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Shri Maharana Mills Pvt. Ltd. v. Harvadan Manharrai
Case Summary — Civil Revision: Jurisdiction to entertain revisions under Section 29(3) of the Bombay Rent Act
Factual and Procedural Background
The plaintiffs filed Civil Suit No. 245 of 1967 in the Civil Court at Bhuj for recovery of possession of premises governed by Section 28 of the Bombay Rent Act. The plaintiffs sought possession on grounds including unlawful sub-letting by defendant No.1 to defendant No.2 and irregularity in rent payment. After an amendment, non-user of the premises for more than six months was added as a further ground.
The defendants' initial written statement did not plead for fixation of standard rent; in a subsequent written statement (filed in answer to the amended plaint) they raised the plea that the standard rent of the premises be fixed. In response, the Trial Judge framed issue No. 10A on the point.
The plaintiffs applied (Ex. 86) for deletion of issue No. 10A; the Trial Judge rejected that application. The plaintiffs then filed a revision before the District Court at Bhuj challenging the refusal to delete the issue. The District Judge allowed the revision, set aside the Trial Judge's order and directed deletion of issue No. 10A.
The present Civil Revision Application challenges the District Judge's allowance of the plaintiffs' revision (i.e., the District Judge's order deleting issue No. 10A).
Legal Issues Presented
- 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 Section 28 of the Bombay Rent Act (i.e., whether the District Court has revisional jurisdiction under Section 29(3) of the Bombay Rent Act to entertain such an application).
Arguments of the Parties
Mr. Mankad (raising the jurisdictional challenge)
- Contended that the District Court lacked jurisdiction under Section 29(3) of the Bombay Rent Act to entertain a revision against an order refusing to delete an issue in a suit governed by Section 28 of the Bombay Rent Act. The question was framed succinctly as whether such a revision lies to the District Court.
Mr. S.M. Shah (appearing for plaintiff No. 3)
- Relied on the decision in Panchal Keshvlal Somnath v. Chinubhai Jagjivandas (1967) 8 Guj LR 772 to argue that an order made under a Code of Civil Procedure provision (O. 9, R. 13 — setting aside an ex parte decree) was nonetheless governed by Section 29 of the Bombay Rent Act and therefore appealable under that section; by analogy he suggested that procedural orders in suits under the Rent Act could likewise be subject to Section 29 jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Panchal Keshvlal Somnath v. Chinubhai Jagjivandas, (1967) 8 Guj LR 772 | That an application under CPC O. 9 R. 13 to set aside an ex parte decree in a suit governed by the Bombay Rent Act was treated as appealable under Section 29 of the Bombay Rent Act. | The court considered the decision as invoked by counsel and distinguished it: the Division Bench there dealt with an order whose subject-matter (an ex parte decree) was governed by the Rent Act, whereas the present order (refusal to delete an issue) was held to be a purely procedural matter not governed by the Rent Act and not affecting substantive rights; thus the precedent did not compel the same result here. |
Court's Reasoning and Analysis
The court's analysis proceeded by examining the statutory scheme and the relationship between the Bombay Rent Act, the Rules framed under it, and the Code of Civil Procedure (the Code).
Key statutory provisions considered:
- Section 31 of the Bombay Rent Act — renders applicable the "prescribed procedure" in trying and hearing suits and related matters governed by the Rent Act.
- Rule 16 of the Bombay Rent Rules — directs that where procedure is not specifically provided in the Rules, courts shall, as far as possible, be guided by the provisions of the Code of Civil Procedure.
- Rule-making power under Section 49(2)(iii) — authorizes the State Government to make rules for procedures in suits and related proceedings.
The court emphasized the correct legal effect of Rule 16: it guides courts to the Code when the Rent Rules are silent on a procedural point, but it does not mean that every procedural provision of the Code is incorporated wholesale into the Rent Act or Rent Rules. The court rejected the view that Section 31 and Rule 16 operate to make all procedural orders under the Code automatically subject to the Rent Act's appellate or revisional provisions.
