V.S Desai, J.:— [His Lordship after setting out the facts and considering points not material to this report, proceeded]. Coming now to the next point, viz. that the appeal to the appellate Court was not competent, the argument of the learned advocate is as follows: The provisions of s. 104 and O. XLIII, r. 1 of the Code of Civil Procedure 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 to it under O. IX, r. 13, of the Civil Procedure Code for setting aside an ex parte decree. If the order in the present case is treated as an order made by the Bombay Small Causes Court it is clearly non appealable. Even if it is regarded as made by the Special Court under the Rent Act and not by the Bombay Small Causes Court it will still be non-appealable because it is not made by the Special Court in the exercise of its jurisdiction under s. 28 of the Rent Act. The jurisdiction of a special Court under s. 28 of the Rent Act is to entertain and try a suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of certain classes of premises specified in the said section and to decide applications under the Rent Act. It does not extend to entertain, try or decide an application or proceeding to set aside an ex parte decree passed by it under the Rent Act. Consequently an order made on an application to set aside an ex parte decree made under the Rent Act cannot be treated as made by it exercising jurisdiction under s. 28 of the Rent Act so as to make an appeal therefrom competent under the provisions of s. 29 of the Act.

2. Under s. 8 of the Civil Procedure Code, excepting the sections specifically mentioned therein, the provisions in the body of the Code do not extend to the Court of Small Causes in the Presidency towns of Calcutta, Madras and Bombay. The section, however, has empowered the High Courts to extend the provisions of the Code not inconsistent with the express provisions of the Presidency Small Causes Courts Act to the Presidency Small Causes Court. Acting under the said powers, the Bombay High Court has extended certain provisions of the Code with some modifications to the Bombay Small Causes Court. These provisions, however, do not contain s. 104 or O. XLIII, r. 1, though they contain O. IX with some modifications. order ix, r. 13, therefore, is applicable to the Bombay Small Causes Court, O. XLIII, however, is not, with the result that although an application under O. IX, r. 13 could be made to the Bombay Small Causes Court for setting aside an ex parte decree, no appeal therefrom to the appellate bench would be competent under the Small Causes Courts Act. If the application made by the defendant in the present case for setting aside the ex parte decree passed against him could be regarded as an application made by him to the Bombay Small Causes Court exercising jurisdiction under the Presidency Small Causes Courts Act, the learned advocate for the petitioner would undoubtedly be right in his contention that no appeal from that order lay to the appellate bench of the Small Causes Court. In my opinion, however, it is impossible to look upon the order as made by the Bombay Small Causes Court in the exercise of its jurisdiction under the Presidency Small Causes Courts Act. The ex parte decree, though passed by the Bombay Small Causes Court, was not passed by it exercising jurisdiction under the Presidency Small Causes Courts Act, but as a special Court under the Rent Act. An application to set aside an ex parte decree can be made only to the Court which has passed it and to no other Court. The Special Court under the Rent Act having passed the ex parte decree, the application to set aside the decree can be made only to that Court. Although the Bombay Small Causes Court is invested with the jurisdiction to act as the Special Court under s. 28 of the Rent Act when it acts in that capacity it is a different Court from the Small Causes Court under the Presidency Small Causes Courts Act. Consequently it will have no jurisdiction to entertain, try or decide an application to set aside the ex parte decree made by it as a Special Court under the Rent Act. Since the order made cannot be treated as made by the Bombay Small Causes Court in exercise of its jurisdiction under the Presidency Small Causes Courts Act, the challenge to the appealability of the order on the ground that it is an order of the Bombay Small Causes Court cannot survive. The further argument of the learned advocate, however, is that even if it is regarded as an order made by the Special Court, it is still non appealable because it is not made by it exercising jurisdiction under s. 28 of the Bombay Rent Act. In order to appreciate the said argument, it would be necessary to consider the relevant provisions of the Bombay Rent Act.

