the Court to adopt hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.

(v) The Supreme Court decisions relied upon by the learned counsel for writ petitioners merely interpret the scope of the appellate power under the concerned statutory provisions and not the question of maintainability of revisions.

The observations made by the Supreme Court in the above decisions were to impress upon the Appellate Courts not to entertain appeals against interlocutory orders, which are merely procedural and which do not affect any substantive rights or liabilities of the parties, otherwise the parties would be harassed with endless expenses and delay by appeals from such procedural orders.

(vi) There are many cases where orders of trial Court during suits under the Rent Act cause irreparable loss to the aggrieved litigants and still this Court following the decision of the Division Bench in Sukhdev's case has held that revisions were not maintainable. For instance, in J.M. Construction vs. Dr. Rustom Patel MANU/MH/0682/2008 : 2008 (5) Bom. CR 598, the defendant had sought condonation of delay in filing written statement. The trial Court refused to condone the delay and did not take written statement on file. Against that order the defendant preferred a revision application under Section 34(4) of the New Rent Act. The revision was allowed by the appellate Bench of the Small Causes Court and the written statement was taken on file. Against that order in revision, writ petition was preferred by the plaintiff and a learned single Judge of this Court held that filing of the written statement was a procedural order, which did not affect the substantive rights of parties under the Rent Act and therefore, the revision application was not maintainable before the appellate Bench of the Small Causes Court. Consequently the order of the appellate Bench was set aside. It is submitted that refusal to allow to file written statement in an eviction suit would definitely affect the substantive rights of the defendant and lead to miscarriage of justice. The narrower interpretation of the word "order" results into serious consequences to the aggrieved party.

(vii) Similarly, in Laheribai J. Trivedi (deceased) through heirs v/s. Dharamdatta V. Trivedi MANU/MH/1611/2009 : 2010 (1) Mh.L.J. 597a suit was dismissed under Order 9 Rule 3 of CPC. An application made under Order 9 Rule 4 for restoration of the suit was rejected by the trial court. Against that order, revision application was filed. The revision was dismissed as not maintainable and when that order was challenged in the writ petition, the learned single Judge held that order refusing to restore the suit by setting aside the order of dismissal did not affect the substantive rights of parties under the Bombay Rent Act and therefore, revision application was not maintainable. Requiring the parties in far away districts to move this Court in writ petition under Article 227 everytime for challenging orders having such serious consequences put the parties to unnecessary and avoidable hardship and expenses.

(viii) Some judicial forum has to hear a revision to decide whether the impugned non-appealable order is a mere procedural order or an order which affects any right or liabilities of the parties. The decision on such question cannot be taken by the registry of the Revisional Court while receiving the memo of the revision petition and, therefore, the revision will have to be heard by the revisional Court at least to decide the question whether any substantive right or liability of a party was affected. It cannot, therefore, be held at the threshold itself that the revision is not maintainable at all.

STATUTORY PROVISIONS

9. We may now set out the relevant statutory provisions relating to appeal as well as revision under the Old Rent Act and the New Rent Act. (For the sake of convenience, reference is only to orders of Small Causes Court in Greater Bombay.)

Maharashtra Rent Control Act 1999: (New Rent Act)

34. Appeal.

(1) Notwithstanding anything contained in any law for the time being in force, an appeal shall lie

(a) in Brihan Mumbai, from a decree or order made by the Court of Small Causes. Mumbai, exercising jurisdiction under section 33, to a bench of two Judges of the said Court which shall not include the Judge who made such decree or order;

(b) ...

Provided that no such appeal shall lie from,-

(a) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908;

(b) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent in respect of any premises and the amount or value of the subject matter of which

(i) does not exceed Rs. 10,000 (in Brihan Mumbai)

(ii) ...

(c) an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies;

(d) an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him.

(2) period of limitation

(3) No further appeal shall lie against any decision in appeal under sub-section (1).

(4) Where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai, the bench of two Judges ... may, for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and the bench ... shall pass such order with respect thereto as it thinks fit.

Bombay Rent Act 1947: (Old Rent Act)

29. (1) Notwithstanding anything contained in any law, an appeal shall lie-

(a) in Greater Bombay, from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction under section 28, to a bench of two judges of the said Court which shall not include the Judge who made such decree or order;

(b) ...

Provided that no such appeal shall lie from-

(I) to (IV)...

(I) to (IV) in the Bombay Rent Act are in similar terms as (a) to (d) of the proviso to Section 34(1) of the Maharashtra Rent Act, except the amounts in proviso II and proviso (b) respectively.

(1A) Period of limitation

(2) No further appeal shall lie against any decision in appeal under sub-section (1).

(3) Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay the bench of two judges ...... may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and the bench ........, shall pass such order with respect thereto as it or he thinks fit.

It is, thus, clear that for the purpose of the controversies in this reference the provisions conferring right of appeal and revisional jurisdiction in both the Acts are identical.

BROAD ANALYSIS OF RIVAL SUBMISSIONS ON
MAINTAINABILITY OF REVISION

10. From the wide canvass of arguments, different scenarios emerge in the matter of interpretation of expression "order" in Section 34(4) of the New Rent Act of 1999 which is in pari materia with Section 29(3) of the Old Rent Act.

A

Going by the mere text of Section 34(4) of the New Rent Act and Section 29(3) of the Old Rent Act, all orders may be classified into two categories:

(i) appealable orders;

(ii) non-appealable and, therefore, revisable orders.

As per this literal interpretation, all non-appealable orders including all procedural orders would be revisable. None of the learned counsel have seriously canvassed this interpretation.

B

It is possible to divide all orders into three categories as

(i) appealable orders as provided in Sec. 34(1) of the New Rent Act;

(ii) Revisable orders which affect substantive rights and liabilities of parties

(iii) orders which are neither appealable nor revisable, i.e. orders which are procedural in nature and do not affect rights and liabilities of the parties.

Learned counsel for all the parties are, more or less, agreeable on the above three categories, but there is sharp difference as to what is meant by "orders which affect rights and liabilities of the parties."

B1

Learned counsel for the parties seeking reconsideration of decision in Sukhdev's case submitted that the orders which affect the rights and liabilities of parties and which are, therefore, revisable, need not be confined to orders determining or affecting the rights and liabilities of parties under the Rent Act, but they may determine or affect rights and liabilities of parties under any other law or the general law including procedural law. Learned counsel canvassing this interpretation have heavily relied upon the decision of the learned Single Judge of this Court in Hemchand M. Singhania v/s. Subhkaran Nandlal Bargara MANU/MH/0083/1967 : AIR 1967 Bom. 361, on a Division Bench judgment of Gujarat High Court in Natvarlal v/s. Khodaji MANU/GJ/0108/1966 : 1967 (8) Guj. L.R. 772, and judgment of Justice S.J. Vazifdar in Pacific Engineering Co. Pvt. Ltd. V/s. East India Hotels Ltd. MANU/MH/0240/2004 : 2005 (1) Bom. C.R. 427

B2

Learned counsel for the parties supporting the Division Bench decision in Sukhdev's case and opposing any reconsideration of the said decision, submitted that the Division Bench of this Court has rightly held in Sukhdev's case that rights and liabilities which may be affected by revisable orders are only the rights and liabilities of parties under the Rent Act and not under any other substantive or procedural law. The learned counsel have, besides supporting the decision in Sukhdev's case, also heavily relied upon the decision of Justice S.H. Sheth of Gujarat High Court in Shri Maharana Mills Pvt. Ltd. V/s. Harvadan Manharrai MANU/GJ/0063/1972 : AIR 1972 Guj. 226.

PERSPECTIVE

11. Before dealing with the rival submissions head on, it would be necessary to keep in mind the relevant contextual aspects to look at the issues from the correct perspective, thereafter to make a brief exposition of the principle and then to test that hypothesis by analysing the case law and in the process appreciating how the controversy has evolved.

