Pramod Ramvilas Malpani v. Sham Tuljaram Pardeshi

(d) Gool Rustomji Lala v. Jal Rustomji Lala 5 vii. It is submitted that the Obstructionist never raised any objection to the fact that rent receipts were being issued in the name of Sanjay. The Obstructionist has also never pleaded that the other family members residing in the suit premises relinquished their rights in favour of the present Obstructionist and in fact specifically admitted that

Ramkishan is also residing in the suit premises. The Obstructionist never bothered to offer rent to the landlord and in fact in his crossexamination he has stated that he does not know who is Malpani i.e. Landlord. It is submitted that while rejecting the Obstructionist Application, in Order dated 3rd August 2009 the learned Judge, Small Causes Court, has recorded the finding that the Obstructionist has not produced any document such as rent receipt, electricity, etc. and neither has he examined any of his brother, uncle or mother to show that he was the sole tenant after his father’s death. It is submitted that in the previous round of litigation it has been held that uncle - Ramkishan had admitted that all other family members have accepted that Sanjay would be the Tenant. It is submitted that from the conduct of the present Obstructionist it can be said that he accepted Sanjay as Tenant after the death of their father. It is submitted that except the evidence of handwriting expert no other evidence is produced by the Respondent No.1. It is submitted that as observed in the decision of Vasant Sadashiv Joshi (supra) that if subsequent claims of family members for tenancy rights are recognized, then it would create insurmountable uncertainty for the landlords in pursuing eviction proceedings as every successive member of the family would claim legal rights and protection under the Bombay Rent Act. It is therefore submitted that while setting aside the impugned Order, the said Obstructionist Application filed under Order

6. On the other hand, Mr. S. S. Patwardhan, learned Counsel appearing for Respondent No.1A raised following contentions: i. It is submitted that Obstructionist-Sham had an independent right of tenancy qua the suit property being the son of the deceased tenant Tuljaram. The reliance is placed on Section 5(11)(c) of the Bombay Rent Act as well as on the decision of the Supreme Court in Textile Assn. (India) v. Balmohan Gopal Kurup 6 and the decision of this Court in Moro Vinayak Sathe Trust v. Mangal Gour Mohanlal Maniyar 7. ii. It is submitted that as Original Respondent No.1-Sham was not joined as party, the Suit itself was thus liable to be dismissed for nonjoinder of a necessary party. The Defendant i.e. Sanjay even does not reside in the suit premises. The document on which the Petitioner landlord relies dated 4th April 1991 is seriously disputed and not signed by the Original Respondent No.1-Sham. There is no evidence to prove that the Original Respondent No.1-Sham had signed the said document. The submission of the Petitioner that the said document was proved in an earlier round of litigation, has no relevance as Respondent No.1- Sham was not even a party to the said proceedings. Therefore, the finding rendered in Miscellaneous Application No.131 of 2004

7 1996 Bom R.C. 233 regarding the said document bearing Exhibit-75 will not bind the iii. It is submitted that the Applicant had led evidence about the said document dated 4th April 1991 but nothing is mentioned about the existence and the genuineness of the signature of the Respondent No.1- Sham on the said document. The Applicant has not led any evidence to prove that the Respondent No.1 has signed the said document. The Original Respondent No.1 did not only enter into the witness box, but testified about the absence of his signature on the document and also he has examined the handwriting expert. Thus, it is conclusively proved that the said document is not signed by the present Respondent No.1. iv. It is submitted that the learned District Court has determined the issue which has been identified by this Court by Order dated 2nd February 2009 in Writ Petition No.965 of 2007. The said finding recorded by the learned District Judge do not suffer from any perversity and the said findings are based on the examination and analysis of the entire material on record. It is submitted that possible view of the matter has been taken and therefore assuming that there is another view possible, however, under the jurisdiction of this Court under Section 115 of CPC no interference is warranted. v. It is submitted that the Civil Revision Application challenging the impugned Order dated 8th December 2009 is not maintainable as the impugned Order is passed in an Appeal challenging the Order of the learned Executing Court passed under Order XXI, Rule 101 of CPC. The said Order has status of a “decree” and as such appealable under Section 100 of CPC. To substantiate the said contention, reliance is placed on the decision of Gurram Seetharam Reddy v. Gunti Yashoda 8. vi. It is submitted that even though the decree under the suit is under a special statute namely Section 28 of the Bombay Rent Act, the execution thereof is under CPC. The jurisdiction to adjudicate questions under Rule 97 and Rule 99 of Order XXI is carved out of the exclusive jurisdiction of this Special Court and returned to the regular Civil Court. The language of Rule 101 of Order XXI is plenary and the powers of the learned executing courts under Rule 101 of Order XXI of CPC are unqualified and unrestricted and the learned court is expected to adjudicate upon all such questions as if it has jurisdiction to do so. By a legal fiction, a learned Executing Court, which may otherwise have no jurisdiction, is invested with the jurisdiction to try all questions under Rule 101 of Order XXI of CPC. To substantiate the said contention, reliance is placed on the decision of this Court in Nusserwanji E. Poonegar v. Shirinbai F. Bhesania 9 and also on the decision of the Supreme Court in Asgar v. Mohan Varma 10. vii. It is submitted that therefore the Order dated 3rd August 2009 8 2004 SCC OnLine AP 694: (2004) 3 AP LJ 251 (HC) (FB) 9 1984 SCC OnLine Bom 6: 1984 Mah LJ 356: AIR 1984 Bom 357 passed below Exhibit - 39 in Darkhast No.152 of 2004 passed by the learned Executing Court is deemed to be a decree under Order XXI, Rule 103 and therefore the impugned Order in Regular Civil Appeal No.474 of 2009 is a decree in an Appeal under Section 96 of CPC. It is therefore submitted that consequently only an Appeal under Section 100 of CPC i.e. Second Appeal in this Court is permissible and therefore the present Civil Revision Application is not maintainable. viii. It is submitted that as per the settled legal position when execution of a decree of a Special Court is under CPC, the remedies against adjudication for such execution will also be under CPC. The reliance is placed on the decision of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. R. Chandrasekhara Thevar 11. ix. Reliance is also placed on the decision of this Court in Praveen Kumar Passi v. Pradip Syamlal Das 12 and it is submitted that the same is concerning proceedings under Chapter VIII of the Maharashtra Rent Control Act, 1999 (“MRC Act”), wherein there is bar of jurisdiction of the Civil Court is created under Chapter IV of the MRC Act. It is submitted that as no such bar is there in Part II of the Bombay Rent Act, the legislature has clearly indicated and clothed the ordinary Civil Court with power/jurisdiction to execute a decree under Rent legislation under CPC and therefore further the remedies will also thus lie under

CPC. It is submitted that Section 31 of the Bombay Rent Act read with the Bombay Rents, Hotel, Lodging House Rates, Control Rules, 1948 further indicate the legislative intention as aforesaid. It is submitted that reliance on Section 29 of the Bombay Rent Act is unsustainable in as much as the execution proceeding is under Section 47 read with Order XXI of the CPC. The bar of Second Appeal under sub-section (2) of Section 29 is, thus, not attracted to an order passed under Order XXI Rule 97 of the CPC. x. It is further submitted that Proviso to Section 29(1) of the Act of 1947 is added by the erstwhile Bombay State Legislature by Bombay Act No.61 of 1953. [Section 17(1)]. It is a case of legislation by incorporation. The same facilitates appeals in suits/proceedings where the CPC so permits. On the date of commencement of this Act No.61 of 1953, the definition of “decree” under Section 2(2) of CPC included reference to orders under Section 47 of CPC. Although such reference to “orders under Section 47” is omitted from Section 2(2) by CPC Amendment Act, 1976, for the purposes of Section 29 of the Bombay Rent Act of 1947, an order under Section 47 of CPC is still a “decree”, and hence appealable under Section 96 and further under Section 100 of CPC. To substantiate said contention, reliance is placed on the decision of Pranshankar Shankarlal Joshi v. Fulsinhji Kesharisinhji. Thus, it is submitted that the Civil Revision Application is not maintainable and the proper remedy to challenge the impugned Judgment and Decree of the learned Appellate Court is by filing Second Appeal. Rejoinder argument of Applicant:

7. In view of the said contentions raised by Mr. Patwardhan, learned Counsel appearing for Respondent No.1A regarding the maintainability of Civil Revision Application, Mr. Surel S. Shah, learned Senior Counsel raised following contentions:i. As far as reliance on the decision of Nusserwanji E. Poonegar (supra) is concerned the grievance of the Petitioner therein was that, the Executing Court, which was a Small Causes Court had adjudicated upon the merits viz. the issue of tenancy of the obstructionist. According to the Petitioner therein the scope of execution proceedings being limited the issue on merits could not be decided by the executing Court (Para-7 of the Judgment). It is in this context that, this Court held that, by virtue of amendment to CPC in the year 1976, the Executing Court is empowered to adjudicate upon the rights of parties. ii. It is submitted that even the Judgment of the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar (supra) will not apply in the present case as the dispute before the Privy Council was in regard of the execution of decree passed by a Civil Court in a mortgage suit and not under the Rent Act, which confers exclusive jurisdiction on Special Courts in matters relating to tenancy under Rent control laws. iii. It is submitted that in so far as the matters relating to possession between a landlord and tenant, licensor and licensee the jurisdiction to try the said dispute is exclusively bestowed on the Small Causes Court, if the dispute is in Mumbai and Pune and outside these two cities the jurisdiction is conferred upon the Civil Judge, Junior Division. iv. Learned Senior Counsel placed reliance on Section 28 of the Bombay Rent Act and Explanation to Section 28 which specifically excludes execution proceedings arising out of a decree prior to the Act coming into force. It is therefore submitted that the legislature has consciously conferred the jurisdiction in so far as execution proceedings arising out of decree / order arising under the Rent Act upon the Small Causes Court. It is submitted that as the proceedings are from Pune, the provisions of the Provincial Small Causes Court, 1887 (“PSCC Act”) will apply. It is submitted that Section 17 of the PSCC Act, 1887 clearly stipulates that the procedure prescribed under CPC will apply save and otherwise provided by the Act. Provisions of Section 26 of the said PSCC Act, 1887, specifically confers jurisdiction on the Small Causes Court to entertain and try all proceedings between licensor and licensee, landlord or tenant in relation to recovery of possession. Section 26(A) (1) provides for an Appeal against the decision of the Small Causes Court to a District Court. It is also necessary to consider provisions of Section 26(A)(3), which holds that the decision in Appeal will be final. Thus, in view of Section 26(A)(1) r/w Section 26(A)(3) r/w Section 17 of the PSCC Act, 1887 referred above the applicability of CPC insofar as Section 100 of CPC concerning Second Appeal stands excluded. v. It is submitted that it is settled provision of law that an Appeal is a creature of statute and it has to be specifically provided there under. Section 26(A)(3) of PSCC Act, 1887, specifically provides that there is no further Appeal against Order passed in Appeal. Thus, the Second Appeal is not maintainable. Reliance is also placed on Sub-Section (2) of Section 29 of the Maharashtra Rent Control Act which bars any further Appeal from a decision in an Appeal and Section 29 starts with a non-obstante clause thereby giving it primacy over provisions of any law, which prescribes for an Appeal. Any law would include the Code of Civil Procedure, 1908. vi. Reliance is also placed on the decision of a Division Bench of this Court in Gajanan v. Mohd. Jamil 14, whereby it has been held that Civil Revision Application as well as Writ both are maintainable against a decree passed by the Small Causes Court. The reliance is also placed on the decision of this Court in Bhola Wajareshwar Sethi v. Hotel Nandanvan Pvt. Ltd. 15 and more particularly on Paragraph Nos.[3] and 5, wherein it has been held that the provisions of Section 26 empower the 14 2016 SCC OnLine Bom 10073: (2017) 1 Mah LJ 660

POINTS FOR DETERMINATION:

8. Thus, in view of above submissions of Mr. Surel S. Shah, learned Senior Counsel appearing for the Applicant and Mr. Patwardhan, learned Counsel appearing for Respondent No.1A, following points arise for determination in this Civil Revision Application:-

I. Whether the Civil Revision Application filed challenging the Order passed in Appeal arising out of the Order passed in Obstructionist Proceeding under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 /Maharashtra Rent Control Act, 1999 is maintainable?

