2009(5) ALL MR 749
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.S. OKA, J.

Dhuliabai Mana Praga & Ors.Vs.Smt. Manikbai Vithalrao Bhusarath (Deceased) & Ors.

Civil Writ Petition No.5471 of 2009

29th July, 2009

Petitioner Counsel: Mr. SHRIRAM S. KULKARNI

Civil P.C. (1908), S.115 - Constitution of India, Art.227 - Revision - Power of High Court under Art.227 - Power not affected by availability of remedy under S.115 of Civil P.C. - However, ordinarily, writ jurisdiction will not be allowed to be invoked when a statutory remedy is available to the petitioner. (2003)3 SCC 524 and (1996)2 SCC 132 - Ref. to. (Paras 5, 6, 7)

Cases Cited:
Sadanand Gangadhar Habbu Vs. Shri. Siddheshwar Devasthan Panch Committee, W.P. No.4138/2006, Dt.:-24-08-2006 [Para 1,2,5,6]
Dr. Savladas Hasumal Makheja Vs. Premchand Manikchand Oswal, 2003 Vol.105(4) Bom.L.R. 372 [Para 1,3]
Surya Dev Rai Vs. Ram Chander Rai, (2003)6 SCC 675 [Para 1,4,5]
Sadhana Lodh Vs. National Insurance Co. Ltd., (2003)3 SCC 524 [Para 2,3,7]
Shyam Sunder Agarwal & Co. Vs. Union of India, (1996)2 SCC 132 [Para 2,3]
Gurucharansing Hardayalsing Sethi Vs. Narhari Laxman Shinde, 1996(1) Mh.L.J. 869 [Para 2]
Sarupchand Multanchand Sancheti (dead) through Lrs. Vs. Gulabchand Jaideo Agarwal (dead) through Lrs., W.P. No.2330/1998, Dt.:-26-06-1998 [Para 2,5]


JUDGMENT

JUDGMENT :- By this writ petition under Article 227 of the Constitution of India the petitioners who are the defendants have challenged the decree of eviction passed against them in a suit filed by the respondents. The suit was filed by the respondents for eviction on various grounds under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act of 1947). The suit filed by the respondents was dismissed and by the impugned order of the Appellate Bench of the Court of Small Causes, a decree for possession has been passed against the petitioners. The said decree has been passed on various grounds including the ground of arrears of rent. When a query was made to the learned counsel appearing for the petitioners as to whether a statutory remedy of filing revision application under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) is available to the petitioners, he submitted that the issue of maintainability of writ petition under Article 227 of the Constitution of India on the ground of availability of statutory remedy under section 115 of the said Code is pending for consideration of the Division Bench of this Court. He submitted that in the light of the reference to a larger bench, it cannot be said that the order dated 24th August, 2006 in Writ Petition No.4138 of 2006 in the case of Sadanand Gangadhar Habbu Vs. Shri. Sidheshwar Devasthan Panch Committee and another is a binding precedent. He invited my attention to order dated 25th July, 2007 passed by this Court in Writ Petition No.1945 of 2007 by which a reference has been made to the larger Bench on maintainability of a writ petition under Article 227 of the Constitution of India when remedy of revision application under section 115 of the said Code is available. He submitted that by referring the question to a larger bench another single Judge has taken a view which is contrary to the view taken in the case of Sadanand Habbu (supra) in Writ Petition No.4138 of 2006. The learned counsel appearing for the petitioner invited my attention to a decision of the Division bench in the case of Dr. Savladas Hasumal Makheja Vs. Premchand Manikchand Oswal & Ors. [2003 Vol.105(4) Bombay Law Reporter 372]. He submitted that the same learned Judge who has passed order in Writ Petition No.4138 of 2006 has taken a contrary view while sitting in a Division Bench wherein it is held that there are two remedies available to a litigant who wants to challenge the order of eviction under the said Act of 1947. One remedy is of filing the revision application and other is of filing the writ petition and it is for the aggrieved party to elect the remedy and hence a writ petition was maintainable. He placed reliance on a decision of the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai & Ors. [(2003)6 Supreme Court Cases 675]. He also placed reliance on decision of the another learned single Judge dated 29th January, 2003 in Writ Petition No.7085 of 2002. In the said decision what has been held by this Court is that restriction imposed by 2002 amendment to the said Code would not interfere in exercise of powers under Article 227 of the Constitution of India of this Court.

2. I have considered the submissions. In the Writ Petition No.4138 of 2006 (Sadanand Gangadhar Habbu Vs. Siddheshwar Devsthan Panch Committee, Solapur and Ors.) and other connected writ petitions, this Court by judgment and order dated 24th August, 2006 considered the question whether a writ petition under Article 227 or a writ petition under Article 226 read with Article 227 of the Constitution of India can be entertained when a remedy of filing a revision application under section 115 of the said Code is available to the petitioner. This Court considered various decisions of this Court as well as Apex Court including decisions of the Apex Court in the case of Sadhana Lodh Vs. National Insurance Co. Ltd. [(2003)3 Supreme Court Cases 524] as well as Shyam Sunder Agarwal & Co. Vs. Union of India [(1996)2 Supreme Court Cases 132]. Based on the said two decisions this Court held that when a statutory remedy of filing a revision application under section 115 of the said Code was available, a writ petition under Article 227 or a writ petition under Article 226 read with Article 227 of the Constitution of India need not be entertained. In the said order, this Court has referred to a decision of another learned single Judge of this Court in the case of Gurucharansing Hardayalsing Sethi Vs. Narhari Laxman Shinde & Ors. [1996(1) Maharashtra Law Journal 869] where this Court held that as a remedy of filing a revision application under section 115 of the said Code is available, a writ petition under Article 226 read with Article 227 need not be entertained. Reliance was placed on another decision of the learned single Judge of this Court in the case of Sarupchand Multanchand Sancheti (dead) through Lrs. Vs. Gulabchand Jaideo Agarwal (dead) through Lrs. (Writ Petition No.2330 of 1998 decided on 26th June 1998). In paragraph 6 of the said decision, this Court held thus :