12. Though appeal and revision are generally considered as different proceedings in the strict sense of the term, they are both part of the appellate jurisdiction of the superior Court, in the wider sense. The basic nature of the revisional proceedings has been explained by a three Judge Bench of the Supreme Court in Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat MANU/SC/0456/1969 : AIR 1970 SC 1 as under:-

6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
13. While provisions conferring appellate jurisdiction (in narrower sense) on a superior Court are treated as conferring right of appeal on an aggrieved litigant, the provisions conferring revisional jurisdiction on a superior Court are not treated as conferring a right of revision on the litigant. Revisional jurisdiction is treated as supervisory jurisdiction with power of superintendence to be exercised in the discretion of the Superior Court. That is why sub-section (1) of Section 34 provides that an appeal shall lie from a decree or order made by the Court of Small Causes to a Bench of two Judges of the said Court, but sub-section (4) of the same Section (like Section 115 of the CPC) does not say that a revision shall lie from an order of the Small Causes Court. Section 34(4), like Section 115 of CPC, merely enables the superior Court to call for the record of a subordinate Court and make such orders in the case as the revisional Court thinks fit in cases of error of the nature contemplated under the provision and subject to other limitations contained in the provision. Even though the revisional power of the High Court may be exercised either suo motu or when a jurisdiction is invoked by a litigant, nevertheless, revisional jurisdiction is quite different in quality, content and nature from appellate jurisdiction. While a person who institutes a suit has a vested right of appeal as per the law on the date of institution, he has no vested right of revision since revision is not a continuation of suit and relates to procedural law. [District Judge Jabalpur v. Krishna Deo Singh, 1995 AIHC 2404, M.P. High Court as cited in "Code of Civil Procedure" by Justice C.K. Thakker, 2002 Edition, Vol. 2, pp. 652-653, 665].

14. What weighed with the Supreme Court in the three cases relied upon by the writ petitioners for reading down the word "order", (though the word "order" is wide enough to include procedural order which does not decide or affect the rights and liabilities of parties to the suit) was that the wider interpretation of the expression "order" would result into harassment of parties on account of endless expenses and delay by appeals from such procedural orders and also that it is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceedings.

For determining how wide is the net of revisable orders, the same logic should apply while interpreting the word "order" in section 34(4) of the New Rent Act, more particularly when section 38 of the new Rent Act lays down a time limit of twelve months for disposal of a suit under the New Rent Act. Section 38 reads as under:-

38. Time limit for disposal of suits, proceedings or appeals- Notwithstanding anything contained in this Act or in any other law for the time being in force-

(a) a suit or proceeding under this Act shall be heard and disposed of as expeditiously as possible and endeavour shall be made to dispose of the case, as far as may be practicable, within a period of twelve months from the date of service of summons, or as the case may be, notice on the defendant;

(b) an appeal against the decree or order made by the Court, shall be heard and disposed of as expeditiously as possible and endeavour shall be made to dispose of the appeal, as far as may be practicable, within a period of six months from the, date of service of notice of appeal on the respondent.

(emphasis supplied)

Thus, legislative anxiety for expeditious hearing and disposal of a suit and expectation from the Court to make an endeavor to dispose of a suit within a period of twelve months from the date of service of summons would, prima facie, indicate that the same Legislature could not have been in favour of providing very wide net of revisable orders, which the wide language of Section 34(4) may otherwise suggest.

15. The first question referred by the learned Single Judge pertains to be scope and ambit of power of revision under section 34(4) of the New Act and the second question pertains to question of maintainability of revision application under the same provisions. Though these two questions may apparently seem to be logically distinct and therefore, requiring separate treatment, we cannot overlook that if the net of revisable orders is taken as very wide and the scope and ambit of the power of revision under the above provisions is also taken as very wide, it will be impossible for the trial courts to complete expeditiously trial of suits under the Rent Acts as contemplated by Section 38 of the New Rent Act.

Principles for interpretation of statutes

16. The emphasis of the learned counsel for the respondent is on the text of sub-section (4) of Section 34 of the Maharashtra Rent Control Act and sub-section (3) of Section 29 of the Bombay Rent Act. It is submitted that since the power of revision is conferred in respect of a decree or an order in any suit or proceeding where no appeal lies under Section 34(1) of the New Act and Section 29(3) of the Old Act, all non-appealable orders would be revisable. The learned counsel accordingly invoked the principle of literal interpretation of statutes.

17. In National Insurance Co. Ltd. v/s. Laxmi Narain Dhut MANU/SC/1233/2007 : (2007) 3 SCC 700 (para 27) the Supreme Court has noted that what was known as the "Golden rule" of interpretation of statute according to grammatical or literal meaning of the word has given place to the "rule of legislative intent". The world over, the principle of interpretation according to the legislative intent is accepted to be more logical. The Supreme Court has also observed in the said decision as under:-

33. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside.

34. Francis Bennion in his book "Statutory Interpretation" described "purposive interpretation" as under:

A purposive construction of an enactment is one which gives effect to the legislative purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.

35. More often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the Courts should keep in mind the objectives or purpose for which statute has been enacted. Justice Frankfurter of U.S. Supreme Court in an article titled as Some Reflections on the Reading of Statutes (47 Columbia Law Reports 527), observed that, "legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose.

18. The principle of purposive interpretation has also been accepted by a Constitution Bench of the Supreme Court in C.B. Gautam v/s. Union of India MANU/SC/0673/1992 : (1993) 1 SCC 79 by relying upon the decision in K.P. Verghese v/s. Income Tax Officer, Ernakulam MANU/SC/0300/1981 : (1981) 4 SCC 173, wherein the Court observed that the task of interpretation of a statutory enactment is not a mechanical task and quoted with approval the following famous words of Judge Learned Hand of the United States of America:

...it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing; be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
Exposition of the principles

19. There is no dispute about the proposition that for the purpose of determining maintainability of revision under section 34(4) of the Maharashtra Rent Act, while "decree" finally determines the substantive rights of parties at the conclusion of the trial, "order" at the interlocutory stage indicates a formal decision affecting rights of the parties.

To the question "which rights and liabilities of parties are to be affected by revisable orders", there could be three logical answers:-

(i) rights and liabilities only under the Rent Act; (as held in Sukhdev's case)

(ii) rights and liabilities under any law including any statute, general law and even procedural law;

(as held in Pacific Engineering case)

(iii) rights and liabilities under the Rent Act and any other substantive law, but not under any procedural law;

(as commends to us)

20. The Legislature while enacting the Bombay Rent Act in 1947 did not incorporate any specific provision laying down the procedure for conducting suits and proceedings under the Rent Act, though section 31 and section 49(2)(e) left it to the rule making authority to prescribe the rules laying down the procedure for trying such suits and proceedings. Same provisions are to be found in section 37 and section 57(2)(e) respectively in the New Rent Act of 1999.

37. Procedure of Courts.- The courts specified in sections 33 and 34 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.

57. Power to make rules.- (1) ...

(2) In particular, and without prejudice to the generality on the foregoing provisions, such rules may provide for -

(e) the procedure to be followed in trying or hearing suits, proceedings including proceedings for execution of decrees and distress warrants, applications, appeals and execution of orders.
In the Rent Acts, the only reference to the Code of Civil Procedure is to be found in proviso (I) to sub-section (1) of Section 29 of Old Rent Act, which proviso was added in the year 1953. Reference to the Code of Civil Procedure in the above proviso is only for the limited purpose of ensuring that inspite of the wide language of sub-section (1) of Section 29 in the Old Act and sub-clause (1) in Section 34 in the New Act, an appeal shall not lie from a decree or an order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908. Thus, the Legislature clearly gave its indication for curtailing the previous right of appealing against any decree or order, to only that decree or order in respect of which an appeal lies under the Code of Civil Procedure. All that sub-section (3) of Section 29 and sub-section (4) of Section 34 provide is that the revisional jurisdiction cannot be exercised by the appellate bench of the Small Causes Court in Mumbai or the District Courts in other Districts, in a case where appeal lies. That does not mean that revisional jurisdiction is to be exercised in respect of all orders which are not appealable. The question of maintainability of revision, therefore, has to be decided without being influenced by the wide language of sub-section conferring revisional jurisdiction on the appellate bench of the Small Causes Court or the District Court, as the case may be.

21. In this context the following observations of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania MANU/SC/0036/1981 : AIR 1981 SC 1786 on interpretation of the word "judgment" for the purpose of determining maintainability of appeal under Clause 15 of the Letters Patent are quite apposite:-

114. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge.

115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.

(emphasis supplied)

For the same reasons, alleged non-compliance with the provisions of the Code of Civil Procedure or any other procedural law cannot give rise to a right of revision, because the grievance against such violation can be made in appeal against the final decree.

22. While we appreciate that for an order to be revisable under Section 29(3) of the old Rent Act and Section 34(4) of the New Rent Act, the order must not necessarily relate to recovery of possession of the premises or recovery or fixing rent/standard rent, mesne profits etc., it does not mean that any order which may be passed in course of the trial and which is not appealable is per se revisable. Though the language of Section 29(3) and Section 34(4) is very wide, a revisable order would not include interlocutory orders, which are merely procedural and do not affect the substantive rights or liabilities of parties. Such a restricted interpretation is required to be placed on the word "order" in Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act for the same reason for which restricted interpretation has been placed by the Supreme Court on the word "order" in Section 38 of the Delhi Rent Control Act, 1958 in Central Bank of India v/s. Gokal Chand MANU/SC/0053/1966 : AIR 1967 SC 799, and on the word "order" in Section 34 of the Delhi & Ajmer Rent Control Act, 1958 in Bant Singh Gill vs. Shanti Devi and others MANU/SC/0335/1967 : AIR 1967 SC 1360. The Supreme Court has consistently held in the aforesaid cases that if going by wide language, the word "order" is interpreted liberally to include procedural orders, which do not decide rights and liabilities of parties to the suit, such wider interpretation would result into harassment of party on account of delay and expenses of the appeal and also that it is open to any of the parties to canvass the error, defect or irregularity, if any, in such an order as ground of objection in his appeal from the decree/final order in the main proceedings.