II. Whether the remedy to challenge the Order passed in

Appeal arising out of the Order passed in Obstructionist Proceeding concerning the Judgment and Decree passed under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947/Maharashtra Rent Control Act, 1999 is by filing Second Appeal under Section 100 of the Code of Civil Procedure, 1908?

III. Whether the original Respondent No.1 - Sham Tuljaram

IV. Whether Respondent No.1A - Anusaya Tuljaram Pardeshi has any independent right, title and interest with respect to the suit premises?

V. Whether the impugned Judgment dated 8th December

9. As point Nos. I and II are inter connected the said points are considered together. The said point Nos. I and II are as follows: POINT NO. I Whether the Civil Revision Application filed challenging the Order passed in Appeal arising out of the Order in Obstructionist Proceeding under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 / Maharashtra Rent Control Act, 1999 is maintainable? POINT NO. II Whether the remedy to challenge the Order passed in Appeal arising out of the Order passed in Obstructionist Proceeding concerning the Judgment and Decree passed under the provisions of the Bombay Rent Act/Maharashtra Rent Control Act, 1999 is by filing Second Appeal under Section 100 of the Code of Civil Procedure, 1908?

10. It is main the submission of Mr. Patwardhan, learned Counsel appearing for the Respondent No.1A that with respect to the obstructionist proceedings as the same are initiated under Order XXI Rule 97 and 100 of CPC, once the same are decided and the Appeal challenging the same is decided, the remedy is as per the provisions contemplated under the CPC and therefore the remedy is by way of filing Second Appeal and not the Civil Revision Application.

11. On the other hand, it is the submission of Mr. Surel S. Shah, learned Senior Counsel appearing for the Applicant that as the proceedings are under the provisions of the Bombay Rent Act, no further Appeal is permissible and accordingly the Civil Revision Application is maintainable.

12. For considering the rival submissions and as the subject obstructionist proceedings are arising out of the decree passed under the provisions of the Bombay Rent Act, it is necessary to set out Sections 28 and 29 of the Bombay Rent Act, which read as under: “28. Jurisdiction of Courts [(1)] Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.— (a) in Greater Bombay, the Court of Small Causes, Bombay, [(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and] (b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply [or between a licensor and a licensee relating to the recovery of the licence fee or charge] and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and [subject to the provisions of sub-section (2),] no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question. [(2)(a) Notwithstanding anything contained in clause (aa) of sub-section (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Causes Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary Jurisdiction in such area.] (b) Where any suit, proceeding or application has been withdrawn under clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceedings or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn.

(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes.] Explanation.— In this section “proceeding” does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act.

29. Appeal (1) Notwithstanding anything contained in any law, an appeal shall lie — (a) in Greater Bombay, from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction under section 28, 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 Cause 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 281] or by] a Civil Judge exercising such jurisdiction, to the District Court: [Provided that no such appeal shall lie from —

(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908;

(II) a decree or order made in any suit or proceeding

(other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent [or licence fee or charge for a licence in respect of any premises] and the amount or value of the subject-matter of which does not exceed—

(i) where such suit or proceeding is instituted in

(ii) where such suit or proceeding is instituted elsewhere, the amount upto which the Judge or Court specified in clause (b) is invested with jurisdiction of a Court of Small Causes, under any law of the time being in force;

(III) an order made upon an application for fixing the standard rent [or licence fee or charge for a licence] or for determining the permitted increases in respect of any premises except in a suit or proceeding in which appeal lies;

(IV) 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.] [(1A) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be: Provided that in computing the period of limitation prescribed by this sub-section the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908, shall so far as may be, apply.] (2) No further appeal shall lie against any decision in appeal under sub-section (1). [(3) Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay the bench of two Judge specified in clause (a) of sub-section (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and [the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall] pass such order with respect thereto as [it or he thinks fit].”

13. Thus, Section 28 of the Bombay Rent Act clearly provides that the Suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under the Bombay Rent Act and to deal with any claim or question arising out of the Bombay Rent Act or any of its provisions, no other Court shall have jurisdiction to entertain any such Suit, proceedings, or application or to deal with such claim or question. As far as the Greater Bombay is concerned, jurisdiction is with the Small Causes Court, Mumbai and in other areas for which a Court of Small Causes is established under the Provincial Small Cause Court Act, 1887, such Court and elsewhere the Court of the Civil Judge, Junior Division having jurisdiction in the area in which the premises are situated shall have jurisdiction to entertain and try such Suit or proceedings. The Explanation to Section 28 is very relevant which provides that in this Section “proceeding” does not include an execution proceeding arising out of a decree passed before the coming into operation of the Bombay Rent Act. The Bombay Rent Act came into force on 19th January 1948. Thus, it is very clear that the execution proceedings concerning the decrees passed in suits/proceedings filed under the provisions of the Bombay Rent Act are also contemplated in the term “Proceedings” as contained in Section 28 of the Bombay Rent Act. Section 29 is concerning Appeal, which clearly provides that an Appeal shall lie, in Greater Bombay from a decree or order made by the Bombay Small Causes Court, exercising jurisdiction under Section 28, to a bench of two Judges of the said Court and elsewhere, from a decree or order made by a Judge of the Court of Small Causes or by a Civil Judge exercising such jurisdiction to the District Court. It is further provided that no such Appeal shall lie from a decree or order made in any suit or proceeding in respect of which no Appeal lies under the CPC. Sub- Section (2) of Section 29 clearly provides that no further Appeal shall lie against any decision in Appeal under Sub-Section (1).

14. As some submissions were made concerning similar provision under the Maharashtra Rent Control Act, namely Section 33 and Section 34 of the same, the same are quoted herein below for ready reference: “33. Jurisdiction of courts (1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of Chapter VIII, and notwithstanding that by reason of the amount of the claim, or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,— (a) in Brihan Mumbai, the Court of Small Causes, Mumbai, (b) in any area for which a Court of a Small Causes is established under the Provincial Small Causes Courts Act, 1887, such court, and

(c) elsewhere, the court of the Civil Judge (Junior

Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit of proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under this Act (other than the application which are to be decided by the State Government or an officer authorised by it or the Competent Authority) and subject to the provisions of sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question. (2) (a) Notwithstanding anything contained in clause (b) of sub-section (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Causes Courts Act, 1887 (IX of 1887), and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area; (b) where any suit, proceeding or application has been withdrawn under clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceeding or application, as the case may be, may either retry it or proceed from the stage at which it was withdrawn;

(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes.” “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 (IX of 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 District Court: Provided that no such appeal shall lie from,— (a) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908 (V of 1908); (b) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent in respect of any premises and amount or value of the subject matter of which does not exceed—

(i) where such suit or proceeding is instituted in Brihan

(ii) where such suit or proceeding is instituted elsewhere, the amount upto which the Judge or Court specified in clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for the time being in force;

(c) an order made upon on an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies;

(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. (2) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be: Provided that, in computing the period of limitation prescribed by this sub-section the provisions contained in sections 4, 5 and 12 of the Limitation Act, 1963 (XXVI of

1963) shall, so far as may be, apply. (3) No further appeal shall lie against any decision in appeal under sub-section (1). (4) Where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai, the bench of two Judges specified in clause (a) of sub-section (1) and elsewhere, the District Court may, for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and the bench or court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit.”

15. Thus, the above provisions of the Maharashtra Rent Control Act clearly shows that the similar provisions are made as contained in Section 28 and Section 29 of the Bombay Rent Act. Thus, the scheme of the Maharashtra Rent Control Act remains the same as that of Bombay Rent Act concerning filing of suit or proceeding or Appeal concerning the same, which has already been discussed herein above.

16. It is also relevant to note Section 31 of Bombay Rent Act concerning procedure of Courts, which reads as under:- “31. Procedure of courts The courts specified in sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.” Thus, by Section 31 of the Bombay Rent Act it is specifically provided that the Courts specified in Sections 28 and 29 of the Bombay Rent Act shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. Thus, Sections 28, 29 read with Section 31 of the Bombay Rent Act clearly provides that the execution proceedings of the decrees passed by the Court contemplated under Section 28 of the Bombay Rent Act and passed under said Bombay Rent Act are contemplated in the term “Proceedings” as contained in Section 28 of the Bombay Rent Act. Thus, it is clear that the proceedings contemplated under Order XXI, Rule 97 or Rule 99 are required to be filed before the Court specified in Section 28 of the Bombay Rent Act concerning the suits or proceedings covered under Section 28 of the Bombay Rent Act and the Appeal challenging the same will have to be filed before the Appellate Forum as specified in Sub-Section (1) of Section 29 of the Bombay Rent Act. It is further very clear that as specified in Sub-Section (2) of Section 29 no further Appeal shall lie against any decision in Appeal under Sub- Section (1) of Section 29 of the Bombay Rent Act.

17. Section 37 of the Maharashtra Rent Control Act is also relevant, which reads as under:- “37. Procedure of Courts. The Courts specified in sections 33 and 34 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.” Thus, it is very clear that the above discussion is also applicable to Sections 33 and 34 read with Section 37 of the Maharashtra Rent Control Act. Thus, Sections 33, 34 read with Section 37 of the Maharashtra Rent Control Act clearly provides that the execution proceedings of the decrees passed by the Court contemplated under Section 33 of the Maharashtra Rent Control Act and passed under said Maharashtra Rent Control Act are contemplated in the term “Proceedings” as contained in Section 33 of the Maharashtra Rent Control Act. Thus, it is clear that the proceedings contemplated under Order XXI, Rule 97 or Rule 99 are required to be filed before the Court specified in Section 33 of the Maharashtra Rent Control Act concerning the suits or proceedings covered under Section 33 of the Maharashtra Rent Control Act and the Appeal challenging the same will have to be filed before the Appellate Forum as specified in Sub-Section (1) of Section 34 of the Maharashtra Rent Control Act. It is further very clear that as specified in Sub-Section (3) of Section 34 no further Appeal shall lie against any decision in Appeal under Sub-Section (1) of Section 34 of the Maharashtra Rent Control Act.

18. In this particular case, the suit premises are situated in Pune City. In Pune City the Court of Small Causes is established under the PSCC Act. The Suit under the provisions of the Bombay Rent Act being Civil Suit No.951 of 1991 was filed by the Applicant-Landlord against the Respondent No.2-Sanjay Pardeshi, Tenant, who has been elected as the tenant by the family of the deceased Tenant as per said writing dated 4th April 1991. The said suit was filed in the Small Causes Court, Pune in accordance with Section 28 of the Bombay Rent Act. The said suit was decreed. The Appeal filed in the District Court, Pune in accordance with Section 29(1) of the Bombay Rent Act by the Respondent No.2-Sanjay Pardeshi i.e. tenant was dismissed for default.

19. The scheme of the Bombay Rent Act as envisaged in Section 28 and Section 29 of the Bombay Rent Act and discussed extensively earlier very clearly shows that in this case the obstructionist proceeding will lie before the Small Causes Court at Pune under Section 28 of the Bombay Rent Act and as far as the Appeal challenging Order passed in obstructionist proceedings, the same will lie to the District Court under Section 29(1) of the Bombay Rent Act.

20. It is specifically provided by first proviso to Sub-Section (1)(b) of Section 29 of the Bombay Rent Act that a decree or order made in any suit or proceedings in respect of which no Appeal lies under the CPC, no such Appeal shall lie from the Judgment and Order passed by the learned Small Causes Court. As per the provisions of CPC, order passed under Order XXI Rule 97 read with Rules 101 and 103 is a decree and the same is appealable under the CPC and therefore Appeal lies even under the provisions of CPC. Thus, appeal arising out of the order passed in the Obstructionist Proceeding passed by the Court contemplated under Section 28 of the Bombay Rent Act is competent under Section 29(1) of the Bombay Rent Act. As per Order XXI, Rule 101 all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Thus, as per Rule 101 separate suit is not maintainable. Rule 103 of Order XXI specifies that, where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Therefore, it is very clear that there is no bar to the Appeal as provided by proviso to Sub-Section (1) of Section 29 concerning the order passed in the Obstructionist Proceeding. Thus, the Appeal under Sub-Section (1) of Section 29 is maintainable.

