Maintainability of Order 21 Rule 100 relief in Small Cause Court proceedings affirmed; matter remitted for fresh merits review.

Proceedings under Chapter VII of the Bombay Presidency Small Cause Courts Act follow the Code of Civil Procedure as far as may be, and the relevant High Court rules extend Order 21, including Rule 100, to those proceedings unless excluded. On that basis, an application seeking restoration of possession for wrongful dispossession was held maintainable, and the earlier contrary view was treated as per incuriam. Because the maintainability error affected the handling of the rival material, the dispute was remitted to the Small Cause Court for fresh consideration on merits after hearing both sides.

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Issues: (i) Whether an application under Order 21 Rule 100 of the Code of Civil Procedure, 1908 is maintainable in proceedings under Chapter VII of the Bombay Presidency Small Cause Courts Act, 1882; (ii) Whether the matter should be remitted for fresh consideration on merits.

Issue (i): Whether an application under Order 21 Rule 100 of the Code of Civil Procedure, 1908 is maintainable in proceedings under Chapter VII of the Bombay Presidency Small Cause Courts Act, 1882.

Analysis: Section 48 of the Bombay Presidency Small Cause Courts Act, 1882 directs that proceedings under Chapter VII shall, as far as may be and except as otherwise provided, follow the procedure prescribed for a court of first instance by the Code of Civil Procedure. The corresponding High Court rules also extend the relevant parts of Order 21, including Rule 100, to Small Cause Court proceedings, subject to the stated modifications. Since the Act does not otherwise exclude the remedy, the procedural machinery for resisting wrongful dispossession and seeking restoration of possession applies to such proceedings. The earlier contrary view was treated as rendered in ignorance of the statutory provisions and therefore per incuriam.

Conclusion: The application under Order 21 Rule 100 was held maintainable, in favour of the appellant.

Issue (ii): Whether the matter should be remitted for fresh consideration on merits.

Analysis: The finding on possession and entitlement had been recorded without a proper consideration of the legal position and without full examination of the rival material. In view of the erroneous rejection on maintainability, the merits also required reconsideration by the trial court after giving both sides a reasonable opportunity.

Conclusion: The matter was remitted to the Small Cause Court for a fresh decision on merits, in favour of the appellant.

Final Conclusion: The writ petition succeeded to the extent that the impugned order was set aside and the dispute was sent back for reconsideration under the correct procedural framework.

Ratio Decidendi: Where the governing statute and rules make the Code of Civil Procedure applicable to Chapter VII proceedings and do not exclude the relevant execution remedy, an application for restoration of possession under Order 21 Rule 100 is maintainable and an earlier contrary view rendered in ignorance of those provisions is per incuriam.

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