23. In our view, revisions under the Rent Acts would be maintainable only against those orders which affect substantive rights or liabilities of parties, i.e. rights or liabilities under the Rent Act or any other substantive law, but not under a procedural law.

ANALYSIS OF CASE LAW


24. We now refer to the case law in chronological order:

Hemchand v/s. Subhkaram's case MANU/MH/0083/1967 : AIR 1967 Bom. 361

Though this case decided in 1966 did not directly deal with the controversy arising in this reference, it is required to be considered at length in view of heavy reliance placed by Justice Vazifdar in Pacific Engineering on certain observations made in this judgment.

The petitioner-landlord filed an eviction suit against the respondent-tenant in the Small Causes Court on the ground of default in payment of rent for more than six months. An exparte decree was passed. The decree was executed and the landlord obtained possession. The tenant filed an application for setting aside the exparte decree and prayed for restoration of possession. That application was rejected. The tenant, therefore, preferred an appeal before the bench of two Judges of Small Causes Court. The appeal Bench allowed the appeal and set aside the order of the trial court and remanded the case to the trial court for hearing and restored possession during pendency of the suit. Against that decision, the plaintiff-landlord filed a civil revision application before the High Court.

25. The first contention was that once the Bombay Small Causes Court passed the exparte decree it ceased to exercise jurisdiction under Section 28 of the Bombay Rent Act. The provisions of Section 104 and Order 43 Rule 1 of CPC are not applicable to the Bombay Small Causes Court. Consequently, no appeal would lie from an order passed by the Bombay Small Causes Court on an application made under Order 9 Rule 13 of CPC for setting aside an exparte decree.

The above contention was rejected by V.S. Desai, J. on the ground that the exparte decree, though passed by the Small Causes Court, was not passed by it exercising jurisdiction under the Presidency Small Causes Court Act, but as a Special Court under the Rent Act. An application to set aside an exparte decree can be made only to the Court which had passed it and to no other Court. The Special Court under the Rent Act having passed the exparte decree, an application to set aside the decree could be made only to that Court.

26. It was then argued by the learned counsel for the petitioner (plaintiff-landlord) that:-

the jurisdiction of the Special Court under Section 28 was to entertain a suit relating to recovery of rent or possession or to decide any question relating to the recovery of rent or possession. Its jurisdiction as a Special court under the Rent Act is confined only to dealing with questions relating to the recovery of rent or possession of the suit premises and that jurisdiction came to an end as soon as the ex parte decree for eviction was passed in the said suit in the exercise of the said jurisdiction. The application, which was made under Order 9 rule 13 of the Civil Procedure Code had not for its subject matter any question relating to the recovery of rent or possession of the premises; the subject-matter of the said application was whether the decree should be set aside or not. In entertaining the said application and deciding it, the Special Court did not exercise jurisdiction under Section 28 of the Rent Act. Orders of the Special Court, which are made appealable under Section 29 of the Act are orders, which are made by such court exercising jurisdiction under Sec. 28 of the Rent Act and since in making the order on the application to set aside the ex parte decree, the Special Court was not exercising jurisdiction under Section 28 of the Act, the order is not appealable.
27. Justice V.S. Desai rejected the above argument by holding in paragraph 10 that entertainment of the application for setting aside an exparte decree and the order made thereon by the trial Court was in its character as a Special Court exercising jurisdiction under Section 28 of the Act, obviously, because an application to set aside the exparte decree has to be entertained, heard and decided by the same Court i.e. by the Special Court exercising jurisdiction under Section 28. It is in this context that the following observations made by Justice V.S. Desai in paragraph 9 of the judgment must be read. Since those observations have been misunderstood, we would like to set them out in their entirety.

The Bombay Small Causes Court exercising jurisdiction under Section 28 is a Special Court set up by the said section and appealability attaches to its decree or order under Sec. 29 when it makes a decree or order as such court. No doubt the jurisdiction of the Special Court set up under Section 28 is confined to matters specified therein, which include, among others, the entertaining and trying of suits or proceedings between a landlord and a tenant relating to the recovery of rent or possession of certain classes of premises. But once the Special Court entertains and tries a suit or proceeding which falls within its exclusive jurisdiction, all orders made by it in the said suit or proceeding or in relation thereto, are made by it as Special Court, that is, a court exercising jurisdiction under Section 28 and not only such of them as actually relate to the recovery of rent or possession. Appeal provided under Section 29 of the Act is not confined only to the final decree or order or to an order, which relates to recovery of rent or possession but it lies against all orders except those which are excluded under the proviso to the section. Item (1) from the proviso read with the main section would show that interlocutory and other orders which the Special Court can pass in entertaining, trying and deciding matters within its exclusive jurisdiction which are appealable under the provisions of the Code of Civil Procedure will be appealable under Section 29 of the Rent Act. The argument of the learned advocate, therefore, that the order is not appealable because it does not relate to the recovery of rent or possession, cannot be sustained. It is also not possible to accept the argument that the jurisdiction under Section 28 of the Court ceased on the passing of the ex parte decree and the order made by it on the application for setting aside the ex parte decree could not, therefore, be treated as made by it exercising jurisdiction under Section 28 of the Act.

(emphasis supplied)

28. In Hemchand case (supra), ultimate conclusion of V.S. Desai J. was correct, because once an exparte decree was passed by a Special Court under Section 28 of the Bombay Rent Act, an application for setting aside the exparte decree could be entertained only by that Special Court. Justice V.S. Desai, therefore, rightly rejected contention of the respondent that the jurisdiction under Section 28 of the Special Court ceased on passing of the exparte decree and that the order made by it on the application for setting aside the exparte decree was by a Small Causes Court not acting as a Special Court. So also the contention that the subject matter of the exparte decree was not regarding the rights under the Bombay Rent Act was required to be rejected. The subject matter of the application for setting aside was an exparte decree passed on the basis of the provisions of the Bombay Rent act. Hence, the appeal against that exparte decree or an appeal against an order rejecting the application for setting aside an exparte decree was certainly maintainable under Section 29(1) of the Act. The right of the tenant not to be evicted from the tenanted premises, except in accordance with the provisions of the Bombay Rent Act, was determined by the exparte decree. The order rejecting the application for setting aside the exparte decree was, thus, not a mere procedural order, but an order having direct consequence of eviction of the tenant from the tenanted premises without the tenant getting an opportunity to assert his rights under the Rent Act and contesting the plaintiff-landlord's alleged rights under the Rent Act.

29. We reserve our comments on the underlined observations of V.S. Desai, J. at the later stage of this judgment.

Natvarlal v/s. Khodaji's case

30. The question came up for consideration before a Division Bench of the Gujarat High Court in Natvarlal v. Khodaji, (1967) 8 Gul. L.R. 772 where in a suit governed by the provisions of the Bombay Rent Act as applicable to Gujarat, the Small Causes Court at Ahmedabad passed an exparte decree in favour of the landlord. The defendant's application for setting aside exparte decree was rejected. The defendant filed a civil revision application before the Gujarat High Court challenging this order. It was contended on behalf of the plaintiff-landlord that the revision application was not competent as an appeal would lie to the Bench of two Judges of the Small Causes Court under Section 29(1) of the Bombay Rent Act. The Division Bench upheld that contention and agreed with the reasoning of learned Single of this Court in Hemchand M. Singhania v/s. Subhkaran Nandlal Bargara MANU/MH/0083/1967 : AIR 1967 Bom. 361, by observing as under:-

Once the Special Court entertained and tried a suit or a proceeding which fell within its exclusive jurisdiction, all consequential and incidental orders made by such a Court in such a suit or proceeding must be regarded and considered as made by the Special Court exercising jurisdiction under section 28 of the Rent Act and an appeal provided under section 29 of the Act lies against all orders made in such proceedings except those which are excluded under the proviso to section 29. We are, therefore, with respect, unable to accept the reasoning adopted by Raju, J., in the case of (R.C. Trust v. Ramchandra J. Agarwal) MANU/GJ/0130/1963 : VII G.L.R., 401 and we are of the view that the case was not correctly decided. It may, be mentioned that in this view of ours, we are supported by the decision of the High Court of Maharashtra in (Hemchand M. Singhania v. Subhkaran Nandlal Bargara), 69 Bom. L.R. 857 and we are in respectful agreement with the views and reasoning adopted in that case.
31. In R.C. Trust v. R.J. Agarwal (1966) 7 Guj L.R., Justice V.B. Raju of the Gujarat High Court had taken a view that once an exparte decree was passed under Section 28 of the Bombay Rent Act, the jurisdiction of the Special Court came to an end and the subsequent order passed by the Small Causes Court setting aside the exparte decree was not an order under Section 28 of the Rent Act, but was an order under order 9 Rule 13 of the CPC, and therefore appeal was not maintainable. In Natvarlal's case, the Division Bench rightly did not accept the above view of V.B. Raju J.