21. However, what is important to note is that Sub-Section (2) of Section 29 of the Bombay Rent Act specifically provides that no further Appeal shall lie against any decision in Appeal under Sub-Section (1) of Section 29. Thus, it is very clear that under the scheme of the Bombay Rent Act what is provided is that there will be only one Appeal competent under Sub-Section (1) of Section 29 and Sub-Section (2) of Section 29 specifically provides that no further Appeal shall lie. In this behalf, it is very relevant to note that Sub-Section (3) of Section 29 provides that, where no appeal lies under Section 29 of the Bombay Rent Act from a decree or order in any suit or proceeding in Greater Bombay the bench of two Judge specified in clause (a) of Sub-Section (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made. Thus, these provisions also makes it very clear that there is only one Appeal provided under the scheme of the Bombay Rent Act and the said scheme do not contemplate that after exhausting the Appeal provided under the Bombay Rent Act i.e. Appeal under Section 29(1) of the Bombay Rent Act, further Appeal can be filed under Section 100 of CPC in the High Court. It is a well settled proposition of law that there is no inherent or common law right of Appeal in a subject and the Appeal is the creature of statute and therefore the right to Appeal can only be enjoyed within the strictly demarcated limits conferring such right of Appeal16. Thus, it is very clear that only one Appeal is provided under the scheme of the Bombay Rent Act / Maharashtra Rent Control Act and thus the Second Appeal under Section 100 of CPC to the High Court, as contended by Mr. Patwardhan, learned Counsel is not at all contemplated under the scheme of the Bombay Rent Act / Maharashtra Rent Control Act.

22. In fact, in this case admittedly, the original Respondent No.1 Sham Pardeshi filed application bearing Exhibit-39 in execution proceedings being Darkhast No.152 of 2004 in the Court of Small Causes Court, Pune (Page 91-96) in accordance with Section 28 of the Bombay Rent Act and not before the Civil Court as per the provisions of the CPC. The Appeal is filed before the District Judge, Pune at Pune 16 1980 AIR 962: 1980 SCR (2) 380 (Page 99-102) as contemplated under Section 29(1) of the Bombay Rent Act, as in paragraph 5 of the Appeal Memo (Page 102), it is specifically stated that as the impugned order is passed by the learned Additional Judge, Small Causes Court, Pune, the District Judge, Pune has jurisdiction to try and entertain the Appeal. Thus, it is clear that the said Appeal was filed under Section 29(1) of the Bombay Rent Act.

23. In view of the above factual and legal position, it is necessary to examine the submission of Mr. Patwardhan, learned Counsel that the impugned order of the learned District Judge is to be challenged by filing Second Appeal under Section 100 of CPC in this Court and the Civil Revision Application as filed by the Applicant is not maintainable. The submissions of Mr. Patwardhan, learned Counsel appearing for Respondent No.1A are required to be considered in the light of the above scheme of the Bombay Rent Act as there is specific bar imposed on further appeal by Sub-Section (2) of Section 29 of the Bombay Rent Act. It is the submission of Mr. Patwardhan, learned Counsel that the impugned Order dated 8th December 2019 has status of a decree and as such appealable under Section 100 of the CPC. Mr. Patwardhan, learned Counsel submitted that even though the decree under the suit is under a special statute namely the Bombay Rent Act, the execution thereof is under CPC. The jurisdiction to adjudicate questions under Rule 97 and 99 of Order XXI is carved out of the exclusive jurisdiction of this Special Court and returned to the regular Civil Court. The language of Rule 101 is plenary and the powers of the learned Executing Courts under Rule 101 are unqualified and unrestricted and the learned court is expected to adjudicate upon all such questions as if it has jurisdiction to do so. By a legal fiction, a learned Executing Court, which may otherwise have no jurisdiction, is invested with the jurisdiction to try all questions under Rule 101. To support the said submission, Mr. Patwardhan, learned Counsel has heavily relied on the decision of Nusserwanji E. Poonegar (supra) and Asgar (supra). It is his submission that the Order passed by the learned Executing Court dated 3rd August 2009 below Exhibit - 39 in Regular Darkhast No.152 of 2004 is deemed to be a decree under Order XXI Rule 103 of the CPC and the impugned Order dated 8th December 2009 passed in Regular Civil Appeal No.474 of 2009 is a decree in an Appeal under Section 96 of CPC and therefore consequently only an Appeal under Section 100 of CPC is permissible. The contention of Mr. Patwardhan, learned Counsel that Order dated 8th December 2009 passed in Regular Civil Appeal No.474 of 2009 is a decree in an Appeal is absolutely correct, however, the same is a decree passed in an appeal under Section 29(1) of the Bombay Rent Act and not under Section 96 of CPC as contended by Mr. Patwardhan, learned Counsel.

24. The above submissions of Mr. Patwardhan, learned Counsel appearing for the Respondent No.1A have to be understood in the context of the Scheme of the Bombay Rent Act as noted herein above. Thus, what is contemplated under the relevant scheme of the Bombay Rent Act i.e. Sub-Section (1) of Section 29 is that there will be an Appeal, either to the Division Bench of the Small Causes Court in case the Suit or the proceeding is decided by the Bombay Small Causes Court and at other places the Appeal lies to the District Court and Sub-Section (2) of Section 29 of the Bombay Rent Act, specifically provides that no Section (1) of Section 29. Thus, under the scheme of the Bombay Rent Act, there is only one Appeal is provided.

25. To consider the submission of Mr. Patwardhan, learned Counsel raised on the basis of the provisions of Order XXI Rule 97 to Rule 103 (as applicable to the State of Maharashtra), it is necessary to set out said provisions.

ORDER XXI, RULE 97 TO RULE 103 AS APPLICABLE TO THE STATE OF MAHARASHTRA ORDER XXI − Execution of Decrees and Orders “97. Resistance or obstruction to possession of immovable property.— (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. [(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]

98. Orders after adjudication.— (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),— (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgmentdebtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have same force and be subject to the same conditions as to appeal or otherwise at if it were a decreed.” [Sub-rule (2) of Rule 98 is substituted by Bombay Amendment dated 15th September 1983 (w.e.f. 1-10-1983)]

99. Dispossession by decree-holder or purchaser.— (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

100. Order to be passed upon application complaining of dispossession.— Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,— (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or b) pass such other order as, in the circumstances of the case, it may deem fit. Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above [Proviso is added to Rule 100 of Order XXI by Bombay Amendment dated 15th September 1983 (w.e.f. 1-10-1983)]

101. Question to be determined— All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court. [Proviso is added to Rule 101 of Order XXI by Bombay Amendment dated 15th September 1983 (w.e.f. 1-10- 1983)]

102. Omitted by Bombay Amendment

103. Orders to be treated as decrees— Where any application has been adjudicated upon under rule 98 or rule 100 the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”

26. Thus, as per the above scheme of the CPC, an application has to be filed where inter alia the holder of a decree for the possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. It is also provided that, inter alia, where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property, he may make an application to the Court complaining of such dispossession. The Order XXI Rule 101 specifically provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. The only exception to Order XXI Rule 101 carved out by the Bombay Amendment is that when the Court is not competent to decide such question due to want of pecuniary jurisdiction, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court. Thus, what is provided by all these provisions is that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

27. Thus, the above provisions of CPC i.e. Order XXI Rule 97 to Rule 103 read with Sections 28 and 29 of the Bombay Rent Act or Sections 33 and 34 of the Maharashtra Rent Control Act specifically provides that applications contemplated under Rule 97 or Rule 99 of Order XXI of CPC are to be filed before the Court as contemplated under Section 28 of the Bombay Rent Act or under Section 33 of the Maharashtra Rent Control Act and such Court while dealing with such application has power to determine all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Thus, it is clear that although the Bombay Rent Act or Maharashtra Rent Control Act are special laws having jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant, however, while dealing with applications under rule 97 or rule 99 of Order XXI of CPC i.e. Obstructionist Proceeding the Court under Section 28 of the Bombay Rent Act shall, notwithstanding anything to the contrary have jurisdiction to decide, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions in view of what is provided under Rule 101 of Order XXI of CPC.

28. In view of the above scheme of Order XXI Rules 97 to 103 of the CPC, it is necessary to consider the decisions on which both the learned Counsel have relied.

29. Mr. Patwardhan, learned Counsel appearing for the Respondent No.1A has very strongly relied on the decision of Nusserwanji E. Poonegar (supra). He mainly relied on Paragraph Nos.7, 10, 11, 14 and 19 of the said decision, which read as under:- “7. The main point which has been urged by Mr. Rane appearing in support of this petition is that in proceedings under Rule 101 read with Rule 99 of Order XXI of the Civil Procedure Code, a question such as the tenancy of any person under the Rent Act cannot be decided by the executing Court. Similarly, as a result of the adjudication in these proceedings if it becomes necessary that possession should be given from the tenant to the landlord or vice versa, the executing Court cannot grant that relief. There are several laws which have invested certain courts with exclusive jurisdiction to try certain issues and to give certain reliefs. These Courts can be briefly called the Special Courts. Certain issues and certain reliefs are within the special jurisdiction of these Courts and the Courts acting under Order XXI of the Code of Civil Procedure cannot try those issues and cannot also grant those reliefs. Despite the amendments made in the year 1976 in Order XXI of the Code of Civil Procedure the special and exclusive jurisdiction of the special Courts had not been affected. That is the contention of Mr. Rane. He also proceeded to contend that in any case if there is a possible conflict between the laws which gave exclusive jurisdiction to special Courts to try certain issues and to give certain reliefs and Order XXI of the Civil Procedure Code as amended in the year 1976, that conflict should be avoided by interpreting the provisions in such a manner that the exclusive jurisdiction of the special Courts is retained unimpaired.” “10. From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing Court under the said rule are plenary. The powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule.” “11. A careful reading of the aforesaid Rule also shows that the legislature was fully aware of the existence of the special Courts. That is why it mentions “for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions”. If the legislature by amending Rules 99 to 105 did not intend to give the plenary powers to the executing Courts then the aforesaid clause could not have been inserted. The language of Rule 101 must lead to the inevitable conclusion that the legislature being fully aware of the existence of the special Courts decided to carve out some area out of the exclusive jurisdiction of the special Courts and give it to the executing Courts.” “14. In my opinion, there is no conflict at all between the provisions contained in section 41 of the Presidency Small Cause Courts Act and section 28 of the Bombay Rent Act on the one hand and the provisions contained in Order XXI of the Civil Procedure Code on the other. There fore, the question of resolving a conflict does not arise at all. In the face of the clear language of the provision in Order XXI of the Code it is not necessary to take the assistance of rules of interpretation dealing with the resolution of conflict between the general jurisdiction and the special jurisdiction. The normal rule is that under section 9 of the Code of Civil Procedure, the civil Courts have jurisdiction to try all suits of a civil nature. However, the suits cognizance of which is either expressly or impliedly barred by some other law are outside the purview of section 9 of the Code In that sense the Courts under the Bombay Rent Act are regarded as special Courts. Executing Courts are general Courts. However, it is open to the Legislature to provide that despite the existence of the special Courts with exclusive jurisdiction in certain matters, a small area nut of that exclusive jurisdiction should be returned to the general Courts. This is exactly what has happened by the amendment of 1976.” “19. The legal position can be summarized as follows:

(i) Under Rule 101 read with Rule 99 of the Order XXI of the Civil Procedure Code, all questions including the question of tenancy under the Bombay Rent Act can be decided by the executing Court, subject however to the conditions, as mentioned in Rule 101 itself, that those questions must arise between the parties to a proceeding on the application and must be relevant to the adjudication of the application;

(ii) If on the determination of such question or questions, it becomes necessary to order that possession of immovable property should be given from the landlord to the tenant, the executing Court has the jurisdiction to pass that order under Rule 100(a);

(iii) The bar contained under section 41(2) of the

Presidency Small Cause Courts Act or the bar that may be implied by section 28 of the Bombay Rent Act, does not apply to the field covered by Rule 101 of Order XXI of the Code;

(iv) In Maharashtra, however, the following proviso to

Rule 101 of Order XXI of the Civil Procedure Code has been added and it has come into force from 1st of October, 1983: “Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.

(v) The proceedings under Rule 101 and Rule 105 of

Order XXI of the Code of Civil Procedure are in the nature of a suit and it would be appropriate for the executing Court to frame issues and allow parties to lead all evidence that they may desire to do.”