The court therefore articulated a two-part test to determine whether an interlocutory order in a suit governed by the Rent Act is appealable or revisable under Section 29(3):
- What is the subject-matter of the order — i.e., is the subject-matter governed by the provisions of the Bombay Rent Act?
- Does the order affect substantive rights of a party under the Bombay Rent Act?
The court applied these tests to the present case:
- The Trial Judge's act of framing an issue (issue No. 10A) and the plaintiffs' application to delete that issue were characterized as purely procedural matters governed by the Code of Civil Procedure.
- Such matters did not bear the "indelible imprint" of the Bombay Rent Act or Rent Rules and did not affect substantive rights under the Rent Act.
- Accordingly, Section 29(3) did not vest the District Court with revisional jurisdiction to entertain a revision against the Trial Judge's procedural order adding/retaining an issue.
The court illustrated the distinction with examples of orders which would typically not attract Section 29(3) (e.g., orders granting or refusing leave to amend pleadings, orders for production/inspection, orders for particulars, orders about commissions for examination of witnesses) and orders which, despite being made under the Code, could fall within Section 29(3) because they affect substantive rights or are governed by the Rent Act (e.g., orders refusing to set aside an ex parte decree in a case governed by the Rent Act).
Applying the tests and illustrations, the court concluded that the District Judge had no jurisdiction to entertain the revision against the refusal to delete issue No. 10A and therefore his order was without jurisdiction.
Holding and Implications
Holding: Revision allowed; the impugned order of the District Judge was set aside.
Implications:
- The direct effect is that the District Judge's allowance of the plaintiffs' revision (deleting issue No. 10A) was quashed for want of jurisdiction; the Trial Judge's order refusing to delete the issue stands as having been improperly interfered with by the District Court.
- The court articulated and applied a limiting principle: Section 29(3) of the Bombay Rent Act confers revisional jurisdiction only in respect of orders whose subject-matter is governed by the Rent Act or which affect substantive rights under the Rent Act. Purely procedural orders, even if made in suits governed by the Rent Act, do not automatically become revisable under Section 29(3) merely because Rule 16 directs reference to the Code when the Rent Rules are silent.
- The opinion thereby clarifies the boundary between Rent Act jurisdiction under Section 29(3) and ordinary procedural matters governed by the Code of Civil Procedure; in this case no broader change to the law beyond that articulation was made, and the immediate consequence was the setting aside of the District Court's order for lack of jurisdiction.
Revision allowed. (Final line of the opinion: "Revision allowed.")
1. This Civil Revision Application raises a question of jurisdiction of the District Court to entertain Revision Applications against interlocutory orders made in suits governed by Section 28 of the Bombay Rent Act.
2. The material facts of the case are as under.
The plaintiffs have filed Civil Suit No. 245 of 1967 in the Civil Court at Bhuj for recovery of possession of the suit premises. It is not in dispute before me that the subject matter of the suit is governed by Section 28 of the Bombay Rent Act. The grounds on which the plaintiffs seek decree for possession are: (1) unlawful Sub-letting of the suit premises by the defendant No. 1 to the defendant No. 2 and (2) the irregularity in payment of rent and consequent breach of a term of tenancy. In course of the proceedings an application for amendment of plaint was made and it was granted. By the said amendment the plaintiffs added one more ground in support of their claim for possession. It is non-user of the suit premises for more than six months without any reasonable cause. The defendants filed in the first instance written statement to the plaint It did not contain any plea for fixing standard rent of the suit premises. Later on, in answer to the amended plaint they filed a further written statement wherein they raised the plea that standard rent of the suit premises be fixed. Pursuant to that plea having been taken by the defendants the learned Trial Judge raised issue No. 10A on the point. The plaintiffs thereafter made application Ex. 86 for deletion of issue No. 10A. That application was rejected. The plaintiffs, therefore, filed a revision application before the District Court at Bhuj challenging the said order made by the learned Trial Judge. The learned District Judge allowed that revision application and set aside the order made by the learned Trial Judge and directed that issue No. 10A be deleted.