Maharana Mills' case

32. Thereafter, in Maharana Mills' case, the question again came up for consideration before a learned Single Judge of Gujarat High Court (Coram S.H. Sheth, J.) in Shri Maharana Mills Pvt. Ltd. v. Harvadan Manharrai and ors MANU/GJ/0063/1972 : AIR 1972 Guj. 296,. The respondent-landlord filed a suit for recovery of possession of the suit premises on grounds of unlawful subletting and irregularity in payment of rent and consequent breach of the term of tenancy. Thereafter, application for amendment of the plaint was allowed for adding one more ground of eviction. In his further written statement to the amended plaint, the defendant raised a plea that standard rent of the suit premises be fixed. The learned trial Judge accordingly framed an issue for fixing of standard rent. The plaintiff, thereafter, made an application for deletion of that issue. That application was rejected. The plaintiff filed a revision application before the District Court challenging that order. The District Court allowed that revision application and directed that additional issue be deleted. That order of the District Court was challenged before the High Court in civil revision application under section 115 of the CPC.

33. Justice S.H. Sheth formulated the following question:

Whether a revision application lies to the District Court against an order refusing to delete an issue raised in a suit, which is governed by the Bombay Rent Act.
After examining the scheme of the Bombay Rent Act and rules framed thereunder, Justice S.H. Sheth held that section 29(3) read with section 31 and rule 16 did not confer upon the District Court revisional jurisdiction in matters which are purely procedural and which did not bear imprint of provisions of the Bombay Rent Act. The learned Judge held that following tests may be applied for determining whether an interlocutory order made in a suit governed by the Bombay Rent Act is revisable by the District Court.

(i) What is the subject matter of the order?

Is it an order, subject matter of which is governed by the provisions of the Bombay Rent Act, or

(ii) Does the order, whose revision is sought, affect substantive rights of the aggrieved party under the Bombay Rent Act.

If the answer is in the affirmative, then revision will be maintainable;

and if the answer is in the negative then section 29 will have no application.

34. The learned Judge then gave following instances of procedural orders, which do not affect the substantive rights of the parties under the Bombay Rent Act or the subject matter of which is not governed by provisions of the Bombay Rent Act, even though the suit is governed by the Bombay Rent Act:

(1) An order granting or refusing leave to amend the plaint or written statement;

(2) An order made for production of documents or discovery or inspection;

(3) An order directing a plaintiff or a defendant to furnish better and further particulars;

(4) An order issuing or refusing to issue a commission for examination of witnesses.

The learned Judge held that these are orders which may be made under the Code of Civil Procedure in a suit governed by the Bombay Rent Act, but the subject matter of orders cannot be said to be governed by provisions of the Bombay Rent Act, as such orders do not affect the substantive rights of parties under the Bombay Rent Act.

35. The learned Judge then gave the following illustrations of orders which satisfy the aforesaid tests and therefore, appealable, even though orders are made under the Code of Civil Procedure:-

(a) an order refusing to set aside an exparte decree on an application made for that purpose in a suit governed by the Bombay Rent Act;

(b) an order refusing to restore a suit to file, which was earlier dismissed and which was governed by the provisions of Bombay Rent Act.

36. And finally the learned Judge held as under:-

6. It is true that section 29(3) uses the expression "order". Orders may be interim or final. Orders may be such which bear indelible imprint of the Bombay Rent Act or they may be such which do not. If there is an interim order or an interlocutory order which is made in a suit governed by the Bombay Rent Act and if it affects the substantive rights of a party under the Bombay Rent Act, the subject-matter of which is governed by the Bombay Rent Act, such an order is revisable by the District Court under Section 29(3). In my opinion, therefore, purely procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or the Rules made thereunder, or the subject-matter of which is not governed by the Bombay Rent Act or the Rules made thereunder are not the orders which attract the revisional jurisdiction of the District Court under Section 29 of the Bombay Rent Act.
37. While we agree with the reasons given by Justice S.H. Sheth for coming to the conclusion that procedural orders to be revisable must affect substantive rights of parties, we see no reason why the rights must be under the Rent Act alone and not under any other substantive law. In fact, we do not agree with the view of the learned judge that an order refusing leave to amend the plaint or written statement will not be revisable. That question did not arise before S.H. Sheth, J. We will, however, give our detailed reasons for this view while discussing Sukhdev's case.

Madanlal Mulchand Soni's case:

38. In Madanlal Mulchand Soni v. Mainkichand Dhanraj Gugle MANU/MH/0243/1983 : 1983 (1) Bom.C.R. 172, Justice B.A. Masodkar of this Court followed the aforesaid judgment of Justice S.H. Sheth. The order passed by the trial Judge for issuing process to the income-tax officer at the behest of the defendant was subjected to revision application before the District Court under section 29(3) of the Bombay Rent Act. The District Court dismissed the revision as incompetent. Justice Masodkar upheld that order after making following observations:

... It is not as if each and every order made by the trial Court is intended to be subjected to the process of revision under sub-section (3). Mere interlocutory or procedural orders are not the orders which can be taken up and challenged under section 29(3) of the Rent Act, unless the orders formally adjudicate and affect rights of the parties, including those in the matters of procedure. It is difficult to conceive that the remedy under section 29(3) of the Rent Act would be available, in the context of the entire scheme of section 29, it appears that the orders, which under the Rent Act determine substantively the rights of the parties and because of that are orders or decrees as such, are in the contemplation of the legislature. Sub-section (3) does not style it as power of revision. It is a power akin to it circumscribed by conditions enacted therein, one such condition being it is available against only otherwise non-appealable "decree" or "order". Wherever the words "decree or orders" are used in section 29, it is apparent that it intends to indicate formal decision affecting rights of the parties.

(emphasis supplied)

Justice Masodkar held in the above case that the word "order" intends to indicate formal decision affecting rights of the parties, but while rightly reaching the conclusion that the order of the trial court for issuing process to the Income-tax Officer at the behest of the defendant was a procedural order, which did not affect the substantive rights of the parties, erred in making wider observations to include rights in the matters of procedure, which observations were obviously not in line with the conclusion.

Sukhdev's case MANU/MH/0273/1983 : 1982 (1) Bom.C.R. 832

39. In Sukhdev Prasad Raghubir v/s. Rambhujarat Ksharmpati MANU/MH/0273/1983 : 1983-Mh.L.J. 9 =AIR 1983 Bom. 25, the petitioner-landlord filed a suit for eviction of the respondent-tenant. During pendency of the suit, amendment of the written statement was permitted. Thereafter, the plaintiff filed an application proposing to amend the plaint by raising a ground that the eviction should also be ordered since the defendant-tenant had denied in the amended written statement the plaintiff's title to the suit property. The amendment application came to be rejected by the trial Court. Against that order the plaintiff filed a revision petition before the Bench of Court of Small Causes under Section 29(3) of the Old Rent Act. The revision petition was rejected as not maintainable. When the matter came up for hearing before a learned Single Judge, in view of importance of question about maintainability of the revision petition, the matter was referred to a larger Bench. That is how the Division Bench of this Court (Coram: C.S. Dharmadhikari and S.P. Kurdukar, JJ.) heard and decided the writ petition. The Division Bench held that the appellate bench of the Small Causes Court was right in holding that revision petition was not maintainable, but on merits of the challenge to the order of the trial Court rejecting the application for amendment of the plaint, the Division Bench held that the amendment sought by the plaintiff in the plaint was obviously consequential to the amendment in the written statement and the impugned order of the trial Court was contrary to the well established principles of law and caused miscarriage of justice. Hence, the writ petition was allowed and the application for amendment filed by the plaintiff was allowed.