30. The above conclusions and observations of a learned Single Judge in Nusserwanji E. Poonegar (supra) are required to be examined in the context of the factual position in that case. In that case the Petitioners i.e. licensors filed a Suit in the year 1976 in the Small Causes Court at Bombay against Respondent Nos.[1] and 2 i.e. licensees under Section 41 of the Presidency Small Cause Courts Act, 1882, as amended by Maharashtra Act No. XIX of 1976. Prior to the said amendment of Section 41 of the Act it was provided that the proceedings could be initiated by a licensor against a licensee through an Application. After the amendment, in effect a licensor has to file a regular suit and therefore the aforesaid suit was filed by the Plaintiff/Petitioner against Defendant Nos.[1] and 2/Respondent Nos.[1] and 2. The said Suit was filed on 22nd September 1976, which came to be decreed ex parte on 5th July 1977. In execution of the said decree the Respondent No.3 was dispossessed. The Respondent No.3 filed an Application under Order XXI Rule 99 of the CPC for restoration of possession of the suit premises bearing Miscellaneous Notice. No.1575 of 1977 in the Small Causes Court at Bombay, by contending that he was in possession of the suit premises in his own right and not through the original judgment-debtor. It was his contention that he was in such possession as a tenant of the suit premises. The learned Judge of the Small Causes Court, Mumbai heard the said Application taken out under Order XXI Rule 99 in the suit which was filed under Section 41 of the PSCC Act bearing in mind the provisions contained in Rules 99 to 105 of Order XXI of CPC. The learned Judge of the Small Causes Court made the notice absolute by Order dated 3rd July 1981 by holding that the Respondent No.3 had proved that he was a tenant of the suit premises in his own right and directed that the Petitioners should restore the possession of the suit premises to the Respondent No.3. In the meanwhile, the Petitioners i.e. landlords had inducted Kersy P. Golwala and Kashmira K. Golwala as tenants. The execution of the said Order dated 3rd July 1981 was obstructed by the said Golwalas. Thereafter, Obstructionist Notice was taken out. In that Obstructionist Notice said Golwalas made an Application to the Executing court contending that neither the Executing Court nor any Court under Order XXI of the Civil Procedure Code had jurisdiction to try and decide the question of tenancy which has to be decided only under the provisions of the Bombay Rent Act. The said Application was rejected by the Trial Court by Order dated 4th July 1983. The said Order was challenged by filing a Civil Revision Application before the Division Bench of the Small Causes Court under Sub-Section (3) of Section 29 of the Bombay Rent Act which was dismissed by a Bench of two Judges of the Small Causes Court by Judgment and Order dated 19th August 1983 and against that Order Golwalas have preferred Writ Petition No.3899 of 1983. However, in the meanwhile, the Petitioners i.e. landlords have preferred an Appeal being Appeal No.468 of 1981 against the Order dated 3rd July 1981 by which the learned Judge of the Small Causes Court made absolute Miscellaneous Notice No.1575 of 1977. The said Appeal was dismissed by the Judgment and Order dated 1st February 1982 and against the said Order the Writ Petition No.558 of 1982 was filed which has been decided in Nusserwanji E. Poonegar (supra).

31. Thus, in effect, it was the contention of the Petitioner in Nusserwanji E. Poonegar (supra) that the issue of tenancy is decided by the Court exercising jurisdiction under Section 41 of the Presidency Small Causes Courts Act, 1882 which has jurisdiction to decide the suit between licensors and licensee and landlord and tenant, where the tenant is not protected under the provisions of the Bombay Rent Act. Thus, the submission was such a Court exercising special jurisdiction i.e. limited jurisdiction cannot decide whether a person is a tenant protected under the provisions of the Bombay Rent Act and that has to be done by the Small Causes Court exercising jurisdiction under Section 28 of the Bombay Rent Act.

32. Thus, the legal position summarized in Paragraph No.19 in Nusserwanji E. Poonegar (supra) is required to be understood in view of the above factual position and the submissions raised before the Court. In fact, it is required to be noted that it is not the submission of Mr. Patwardhan, learned Counsel that the obstruction which has been taken before the Small Causes Court is not maintainable. It is his submission that the present Revision is not maintainable. It is his submission that once obstructionist proceedings are filed, the Special Court, as contemplated under Section 28 of the Bombay Rent Act, exercises the jurisdiction of Civil Court under CPC while dealing with the proceedings filed under Order XXI, Rule 97 and 101 and the order passed can be challenged in Appeal under Section 29(1) of the Bombay Rent Act, however, the decree passed in such an Appeal is a decree passed under Section 96 of CPC and therefore the same is appealable to the High Court under Section 100 of CPC.

33. In the said decision of Nusserwanji E. Poonegar (supra) the case of the Plaintiff was that Respondent Nos.[1] and 2 were the legal representatives of the Original Licensee and therefore the Suit has been filed under Section 41 of the Presidency Small Cause Courts Act, 1882. Said Section 41 reads as under:- “S.41. Suits or proceedings between licensors and licensees or landlords, land tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court.-- (1) Notwithstanding anything contained elsewhere in this Act[***] but subject to the provisions of sub-section (2), the Court of Small Cause shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. (2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, [the Maharashtra Housing and Area Development Act, 1976 or any other law for the time being in force apply.”

34. As noted earlier, in the case of Nusserwanji E. Poonegar (supra) the ex parte decree is passed in the Suit filed under Section 41 of the Presidency Small Cause Courts Act, 1882. In execution of the same Respondent No.3 is evicted. The said Respondent No.3 filed an Application for restoration of possession by contending that he has got independent right, title and interest as tenant of the suit premises. The said objection has been upheld and it has been directed that possession be restored to the Respondent No.3. The submission made in that case on behalf of the Petitioner is that the Court exercising power under Section 41 has no jurisdiction to hold and declare that Respondent No.3 is the tenant. In view of the said submission of the Petitioners, the learned Single Judge in Nusserwanji E. Poonegar (supra) by relying on Rule 101 of Order XXI, which provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate Suit and as it has been further provided that the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions, held that the Judge of the Small Causes Court exercising jurisdiction under Section 41 of the Presidency Small Cause Courts Act, 1882 has jurisdiction to decide all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding and consequently such a Court has jurisdiction to decide the said application contending that the Respondent No.3 is the tenant of the said suit premises. Thus, various observations made in the said decision of Nusserwanji E. Poonegar (supra) to the effect that the Courts under the Bombay Rent Act are regarded as special Courts, Executing Courts are general Courts and it is open to the Legislature to provide that despite the existence of the special Courts with exclusive jurisdiction in certain matters, a small area of that exclusive jurisdiction should be returned to the general Courts and this has exactly happened by the amendment of 1976, are required to be understood in that context.

35. In fact, the observations in Paragraph No.10 of the said decision are relevant, wherein it is held that by a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under Rule 101. It is significant to note that in fact, what is further observed in paragraph 10 of Nusserwanji E. Poonegar (supra) is that the powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand the said observations clearly shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. The conclusions of the learned Single Judge in the decision of Nusserwanji E. Poonegar (supra) are required to be understood in this context. Thus, in the said decision, it has been concluded that bar contained under Section 41(2) of the Presidency Small Cause Courts Act, 1882 or the bar that may be implied by Section 28 of the Bombay Rent Act, does not apply to the field covered by Rule 101 of Order XXI of CPC.

36. Thus, in effect what has been held in the said case of Nusserwanji

(2) of Section 41 that the Suit or proceeding to which Bombay Rent Act applies, the Suit or proceeding under Section 41(1) cannot be filed, however in Obstruction Proceeding filed concerning decree which has been passed under Section 41(1) of the Presidency Small Cause Courts Act, 1882, such executing Court has jurisdiction to decide all questions under Rule 101 of Order XXI of CPC including the questions which can be decided exclusively by the Court exercising jurisdiction under Section 28 of the Bombay Rent Act. Thus, the question in the case of Nusserwanji E. Poonegar (supra) was totally different. The question was, whether in the Obstructionist Proceeding filed concerning execution of decree passed under Section 41(1) of the Presidency Small Cause Courts Act, 1982, it can be decided by the Court exercising power under Section 41(1) that the Obstructionist is tenant. Normally in view of bar under Section 28(1) of the Bombay Rent Act, it is the Small Causes Court exercising power under Section 28(1) has exclusive jurisdiction to decide the same. Thus, it is clear that what has been held in Nusserwanji E. Poonegar (supra) is that in view of Rule 101 of Order XXI of the CPC, although the Executing Court is executing the decree passed under Section 41 of Presidency Small Cause Courts Act, 1982, in the obstructionist proceeding it has jurisdiction to decide all rights, title and interest arising between the parties to a proceeding on an application under Rule 97 or Rule 99 and the same shall determined by the Executing Court under Order XXI Rule 101 of CPC. Thus, the conclusions in the case of Nusserwanji E. Poonegar (supra) are required to be understood in the light of the factual position in that case and in the light of the discussion in the reasoning part of the said decision particularly in Paragraph Nos.10 and 11 of the same.

37. Mr. Patwardhan, learned Counsel appearing for Respondent No.1A has also relied on the decision of the Supreme Court in Asgar (supra) and more particularly on Paragraph Nos.45 and 46. In the said Paragraphs the Supreme Court has approved the decision in the case of Nusserwanji E. Poonegar (supra). The said decision is discussed herein above in detail. Thus, in effect what has been held in the case of Nusserwanji E. Poonegar (supra) as well as Asgar (supra) is that the Executing Court has got power under Rule 101 to determine all question including questions relating to the right, title and interest in the property arising between the parties to a proceeding on an Application under Rule 97 or Rule 99 and not by a separate Suit and for that purpose the Court shall notwithstanding anything to the contrary have jurisdiction to decide such questions.

38. Thus, in effect what has been held that although a Court may have jurisdiction to decide a particular dispute / particular question under a special statute, however, in obstruction to the execution the decree passed by such a Court having jurisdiction under special statute it has power to decide all questions including a question relating to the right, title and interest in the property. Thus, on the basis of said decision, it cannot be said that the the jurisdiction is vested under the Courts contemplated under the CPC, and therefore, the Revision is not maintainable and the proper remedy is to file Second Appeal. In fact, as held herein above, as per the scheme of the Bombay Rent Act there is only one Appeal provided and the decision in the said Appeal is final. Thus, in fact the Second Appeal is barred under the provisions of the Bombay Rent Act.

39. Mr. Patwardhan, learned Counsel has also relied on the decision of the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar (supra) and more particularly on the following observations in the Privy Council’s decision:- “The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal — see Secretary of State for India v. Chelikani Rama Rao (2) and Hem Singh and others v. Basant Das (3).” The above observations of the Privy Council makes it clear that the said observations are concerning the proceedings which are filed in ordinary Courts governed by ordinary rules of procedure applicable thereto concerning right claimed under Special Statute. In that case the Privy Council has observed that in such a case, notwithstanding nonavailability of the remedy of appeal under Special Statute, appeal lies. The said observations have no application to the present case. In the present case the proceeding are filed under Section 28 of the Bombay Rent Act i.e. concerning rights and liabilities under Special Statute and before the Court specified by Special Statute. The Appeal is also provided by said Special Statute i.e. by Section 29 of the Bombay Rent Act. Thus, the above observations have no application to the present case.

40. Mr. Patwardhan, learned Counsel also relied on the decision of this Court in Praveen Kumar Passi v. Pradip Syamlal Das 17. He pointed out various Paragraphs in the said decision and more particularly Clause No. IV on Page No.22 and also conclusions recorded on Page No.26 of the said decision. He submitted that for proceedings covered under Chapter V of the Maharashtra Rent Control bar of jurisdiction of Civil Court is created and no such bar is created under Part II of the Bombay Rent Act. He submitted that by not creating any such bar as created for Competent Authority under Section 47 of the Maharashtra Rent Control Act the legislature has clearly indicated and clothed the ordinary Civil Court only, with powers/jurisdiction to execute a decree under Rent legislation, under CPC, and therefore, the further remedies will also lie under CPC. It is his submission that Section 31 of the Bombay rent Act read with the Bombay Rents, Hotel, Lodging House Rates, Control Rules, 1948 further indicate the said legislative intention.

