Monday, 29 April 2019

Whether appellate court can condone delay if it has no jurisdiction to entertain appeal?

Learned Ad hoc District Judge-5, Nagpur has found that there was sufficient cause, which prevented petitioner from filing an appeal within time, but then it also correctly found that appeal was not provided for and hence, application for condonation of delay before it was misconceived. It is apparent that whether the proceedings in relation to which delay was sought to be explained, were maintainable before that Court was the first issue and after satisfaction about the maintainability of appeal, the jurisdiction to condone delay could have been exercised by that Court. If the Court had no jurisdiction to entertain the appeal, it could not have condoned  the delay in filing the same before it. The approach of learned Ad hoc District Judge, therefore, is neither erroneous nor perverse.. There is no jurisdictional error.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 4066 of 2009

Decided On: 03.12.2009

 Pundalik Haribhau Chandekar Vs. Jagdish Dadaji Bind

Hon'ble Judges/Coram:
B.P. Dharmadhikari, J.

Citation: 2010(2) ALLMR 260


1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner-tenant has challenged the order passed below Exh. 1, by Ad hoc District Judge-5, Nagpur in Misc. Civil Application No. 862/2008, rejecting the application for condonation of delay on the ground that appeal itself was not provided for in the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the 1999 Act").

2. I have heard learned Advocate Shri Raju Dhoble for the petitioner and learned Advocate Shri Sambhare holding for Advocate Shri A.G. Gharote for respondent finally looking to the nature of controversy, by making Rule returnable forthwith.

3. On 14/10/2009, this Court gave time to both the sides to find out whether the matter could be amicably settled and also gave them further time on 13/11/2009. On 23/11/2009, I have heard the parties on the issue of maintainability and they were further heard on 25/11/2009.

4. Learned Advocate Shri Dhoble for the petitioner states that the Court below could not have dismissed the appeal itself when it was deciding the prayer for condonation of delay. According to him, the appeal should have been registered after condoning the delay and then after hearing respective sides, the finding about its maintainability could have been delivered. He contends that the provisions of section 8 need to be read along with the provisions of section 34 of the 1999 Act and the remedy of appeal against order determining standard rent is very much available to the petitioner. Learned Advocate Shri Sambhare, on the other hand, contends that petitioner before this Court is tenant and the law does not contemplate any appeal against such order by tenant. He has also relied upon the provisions of section 8 and section 34 of the 1999 Act for this purpose.

5. Provisions of section 8 appear in Chapter II of the 1999 Act and it deals with fixation of standard rent and permitted increases. Its Sub-section (5) states that no appeal shall lie from any order of the Court under Sub-section (3) and Sub-section (4) of Section 8. Sub-section (3) of section 8 states that the Court has to forthwith specify the amount of rent or permitted increase to be deposited in the Court by tenant and require tenant to deposit that amount in the Court or pay it to the landlord. From the language of Sub-section (3) of section 8, it is apparent that this order is interlocutory in nature and copy of that order is required to be served upon the landlord. The provisions of Clause (b) of sub-section (3) show that out of such amount deposited by the tenant, the Court may permit the landlord to receive reasonable sum towards rent or increases. Its Clause (c) shows that if tenant fails to deposit the said amount or pay it to the landlord, his application stands dismissed.

6. Sub-section (4) of section 8 of the 1999 Act speaks of situation when a suit for recovery of rent with or without claim for possession is pending and the Court finds rent to be excessive and standard rent deserves to be fixed, upon such satisfaction the Court can pass an order directing the tenant to deposit in the Court forthwith such amount of rent as Court considers reasonable. The Court can also make further order directing the tenant to deposit in Court periodically such amount as interim standard rent. Clause (c) of sub-section (4) section 8 provides for striking of defence subject to certain safeguards. Those orders under sub-section (3) and sub-section (4) of section 8 are interlocutory orders and sub-section (5) prohibits filing of appeal against those interlocutory orders. Sub-section (1) of section 8 empowers the Court to fix standard rent upon an application made to it for that purpose or then in any suit or proceedings. Sub-section (2) states that if there is any dispute between the landlord and tenant about permitted increase, the Court may determine such amount. It is, therefore, obvious that sub-section (5) does not bar an appeal against final order passed on an application under section 8(1) or section 8(2) determining standard rent or permitted increase.