40. The Division Bench considered at length the question about maintainability of the revision after tracing the legislative history of Section 29 of the Old Rent Act and observed as under:-

Section 29 came to be amended by Bombay Act No. 61 of 1953 whereby proviso to sub-section (1) and sub-section (3) were inserted in section 29. The relevant clause of the Statement of Objects and Reasons, reads as under:-

The right of appeal has been curtailed by eliminating unimportant appeals, and providing revisional procedure in such cases
Therefore, if section 29(3) is read with the Statement of Objects and Reasons, it is quite obvious that while curtailing the right of appeal by eliminating unimportant appeals, the legislature wanted to provide revisional procedure in those matters only. The intention of the Legislature was not to expand the scope of revisional jurisdiction of the Court of Small Causes.

41. The Division Bench relied upon the aforesaid three decisions of the Supreme Court and then made the following observations:

In our opinion, these observations of the Supreme Court aptly apply to the present case also. If the words used in S. 29(1) or (3) interpreted in its context, then the words "any order" will not include in its (their?) import the procedural orders, which do not affect the right and liabilities of the parties. Therefore, obviously no revision petition can lie against a mere procedural order. It is not disputed that order passed in the present case rejecting the application for amendment was an interlocutory order which does not decide finally the right and liabilities of the parties to the suit. Therefore in our opinion the Bench of Small Cause Court was right in holding that the revision petition was not maintainable.
42. After referring to a decision of S.H. Sheth, J. of Gujarat High Court in Maharana Mills Pvt. Ltd. v. Harvadan Maharani & ors. MANU/GJ/0063/1972 : AIR 1972 Guj. 226, the Division Bench observed thus:-

After analysing the relevant provisions of the Rent Act as well as the Rules framed thereunder, it is held by the Gujarat High Court in Maharana Mills case that purely procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or the rules made thereunder the subject-matter of which is not governed by the Rent Act or the rules made thereunder are not the orders which attract the revisional jurisdiction of the District Court under section 29(3) of the Act.
43. The Division Bench also referred to decisions of three learned Single Judges of this Court [Sapre J., Kantawala, CJ. and Masodkar J.] from 1977 onwards taking the view that order dismissing application for amendment of the plaint cannot be treated as affecting substantive rights of the parties under the Rent Act and that procedural orders like order granting or rejecting amendment are not revisable. After considering all these decisions, the Division Bench made the following observations:

7. Therefore, all through a consistent view has been taken by this Court that purely procedural orders which do not affect the substantive rights of the parties are not revisable under Section 29(3) of the Bombay Rent Act. This interpretation, with which we respectfully agree, is consistent with the intention of the Legislature as expressed in Statement of Objects and Reasons. It was not the intention of the Legislature to widen the scope of appeal or revision by amending Act, right of appeal was curtailed by eliminating unimportant appeals and providing revisional procedure in such cases. By adding proviso to Section 29(1) the Legislature curtailed the right of appeal by laying down that no appeal shall lie form the orders enumerated in the said proviso. It is well settled that the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The proviso to Section 29(1) was deemed necessary because but for the proviso orders enumerated in Clauses (I) to (IV) would have been appealable under Section 29(3). [(sic-Section 29(1)] Therefore, by adding proviso to sub-section (1) of S. 29, it was intended by the Legislature that right of appeal should be curtailed by eliminating unimportant appeals and in such cases only revisional procedure should be provided, by addition sub-section (3). If under Section 29(1) no appeal could lie against the procedural orders then obviously by an indirect method a further forum was not intended to be provided by enacting sub-section (3). Therefore, in our view, the consistent view taken by the single Benches of this High Court lays down the correct law on the subject.

(emphasis supplied)

44. We approve the principles laid down by Justice S.H. Sheth in Maharana Mills' case (supra), and by the Division Bench of this Court in Sukhdev's case (supra) that for an order to be revisable under Section 29(3) of the Bombay Rent Act and therefore also under Section 34(4) of the Maharashtra Rent Control Act, the order must not be a mere procedural order, but it must determine or affect the substantive rights and liabilities of the parties.

45. In Sukhdev's case, the landlord had prayed for eviction for failure in payment of rent as one of the grounds and the tenant in his amended written statement denied the plaintiff's title. The plaintiff-landlord filed an application proposing to amend the plaint by raising a ground of denial of the plaintiff-landlord's title. The subject matter of the application for amendment of the plaint was definitely governed by the provisions of the Bombay Rent Act and, therefore, the order rejecting the application did affect the plaintiff's substantive rights under the Rent Act. The Division Bench was, therefore, not right in taking the view that an order refusing leave to amend the plaint was not a revisable order.

46. We may hasten to add that an order granting leave to amend the plaint or written statement would not be revisable, because that order by itself does not affect the rights and liabilities of the parties, which are going to be decided at the trial, where evidence would be led on the basis of the amended pleadings and the Court would finally determine the rights and liabilities of the parties in the final judgment in the suit.

Merely because after an application for amendment of the plaint is rejected, the plaintiff-landlord may be in a position to file another suit for eviction on another ground, it would not mean that the order does not determine or even affect the rights and liabilities of the parties under the Rent Act. The order rejecting the application for amendment of the plaint, does determine, in so far as that particular suit is concerned, that the plaintiff is not entitled to invoke another ground of eviction in that particular suit. Similarly, where the Special Court under the Rent Act refuses leave to amend the written statement, wherein the tenant is seeking by amendment to add any defences arising from the provisions of the Bombay Rent Act or under any other substantive law, such an order would be revisable.

47. In Maharana Mills' case, the order of the trial Court rejecting the application for deleting an issue did not affect the substantive rights of the parties, because evidence would be led by the parties at the trial and the Court would finally determine the rights and liabilities of the parties qua that issue in the final judgment. On the other hand, if the trial Court had passed the order for deleting the issue of standard rent, it would have definitely affected the substantive rights of the tenant and substantive liabilities of the landlord under the Rent Act. Hence, the order refusing to delete the issue was not revisable.

Pacific Engineering Co. Pvt. Ltd.'s case 2005 (1) Bom. C.R. 427

48. This decision requires detailed consideration. The plaintiff-Pacific Engineering had filed R.A.E. Suit for eviction of the defendant on the ground that the plaintiff had granted to the first defendant (respondent in the revision) a licence to use and occupy the suit flat, but that defendant unlawfully sublet the flat and gave it on licencee or parted with possession of the suit flat to the second defendant. The plaint proceeded on the assumption that the defendant was a protected licence or a deemed tenant. The plaintiff, then, applied for unconditional withdrawal of the suit. The Small Causes Court rejected that application. That order came to be challenged in the revision application under Section 115 of the CPC before the High Court. The respondent in the revision (the first defendant in the suit) contested the CPC revision on the ground that a revision was maintainable before the appellate bench of the Small Causes Court under Section 29(3) of the Bombay Rent Act. The plaintiff contended that a revision was not maintainable before the appellate Bench under Section 29(3) of the Bombay Rent Act, because unconditional withdrawal of the suit was a matter governed by Order 23 Rule 1 of the CPC and, therefore, rejection of the application under Order 23 Rule 1 of the CPC did not decide any rights or liabilities under the Bombay Rent Act or under the Bombay Rent Control Rules.

49. Justice Vazifdar held that interlocutory orders that are purely procedural and do not affect the substantive rights of the aggrieved parties are neither appealable nor revisable by the trial Court under Section 29 of the Bombay Rent Act. But an order on an application under Order 23 Rule 1 of the CPC to withdraw a suit unconditionally affects the substantive rights of the aggrieved party. An order rejecting such application bears an imprint of the provisions of the Bombay Rent Act and Bombay Rent Control Rules. On that ground, revision before the appellate Bench of Small Causes Court was held to be maintainable and on that basis the CPC revision was dismissed by the High Court as the alternative remedy was available before the appellate Bench of Small Causes Court.

50. In our opinion, the aforesaid findings of Justice Vazifdar were absolutely correct, because if an application for unconditional withdrawal of the suit is granted, the plaintiff is precluded under Order 23 Rule 4 of CPC from instituting any fresh suit in respect of such subject matter, (subject matter of the suit was assertion of the plaintiff's right as a landlord to get the defendant evicted under the Bombay Rent Act.). Withdrawal of the suit would, therefore, preclude the plaintiff from asserting his right for eviction of the defendant on the ground alleged in the plaint. The order on the application for withdrawal of the suit would, therefore, affect the rights and liabilities of the parties under the Bombay Rent Act. In other words, when a plaintiff applies for unconditional withdrawal of a suit under Order 23 Rule 1 of CPC, the order granting leave would finally conclude the proceeding under the Rent Act and in that sense would bring to an end the proceeding under the Bombay Rent Act and would preclude the plaintiff from filing another suit against the same defendant on the same subject matter. If such an application is rejected, it would take away the plaintiff's right not to assert his right under the Rent Act. On this ground alone it was sufficient for Justice Vazifdar to hold that revision application against the order of the trial court rejecting the application for unconditional withdrawal of the suit was maintainable under Section 29(3) of the Bombay Rent Act, as it affected the substantive rights of the plaintiff under the Bombay Rent Act.