41. However, Mr. Patwardhan, learned Counsel is not right in contending that for proceedings covered under Chapter V of the Maharashtra Rent Control bar of jurisdiction of Civil Court is created and no such bar is created under Part II of the Bombay Rent Act. It is relevant to note that Sections 6 to 31 are included in the Part II of the Bombay Rent Act. Section 28 of the Bombay Rent Act is in Part II which specifies that no other Court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question except the Courts specified in Section 28 of the Bombay Rent Act to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Party apply or between a licensor and a licensee relating to the recovery of the licence fee or charge and to decide any application made under this said Act and to deal with any claim or question arising out of this said Act or any of its provisions. Section 29 of the Bombay Rent Act specifically makes provision regarding statutory Appeal which is to be filed under Section 29. It is made very clear that only one Appeal is provided under Section 29 and no further Appeal shall lie against any decision in Appeal under Sub- Section (1) of Section 29 of the Bombay Rent Act. Thus, the said submission which is contrary to the scheme of the Bombay Rent Act cannot be accepted.

42. Apart from this position, it is relevant to note that Section 31 of the Bombay Rent Act on which reliance is placed by Mr. Patwardhan, learned Counsel provides that the Courts specified in Sections 28 and 29 of the Bombay Rent Act shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. Thus, the said provision also makes it clear that the Court specified in Sections 28 and 29 have jurisdiction to decide execution proceedings and/or obstructionist proceedings concerning execution of decrees or orders passed by the Courts exercising jurisdiction under Section 28 of the Bombay Rent Act.

43. It is submitted by Mr. Patwardhan, learned Counsel that the Petitioners argument on Section 29 of the Bombay Rent Act is unsustainable in as much as the execution proceeding is under Section 47 read with Order XXI of the CPC. The bar of Second Appeal under Sub-Section (2) of Section 29 is thus not attracted to an order passed under Order XXI Rule 97 of the CPC. With respect to this submission it is required to be noted that the decree which is passed under the provisions of the Bombay Rent Act has to be executed by the Small Causes Court. Section 28 of the Bombay Rent Act which is regarding the jurisdiction of Courts specifically provides that the Court contemplated under Sub-Section (1) of Section 28 of the Bombay Rent Act have exclusive jurisdiction to entertain and try any suit or proceeding. As already noted herein above, the Explanation to Section 28 provides that “proceeding” does not include an execution proceeding arising out of a decree passed before the coming into operation of the Bombay Rent Act. Thus, in effect the word “proceeding” include the execution proceeding arising out of a decree passed after coming into operation of the Bombay Rent Act. Thus, Section 28 read with Section 29 makes it very clear that exclusive jurisdiction is conferred on the Small Causes Court to deal with the suit as well as “proceedings” which, inter alia includes the execution proceedings. As far as the decree which is passed under Section 28 of the Bombay Rent Act, Appeal is provided under Section 29 and it is specifically provided under Sub-Section (2) of Section 29 and that no further Appeal shall lie against any decision in Appeal under Sub-Section (1) of Section 29. What is contemplated by Rule 101 of Order XXI of CPC is that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions. Thus, there is no substance in the said submission.

44. Mr. Patwardhan, learned Counsel has also pointed out Proviso to Section 29(1) of the Bombay Rent Act which has been added by the erstwhile Bombay State Legislature by Bombay Act No.61 of 1953. [Section 17(1)]. He submitted that it is a case of legislation by incorporation. The same facilitates appeals in suits/proceedings where the CPC so permits. He submitted that on the date of commencement of said Act No.61 of 1953, the definition of “decree” under Section 2(2) of CPC included reference to orders under Section 47 of CPC. Although such reference to “orders under Section 47” is omitted from Section 2(2) by CPC Amendment Act, 1976, for the purposes of Section 29 of the Bombay Rent Act, an order under Section 47 of CPC is still a “decree”, and hence appealable under Section 96 and further under Section 100 of CPC. However, it is significant to note that what is provided by said proviso, added by 1953 amendment, is that no such Appeal shall lie from a decree or order made in any suit or proceeding in respect of which no Appeal lies under the Code of Civil Procedure,

1908. Thus, no new appeal is provided and what is stipulated is that in case Appeal is competent under Sub-Section (1) of Section 29 then also if CPC does not provide an Appeal then no such Appeal is competent. Thus, no new Appeal is provided by said proviso, added by 1953 amendment. Thus, there is no substance in the contention raised by Mr. Patwardhan, learned Counsel that by proviso, added by the 1953 amendment, wherever CPC permits, Appeal is competent. The scheme of the Bombay Rent as noted herein above is very clear and therefore there is no substance in the contention that the impugned Order should have been challenged by way of filing Second Appeal.

45. Mr. Patwardhan, learned Counsel has also relied on the decision of the Gujarat High Court in Pranshankar Shankarlal Joshi (supra) and more particularly on Paragraph Nos.[9] and 10. The relevant discussion on which he has relied are set out herein below: “9. Now, in 1953, when the proviso (I) was introduced to S.29(1) of the Rent Act, an appeal was competent against the determination of any question made under S.47, and it was appealable as if it were a decree and the orders passed under S.47 of the Civil P. C. in execution proceedings were appealable. But, after the amendment in 1976, reference to S.47 of the Civil P. C. is omitted by the Amendment Act, 1976. The question in the present case is, therefore, whether the mention of Civil P. C. was by way of a reference or citation or incorporation. It is submitted that this would be legislation by incorporation.” “10..... Relying on this case, in the present case, if we read that provise (i) to S. 29(1) of the Rent Act to mean as amendment of the Civil PC from time to time by the Parliament, it would be a clear case of abdication or effacement of its legislative function. The relevant proviso to

46. Mr. Patwardhan, learned Counsel has also relied on the decision of the Andhra Pradesh High Court in Gurram Seetharam Reddy v. Gunti and more particularly on Paragraph Nos.32, 35 and 42 of the same, which read as under:- “32. Once it emerges that an order passed under Rule 58 of Order 21 is conferred the status of a decree, in the particular context of appeal, Section 96 gets attracted. Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of adjudication partakes the character of a decree, it gains an entry into the realm of Section 96. The contention of the learned counsel for the petitioner that the appeals provided for under Section 96 are against original decrees and not other kinds of decrees is unacceptable. The word ‘original’ in the heading of Section 96 signifies the jurisdiction, i.e. original jurisdiction in contradistinction to appellate jurisdiction.” “35. When Section 96, C. P. C. specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical 18 2004 SCC OnLine AP 694: (2004) 3 AP LJ 251 (HC) (FB) purposes, more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21, C. P. C. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least in the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals, needs to be dealt with by the High Court or the District Courts, on administrative side. Hence, we are of the view that the judgment of this Court in Nookaraju's case (supra) does not lay the correct proposition of law. Once it is held that orders passed under Rule 58(3) and Rules 98 and 100 of Order 21, C. P. C., are appealable under Section 96, C. P. C., it is axiomatic that a second appeal is maintainable against the order passed in such appeals. Though this question is not referred to this Full Bench, it is dealt with, to put an end to the controversy and uncertainty.” “42. For the foregoing reasons, we hold that: a) Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order 21, C. P. C. regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order 43, Rule 1 CP. C. are maintainable and that the judgment of this Court in Nookaraju's case (supra) does not represent the correct position of law. b) The Court fee payable on such appeals shall be the one calculated in accordance with Articles 11(i) or 3(i) of Schedule II of Court Fees Act, as the case may be read with Section 49 of the A. P. Court Fees and Suits Valuation Act. c) A second appeal under Section 100, C. P. C. is maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rules 98 and 100 of Order 21, C. P. C.”

47. It is required to be noted that in the said case of Gurram Seetharam Reddy (supra), the Full Bench of the Andhra Pradesh High Court was considering the question as framed in Paragraph No.1 of the said decision, which reads as under: ““Whether, against an order passed under Order 21 Rule 58 of the Code in respect of a claim or objection to the attachment of property, a regular appeal would lie as an appeal against the decree, or, a Miscellaneous Appeal against the order?” ” The factual position in that case is set out in Paragraph No.3, which reads as under:- “3. Petitioner filed O.S. No.1 of 1998 against the 2nd respondent in the Court of Junior Civil Judge, Huzuragar, for recovery of certain amount. He obtained an order of attachment before judgment, dated 21-1-1998, by filing an application under Order 38 Rule 5 CPC The suit was decreed for a sum of Rs. 68,900/-. In E.P. No. 60 of 1999 filed by the petitioner, an application under Rule 58 of Order 21 CPC was filed by the 1st respondent, objecting to the attachment of the suit schedule property. She is the daughter of the sole defendant i.e. the 2nd respondent herein. She pleaded that the property in question was gifted to her at the time of the marriage, and that she is in possession and enjoyment of the same. The claim put forward by the 1st respondent was accepted by the executing Court through order dated 30-03- 2001, and the attachment against the property in question was raised.” Thus, it is clear that in that case of Gurram Seetharam Reddy (supra), the Court was considering the proceedings filed in the Civil Suit in the Court of the Civil Judge, Junior Division seeking recovery of money. Thus, the said suit has been filed in the Court as contemplated by Part I of CPC Therefore, the said decision has no relevance to this case particularly in view of the scheme as contemplated under Sections 28 and 29 of the Bombay Rent Act.

48. To substantiate the contention that Civil Revision Application is maintainable, Mr. Surel Shah, learned Senior Counsel appearing for the Applicant has relied on the decision of a Division Bench of this Court in the case of Gajanan (supra). The said decision is rendered by the Division Bench of this Court in reference made by a learned Single Judge. A learned Single Judge has framed the following question for consideration by the Larger Bench: ““Whether the judgment and decree passed by the Court under the provisions of the section 26-A of the Provincial Small Cause Courts Act, 1887 can be challenged in revision under section 115 of the Code of Civil Procedure or under Article 226 and/or Article 227 of the Constitution of India or under section 25 of the Provincial Small Cause Courts Act, 1887?” ”

49. For appreciating the said decision in Gajanan (supra), it is relevant to note Section 26 and Section 26A of the Provincial Small Cause Courts Act, 1887 (Maharashtra Amendment) is as follows:- “26. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except those to which other Act apply, to lie in Court of Small Causes.—(1) Notwithstanding anything contained elsewhere in this Act, but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. (2) Nothing contained in sub-section (1) shall apply to suit or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947), the Bombay Government Premises (Eviction) Act, 1955 (Bom. II of 1956), the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949), or the Maharashtra Housing and Area Development Act, 1976 (Mah.

XXVIII of 1977), or any other law for the time being in force, apply.” “26-A. Appeal - (1) An appeal shall lie, from a decree or order made by the Court of Small Causes exercising jurisdiction under section 26, to the District Court. (2) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be: Provided that, in computing the period of limitation prescribed by this sub-section, the provisions contained in sections 4, 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply. (3) No further appeal shall lie against any decision in appeal under sub-section (1). (4) The District Court may, for the purpose of satisfying itself that a decree or order made in any case decided by the Court of Small Causes was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit.”

50. After considering the entire scheme, the Division Bench answered the said reference in following manner:- “(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh and ors. vs. Shivgopal Madangopal Chaurasia and ors. that revision under section 115 of the Code would not be tenable against the order under section 26-A of the said Act does not lay down the correct position of law.

(II) The view taken by the learned Single Judge in the case of

Dhuliabai Mana Praga and ors. vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under section 26-A of the said Act by the District Court would be at liberty to choose to file either Civil Revision Application under section 115 of the Code or a petition under Article 227 of the Constitution of India.

(IV) The matter be placed before the learned Single Judge for decision, in accordance with what has been held herein. Before parting, we express our gratitude for valuable assistance rendered by Mr. Kavimandan, Advocate under the able guidance of Mr. R. L. Khapre, Advocate and also Mr. F. T. Mirza, Advocate with Mr. Anand Deshpande, Advocate.”

51. Thus, what has been held by the Division Bench is that a party which is aggrieved by the order passed under Section 26-A of the Provincial Small Causes Courts Act, 1887 by the District Court would be at liberty to choose to file either Civil Revision Application under Section 115 of the CPC or a Petition under Article 227 of the Constitution of India.

