1979 (8) TMI 220 - HC - Indian Laws

Petitioner's Application under Order 21, Rule 100 CPC Remitted for Fresh Decision

Sitaram Hari Salunkhe Versus Laxman Rambodh Dubey and Ors.

The court found the petitioner's application under Order 21, Rule 100 of the CPC maintainable in summary proceedings under Chapter VII of the Presidency ... - Issues Involved:1. Maintainability of the application under Order 21, Rule 100 of the Code of Civil Procedure (CPC) in summary proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882.2. Merits of the petitioner's claim to possession of the suit premises.Issue-Wise Detailed Analysis:1. Maintainability of the Application under Order 21, Rule 100 of CPC:The petitioner challenged the order passed by the Small Cause Court, Bombay, which dismissed his application for restoration of possession under Order 21, Rule 100 of the CPC. The trial court had relied on an unreported decision of the Bombay High Court in Civil Revision Application No. 386 of 1974 and a decision of the Calcutta High Court, concluding that such an application was not maintainable in summary proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882.The petitioner argued that the decision in Civil Revision Application No. 386 of 1974 was rendered per incuriam, as it ignored the provisions of Section 48 of the Presidency Small Cause Courts Act, 1882, and the rules framed by the High Court thereunder. Section 48 explicitly states that proceedings under Chapter VII should be regulated by the CPC. The petitioner cited several judgments from the Madras and Calcutta High Courts supporting the applicability of the CPC to such proceedings.The court agreed with the petitioner, noting that the decision in Civil Revision Application No. 386 of 1974 was given in ignorance of the statutory provisions and was thus not binding. The court emphasized that Section 48 of the Act and the related rules clearly indicated that the CPC, including Order 21, Rule 100, applied to proceedings under Chapter VII. Consequently, the court held that the petitioner's application was maintainable.2. Merits of the Petitioner's Claim to Possession:The petitioner claimed that he was the rightful tenant of the suit premises and had been paying rent and municipal taxes. He contended that the ex parte order obtained by the respondent was in collusion with the heirs of Shankar Salunke and was not binding on him. The trial court, however, dismissed his application based on an alleged admission in a reply to a notice, concluding that the petitioner was in possession through the judgment-debtor.The petitioner argued that the trial court's finding was perverse, as it overlooked his explanation and other evidence. He maintained that the alleged admission was neither unqualified nor true. The respondent countered that there was ample evidence to show that the petitioner was in possession through the judgment-debtor and that the application was rightly rejected on merits.The court did not delve into the merits of the controversy at this stage, noting that the trial court had not properly considered all aspects before recording its finding. The court observed that the trial court might have been influenced by its initial conclusion on the maintainability issue. Therefore, the court remitted the matter back to the Small Cause Court, Bombay, for a fresh decision on merits in accordance with the law, after giving both parties a reasonable opportunity to present their cases.Conclusion:The court set aside the order of the Small Cause Court, Bombay, dated 19th November 1976, and remitted the matter back for a fresh decision on merits. The trial court was directed to decide the case expeditiously, considering all aspects and giving both parties a fair chance to present their arguments. The rule was made absolute, with no order as to costs.