Further Discussion

51. In our opinion, it was, therefore, not necessary for Justice Vazifdar to consider the question of alleged conflict between the views of Division Bench in Sukhdev's case (supra) on one hand and the view of a learned Single Judge of this Court in Hemchand (supra) and of the Division Bench of Gujarat High Court in Natavarlal (supra) on the other hand.

However, since the views expressed by Justice Vazifdar in Pacific Engineering's case have given rise to serious doubt about correctness of the principles laid down by the Division Bench in Sukhdev's case (supra), we have considered at length all the judgments.

52. Justice Vazifdar set out the relevant conclusion in paragraph 10(v) as under:-

10(V) The applicability of Section 29(3) is not restricted only to orders which relate to those aspects for which the Bombay Rent act was enacted such as orders for possession or rent.
But the learned Judge expanded the principle in para 38(b) as under:

38(b) Moreover the expression "substantive rights" used in the authorities I have considered must be understood in the lexical sense. It ought not necessarily to be construed as a right created by a statute or any other law. In other words, to be revisable it is not necessary that the order must relate to a provision of substantive law. Even if it relates to a procedural law it would be revisable if it affected substantively the rights of a party.

(emphasis supplied)

For arriving at this conclusion, Justice Vazifdar relied on the observations made by the learned Single Judge of this Court in Hemchand Singhania v/s. Subhkaram Baragra MANU/MH/0083/1967 : AIR 1967 Bom. 361, and the Division Bench of the Gujarat High Court in Natvarlal v/s. Khodaji, MANU/GJ/0108/1966 : 1967 (8) Guj. L.R. 772 Justice Vazifdar took the view that the decision of Justice S.H. Sheth in Maharana Mills's case was contrary to the judgment of this Court in Hemchand's case and also contrary to the Division Bench judgment of the Gujarat High Court in Natvarlal.

53. In our opinion, we do not see any conflict between the principles laid down by V.S. Desai J. of this Court in Hemchand (supra) and by the Division Bench of the Gujarat High Court in Natwarlal (supra) on the one hand and the principles enunciated by Justice S.H. Sheth in Maharana Mills (supra) on the other hand.

54. Division Bench of the Gujarat High Court in Natavarlal (supra) and a Single Judge of this Court in Hemchand (supra) were dealing with the case where exparte decree was passed by the Small Causes Court exercising jurisdiction as the Special Court under Section 28 of the Bombay Rent Act. When the Defendant made an application for setting aside that exparte decree, the application was rejected by the trial court and the question was whether an appeal was maintainable before the appellate Bench of the Small Causes Court under Section 29(3) of the Bombay Rent Act against such order rejecting application for setting aside exparte decree.

55. Proviso (a) to Section 29(1) conferring in wide terms right of appeal from a decree or order made by the Court of Small Causes before the Bench of two Judges of the same Court, lays down that "no such appeal shall lie from a decree or order made in any suit or proceedings in respect of which no appeal lies under the Code of Civil Procedure, 1908."

Order 43 Rule 1(d) expressly provides that an appeal shall lie from an order under Order 9 Rule 13 rejecting an application for an order to set aside a decree passed exparte. It is, therefore, clear that an appeal against the order of the Small Causes Court acting as a Special Court under Section 28 of the Bombay Rent Act rejecting an application for an order to set aside a decree passed exparte was and has always been an appealable order. All that this Court in Hemchand (supra) and the Division Bench of Gujarat High Court in Natvarlal (supra) held was that the Small Causes Court is a Special Court exercising powers under the Code of Civil Procedure and that interlocutory and other orders which the Special Court may pass in entertaining, trying and deciding the matters within its exclusive jurisdiction, which are appealable under the provisions of the Code of Civil Procedure, are appealable under Section 29 of the Bombay Rent Act.

56. Even Justice S.H. Sheth held that the order of the Presidency Small Causes Court rejecting an application for setting aside an exparte decree under the Rent Act is appealable under Section 29 of the Bombay Rent Act, because the suit is governed by the Bombay Rent Act and the order affects the substantive rights of the parties under the Bombay Rent Act. We, therefore, see no conflict between the view of Justice S.H. Sheth on one hand and the view of the Division Bench of the Gujarat High Court in Natvarlal (supra) and the view of the learned Single Judge of this Court in Hemchand (supra) on the other hand.

57. The view taken by Justice V.S. Desai as well as the Division Bench of the Gujarat High Court that the order rejecting application for setting aside exparte decree is appealable under Section 29(1) of the Bombay Rent Act was the correct view, because the subject matter of the exparte decree was rights and liabilities of the plaintiff-landlord and defendant-tenant under the Bombay Rent Act. An order on the application for setting aside the exparte decree would directly affect the rights and liabilities of the parties under the Bombay Rent Act. Justice S.H. Sheth also expressed the same view in Maharana Mills's case (supra).

58. Having considered all the submissions, we are of the view that the uncertainty about the legal position in the matter of maintainability of revision applications under Section 29(3) of the Old Rent Act and under Section 34(4) of the New Rent Act has arisen on account of the manner in which the ratio of the V.S. Desai, J. in Hemchand's case and the ratio of the Division Bench in Sukhdev's case have been read and applied and not properly appreciated. The Division Bench in Sukhdev's case(supra) did not hold that to be revisable an order of the trial Court must be for possession or for recovery of rent or for fixation of rent. The underlined observations of the Division Bench in para 7 of it judgment as quoted in para 44 hereinabove contain the ratio of the decision.

59. While the conclusion of Justice Vazifdar in para 10(V) is correct, we do not approve of the observations made by Vazifdar, J. in para 38(b) of the judgment in Pacific Engineering case [para 9(iii)] in so far as they may be read as meaning breach of a procedural law would also give right of revision, even if the order does not affect rights under a substantive law.

60. For taking the above view, Justice Vazifdar relied on the observations of V.S. Desai, J. in Hemchand's case. It needs to be appreciated that the observations of V.S. Desai, J. relied upon by Justice Vazifdar merely dealt with the argument of the learned counsel for the petitioner landlord in that case which is already set out in para 27 hereinabove. V.S. Desai, J. merely repelled the contention of the petitioner's counsel that the Special Court under the Rent Act, while deciding application under Order 9 Rule 13 of the CPC, was not dealing with the question relating to recovery of rent or possession of the suit premises. The orders for recovery of possession of the suit premises are generally passed at the end of the trial and in the form of a decree. Hence, V.S. Desai, J. was not required to deal with the question of maintainability of appeal or revision against an interlocutory order. Generally revisions under section 34(4) of the Maharashtra Rent Control Act would not pertain to questions relating to the recovery of possession of the suit premises which are generally decided at the conclusion of the trial. The revisable orders are generally made at the interlocutory stage and, therefore, the question of recovery of possession would not arise at that stage. For an order to be revisable, therefore, the order may not determine but must affect some substantive rights and liabilities of the parties, which position was accepted by Justice Vazifdar also. The observations of V.S. Desai, J. in Hemchand's case must accordingly be read in the context of the controversy in that case.

61. In Ashwani Kumar Singh & Ors. vs. U.P. Public Service Commission & Ors. MANU/SC/0461/2003 : (2003) 11 SCC 584, the Supreme Court observed as under:-

10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are no to be construed as statutes. To interpret words, phrases and provisions of statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In State of Orissa vs. Sudhansu Sekhar Mishra MANU/SC/0047/1967 : AIR 1968 SC 647, the Supreme Court quoted the following principles laid down by Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:

Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The order is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.
Conclusions on maintainability of Revision

62. We agree that Section 29(3) of the Old Rent Act and Section 34(4) of the New Rent Act are not restricted only to orders for possession or rent, but at the same time it does not mean that all non-appealable orders of the Special Court under the Rent Act are revisable. It is true that orders may not be orders for possession or fixation or recovery of rent, but the orders must directly affect the substantive rights of the parties under the Rent Act or some other substantive law and not merely affect the rights of the parties under a procedural law like CPC or Evidence Act. Looking to the language of section 29(3) of the Old Rent Act and section 34(4) of the New Rent Act ("that the decree or order was made according to law"), we see no justification for restricting revisions to orders affecting substantive rights only under the Rent Act.

63. As already indicated earlier, the rationale for narrowly reading the word "order" in the provision conferring right of appeal (to avoid harassment of parties on account of delay and endless expenses) would also apply for narrowly interpreting the word "order" in section 34(4) of the New Rent Act and section 29(3) of the Old Rent Act as well and that was the rationale which commended to the Division Bench in Sukhdev Prasad Raghubir's case in the year 1983 and that is the interpretation which has held the field, in so far as the State of Maharashtra is concerned, for the last 35 years. If any other view is taken, purposeful object of speedy trial, as mandated by section 38 of the Maharashtra Rent Control Act, would be completely defeated.