52. Mr. Surel Shah, learned Senior Counsel has also relied on the decision a learned Single Judge of this Court [Aurangabad Bench] in Bhola Wajareshwar Sethi v. Hotel Nandanvan Pvt. Ltd. 19 and more particularly on Paragraph Nos.4, 5 and 6, which read as under:- 19 1999 SCC OnLine Bom 95: (2000) 1 Bom CR 124 “4. What is pertinent to be noted is that the learned Counsel has not pointed out to this Court in order to attract sub-section (2) of section 26 that any law stated in subsection (2) has made a provision for the recovery of licence fee which is the subject-matter of the present suit. He has further not pointed out any other law which is for time being in force otherwise than the Acts which have been stated in sub-section (2) which deals with the recovery of the licence fee and, therefore, in the facts of the present case, sub-section (2) of section 26 is not applicable and the subject-matter of the present suit is covered under sub-section (1) of section 26. Therefore, the contention raised by the learned Counsel based on sub-section (2) of section 26 is hereby rejected.

5. Now the only question requires to be considered is in respect of the contention that the Civil Courts invested with the powers of the Small Causes Court under section 28 of the Bombay Civil Courts Act, 1869 are Small Causes Court under the Provincial Small Cause Courts Act, 1887 or not and if yes, whether the powers under section 26 can be exercised by those Courts. It is pertinent to note that this question has been thoroughly dealt with and considered by this Court in 1987 (2) Bom. C.R. 245: 1987 Mh. L.J. 283 (Salimkhan v. Mohammad). In paragraph No. 5 Court has observed: “The suit in question was instituted in the Court of the Civil Judge (Senior Division) Achalpur, who had been invested with powers to try small cause suits of the value upto 1,800/- section 28 of the Bombay Civil Courts Act. Under section 4 of the Provincial Small Cause Courts Act, unless there is something repugnant in the subject or context, “Court of Small Causes” means a Court of Small Causes constituted under the Act, and includes any person exercising jurisdiction under the Act in any such Court. The combined effect of this section and section 28 of the Bombay Civil Courts Act, would be that the Civil Judge (Senior Division), Achalpur by virtue of the powers invested on him by the High Court will have the jurisdiction of a Court of Small Causes ordinarily upto a particular limit. Chapter IV-A of the Provincial Small Cause Courts Act, which was introduced by the Amending Act XXIV of 1984, creates a larger jurisdiction for entertaining the suits and proceedings which till the amendment could not be entertained by the Court of Small Causes and makes the orders and decrees of the Court of Small Causes subject to an appeal to the District Court….. Section 15 of the Provincial Small Cause Courts Act prohibits a Court of Small Causes from taking cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes, but subject to the exceptions specified in the schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed two thousand rupees shall be cognizable by a Court of Small Causes. Under section 16, exclusive jurisdiction is conferred on the Court of Small Causes in respect of the suits cognizable by that Court save as expressly provided by this Act or by any other enactment for the time being in force. In view of the non-obstante clause, with which section 26 begins, evidently nothing to the contrary contained in sections 15 and 16 would prevent the Court of Small Causes from exercising the jurisdiction to entertain and trying the suits of the description mentioned in section 26(1). This means that neither the pecuniary limit mentioned in sub-section (2) of section 15, nor whatever is mentioned in second schedule would operate to affect the jurisdiction of the Court of Small Causes in respect of the suits to which section 26 refers. The effect would, therefore, be that whatever may be the pecuniary jurisdiction conferred on a Court of Small Causes under section 28 of the Bombay Civil Courts Act, or section 15 of the Provincial Small Cause Courts Act, it shall have the jurisdiction to entertain and decide the category of suits enumerated in section 26 of the Provincial Small Cause Courts Act.’

6. Thus, this Court has already laid down that the Civil Courts which are empowered under section 28 of the Bombay Civil Courts Act, 1869 of the power of the Small Causes Courts Act, are the Small Causes Courts under the Provincial Small Cause Courts Act. 1887 in view of the definition of the “Court of Small Causes” given in section 4 of the said Act and has further laid down that the said Court is entitled to exercise the jurisdiction under section 26 irrespective of the pecuniary limits of said Court provided while investing the powers under section 28 of the Bombay Civil Courts Act. In the present matter, there is no dispute over the fact that the Joint Civil Judge, Senior Division, Aurangabad is empowered under section 28 of the Bombay Civil Courts Act, 1869 to deal with the powers of the Small Causes Courts and once that Court is found to be a Small Cause Court, in view of the provisions of section 28 of the Bombay Civil Courts Act, the said Court is empowered to decide the present suit, which pertains to the recovery of the licence fee. Thus, I find that the claim made by the learned Counsel that the courts which are invested with the powers of the Small Causes Courts under section 28 cannot to be said to be the Small Causes Courts under the Provincial Small Cause Courts Act, 1887 is misconceived and is hereby rejected. Therefore, the Trial Court has rightly considered this aspect and has rejected the application at Exh. 17.”

53. Thus, it is settled legal position that Civil Courts which are empowered under Section 28 of the Bombay Civil Courts Act, 1869 of the power of the Small Causes Courts under the PSCC Act are the Small Causes Courts under the Provincial Small Cause Courts Act, 1887 and the said Court is entitled to exercise the jurisdiction under Section 28 irrespective of the pecuniary limits of said Court provided while investing the powers under Section 28 of the Bombay Civil Courts Act.

54. Therefore, for the above reasons, there is no substance in the contention raised by Mr. Patwardhan, learned Counsel that the Civil Revision Application filed challenging the Order passed in Appeal arising out of the Order in obstructionist proceeding under the provisions of the Bombay Rent Act / Maharashtra Rent Control Act is not maintainable and further there is no substance in the contention that the Second Appeal is maintainable.

55. Hereinafter Point No.III, IV and V will be considered: POINT NO.III Whether the original Respondent No.1 - Sham Tuljaram Pardeshi has got any independent right, title and interest with respect to the suit premises? POINT NO.IV Whether Respondent No.1A - Anusaya Tuljaram Pardeshi has any independent right, title and interest with respect to the suit premises? POINT NO.V Whether the impugned Judgment dated 8th December 2009 passed by the learned District Court is legal and in accordance with the evidence on record?

56. The other points which require determination in this Civil Revision Application is whether the Respondent No.1 - Sham Tuljaram Pardeshi has got any independent right, title and interest with respect to the suit premises and whether Respondent No.1A - Anusaya Tuljaram Pardeshi has any independent right, title and interest.

57. Mr. Patwardhan, learned Counsel appearing for the Respondents has fairly admitted that as far as Anusaya Tuljaram Pardeshi is concerned, she has got no independent right, title and interest as the writing dated 4th April 1991 by which the other heirs and legal representatives of the deceased Tuljaram Hemraj Pardeshi agreed that the rent receipt be transferred in favour of the Sanjay Tuljaram Pardeshi is signed by her and even in the impugned Order also the same is recorded in Paragraph No.14 [Page 154]. He therefore submitted that as far as Anusaya Tuljaram Pardeshi is concerned, she has no independent right, title and interest in her personal capacity.

58. It is the only contention of Mr. Patwardhan, learned Counsel that however Respondent No.1 - Sham Tuljaram Pardeshi has not signed the said writing dated 4th April 1991 and now Anusaya Tuljaram Pardeshi is claiming right through said Sham Tuljaram Pardeshi. He therefore submitted that as said Sham Tuljaram Pardeshi has got independent right, title and interest with respect to the suit premises, the same right is claimed by Anusaya Tuljaram Pardeshi under Section 5(11)(c) of the Bombay Rent Act.

59. For appreciating the contention of Mr. Patwardhan, a scanned copy of the said writing dated 4th April 1991 is reproduced herein below for ready reference:-

60. English translation of the same is as under: “Shree From Shri. Pramod Ramvilas Malpani Residing at – 1611, Shukrawar Peth, Pune – 2. To,

1) Shri. Ramkishan Hemraj Pardeshi )

2) Shri. Laxman Hemraj Pardeshi )

3) Shri. Satish Hemraj Pardeshi )

4) Smt. Shantabai Hemraj Pardeshi )

5) Smt. Anusayabai Tuljaram Pardeshi ) Parties giving in writing

6) Shri. Raju Tuljaram Pardeshi )

7) Shri. Sanjay Tuljaram Pardeshi )

8) Shri. Shyam Tuljaram Pardeshi ) On the date 27.3.1989, you have purchased a House viz. House No. 438, Sardar Patel Road (Old Center Street), Pune 1 from Shri. J. A. Marteiours and Shri. J. L. Marteiours and thus, you have become the owner of the said premises. We, the parties giving in writing i.e. all the undersigned persons and Shri. Tuljaram Hemraj Pardeshi are residing in three rooms, located on the ground floor on the northern of the said house. Shri. Tuljaram Hemraj Pardeshi was residing as a tenant in the said house as monthly tenant and he had taken the said premises for residential purpose only. The Rent Receipt in respect of the said premises is standing in the name of Shri. Tuljaram Hemraj Pardeshi and he has been paying monthly rent of Rs. 35 for the said residential house. Shri. Tuljaram Hemraj Pardeshi has died on the date 15.5.1989. We, all the undersigned i.e. the parties giving in writing are his family members (heirs). Now, you shall get transferred the rent receipt in respect of the said house to the name of Shri. Sanjay Tuljaram Pardeshi and Shri. Sanjay Tuljaram Pardeshi only shall be your tenant and thus, we all hereby, voluntarily give consent for the same. Thus, now Shri. Sanjay Tuljaram Pardeshi only shall be your tenant and he will continue to pay you monthly rent every month. Similarly, besides the said rent, it is necessary to pay expenses towards Education Cess and Water Tax etc. and he will also pay the money required for Education Cess, Water Tax. Shri. Sanjay Tuljaram Pardeshi shall pay the monthly water tax whatever that would come to his share. You shall have to fix the amount towards the water tax of his share and shall not make any complaint of whatsoever nature in respect thereof. May this be known. Date: 4.4.1991 Name Relation Signatures 1) Shri. Ramkishan Hemraj Brother Sd/- R. H.

2) Shri. Laxman Hemraj Pardeshi Brother Sd/- Laxman

3) Shri. Satish Hemraj Pardeshi Brother (Signature Illegible)

4) Smt. Shantabai Hemraj Mother

5) Smt. Anusayabai Tuljaram Wife Sd/- Anusaya

6) Shri. Raju Tuljaram Pardeshi Son Sd/- Raju

7) Shri. Sanjay Tuljaram Pardeshi Son (Signature

8) Shri. Shyam Tuljaram Pardeshi Son Sd/- Shyam T.

9) Shri. Deepak Tuljaram Son (Signature

10) Shri. Ganesh Tuljaram Son Sd/- Anusaya

11) Shri. Sushil Tuljaram Pardeshi Son

61. It is required to be noted that earlier on 7th September 2004, Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi and Satish Hemraj Pardeshi i.e. uncles of the Defendant – Sanjay Pardeshi and of Respondent No.1 - Sham Tuljaram Pardeshi and who are also the signatories to the said writing dated 4th April 1991 filed obstructionists proceeding which was rejected by order dated 3rd February 2006, which has been confirmed by this Court by order dated 17th April 2006 passed in Writ Petition No.1014 of 2006. In the said obstructionist proceeding, Ramkishan Hemraj Pardeshi, examined himself as witness and in his Evidence Affidavit he has stated as under:- ßdS- rqwGtkjke gsejkt ijns’kh gs 15-5-1989 jksth e;r >kys- R;kaph eqys,dq.k lgk rs 1½ jktw] 2½ lat;] 3½ ‘kke 4½ x.ks’k 6½ lqf’ky rqGtkjke ijns’kh gs vkgsr-Þ In his cross-examination has admitted as under:- ßHkkMs ikorh rqGtkjke gsejkt ijns’kh;kaP;k ukokus gksrh- rqGtkjke ijns’kh;kaph eqys R;kaP;k lkscr jkgr gksrh-Þ He has given further admission in his cross-examination as under:- ßvkrk eyk nk[koysY;k dkxnkoj y{e.k] lrh’k] vuql;k] jktq] lat;;kaP;k lgÓkk vkgsr- R;kpizek.ks R;koj ek>h lgh vkgs-;k dkxnkoj 4@4@91 gh rkjh[k vkgs fn- 4@4@91 jksth vkEgh izeksn ekyik.khyk v’kk izdkjP;k i= fnY;kps vkBor ukgh- fnukad 4@4@91 P;k HkkMsikorhP;k Counter-foil oj lat;P;k lgÓkk vkgsr- gs Eg.k.ks [kjs ukgh dh] vkeP;k lokZaP;k ekU;rsus HkkMsikorh lat;P;k ukokus dsyh- gs Eg.k.ks [kjs ukgh dh eh [kksVk vtZ nk[ky dsyk-Þ Thus, the uncle of Sham Pardeshi namely Ramkishan Hemraj Pardeshi has stated that Original Tenant – Tuljaram has 6 sons i.e. Raju, Sanjay, Sham, Ganesh and Sushil and all of them were staying with him. He has further stated that the said writing dated 4th April 1991 is signed by Laxman, Satish, Anusaya, Raju and Sanjay and also the same bears his signature. On the basis of said admission, it is the submission of Mr. Patwardhan, learned Counsel that as Ramkishan Hemraj Pardeshi has not taken the name of said Sham Tuljaram Pardeshi, the said writing is not executed by said Sham Tuljaram Pardeshi.