3. It is clear from the provisions of the Bombay Rent Act that the said Act has established Special Courts investing them with exclusive jurisdiction to try certain suits under the Rent Act. The Act has not only set up the Special Courts for the hearing of such suits but it has also provided for the hearing and disposal of appeals and revisions arising from such suits and the Special Courts by which such appeals and revisions are to be heard and disposed of. It has also further provided for the procedure to be followed by the Special Courts which it has invested with jurisdiction to hear and dispose of certain matters under the Rent Act. Section 28 of the Bombay Rent Act specifies the Special Court which will have jurisdiction to try certain suits and proceedings under the Rent Act. The Special Court for Greater Bombay is the Court of Small Causes at Bombay and the jurisdiction which it has been invested under the said section is to entertain and try any suit or proceeding between a landlord and tenant relating to recovery of rent and possession of any premises to which any of the provisions of Part II of the Rent Act apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. Section 29 provides that notwithstanding anything contained in any law, an appeal shall lie from a decree or order made by the Court of Small Causes exercising jurisdiction under s. 28 to a bench of two Judges of the Raid Court which shall not include the Judge, who has made such decree or order. The proviso to this section specifies certain matters in which no appeal would he and amongst them are decrees or orders made in a suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908. Section 31 provides that the Courts specified in ss. 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. The prescribed procedure is the procedure prescribed under the rules made by the State Government, which it has been given power to make under s. 49 of the Act. The State Government accordingly has made the said rules, which are called “The Bombay Rents, Hotel and Lodging House Rates (Control) Rules, 1948.” It is on an examination of these provisions that the question as to whether an appeal from the order passed by the trial Court under O. IX, r. 13, of the Civil Procedure Code lay to the appellate bench of the Small Causes Court has got to be considered.

4. The suit filed by the plaintiff against the defendant in the present case was undoubtedly a suit falling under s. 28 of the Bombay Rent Act relating to the recovery of rent and possession of the suit premises, to which the provisions of Part II of the Rent Act apply. The Bombay Small Causes Court in entertaining the said suit was exercising the jurisdiction vested in it as a Special Court under s. 28 of the Bombay Rent Act. In exercising the said jurisdiction the procedure, which it had to follow, was the procedure as indicated by s. 31, i.e the procedure in accordance with the rules framed by the State Government under s. 49 of the Act. Now, a perusal of the said rules would show that if the suit fell under r. 5(2) the procedure to follow was the procedure prescribed under the rules framed under s. 9 of the Presidency Small Causes Courts Act, and if the suit fell under r. 8, the procedure prescribed by the Civil Procedure Code. As I have already pointed out, under s. 8 of the Civil Procedure Code, the High Courts were empowered to extend the provisions of the Code to the Presidency Small Causes Courts and s. 9 of the Presidency Small Causes Courts Act also provided that the High Court may from time to time prescribe the procedure to be followed and the practice to be observed by the Small Causes Courts. Acting under these powers the High Court has made rules, which are called the Presidency Small Causes Court Rules and these rules have provided for the application of certain provisions of the Civil Procedure Code with certain modifications to the Small Causes Court and under the said rules O. IX is made applicable to the Presidency Small Causes Court. Both in suits falling under the purview of rr. 5 and 8, therefore, the Special Court exercising jurisdiction under s. 28 of the Bombay Rent Act will be entitled to follow the procedure prescribed under O. IX, r. 13 to entertain an application for the setting aside of the ex parte decree passed by it as a result of the consequence of the default of appearance of one of the parties to the suit. In the present case, therefore, the application made by the defendant for setting aside the ex parte decree, which had come to be passed as a consequence of his default of appearance on the date of the hearing of the suit was an application, which the Special Court trying the suit was competent to entertain as such Court.

5. It is argued by the learned advocate for the petitioner that the jurisdiction of the Special Court under s. 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 O. IX, r. 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 s. 28 of the Rent Act. Orders of the Special Court which are made appealable under s. 29 of the Act are orders, which are made by such Court exercising jurisdiction under s. 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 s. 28 of the Act, the order is not appealable. I am unable to appreciate the argument. Under s. 29 of the Rent Act appeal is provided from a decree or order made by the Bombay Small Causes Court exercising jurisdiction under s. 28 subject to the exceptions contained in the proviso to the said section. The Bombay Small Causes Court exercising jurisdiction under s. 28 is a Special Court set up by the said section and appealability attaches to its decree or order under s. 29 when it makes a decree or order as such Court. No doubt the jurisdiction of the Special Court set up under s. 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 a Special Court, that is a Court exercising jurisdiction under s. 28 and not only such of them as actually relate to the recovery of rent or possession. Appeal provided under s. 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 s. 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 s. 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 s. 28 of the Act.