64. In case, there is a conflict, as perceived by Justice Vazifdar, we approve the narrower view taken by the Division Bench in Sukhdev's case (supra) as indicated at the commencement of para 7 of its judgment as quoted in para 44 hereinabove.

65. Even so, we hold that the Division Bench in Sukhdev's case was not right in holding that an order of the Rent Court rejecting an application for amendment of plaint/written statement is not revisable under section 29(3) of the Bombay Rent Act which is in pari materia with section 34(4) of the Maharashtra Rent Control Act.

Where the proposed amendment asserts the rights of the concerned party under the Rent Act or any other substantive law or liabilities of the other party under the Rent Act, the order rejecting the application for amendment of plaint/written statement would be revisable under section 34(4) of the Maharashtra Rent Control Act.

66. For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case and not merely a procedural order, (not affecting the substantive rights of parties), which may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

67. This, discussion, therefore, brings home the point that in each case the Court has to be careful while applying the settled legal principles on the question of maintainability of revision application under Section 29(3) of the Bombay Rent Act and/or under Section 34(4) of the Maharashtra Rent Control Act.' We may, therefore, refer to a few other cases and at the end of the judgment give illustrations of cases which are revisable or non-revisable under section 34(4) of the Maharashtra Rent Control Act, 1999.

A few other cases

68. In Aspi R. Setha v/s. Mr. Sunermal M. Bafna & ors. dated 19 December 2003 in Civil Revision Application No. 489 of 2003, during pendency of a suit for possession under the Bombay Rent Act, the petitioner took out a notice for a declaration that the suit had abated in view of the death of the sole defendant and prayed for stay of further proceeding. The Small Causes Court dismissed the said interim notice and hence the petitioner preferred civil revision application under Section 115 of the CPC. The respondent raised a preliminary objection that the civil revision application under section 115 of the CPC was not maintainable in view of alternate remedy of revision available under Section 29(3) of the old Rent Act.

Learned counsel for the petitioner contended that the subject matter of the impugned order was not covered by the Rent Act, that the application made by the petitioner for recording abatement of the suit was merely procedural and substantive rights of the parties under the Rent Act were not affected and therefore the revision under Section 29(3) was not maintainable.

The learned single Judge considered various decisions including the decision of Division Bench in Sukhdev's case(supra) and held that if the application had been decided in favour of the plaintiff, the suit would have been dismissed as having abated and that order would have been final materially affecting the rights of the parties. The learned single Judge referred to the decision of the Supreme Court in Bant Singh Gill v/s. Shantidevi MANU/SC/0335/1967 : AIR 1967 SC 1360, where the Supreme court observed that if the issue (about maintainability of the suit on the ground that it had abated) had been decided in favour of the appellant therein and the suit had been dismissed as having abated, there would have a final order in the suit having effect of decree. Hence, such an order on application for declaring the suit as abated affects substantive rights of the parties and therefore cannot be considered as mere procedural order. Hence, the revision application under Section 29(3) under the Bombay Rent Act would be maintainable before the appellate Bench of the Small Causes. Of course, such an order was not appealable, because it is not covered by Order 43 of CPC.

In our view, this judgment also correctly applies the test which has commended to us. Besides, that test is also the only test which is required to be now applied while determining the maintainability of a revision under section 115 of the Civil Procedure Code as amended w.e.f. 1 July 2002.

69. In Mohanraj Rupachand Jain v. Kewalchand Hastimal Jain, MANU/MH/1049/2006 : 2007 AIHC 1015, the learned Single Judge held that revision under section 34(4) of the Maharashtra Rent Control Act was not maintainable against an order of the trial Court rejecting an application objecting to admissibility of certain documents, which were sought to be produced on record along with an affidavit under rule 18 of the CPC. The learned Judge rightly held that the order in question was only a procedural order, which did not affect the substantive rights of parties.

70. In J.M. Constructions v/s. Rustom P. Patel, MANU/MH/0682/2008 : 2008 (5) Bom.C.R. 598, the trial Court passed the order on an application taken out by the defendant for condoning delay in filing the written statement and to take written statement on record beyond specified period. The Revisional Court set aside the order and directed the trial Court to take the written statement on record. In writ petition challenging that order, a learned Single Judge of this Court held that it was essentially a procedural order, against which revision application was not maintainable under section 34(4) of the Maharashtra Rent Control Act. On this ground alone the order of the revisional Court was set aside.

We agree with the submission made by the learned counsel for the respondents that when the trial Court refused to condone delay in filing the written statement and to take written statement on record, the order did affect substantive rights of the defendant-tenant to plead defences available to him under the Rent Act and to place on record the material facts in support of those defences. The impugned order of the trial court was, therefore, not a mere procedural order not affecting substantive rights of the parties under the Rent Act. The Revision application in such a case would, therefore, be maintainable under Section 34(4) of the Maharashtra Rent Control Act.

71. In Abeda Iqbal Patel vs. Cormorant Investment Pvt. Ltd. 2009 (2) MLJ 446, a learned Single Judge of this Court held that for challenging an order granting and/or refusing amendment of plaint or written statement, the only remedy is revision. The learned Judge held that even if it is a procedural order, if the Court is satisfied that it was not made according to law, the interference is a must. The learned Judge held that if an appeal is not available, the order is not in accordance with law and it affects the substantial rights of the parties, revision is maintainable under section 34(4) of the Maharashtra Rent Control Act and section 29(3) of the Bombay Rent Act.

72. While we agree, for the reasons recorded earlier that an order rejecting an application for an amendment of a pleading is revisable, the order granting such application is not revisable. We also reiterate that the order refusing leave to amend the plaint or written statement is revisable not because it is a procedural order, but because it affects substantial rights of the parties, i.e. rights under a substantive law.

73. In Laheribai (since deceased) through heirs v/s. Dharamdatta MANU/MH/1611/2009 : 2010 (1) Mh.L.J. 598, in a suit for possession under the Rent Act filed in the year 1982, an application was made by the petitioner (legal representatives of the original plaintiff) seeking permission to delete the names of respondents Nos. 2 to 4 in March 2005. The trial court allowed the application and fourteen days time was granted for carrying out amendment to the suit. The order was not complied with and the suit was dismissed for default on the date of hearing. The petitioners, therefore, took out a notice for restoration of the suit. The notice was dismissed by the trial Court. The revision application came to be dismissed by the appellate Bench of the Small Causes Court on the ground that the order of dismissal of the suit was under Order 9 Rule 8 of the CPC and therefore against order of the trial Court dismissing the application for restoration, an appeal was maintainable.

After hearing the parties, the learned Single judge held that the suit was dismissed for default of appearance of both the parties and their advocates. Order 9 Rule 8 of CPC applies to a situation when the defendant appears and the plaintiff is absent. Order 9 Rule 3 applies to a situation when neither of the parties appears and the court dismisses the suit. The learned single Judge, accordingly, held that as the suit was dismissed under Order 9 Rule 3 of the CPC, an application for restoration was maintainable under Order 9 Rule 4 of the CPC. An order passed under Order 9 Rule 4 is not appealable. The question, therefore, was whether the revision was maintainable against the order of trial Court rejecting an application for restoration under Order 9 Rule 4 of the CPC.

The learned single Judge following the Division Bench judgment in Sukhdev (supra) held that the impugned order was a procedural order, which did not affect substantive rights and liabilities of the parties under the Rent Act. The learned single Judge, ultimately examined the challenge to the impugned order of the trial Court on merits and held that the application for restoration deserved to be allowed. The learned single Judge accordingly allowed the writ petition by setting aside the order of the trial Court.

Having carefully gone through the said decision, we agree with the learned counsel for the respondents that, even applying the principles laid down by the Division Bench in Sukhdev's case(supra), the order of the trial court rejecting the application for restoration under Order 9 Rule 4 was not a mere procedural order. The order did affect the substantive rights of the parties. The order did cause substantial prejudice to the plaintiff, who had filed the suit for asserting his rights and liabilities against the tenant under the Bombay Rent Act.

Q. No. (i): Scope & Amit of Power of Revision

74. Coming to the question about the scope and ambit of the power of revision under Section 34(4) of the New Rent Act, the learned counsel for respondents have submitted that the scope of revisional power under Section 34(4) of the New Rent Act, like Section 29(3) of the Old Rent Act, is very wide and it is not to be confined to narrower terms as has been done in Section 115 of Civil Procedure Code.