62. Mr. Patwardhan, learned Counsel has heavily relied on the finding of the learned Appellate Court in that behalf, wherein the Appellate Court in Paragraph No.14 of the impugned Order dated 8th December 2009 has observed as follows:- “14.The record and proceedings shows that the consent letter was produced by the decree Holder in MA No.131/2004. However it is seen that the Obstructionist in his evidence has referred to the signature of all other members of the family except Sham Pardeshi. The said evidence on record clearly shows that the signature of the present obstructionist was neither referred to the applicant therein nor the same is document except for the signature of the obstructionist….” Thus, what the learned District Judge has observed is that the Obstructionist in said MA No.131 of 2004 in his evidence has referred to the signatures of all other members of the family except Sham Pardeshi and therefore said writing dated 4th April 1991 is not signed by said Sham Pardeshi. However, copy of the said writing dated, 4th April 1991 which is reproduced earlier, shows that the said document is executed by Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi, Santosh Hemraj Pardeshi, Anusayabai Tuljaram Pardeshi, Raju Tuljaram Pardeshi, Sanjay Tuljaram Pardeshi, Sham Tuljaram Pardeshi and Deepak Tuljaram Pardeshi. The said document further shows that said Anusayabai Tuljaram Pardeshi has also signed on behalf Ganesh Tuljaram Pardeshi and Sushil Tuljaram Pardeshi. Said Ganesh and Sushil have not raised any objection regarding said writing dated 4th April

1991. Thus, it is clear that in the said cross-examination of Ramkishan Hemraj Pardeshi names of all family members who have signed said letter dated 4th April 1991 are not mentioned and on the basis of the same the learned Appellate Court has observed that the said Obstructionist namely Ramkishan Hemraj Pardeshi has referred to the signature of all other members of the family except Sham Pardeshi. It can be seen that even Deepak Tuljaram Pardeshi who has signed on said writing dated 4th April 1991, his name has also not stated by Ramkishan Hemraj Pardeshi in said cross-examination. Thus, on the basis of said cross-examination it can not be held that the signatories to the said writing dated 4th April 1991 whose names are not taken have not executed the said document. Accordingly, the said finding is totally perverse and contrary to the signatures of the family members as appearing on the said document dated 4th April 1991.

63. It is further significant to note that the subject Suit was filed in the year 1991 against Tenant -Sanjay Pardeshi and decreed on 20th December 2000. Appeal is filed by said Sanjay Tuljaram Pardeshi bearing Civil Appeal No.117 of 2001. The said Appeal has been dismissed for default by Order dated 29th October 2003. Said tenant – Sanjay is selected by the family members of Tuljaram for transfer of tenancy rights in accordance with said writing dated 4th April 1991 and even the rent receipt is also accordingly transferred in favour Sanjay Tuljaram Pardeshi. He has paid the rent for some time. Thus, the said writing dated 4th April 1991 has been given effect immediately in the year 1991. There is nothing on record to indicate that since the year 1991 till 7th June 2006 when Respondent No.1 – said Sham Pardeshi filed obstructionists proceedings at any time for these 15 years he had claimed tenancy rights with respect to the suit premises. Thus, in fact, the said writing dated 4th April 1991 by which Sanjay Tuljaram Pardeshi has been elected as tenant by heirs and legal representatives of Tuljaram Hemraj Pardeshi has been acted upon and at no point of time said Sham has taken objection to the same which clearly shows that he has complete knowledge about the said writing dated 4th April 1991 and he has signed the said writing dated 4th April 1991.

64. It is also significant to note that thereafter, Raju Tuljaram Pardeshi i.e. brother of the Defendant - Sanjay Tuljaram Pardeshi and the signatory to the said writing dated 4th April 1991 filed Civil Miscellaneous Application No.664 of 2004 for restoration of said Civil Appeal No.117 of 2001 filed by Sanjay Pardeshi with Application seeking condonation of delay and also stay application. Stay application filed in Civil Miscellaneous Application No.664 of 2004 was rejected by Order dated 14th September 2004. Said Raju Tuljaram Pardeshi filed Writ Petition No.7824 of 2004 challenging the said Order dated 14th September 2004 and the said Writ Petition No.7824 of 2004 was allowed to be withdrawn by Order dated 21st March 2005. Thus, the decree which has been passed on 20th December 2000 in the said Suit has attained finality.

65. It is further significant to note that in the meanwhile on 7th September 2004 Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi, Satish Hemraj Pardeshi i.e. uncles of the Defendant - Sanjay Tuljaram Pardeshi filed Miscellaneous Application No.131 of 2004 under Order XXI Rule 97 of CPC raising objection to the execution of decree and also filed Application bearing Exhibit - 29 in said Miscellaneous Application No.131 of 2004 praying that the said writing dated 4th April 1991 be sent to the Competent Authority for opinion and necessary action. The said Application bearing Exhibit - 29 has been rejected by Order dated 4th January 2006. It is very significant to note that the said Application bearing Exhibit - 29 filed in MA No.131 of 2004 was rejected inter alia on the ground that the Obstructionist intent to cause delay in execution proceeding and in order to avoid execution of warrant the said Application is filed.

66. Thereafter by Order dated 3rd February 2006 the said Miscellaneous Application No.131 of 2004 filed by Ramkrishna Hemraj Pardeshi, Laxman Hemraj Pardeshi and Satish Hemraj Pardeshi was rejected. They filed Writ Petition No.1014 of 2006 and the said Writ Petition was rejected by Order dated 17th April 2006. The observations of this Court in the said Order dated 17th April 2006 in Paragraph Nos.[6] and 7 are very important and the same read as under:- “6. It is apparent from the cross-examination of the present petitioner, of which record is annexed, which shows that he had full knowledge of the execution of the said receipt, which was made in the name of Sanjay and he had given his consent. Not only this but he is also signatory of the said document dated 4.4.1991.

7. On the basis of this admission the learned lower court has concluded that the petitioner’s admission to that effect was clearly indicative of the fact that he was denying consent for passing the rent receipt in the name of Sanjay and he was aware of the execution of the said rent receipt. Under the circumstances, the application contemplated under Order 21 Rule 97 and 101 of Civil Procedure Code was held not tenable in law. In my considered view, the order passed by the trial court appears to be legal and proper in view of the clear admission given by the petitioner himself in the course of his cross-examination and as such no interference is required in the matter.”

67. In the meanwhile, the said Miscellaneous Application No.664 of 2004 filed seeking restoration of said Civil Appeal No.117 of 2001 by Raju Pardeshi was dismissed for default by Order dated 3rd April 2006.

68. In the above background of the matter, it is required to be noted that in the Suit which has been filed in the year 1991 and which has been decreed by the learned Trial Court on 20th December 2000 and thereafter, the Civil Appeal No.117 of 2001 challenging the said decree also filed was dismissed for default by Order dated 29th October 2003. The restoration Application filed for restoration of said Appeal by Raju Tuljaram Pardeshi [brother of the Defendant - Sanjay Tuljaram Pardeshi] was dismissed for default on 3rd April 2006. In the meanwhile, the said decree has been obstructed by said Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi and Satish Hemraj Pardeshi and the said obstruction has also been dismissed by the learned Executing Court and by this Court.

69. It is also significant to note that said Ramkrishna, Laxman and Satish obstructed the decree immediately after Exhibit - 5 Application for stay filed by Raju Tuljaram Pardeshi in Civil Miscellaneous Application No.664 of 2004 has been rejected. Thus, it is clear that members of said Pardeshi family are filing applications after applications to ensure that the decree is not executed.

70. In this background of the matter, it is significant to note that the said Sham Pardeshi i.e. brother of the Defendant - Sanjay Pardeshi and signatory to the said writing dated 4th April 1991 filed Application under Order XXI Rule 97 of CPC obstructing the execution of said decree in the year 2006 after the obstructionist proceedings filed by other members has been rejected.

71. Thus, it is very clear that after the application for restoration of Civil Appeal No.117 of 2001 filed by Raju Tuljaram Pardeshi has been dismissed and obstruction raised by said Ramkishan, Laxman and Satish came to be rejected upto this Court by Order dated 17th April 2006, thereafter, immediately on 7th June 2006, said Sham Pardeshi filed Application under Order XXI Rule 97 of CPC obstructing the execution of the decree.

72. In this background of the matter, it is significant to note that in the Application filed on 15th June 2006 under Order XXI Rule 97, Respondent No.1- Sham Pardeshi has raised the following contentions: A) At the time of death of said Shri. Tuljaram Hemraj Pardeshi the Obstructionist was residing with the said Shri. Tuljaram Hemraj Pardeshi in the suit premises as a member of his family i.e. his son. Thus after death of said tenant Shri. Tuljaram Hemraj Pardeshi the tenancy rights of the suit premises has devolved upon the obstructionist. The Obstructionist is thus the monthly tenant of the Decree Holder in respect of the suit property. B) The Decree Holder has by making false and bogus signature of this Obstructionist has made a false and bogus documents in the nature of Consent Letter. The Decree Holder has used the said false and bogus document in the said Civil Suit No. 951/1991 and the present Darkhast and willfully played fraud on the Court of Law with only intention to falsely and illegally secure the present Decree and falsely and illegally get the same executed. C) The Decree Holder has used the said false and bogus document containing the false and bogus signature of the Obstructionist in the Obstruction filed by Uncles of the Obstructionist and then for the first time the Obstruction got knowledge of said bogus document and seeing the same the Obstructionist was chocked and surprise to see the same. The Obstructionist immediately sent the said false and bogus document to Handwriting Expert Mr. Firoze Shaikh and the said Expert after verifying the same with true signature of Obstructionist has given opinion that said false and bogus document contains false and bogus signature of the Obstructionist.

73. Thus, what is sought to be contended by Mr. Sham Pardeshi is that the said writing dated 4th April 1991 is a bogus document. However, as set out herein above, a learned Single Judge while dismissing Writ Petition No.1014 of 2006 filed by Ramkrishna and others, has specifically observed that cross-examination of said Ramkishan Hemraj Pardeshi, clearly shows that he was aware about the said writing dated 4th April 1991 and he has also executed the same. Thus, by no stretch of imagination, the said document can be considered as a bogus document. The learned District Judge, on the basis of cross-examination of said Ramkishan Hemraj Pardeshi as set out in earlier part of this Order, has held that except Sham Pardeshi all other family members of said family has executed the said document. However, as set out herein above, the said document is executed by many family members of said Pardeshi family, however, names of some of the family members have been taken by said Ramkishan Hemraj Pardeshi in cross-examination by stating that their signatures appeared on the said writing dated 4th April 1991. By no stretch of imagination on the basis of said cross-examination, it can be said that the family members whose names are not reflected in the said cross-examination of said Ramkishan Hemraj Pardeshi have not signed the document. As already noted herein above, the findings of the learned District Judge in that regard is totally perverse.

