Whether order rejecting an application for rejection of plaint is revisable before the appellate bench of small cause court?

 Let us remember that Bhartiben Shah has approved Hemchand's dictum that interlocutory and other orders which the Special Court can pass in entertaining, trying, and deciding matters within its exclusive jurisdiction "which are appealable [or revisable] under the provisions of the Code of Civil Procedure will be appealable [or revisable] under Section 29 of the Rent Act [or Section 34 of the New Act]."

54. Let us also remember that Bhartiben Shah has approved Aspi R. Setha v. Sunermal M. Bafna. In the context of abatement, the Court has observed that had the application been allowed, the suit would have been dismissed as having been abated. And that order would have materially affected the parties' rights.

55. Here, too, as is the case with Aspi R. Setha, had the defendant's application been allowed, it would have resulted in the rejection of the plaint and the dismissal of the suit. Thus, it would have affected the parties' rights. So, we cannot say an application under Order 7, Rule 11 of CPC, even if dismissed, is a mere procedural step. The application decided either way, it substantially affects the parties' rights one way or the other. So it is eminently revisable. And that revision must be under Section 34 (4) of the Maharashtra Rent Control Act, 1999.

56. As a result, I hold that the revision is maintainable neither under Article 227 of the Constitution of India nor under Section 115 of the CPC; it is only under Section 34 (4) of the Maharashtra Rent Control Act, 1999.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4294 of 2018

Decided On: 18.12.2019

 Jasraj Lalaji Oswal Vs. Raziya Mehboob Patel and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/3597/2019,2020(5) MHLJ681

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Whether revision is tenable against order passed in application U/S 29 of Maharashtra rent control Act?

It is true that sub-section (4) of Section 34 provides for a remedy of revision when no appeal lies. It is also true that sub-section (4) makes the use of the word in any suit or proceeding but does not use the word application. Looking to the scheme of Act, 1999, it clearly appears that wherever appeals are provided, a remedy has been provided to the aggrieved party. However, where appeal is not provided; the Legislature wanted to provide a remedy of revision and that is done by way of sub-section (4) of Section 34. The Act is a self-contained Code providing for various remedies to the tenants as well as to the landlords and, therefore, any interpretation which would make the said intention of Legislature nugatory should not be adopted by a Court. In the present case, it is seen that though the word application is absent in sub-section (4), it cannot be said that the remedy of revision against an order on application under sub-clause (d) should be taken away. If such interpretation is adopted, the very purpose of providing remedies under the Act, which is self contained Code would lie in futility. The Court would prefer that which advances the remedy, ubi jus ibi remedium. The Court should always lean to interpret the provision for making the effective remedy available to a litigant or aggrieved party rather than denying it. I am inclined to hold that even an order on an application accepting or rejecting the same for directions to restore essential supply would be a proceeding within the meaning of sub-section(4) of Section 34 and consequently remedy of revision would be available to the aggrieved party.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5228 of 2011

Decided On: 27.04.2012

Nirmal Ujwal Credit Co-Operative Society Ltd. Vs. Narendra Mohanlal Choudhary

Hon'ble Judges/Coram:

A.B. Chaudhari, J.

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Bombay HC: District Court has no jurisdiction to entertain appeal u/s. 29 of Maharashtra Rent Control Act 1999

Firstly, the proceeding under section 29 of the Act is an independent proceeding. Such proceeding cannot be a part of rent suit. Even in Civil Manual, in Clause like 337 prepared by this Court for procedure which is to be followed by the Trial Court, it is made clear that the proceedings including Misc. Civil Application requiring judicial inquiry need to be given separate number and they need to be dealt with separately. In view of this circumstance, it was necessary to file separate proceeding under section 29 of the Act.
4) Section 34, proviso (d) of sub-section (1) of the Act runs as under:-
"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) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause (c) of sub-section (2) of section 33 or by a Civil Judge exercising such jurisdiction, to the the District Court :
Provided that no such appeal shall lie from,-
(a) .......
(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."
This provision shows that the order made under section 29 of the Act is not appealable. This provision again shows that the application under section 29 cannot be a part of Rent Suit. Further, the District Court had no jurisdiction to entertain the appeal and that reason is sufficient for setting aside the order made by the District Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY [Aurangabad Bench]
(Before T V NALAWADE, JJ.) WRIT PETITION NO. 12003 OF 2016 dated 15/12/2016

Namdeo Maruti Mane	... Appellant
Versus
Ishwar Kondiba Khose	... Respondent

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Whether revision is maintainable against order of court directing amendment of valuation of suit?