3. It is that order made by the learned District Judge which is challenged before me in this Civil Revision Application.
4. The question which has been canvassed before me by Mr. Mankad relates to the jurisdiction of the District Court to entertain a revision application of this type under Section 29(3) of the Bombay Rent Act, He has raised the question in the following terms:—
“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.”
5. This very question was raised before the learned District Judge and he has answered it in the affirmative for the reasons stated in his judgment.
6. Section 31 of the Bombay Rent Act provides as follows:
“The courts specified in Sections 28 and 29 shall allow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.”
7. All that Section 31 of the Bombay Rent Act does is to render applicable the prescribed procedure to actions the subject-matter of which is governed by the Bombay Rent Act. The word “prescribe” has been defined by Section 5(9) so as to mean “prescribe by rules”. Section 49(2)(iii) empowers the State Government to make rules for the purpose of regulating 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. Turning to the Bombay Rent Rules framed by the State Government under the Bombay Rent Act, I find different sets of procedure having been laid down for three different kinds of Courts. One set of procedure has been laid down in Chapter IV for being followed by the Court of Small Causes at Ahmedabad whose constitution is governed by the Presidency Small Causes Courts Act. The second set of procedure has been laid down in Chapter IV-A of the Bombay Rent Rules for being followed by the Courts of Small Causes established under the Provincial Small Causes Courts Act, 1887 and by the District Courts in appeals from their decisions. The third set of procedure has been laid down in Chapter V of the Bombay Rent Rules for being followed by the Courts of Civil Judges (Junior Division) or (Senior Division) and by the District Courts in appeals from their decisions. So far as the present suit is concerned, it is governed by the procedure laid down in Chapter V. Rules 10 to 13 are the only constituent parts of Chapter V. They provide for special matters which do not appear to be otherwise provided for by the Code of Civil Procedure. Rule 16 in Chapter VII provides as follows.
“In deciding any question relating to procedure not specifically provided for by the Rules the Court shall, as far as possible, be guided by the provisions contained in the Code.”
8. “Code” means Code of Civil Procedure. It is difficult to agree with the tenor of the reasoning of the learned District Judge that all procedural orders made under the Code of Civil Procedure are governed by the provisions of the Bombay Rent Act and the Bombay Rent Rules as if the provisions of the Code of Civil Procedure are incorporated, by-virtue of the said Rule 16, in the Bombay Rent Act or the Bombay Rent Rules. All that Rule 16 provides for is that if there is no specific provision relating to any procedural matter in the Bombay Rent Act or Rules made thereunder, then the Courts trying such suits shall be guided by the provisions of the Code of Civil Procedure. By virtue of Section 31 and Rule 16 to which the learned Judge has referred, it is difficult to uphold the finding that all procedural orders made under the Code of Civil Procedure in suits governed by the provisions of the Bombay Rent Act become revisable — if they are not otherwise appealable — by the District Court by virtue of the provisions of Section 29(3). Section 29(3) read with Section 31 and Rule 16 does not confer upon the District Court revisional jurisdiction in matters which are purely procedural and which do not bear the imprint of the provisions of the Bombay Rent Act. In the instant case, what the learned Trial Judge did was to raise an issue relating to standard rent. An attempt was made to seek its deletion. Both the raising of an issue and its deletion are purely procedural matters governed by the provisions of the Code of Civil Procedure. By no stretch of imagination it can be said that they bear the imprint of the provisions of the Bombay Rent Act or the Bombay Rent Rules or that they are otherwise governed by the said Act or the said Rules. The learned District Judge, therefore, had no jurisdiction under Section 29(3) to entertain the revision application and to examine the aforesaid order made by the learned Trial Judge.