75. Reliance is placed on the following celebrated observations of Chief Justice Beaumont of this Court in Bell & Co. Ltd. v. Waman Hemraj MANU/MH/0120/1937 : AIR 1938 Bom 223, rendered in the year 1937, while interpreting the provisions of Section 25 of the Provincial Small Causes Courts Act:

The scheme of the Small Causes Courts Act is to provide a summary remedy for recovering small sums, and it is an essential part of the scheme that the Judge's decision is final. Section 27 of the Act provides: "Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final," There is no appeal either on facts or law, but Section 25 provides: " The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit." In my opinion that section ought not to be construed as giving the parties a right of appeal on points of law. The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Civil Procedure Code, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.

(emphasis supplied)

It is necessary to remember that above observations were made by Beaumont C.J. after noting that there is no appeal either on facts or law against the decree or order of the Court of Small Causes and only a power of revision was conferred under Section 25 of Provincial Small Causes Courts Act. The underlined words also indicate that what the learned Chief Justice had in mind was revision after the trial and not during the trial.

76. Similar words in Section 34 of the Delhi & Ajmer Rent Control Act, 1952 came up for consideration before the Supreme Court in Hari Shankar v/s. Rao Girdhari Lal Chowdhuri 1962 SCR Supl. (1) 933 = MANU/SC/0346/1961 : AIR 1963 SC 698. The Supreme Court made the following observations:-

The phrase "according to law" refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which s. 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit-is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.

(emphasis supplied)

The above observations were also made by the Supreme Court while examining the scope and ambit of power of revision against the final order of the Rent Controller.

77. The observations of Beaumont C.J., have, thereafter, also been approved by the Supreme Court in various other decisions, such as Malini Ayyappa Naicker v/s. Seth Manghraj Udhavdas Firm MANU/SC/0365/1969 : AIR 1969 SC 1344 and in Shiv Sarup Gupta v/s. Dr. Mahesh Chand Gupta MANU/SC/0432/1999 : (1999) 6 SCC 222. In the latter decision the Supreme Court examined the scope of revisional power of the High Court under Section 25-B of the Delhi & Ajmer Rent Control Act, 1958, which also confers power of revision on the High Court in the following terms:-

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law (or not), call for the records of the case and pass such order in respect thereto as it thinks fit'.
After observing that the revisional jurisdiction exercisable by the High Court under the above provision is not so limited as is under Section 115 CPC nor so wide as that of an appellant Court, the Supreme Court further observed as under:-

The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-Section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law. [See; Sarla Ahuja Vs. United India Insurance Co. Ltd. -MANU/SC/0665/1998 : (1998) 8 SCC 119 and Ram Narain Arora Vs. Asha Rani and Ors. - MANU/SC/0558/1998 : (1999) I SCC 141.]

(emphasis supplied)

78. It is, however, necessary to remember that the above observations were made in the context of provisions of Section 25-B of the Delhi & Ajmer Rent Control Act, which provides for a special procedure to be followed for disposal of an application for eviction on the ground of bonafide need and this ground of eviction of the tenant has been treated on a footing different than the one on which other grounds of eviction of a tenant stand. Sub-section (8) thereof provides that no appeal or second appeal shall lie even against a final order for the recovery of possession of any premises made by the Controller in accordance with the procedure provided in Section 25B. Only power of revision is provided by proviso to Section 25-B. It is, thus, necessary to remember that the observations made by the Supreme Court while interpreting the scope of revision against a final judgment of eviction cannot be applied verbatim to the provisions of Section 34(4) of the Maharashtra Rent Control Act, because sub-section (1) of section 34 confers the rights of appeal against a decree of eviction and sub-section (4) confers revisional jurisdiction on the same superior Court for revision against non-appealable orders.

79. In Ram Das v/s. Iswar Chander and ors MANU/SC/0399/1988 : (1988) 3 SCC 131, also the Court was considering the scope of revision against a decree of eviction and in that context it was held that Section 15(5) of the E.P. Urban Rent Restriction Act, 1949 enables the High Court to satisfy itself to the "legality and propriety" of the order under revision, which is, quite obviously, a much wider jurisdiction.

80. Having considered the aforesaid decisions and other judgments cited at the bar, we are of the view that the scope and ambit of the revisional power under Section 34(4) of the Maharashtra Rent Control Act and under Section 29(3) of the Bombay Rent Act, though not as narrow as the scope of the revisional power under Section 115 of the CPC, at the same time it is not so wide as to enable the revisional Court to interfere with an order of the trial Court under the Rent Act, merely on the ground that it is not according to procedural law. The expression "according to law" has to be interpreted as "in accordance with the provisions of the Bombay Rent Act or any other substantive law." Merely because the revisional Court comes to the conclusion that an impugned order is not in conformity with the procedural requirements of CPC, would not be a ground for revision. As held by the Supreme Court, phrase "according to law", refers to the decision as a whole and is not equated to errors of law or facts simplicitor, it refers to the overall decision which must be according to law, which it would not be if there is a miscarriage of justice due to a mistake of law. This would mean that the revisional Court would not be justified in interfering with a decision, unless there is miscarriage of justice resulting from a mistake of law.

81. We have also noticed in a large number of cases that in writ petitions under Articles 227 of the Constitution challenging interlocutory orders passed by the trial Court, preliminary objection is very often raised about maintainability of alternative remedy of revision under Section 29(3) of the Bombay Rent Act, 1947 or under Section 34(4) of the Maharashtra Rent Control Act, 1999 and substantial judicial time and energy are required to be invested in deciding the question whether the alternate remedy of revision under the Rent Act is available before the appellate Bench of the Small Causes Court (or before the District Judge as the case may be). While it is certainly open to the learned single Judge of this Court hearing writ petitions under Articles 226/227 of the Constitution to decline to entertain a writ petition on the ground of availability of equally efficacious alternate remedy of revision under the Rent Act, there may be a large number of writ petitions, where the High Court may consider it appropriate to refuse to entertain the writ petitions, on the ground that the impugned order is a mere procedural order, which does not cause any miscarriage of justice, without going into the question whether the substantive rights of the parties under the Rent Act are affected or not. It is well settled that the power of superintendence conferred by Article 227 of the Constitution should be exercised most sparingly only to keep subordinate courts and inferior tribunals within the bounds of their authority and not for correcting errors of fact or of law. A petition under Article 227, therefore, cannot be treated as an appeal or revision in the nature of extension of provision conferring such right.

82. The superior Court, whether exercising writ jurisdiction or revisional jurisdiction has always the discretion to decline to exercise such jurisdiction in appropriate cases on the ground that it will be open to the aggrieved party to make a grievance against the impugned order in the appeal against the final judgment, which may be passed by the trial Court.

FINAL ANSWERS

83. In the result, therefore, our answer to question No. 2 referred for our consideration is as under:-

A revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999 is not maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of Maharashtra Rent Control Act, if such order does not affect the rights of parties under the Maharashtra Rent Control Act or any other substantive law. While an order to be revisable need not necessarily be an order for possession or fixation or recovery of rent, nevertheless, the order sought to be revised must directly affect the substantive rights and liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act.
84. For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

85. Following are instances of revisable orders.

(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law

(ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC

(iii) an order allowing or rejecting an application for a declaration that the suit has abated

(iv) an order refusing to extend the time for filing a written statement

(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law

This list is illustrative and not exhaustive.

86. Following are instances of orders which would not be revisable orders:-

(i) an order granting leave to amend plaint or written statement

(ii) an order granting extension of time to file written statement

(iii) an order raising additional issue

(iv) an order made for production of documents or discovery or inspection.

(v) an order directing a plaintiff/defendant to furnish better and further particulars

(vi) an order issuing or refusing to issue a commission for examination of witnesses

(vii) an order issuing or refusing to issue summons for additional witness or document

(viii) an order condoning delay in filing documents, after the first date of hearing.

(ix) an order of costs to one of the parties for its default

(x) an order granting or refusing an adjournment

(xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC

This list is also illustrative and not exhaustive.

87. As regards question No. 1 about scope and ambit of power of revision under Section 34(4) of the Maharashtra Rent Control Act, 1999, our answer is that after the revisional Court is satisfied about maintainability of the revision application, the revisional Court will consider whether the impugned order is according to law. However, "according to law" refers to the order as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be, if there is a miscarriage of justice due to mistake of law. Hence, mere breach of, or non-conformity with, the provisions of Code of Civil Procedure or the Evidence Act or similar other procedural laws, will not be a ground for interfering with the impugned order of the trial Court. The revisional powers are intended to be exercised with a view to subserve and not to defeat the ends of justice. As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular. The writ petitions will now go back to the learned Single Judge for hearing and deciding them in light of the principles laid down in this judgment.




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