7. It is to be noted that section 8(1) of the 1999 Act empowers the Court to determine standard rent even in any suit or proceedings. Section 34 begins with non obstante clause and it states that an appeal shall lie from a decree or order made by the Court of Judge of Small Causes or by Civil Judge, exercising such jurisdiction to District Court. Section 33 deals with jurisdiction of courts and the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887 and elsewhere, the Court of Civil Judge, Junior Division as mentioned in Clause (c) of Section 33(1) having jurisdiction to entertain and try any suit or proceedings between the landlord and a ten, ant relating to the recovery of rent or possession of any premises and to decide any application made under the 1999 Act. sub-section (2) of section 33 is not relevant for present controversy. It is to be noted that it is not the case of parties before this Court that the respondent-landlord had filed an application for fixation of standard rent before some other Court. Here, the application was before Small Cause Court, Nagpur and that Court has taken its cognizance because of Section 33(1)(b). Section 34(1)(b) provides for remedy of appeal against this order of Small Cause Court.

8. Sub-section (4) of section 34 of the 1999 Act prescribes for remedy of revision where no appeal lies. Proviso (a) to Sub-section (1) of section 34 states that when no appeal lies under the Code of Civil Procedure from a decree or order made in any suit or proceedings, no appeal is maintainable under Section 34(1). Proviso (b) also does not permit filing of an appeal, if the amount or value of subject-matter does not exceed particular monetary limit and suit was for recovery of rent. Proviso (c) states that no appeal shall lie from order made upon an application for fixing the standard rent or for determining the permitted increase in respect of any premises, except in a suit or proceedings in which the appeal lies. It is, therefore, apparent that when standard rent or permitted increases are determined in a suit or proceedings in which the appeal lies, then only that order of fixing standard rent or permitted increase can be assailed in an appeal, not otherwise. In other wards, when the order is made on an application for determination of standard rent or permitted increase under Section 8(1) or section 8(2) and such application is not in any pending suit or proceedings, this proviso does not permit filing of an appeal under section 34.

9. In the present matter, respondent No. 1 moved an independent application for fixation of standard rent and he also did not seek any direction for recovery or relief of recovery therein. The learned Small Cause Court has determined the rent on 16/7/2008. It found that rent of Rs. 390/- being paid by the petitioner to respondent was inadequate and raised it to Rs. 2000/- per month. It added that if landlord wanted to execute the said order and entitlement, he has to pay necessary Court Fee on arrears of rent as per provisions of Section 6(1) of the Bombay Court Fees Act, 1958. It is apparent that merely because this direction is given by that Court, its order on an application under Section 8(1) and 8(2) of the 1999 Act, will not become appealable. The learned Counsel for petitioner has tried to show that because of this leave to pay the Court fee, the impugned order is appealable. I find the argument misconceived.

10. Learned Ad hoc District Judge-5, Nagpur has found that there was sufficient cause, which prevented petitioner from filing an appeal within time, but then it also correctly found that appeal was not provided for and hence, application for condonation of delay before it was misconceived. It is apparent that whether the proceedings in relation to which delay was sought to be explained, were maintainable before that Court was the first issue and after satisfaction about the maintainability of appeal, the jurisdiction to condone delay could have been exercised by that Court. If the Court had no jurisdiction to entertain the appeal, it could not have condoned  the delay in filing the same before it. The approach of learned Ad hoc District Judge, therefore, is neither erroneous nor perverse.. There is no jurisdictional error.

11. I, therefore, find that no case is being I made out warranting exercise of writ jurisdiction in the matter. Writ petition is, therefore, dismissed. However, it is made clear that if petitioner has got any other remedy, he is free to take recourse to it and challenge the judgment of Small Cause Court dated 16/7/2008 before appropriate forum.

12. Subject to this, writ petition is dismissed. Rule discharged. However, there shall be no order as to costs.


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