74. It is also significant to note that Mr. Patwardhan, learned Counsel appearing for the Respondents fairly admitted that as far as Anusaya is concerned, on the basis of the finding recorded by the learned Additional Judge, Small Causes Court, Pune in Miscellaneous Application No.131 of 2004 as confirmed by a learned Single Judge of this Court by Order dated 17th April 2006 in Writ Petition No.1014 of 2006 and on the basis of cross-examination of said Ramkishan Hemraj Pardeshi recorded in Miscellaneous Application No.131 of 2004, said Anusaya has signed said writing dated 4th April 1991. Thus, it cannot be said that as far as the said Anusaya in her personal capacity is concerned, the said document dated 4th April 1991 is not a bogus document, however, as heir of said Respondent No.1 - Sham Pardeshi is concerned, the said document is a bogus document.

75. The learned Appellate Court has relied on the evidence of the handwriting expert. However, learned Appellate Court has completely ignored cross-examination of said expert wherein he has admitted that he has not seen the original disputed signature, although the document has been produced before the Court. He has also admitted that Respondent – Sham has not put his signature before him and on the basis of his signature on the pan card he has given the opinion. He has also admitted that he was not aware that other family members of said Sham have accepted their signatures on the said document dated 4th April 1991. Thus, it is clear that the Appellate Court relied on the opinion of the expert without considering the extensive crossexamination of the said expert.

76. Even if it is assumed that the said writing dated 4th April 1991 is not signed by said Sham Pardeshi, then also it is relevant to note the independent right, title and interest which he is claiming is that he has become tenant under Section 5(11)(c) of the Bombay Rent Act. Admittedly Tuljaram Hemraj Pardeshi was the original Tenant. It is the contention raised that Respondent - Sham Tuljaram Pardeshi was staying with deceased Tuljaram and therefore he became tenant. It is not the contention of Sham that he was the only family member of Tuljaram staying with him at the time of his death.

77. To examine said claim of the Respondent No.1-Sham it is necessary to consider Section 5(11)(c) of the Bombay Rent Act, which reads as under: “5. Definitions.—In this Act unless there is anything repugnant to the subject or context—... (11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes—... [(c)(i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978 (Mah. XXII of 1978), any member of the tenant's family residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court;

(ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education or carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court. Explanation.—The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed always to have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant,”

78. Thus, said Section 5(11)(c) clearly provides that, in relation to any premises let for residence, when the tenant dies, any member of the tenant's family residing with the tenant at the time of his death or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court, becomes tenant.

79. It is an admitted position that along with the tenant the said premises are occupied by Anusayabai as well as said Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi and Satish Hemraj Pardeshi and all other sons of original Tenant -Tuljaram. It is the contention raised by Respondent No.1 – Sham that said tenant – Sanjay was not staying alongwith Tuljaram when he passed away. The said contention is incorrect as in the cross-examination of uncle Ramkisam Hemraj Pardeshi, on which Respondent No.1 – Sham has very heavily relied, he has stated that all sons of said Tuljaram were staying alongwith him. In view of this position, it is necessary to set out that a learned Single Judge in the case of Vasant Sadashiv Joshi (supra), has held in Paragraph Nos.32 and 33 as follows:- “32. From a plain reading of section 5(11)(c)(i) of the Act, it is difficult to accept the contention as urged on behalf of the petitioner/defendant no. 2 that the provisions recognize that every member of the joint family or the joint family itself becomes a tenant for the purposes of the Bombay Rent Act. The introductory words of section 5(11) defining tenant are crystal clear when it describes a “tenant” to mean “any person” by whom or whose account, rent is payable and would include as defined in sub-clause (c) of subsection 5(11) any member of the tenants family residing with the tenant at the time of his death. Sub-clause (c) is required to be read in conjunction with the preceding relevant sub-clauses namely sub clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus a tenant necessary has to be any person as recognized by section 5(11) and not otherwise and certainly not a joint family as a unit. The legislature has avoided to include any such incident to include a joint family to be a tenant within the meaning of section 5(11).

33. In the present context, to interpret the phrase ‘any person’ as used in section 5(11) of the Act to include any member of the joint family as asserted by the petitioner/defendant no. 2, would lead to an absurdity. This more particularly contrary to the election as exercised by the family of the deceased tenant Raghunath, in choosing Achyutdefendant no. 1 (Raghunath's son) to succeed to the tenancy. The absurdity would be two fold firstly it would amount to reading something into the definition of tenant, (Section 5(11)(c)(i)), what has been not provided for and/or excluded by the legislature; secondly it would be contrary to the conduct of the parties who wholeheartedly accepted, chose and elected that the tenant for the suit premises after the death of Raghunath would be defendant no 1-Achyut. Once this is a factually established position on record the petitioner/defendant no. 2 was not permitted and/or was estopped from taking a contrary stand.” Thus, a learned Single Judge has held that under Section 5(11)(c)(i) every member of the joint family or the joint family itself becomes a tenant for the purposes of the Bombay Rent Act cannot be accepted. It has been further held that thus a tenant necessary has to be any person as recognized by Section 5(11) and not otherwise and certainly not a joint family as a unit. The said observations of the learned Single Judge are squarely applicable to the present case.

80. In the present case, in view of dismissal of the obstruction raised by Ramkishan Hemraj Pardeshi, Laxman Hemraj Pardeshi and Satish Hemraj Pardeshi as well as Civil Miscellaneous Application No.664 of 2004 filed by Raju Tuljaram Pardeshi, it is clear that the said Sanjay Tuljaram Pardeshi has been accepted as tenant under Section 5(11)(c) of the Bombay Rent Act. In fact, the contention raised by Mr. Raju Tuljaram Pardeshi in his Application bearing Civil Miscellaneous Application No.664 of 2004 for restoration and more particularly in Paragraph No.2 shows that there are about 35 members in the said family. The relevant portion, reads as under:- “2. The Applicant states that since beginning and before the said property was transferred in the name of Respondent No.1. The father of the present Applicant and Respondent No.1 Late Tuljaram Hemraj Pardeshi was a tenant in respect of the suit premises. He died on 15th May 1989 and by the agreement amongst his heirs, the Respondent No.2 became the tenant in respect of the suit premises. The Applicant submits that Late Tuljaram Pardeshi had a very big family and even at present onward 35 members are residing at suit premises.”

81. Thus, in effect Raju Tuljaram Pardeshi i.e. the brother of Sham Tuljaram Pardeshi has accepted that the Defendant - Sanjay Tuljaram Pardeshi became the tenant of the suit premises on the basis of the Agreement amongst the heirs of Tuljaram Hemraj Pardeshi and that the said Pardeshi family is a very big family consisting of 35 members.

82. Thus, even for the sake of argument, it is accepted that Sham Pardeshi has not executed the said document dated 4th April 1991 still he cannot get exclusive right, title and interest with respect to the suit premises. In fact, the earlier tenant was Tuljaram Hemraj Pardeshi and after his death the family has recognized Sanjay Tuljaram Pardeshi as the tenant and therefore in view of the law laid down by this Court in the case of Vasant Sadashiv Joshi (supra), it cannot be said that Sham Pardeshi has any right, title and interest.

83. The learned Appellate Court has observed, on the basis of the electricity bill, that said Sanjay was not staying in the suit premises along with deceased Tenant – Tuljaram at the time of his death. The learned Appellate court completely ignored that no such pleading is raised by said Sham in the application (Exhibit-39). For the first time said contention is raised after remand of the matter by the High Court with direction that the Court should consider whether Sham has independent right, title and interest. Thus, the said evidence is without any pleading. Apart from that it is the contention of Mr. Shah, learned Senior Counsel that the said electricity bill was showing zero consumption and the learned Appellate Court ignored the same.

84. It is also significant to note that said Sham in his crossexamination has stated that when he came to the Court for the first time he came to know that the Applicant is the landlord. Thus, he has not bothered to pay rent to the landlord from the year 1991 to 2006 and not bothered to verify who is the landlord and in obstructionist proceeding started claiming that he is the tenant of the suit premises. Thus, it is very clear that claim of tenancy put up by said Sham is bogus.

85. It is very clear that the original tenant Tuljaram Pardeshi passed away on 15th May 1989. Till the year 2006, when Respondent No.1 – Sham Pardeshi filed Exhibit-39 application he has not taken any steps to pay the rent of the suit premises nor taken any steps to transfer tenancy in his favour. He claims that in the year 2006, he came to know that the Applicant is the landlord. Thus, for about 17 years he has not claimed that he has become tenant under Section 5(11)(c) of the Bombay Rent Act and for the first time said contention is raised in the year 2006, by which time suit was filed against Sanjay Tuljaram Pardeshi (selected as tenat by family by writing dated 4th April 1991 in the year 1991) in the year 1991, suit has been decreed in the year 2000, Appeal filed by said Sanjay was dismissed for non-prosecution in the year 2003, restoration application filed in the same also dismissed for default in the year 2006, stay has been refused in the said restoration application on 14th September 2004 and said order is confirmed by this Court on 21st March 2005, obstruction raised by uncles was not successful, Writ Petition challenging the same has been rejected and thereafter said Sham raised objection in the year 2006. Thus, it is clear that this family which is a large family, one member after another member of said family, is obstructing the execution of decree passed in a suit which has been filed in the year 1991 and decreed in the year 2000 and which decree has attained finality in the year 2003. Thus, it is clear that obstruction raised by Respondent No.1- Sham is totally malafide.

86. As far as Anusaya is concerned Mr. Patwardhan, learned Counsel fairly submitted that it has already established that she has signed the said document dated 4th April 1991 and only she is contending as heir of Sham that he has not signed the said document and therefore said Sham has independent right, title and interest. The said contention is already rejected hereinabove. Conclusions:

87. In view of above reasons following conclusions are recorded:i. Section 28 read with Section 31 of the Bombay Rent Act clearly provides that the execution proceedings of the decrees passed by the Courts contemplated under Section 28 of the Bombay Rent Act and passed under said Act are contemplated in the term “Proceedings” as contained in Section 28 of the Bombay Rent Act. ii. The proceedings contemplated by Order XXI, Rule 97 or Rule 99 concerning decrees or orders passed in suits or proceedings covered under Section 28 of the Bombay Rent Act are required to be filed before the Courts specified in Section 28 of the Bombay Rent Act. The Appeal challenging the Orders/Decrees in such proceedings will have to be filed before the Appellate Forum as specified in Sub-Section (1) of Section 29 of the Bombay Rent Act. It is further very clear that as specified in Sub-Section (2) of Section 29 of the Bombay Rent Act no Section (1) of Section 29 of the Bombay Rent Act. iii. The contention that the Judgment and Decree passed by the learned District Court / Appellate Bench of Bombay Small Causes Court in Appeal challenging the Order/Decree passed by the Small Causes Court in execution proceedings/obstructionists proceedings is a decree passed in an Appeal under Section 96 of CPC is not correct. The same is a decree passed in an Appeal under Section 29(1) of the Bombay Rent Act and not under Section 96 of CPC. iv. Although the Bombay Rent Act or Maharashtra Rent Control Act are special laws having jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant, however, while dealing with the applications under rule 97 or rule 99 of Order XXI of CPC i.e. Obstructionist Proceedings the Courts under Section 28 of the Bombay Rent Act shall have jurisdiction to decide, all questions including questions relating to right, title or interest in the property arising between the parties to such proceedings on the application under rule 97 or rule 99 and relevant to the adjudication of the application and be deemed to have jurisdiction to decide such questions as provided under Rule 101 of Order XXI of CPC. v. The above conclusions are also applicable to Sections 33 and 34 read with Section 37 of the Maharashtra Rent Control Act. vi. The Original Respondent No.1 – Sham Pardeshi and Respondent No.1A – Anusaya Pardeshi has no independent right, title and interest with respect to the suit premises. Operative order

88. In view of the above discussion, the impugned Order dated 8th December 2009 passed by the learned District Judge, Pune in Regular Civil Appeal No.474 of 2009 is quashed and set aside and Order dated 3rd August 2009 passed by the learned Additional Judge, Small Causes Court and Joint Civil Judge, Senior Division, Pune below Exhibit - 39 in Regular Darkhast No.152 of 2004 is restored. Resultantly, the application bearing Exhibit-39 in Regular Darkhast No.152 of 2004 i.e. obstruction raised by the Obstructionist - Sham Tuljaram Pardeshi is rejected.

89. The Civil Revision Application is accordingly allowed with cost. [MADHAV J. JAMDAR, J.]