Section 9 of the Code of Civil Procedure confers/ recognises right of a person to approach the court where his civil right is infringed. The right of a person to approach a court is a substantive right. There can however be some procedural requirements for enforcement of this right. Payment of a certain amount of court fee is only a procedural requirement for enforcement of the civil right. What is the proper and appropriate Court fee is determined in accordance with provisions of Bombay Court Fees Act. An indigent person unable to pay Court fee stamp can be exempted from the payment but rest of the persons must pay the appropriate court fee on their plaint. Determination of what would be the proper amount of a court fee for institution of a suit is a procedural aspect. Usually the Court's office examines every plaint filed in the court and raises office objections, if any, including on the question of valuation and court fee payable. Of course, a party has a right to move the Court against the office objection whereupon the Court gives its ruling either overruling the objection or directing the plaintiff to comply. The order of the Court determining the quantum of a court fee and/or under what article/entry of the Court Fees Act the fee would be chargeable.

The order determining the amount of court fee required to be paid is a procedural order and not a substantive order affecting the plaintiff's right to sue which is a substantive right. The right of a party to sue is unaffected but he is only required to procedurally pay certain amount by way of court fee. In the present case, the order impugned before the District Court was a procedural order not affecting any right of the respondent. In view of a series of decisions of this court which have taken a view that no revision lies u/s.29(3) of the Bombay Rent Act and section 34(4) of the Maharashtra Rent Control Act against a procedural order not affecting substantial right of a party learned District Judge clearly erred in entertaining the revision application of the respondent.

Bombay High Court

Narayan Lachmandas Mathreja vs M/S.Savanah Hospitality Pvt.Ltd on 1 July, 2010

Bench: D.G. Karnik

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Whether revision is maintainable against order of striking off defence in default of payment of rent?

Even in the absence of such a provision, the hardship which was liable to be suffered by the landlord has been sought to be obviated by the decision of this Court in Sangeeta Prints (supra) by taking recourse to the provisions of Order 39, Rule 10 and section 151 of the Code. Having regard to the salutary object underlying the provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-compliance of the order of deposit. The proviso stipulates that in the event of a default in making deposit as decided, the Court may, subject to the provisions of sub-rule (2), strike off the defence. Undoubtedly, before striking off the defence, sub-rule (2) provides that a notice has to be issued to the defendant to show cause and the cause, if any, shown has to be considered in order to decide as to whether the defendant should be relieved of a peremptory order striking off the defence. Sub-rule (2) in turn indicates that unless the Court is of the view that there are valid circumstances as to why the defendant should be relieved of an order striking off his defence, ordinarily the defence would be liable to be struck off upon a failure of compliance with an order of deposit. In these circumstances, there can be no gainsaying the fact that an order passed under sub-rule (1) is an order of moment and is liable to seriously effect the rights of the parties. A defendant who does not comply with the order of deposit, cannot be relieved of the striking off of his defence unless he shows sufficient cause. In these circumstances, it cannot be said that an order under sub-rule (1) of Order 15-A is merely a procedural order and is not subject to a revision under sub-section (4) of section 42 of the Act. In the present case, a revision is maintainable. There is hence no necessity for this Court to go into the challenge urged on behalf of the petitioner on the merits of the order.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1079 of 2003

Decided On: 08.09.2003

 Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. alias Sahakar Bhandar

Vs.

 Kusumben Kantilal Shah and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2003(4)ALLMR304; 2004(1)BomCR547

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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

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