9. Mr. S.M Shah, appearing for the plaintiff No. 3, has invited my attention to a decision of this High Court in Panchal Keshvlal Somnath v. Chinubhai Jagjivandas, (1967) 8 Guj LR 772. A Division Bench of this High Court consisting of Mr. Justice A.R Bakshi and Mr. Justice V.R Shah was examining the question of appealability of the order made by the Court of Small Causes at Ahmedabad in an application which in its turn was made for setting aside an ex parte decree passed in a suit governed by the provisions of the Bombay Rent Act. The argument which Mr. Shah has advanced on the strength of that decision is that an application for setting aside the ex parte decree was made under O. 9, R. 13 of the CPC and yet the appeal from the order made therein was held to have been governed by Section 29 of the Bombay Rent Act. According to him, it was a pure question of procedure covered by the Code of Civil Procedure and yet it was held in that case that the appeal from that order was governed by Section 29 of the Bombay Rent Act. Section 29 of the Bombay Rent Act provides for appeals and also for the exercise of revisional jurisdiction in cases whose subject matters fall within the ambit of Section 28 of the Bombay Rent Act. In my opinion, in order to determine whether an interlocutory; order made in a suit governed by the Bombay Rent Act is appealable to or revisable by the District Court the test which must be applied is this: What is the subject-matter or the Order? In the case before the Division Bench to which I have referred, the subject-matter of the order was an ex parte decree governed by the provisions of the Bombay Rent Act. If there is an order the subject-matter of which is governed by the provisions of the Bombay Rent Act, then certainly an appeal therefrom or a revision application against that order will be governed by Section 29. However, the second test, in my opinion, which can be applied is this: Does the order which is sought to be appealed from or whose revision is sought affect substantive rights of the aggrieved party under the Bombay Rent Act? If the answer is in the affirmative, then the provisions of Sec. 29(3) will be attracted in order to determine whether it is appealable or revisable under the provisions of the said section. If the answer is in the negative, Section 29 will have no application. In the instant case, the subject-matter of the order which was impugned before the learned District Judge did not affect any substantive rights of the aggrieved party under the Bombay Rent Act. The subject-matter of that order was also not governed by the provisions of the Bombay Rent Act. The subject-matter of that order was whether an issue which was raised earlier should be deleted or not. It cannot conceivably fall under the provisions of the Bombay Rent Act. In a matter of this type no substantive rights of the parties under the Bombay Rent Act are affected. To illustrate this proposition, I may cite a number of instances of procedural orders which do not affect the substantive rights of a party under the Bombay Rent Act or the subject-matter of which is not governed by the provisions of the Bombay Rent Act:—
(1) An order granting leave to amend the plaint or written statement or an order refusing leave to amend the plaint or written statement in a suit the subject-matter of which is governed by the Bombay Rent Act
(2) An order made for production of documents or discovery or inspection in a suit governed under the Bombay Rent Act.
(3) An order directing a plaintiff or a defendant to furnish better and further particulars in a suit governed by the Bombay Rent Act.
(4) An order issuing a commission for the examination of witnesses or an order refusing to issue such a commission.
10. These are some of the orders which may be made under the Code of Civil Procedure and the subject-matter of which is not governed by any of the provisions of the Bombay Rent Act or the Bombay Rent Rules. Such orders do not affect the substantive rights of the parties under the Bombay Rent Act. On the other hand, there are orders which satisfy the aforesaid two tests even though they may be made under the Code of Civil Procedure, e.g, (1) an order refusing to set aside an ex parte decree on an application made for the purpose in a suit governed by the Bombay Rent Act and (2) an order refusing to restore a suit to file which was earlier dismissed and which was governed by the provision of the Bombay Rent Act. Illustrations can also be cited from the interim orders made in execution proceedings to show that some of them will fall under one category and some of them will fall under another category.
11. 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 Sec. 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. The order which the learned District Judge has passed belongs to this category. It was, therefore, not revisable by the learned District Judge. He had no jurisdiction to entertain the revision application and to pass any order on merits therein. In that view of the matter, the impugned order made by the learned District Judge is liable to be set aside.
12. Revision allowed.
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