"Besides, it may be observed that the extra ordinary jurisdiction under Article 227 of the Constitution of India does not deserve to be invoked when the impugned judgments and decrees apparently are amenable to revisional jurisdiction under section 115 of the Code of Civil Procedure. In Vora Abbasbhai Alimahomad Vs. Haji Gulamnabi Haji Safibhai (AIR 1964 SC 1341) the Apex Court while construing the provisions of the Bombay Rent Control Act held that the power of revision under section 115 of CPC of the High Court is not excluded when the judgment and decree passed by the trial Court under section 28 and by the appeal court under section 29 of the Bombay Rent Control Act are under challenge. The remedy of revision provided under section 115 of CPC cannot be allowed to be by-passed by permitting a party to invoke extra ordinary jurisdiction."

Thus, what has been held by this Court is that a remedy of filing a revision application under section 115 of the said Code was available as the applicability of section 115 of the said Code has not been excluded by the provisions of the said Act of 1947. This Court observed that a remedy of revision provided under section 115 cannot be allowed to be by-passed by permitting a party to invoke extraordinary jurisdiction.

3. It must be stated that though the decision in the case of Dr. Savladas (supra) is by the same learned Judge who has passed order in the Writ Petition No.4138 of 2006, the subsequent decision in Writ Petition No.4138 of 2006 has been rendered in the light of the subsequent decision of the Apex Court in the case of Sadhana Lodh (supra). The decision of the Apex Court in the case of Sadhana Lodh (supra) has been delivered after the decision in the case of Dr. Savladas (supra). The judgment in Writ Petition No.4138 of 2006 also considers the judgment of the Apex Court in the case of Shyam Sundar Agarwal (supra) which was not brought to the notice of the Division Bench when the case of Dr. Savladas Makheja (supra) was decided.

4. In the decision of the Apex Court in the case of Surya Devi (supra) the Apex Court was dealing with an altogether a different issue. The question before the Apex Court was whether as a result of curtailment of revision jurisdiction by virtue of amendment of 2002 whether power of the High Court under Article 227 is taken away or whittled down. The Apex Court answered the said question by observing as under :

"..... The power exists, untramelled by the amendment in Section 115, CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled."

5. The view taken by this Court in Writ Petition No.4138 of 2006 in the case of Sadanand Habbu (supra) is based on the decisions of the Apex Court holding that ordinarily when a statutory remedy under section 115 of the said Code is available, a Writ Petition under Article 227 or writ petition under Article 226 read with Article 227 should not be entertained. The same is the view taken by the learned single Judge of this Court in the case of Sarupchand Sancheti (supra) wherein this Court held that the provisions of the said Act of 1947 do not exclude applicability of section 115 of the said Code and therefore ordinarily the said remedy cannot be allowed to be by-passed by permitting a party to invoke extra-ordinary jurisdiction. This view is not contrary to the view taken by the Apex Court in the case of Surya Dev Rai (supra). It is well settled that the power of this Court under Article 227 of the Constitution of India is not affected by availability of remedy under section 115 of the said Code, but ordinarily, writ jurisdiction will not be allowed to be invoked when a statutory remedy is available to the petitioner.

6. What is relied upon by the learned counsel appearing for the petitioner is the order dated 25th July, 2007 which refers the issue to a decision of the larger Bench. Till such time the larger Bench does not decide the issue, the view taken by this Court in Writ Petition No.4138 of 2006 in the case of Sadanand Habbu (supra) will stand and therefore, writ jurisdiction cannot be allowed to be invoked when a remedy under section 115 of the said Code is available. The order of reference to larger Bench does not have the effect of upsetting the view taken by the aforesaid decisions and in particular in Writ Petition No.4138 of 2006 in the case of Sadanand Habbu (supra). As stated earlier, the jurisdiction of this Court under Article 227 is not affected by availability of a remedy of section 115 of the said Code, but normally a party will not be allowed to bypass a statutory remedy by entertaining a petition invoking extra-ordinary jurisdiction of this Court.

7. The learned counsel for the petitioners submitted that there is another aspect of the matter which is not considered by any of the decisions. He submitted that after the 2002 amendment to section 115 of the said Code, the power of this Court under section 115 of the said Code has been curtailed and therefore the said remedy is not an efficacious remedy. It will be necessary to refer to the decision of the Apex Court in the case of Sadhana Lodh (supra) which deals with a similar submission. Paragraphs 5 and 6 of the said decision reads thus :

"5. However, learned counsel for the respondent argued that since an insurer has limited grounds available under section 173 of the Act, it is open to an insurer to file a petition under Articles 226/227 of the Constitution.

6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under section 149(2) of the Act (see National Insurance Co. Ltd. Vs. Nicolletta Rohtagi). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly mis-conceived. Where a statutory right to file an appeal has bee provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under section 115, CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. ..."

(Emphasis supplied)

When a decree under the said Act of 1947 passed or confirmed by a District Court in appeal is sought to be challenged, notwithstanding the 2002 amendment to the said Code, a remedy under section 115 continues to be available. Hence, a writ petition under Article 227 of the Constitution of India cannot be entertained.

8. At this stage, the learned counsel appearing for the petitioners seeks permission to convert this writ petition into a civil revision application under section 115 of the said Code. Permission is granted. Amendment to be carried out within four weeks. For a period of eight weeks from today the decree for possession shall not be executed subject to condition that the petitioners will not part with possession of the suit premises and will not create any third party interests therein.

Ordered accordingly.