6. It will be seen that O. IX of the Civil Procedure Code deals with a matter relating to the hearing and disposal of the suit, viz. the appearance of parties and the consequence of non-appearance. The provisions of this Order relate to what is required to be done by the parties to the suit in relation to the hearing and disposal of the suit and what the Court can do or has to do in that connection. Rule 6 contained in this Order provides that if the defendant fails to appear and the plaintiff appears when the suit is called for hearing and it is proved that the summons was duly served, the Court may proceed ex parte against the defendant and pass an ex parte decree against him. This is a consequence of the default of appearance on the part of the defendant. order ix, r. 13 then provides that the defendant against whom an ex parte decree has been passed as a consequence of his default of appearance may get over the said consequence by applying to the Court for setting aside the ex parte decree and for the restoration of the suit. If the application of the defendant for setting aside the ex park decree is granted and the suit is restored, it continues to be heard and proceeded with further until it eventually terminates into a decree in favour of one party or the other. The passing of the ex parte decree does not make the Court trying the suit functus officio with regard to the same. The passing of the ex parte decree is merely a consequence of the non-appearance of the party and on proper procedure being adopted before the same Court, the consequence is avoided and the further hearing of the suit goes on. The application to set aside an ex parte decree is entertained by the same Court which has passed the decree and if the Court, which passes the ex parte decree, is the Court exercising jurisdiction under s. 28 of the Rent Act, the application to set aside the ex parte decree is also heard by the same Court and the order made thereon is also by the same Court, i.e by a Court exercising jurisdiction under s. 28. It is, therefore, difficult to accept the contention that the Court exercised jurisdiction under s. 28 only till the stage of the passing of the ex parte decree and did not exercise that jurisdiction when it subsequently entertained and decided the application, which was made to it under O. IX, r. 13, of the Civil Procedure Code. In my opinion, the entertainment of the application for the setting aside of the ex parte decree and the order made thereon by the trial Court was in its character as a Court exercising jurisdiction under s. 28 of the Act. Under s. 29 of the Rent Act an appeal lies from a decree or order made by the Small Causes Court at Bombay exercising jurisdiction under s. 28 to the appellate bench of the Small Causes Court, subject to the exceptions specified in the proviso. The words “exercising jurisdiction under s. 28” qualify the words “Small Causes Court at Bombay” which precede them and what the provision means, in my opinion, is that an appeal lies from the decree or order of the Small Causes Court at Bombay when it acts as a Special Court under s. 28 of the Act, subject of course to the exceptions specified in the proviso. The only part of the proviso, which is relevant, as already stated above, is item No. 1, which provides that a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure will not be appealable under s. 29 also. It would, therefore, follow that if the decree or order made by the Special Court exercising jurisdiction under s. 28 is such as is appealable under the Code of Civil Procedure, an appeal from such decree or order will lie to the appellate bench of the Bombay Small Causes Court. Now, under the Civil Procedure Code, an order made under O. IX, r. 13, refusing to set aside an ex parte decree is appealable under O. XLIII. If such an order, therefore, is made by the Special Court exercising jurisdiction under s. 28 of the Bombay Rent Act as a Special Court, an appeal will lie to an appellate bench of the Small Causes Court under s. 29. The argument of the learned advocate for the petitioner was that the order was not made by the Small Causes Court while it was exercising jurisdiction under s. 28 of the Rent Act but that argument, for the reasons which I have already pointed out, I am unable to accept. The suit was a suit under the Rent Act entertained by the Bombay Small Causes Court as a Special Court under the Rent Act. In proceeding with the said suit an ex parte decree was passed by it as provided under O. IX and on an application as provided under the said Order, it had refused to set aside the ex parte decree. The jurisdiction, which the Court was exercising while considering the provisions of O. IX, r. 13, was the jurisdiction which it had exercised when it was trying the suit and the application was made to it in its exercise of the said jurisdiction only. In my opinion, therefore, the contention urged by the learned advocate that no appeal lay to the appellate bench under s. 29 of the Bombay Rent Act from the trial Court's order refusing to set aside the ex parte decree, cannot be entertained.

7. The learned advocate for the petitioner has invited my attention to a decision of the Gujarat High Court reported in R.C Trust v. Ramchandra . 1966 7 Guj. L.R 401. which supports the contention urged by him.

8. The view taken in that case is that the Small Causes Court does not exercise jurisdiction under s. 28 of the Rent Act when it passes an order under O. IX, r. 13, of the Code of Civil Procedure, either setting aside or refusing to set aside a decree passed by it in a suit under the Rent Act. The view taken in that case is that the jurisdiction under s. 28 of the Rent Act ceases as soon as the ex parte decree is passed and if thereafter an application to set aside the ex parte decree is heard by the said Court, it does not exercise the jurisdiction under s. 28 of the Rent Act in dealing with the said application and the order passed on the said application, therefore, cannot be said to be one passed by it while exercising jurisdiction under s. 28. With very great respect to the learned Judge, I am unable to agree with the view that he has taken, for the reasons which I have already discussed.

9. [The rest of the judgment is not material to this report.]

10. Rule discharged.