Ronita Biswas | National Law University, Orissa | 11th January 2020
Jasraj Lalaji Oswal v. Raziya Mehboob Patel (Writ Petition No. 4294 of 2018)
Facts
In this case, the petitioner is the defendant and the respondents are the plaintiffs. The plaintiffs (landlords) had filed a civil suit to get the petitioner (tenant) evicted. Hefiled it on two grounds: unauthorised construction and bona fide requirement. There, the defendant applied Order 7 Rule 11 of Code of Civil Procedure (hereinafter referred as CPC) to have the plaint rejected. The petitioner had maintained that the plaint reveals no cause of action; hence, the same should be dismissed under Order 7 Rule 11(a) of CPC. The Trial Court dismissed the petitioner. Aggrieved, the landlord filed an appeal. The landlord applied for amendment and secured it. In the light of the said amendment and other factors, the appellate court set aside the trial court’s judgement and remanded the matter.
Appeal before HC
Instead of pursuing the remanded suit, the landlord withdrew it and filed fresh suit. The landlord claimed he pleaded for a different cause of action in the second suit. The defendant applied Order 7 Rule 11 of CPC requiring the Trial Court to dismiss the suit for lack of cause of action. The Trial Court refused. Since the tenant’s application was dismissed and the suit had survived the scare of summary dismissal, the tenant had filed revision under Art. 227 of the Constitution of India.
Respondent’s contention
Before the petitioner could place his arguments, the respondents contended that the WP was not maintainable under Art. 227. If ever, it ought to have been filed under s. 115 of CPC since it is the only recourse available. To support his contention, he had relied on a Division Bench judgement of Gajanan v. Mohd. Jamil Mohd. Amad (2017 1 Mh. LJ 660).
Petitioner’s contention
The Petitioner submitted that the present writ petition presents exceptional circumstances, mixed adjudication. Had it been an exclusive application under Order 7 Rule 11, the petitioner would have remedy under s. 115 of CPC, but not under the present circumstances.
Petitioner contended that he only wanted a partial rejection of the plaint (confined to bonafide requirements), the rest remaining untouched. Since it is composite adjudication, the only recourse for the petitioner is to invoke the Court’s supervisory jurisdiction under Order 227 of the Constitution of India (hereinafter referred as Constitution).
Amicus Curiae’s View
According to the Amicus Curiae, the revision lies to the Division Bench of the Small Cause Court. He relied on the judgement of Bhartiben Shah v. Smt. Gracy Thomas (2012 2 All MR 9 FB).
Issues raised
Whether Gajanan was applicable in the present case as an appropriate precedent?
The Court looked into the facts of the case to decide its applicability in the present circumstances. There, the adjudication took place under the Provincial Small Cause Court Act (hereinafter referred as PSCC Act). The Court passed an order under s. 26A of the Act. A question arose whether the aggrieved party should file a revision under Art 227 of Constitution or a revision application under s. 115 of CPC.
The Court observed that in the Gajanan case, the Division Bench had exclusively dealt with the PSCC Act and had not considered the Maharashtra Rent Control Act, 1999 (hereinafter referred as MRC Act). IN the instead case, the Court has not acted under the PSCC Act; instead it had acted under the Rent Control Act. Hence, the Small Cause Court started adjudicating as a rent controller. Hence, Gajanan did not address the present dispute.
Is there an overlapping jurisdiction of PSCC, 1887 & MRC Act, 1999?
The Small Cause Court had been acting as a Rent Controller. Item (7) and (8) of the Second Schedule to the PSCC Act conferred jurisdiction to entertain suits relating to rent. S. 33 of the MRC Act conferred jurisdiction on the Small Cause Court, which otherwise does not have any. Though the Small Cause Court has pecuniary jurisdiction, the MRC Act lifts them all and s. 33 also emphasises that the proceedings before the Small Cause Court would not have been maintainable but for this provision.
How far the CPC applies?
Under the PSCC Act, 1872 s. 17 mandates the procedure prescribed under CPC should be followed, in all suits cognizable by it and in all proceedings arising out of such suits. On the contrary the MRC Act has no reference to the CPC on the procedural front. The s. 37 of the Act declared that the prescribed procedure should be followed, referring to the very statute and the rules under it.
Procedurally which Act applies: CPC, the PSCC Act, or the MRC Act?
Here, the Court referred to the Full Bench judgment of Bhartiben Shah. Interpreting the expression ‘order’ in s.34(4) of the Rent Act, Bhartiben Shah had elaborated on “orders affecting substantive rights” of the parties and “orders procedural in nature”, which do not affect the parties’ rights. Then, Bhartiben Shah had adopted a purposive interpretation of the provisions in the Rent Act. The provision exhorts the courts “to endeavour” for disposing of the cases” “as far as may be practicable”, within twelve months from the date the summons is served. This indicated the legislative intent of expeditious hearing and disposal of a suit.
Bhartiben Shah observed that if the word “order” is interpreted liberally to include procedural orders, which do not decide the parties’ rights and liabilities, such wide interpretation results in delay and expense, causing immense hardship to one party, or the other, or both. So it has held that revisions under the Rent Acts would be maintainable only against those orders that affect the substantive rights or liabilities of parties, that is, the rights or liabilities under the Rent Act or any other substantive law, but not under a procedural law.
Finally, Bhartiben Shah held that for an order to be revisable under section 34(4) of the MRC Act, it 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.
Held
The Court held that 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. Hence, 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 MRC Act. The Court held that the revision was maintainable only under Section 34 (4) of the MRC Act, 1999.
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