Writ Petition No.5269 of 1999

13th December, 2013

Petitioner Counsel: Mr. SAMEER R. BHALEKAR
Respondent Counsel: Mr. M.S. KADU

Cases Cited:
Ram Lakshman Singh Vs. Girindra Mohan Hazra, AIR 1963 Calcutta 13 [Para 5,7]

JUDGMENT

JUDGMENT :- The writ jurisdiction of this Court is invoked against the Judgment and order dated 10th December, 1998 passed by the Bench of two learned Judges of the Small Causes Court, by which order the Appeal in question being Appeal No. 313 of 1998 filed by the Respondent herein i.e. the original defendant came to be allowed and the Decree passed by the Trial Court came to be set aside and the Suit came to be remanded to the Trial Court to be proceeded further from the stage of cross-examination.

2. The challenge in the above Petition is to remand of the Suit in question to the Trial Court made on the basis of the observations in Paragraph No. 32 and 33 of the impugned Judgment and order, wherein the Bench of two Judges of the Small Causes Court (Appellate Bench for short) held that the Defendant must be given an opportunity to meet his case at the trial stage. This was in the context of the fact that the Defendant's defences were struck of in the Suit in question.

3. The facts necessary to be cited for adjudication of the above Petition can be stated thus:

The Petitioner is the original Plaintiff who had filed the Suit in question being L.E.Suit No. 397/536 of 1978 in the Small Causes Court at Mumbai for possession of the suit premises i.e. Shop admeasuring 14 feet X 16 feet behind Iqbal Laundry on the ground floor of House No. 60-64, Fotowat Manzil, Sankli Street, Byculla, Mumbai. It is not necessary to go into unnecessary details considering the nature of the challenge in the above Petition but suffice it to say that the Suit was founded on the fact that the premises in question along with the business were given on conducting basis to the Defendant. The case of the Plaintiff was controverted by the Defendant by filing his Written Statement by contending that he is in possession of the premises in question since the year 1969 and that he is a licencee. It appears that in the said Suit the Plaintiff had filed an application being Interim Notice No. 81 of 1993 for directing the Defendant to deposit the arrears of rent in Court. An order came to be passed on 25rd July, 1993 directing the Defendant to so deposit the arrears of rent by allowing the said Interim Notice No. 81 of 1993. The said order it seems was a self operative order which provided that in default the defences of the Defendant would be struck of. In view of the fact that the Defendant did not comply with the said order dated 25th July, 1993, the defences of the Defendant were struck of by order dated 5th October, 1993.

An issue of jurisdiction of the Small Causes Court was raised by the Defendant on the basis that the relationship between the parties is one of licensor and licencee and therefore, the Small Causes Court would not have jurisdiction. The said issue was adjudicated upon by the Small Causes Court by affording opportunity to the parties in the matter of leading evidence in respect of the said issue and by order dated 12th March, 1996 it was held that the Small Causes Court had no jurisdiction to entertain and try the Suit and the Plaint was returned to the Plaintiff for being presented to the Competent Court. The Small Causes Court inter alia held that the Defendant has been inducted in the premises in question on the basis of the conducting agreement and therefore it would not have the jurisdiction to entertain the Suit.

Against the said order dated 12th March, 1996 passed by the learned Judge of the Small Causes Court, the Plaintiff preferred an Appeal being Appeal No. 271 of 1996. The Appellate Bench i.e. the two Judge Bench of the Small Causes Court allowed the said Appeal and set aside the findings of the Trial Court as regards the point of jurisdiction and the matter was sent back to the Trial Court to record findings on Issue Nos. 1 to 4 and pass final orders thereon. Whilst allowing the Appeal, the Appellate Bench inter alia observed as follows:

"..... At the same time we make it clear that the defendant's defences are already struck off. Therefore, before giving any finding on Issue Nos. 1 to 4 learned trial Judge will hear the respective advocates on the basis of the material already on record. The Parties are not allowed to lead any other evidence ....."

On remand, the Trial Court i.e. the learned Judge of the Small Causes Court by the Judgment and Order dated 8th December, 1997 decreed the Suit and directed the handing over of possession of the premises in question. The gist of the reasoning of the Trial Court was that the authority of the Defendant to occupy the premises on the agreement coming to an end had ceased to exist and therefore the Defendant could not continue to occupy the premises in question. The Trial Court adverted to the fact that though called upon the Defendant had not vacated the premises in question and therefore the Suit had to be decreed.

The Defendant, aggrieved by the said Judgment and order dated 8th December, 1997 carried the matter by way of an Appeal to the two Judge Bench of the Small Causes Court i.e. the Appellate Bench by way of the instant Appeal being Appeal No. 313 of 1998. However, prior thereto, the Defendant had filed an Application being Application No. 454 of 1997 in the Trial Court for setting aside the order striking of his defences. The Trial Court had rejected the said Application by order dated 8th December, 1997. In the Appeal therefore, the challenge to the said order dated 8th December, 1997 was also sought to be raised having regard to Section 105 of the Civil Procedure Code. The Appellate Bench, as indicated above, has allowed the Appeal and has remanded the matter once again back to the Trial Court for a de-novo consideration. However, as indicated above, by virtue of the observations made in Paragraph 32 and 33 directed the Trial Court to give an opportunity to the Defendant to meet the case of the Plaintiff in the trial. The Appellate Court has also observed in Paragraph No. 33 that the main order passed by the Trial Court about the striking of defences is liable to be set aside. The Appellate Bench has relied upon Section 105 of the Civil Procedure Code for setting aside the said order of striking of the defences. The Appellate Bench, as can be seen from a reading of the order, has also recorded findings on merits, which, with the assistance of the learned Counsel for the parties, I have been gone through. The findings are two fold, that there was no running business which was given on conducting basis and that the Defendant was in exclusive possession of the suit premises. As indicated above, it is the said order dated 10th December, 1998 which is taken exception to by way of the above Writ Petition.

4. Heard the learned Counsel appearing for the parties. The principal contention urged by the learned Counsel appearing for the Petitioner Shri. Bhalekar is that the coordinate Bench of the Small Causes Court could not have set aside the order passed by another Bench, wherein, it had observed that since the defences of the Defendant had been struck of, the Suit will be proceeded on the said basis. The learned Counsel would contend that the order passed by the Appellate Bench restricting the remand in terms of the said order having not been challenged by the Defendant in the higher court, the said order had become final and binding. The learned Counsel contended that the only reason the remand has been ordered by the Appellate Bench is that the Defendant had not been given an opportunity as his defence was struck of.

5. Per contra, the learned Counsel appearing for the Respondent/defendant Shri. Kadu would contend that the said order striking of defences being an interlocutory order, though confirmed by the Appellate Bench, would still be open for challenge under Section 105 of the Civil Procedure Code in the Appeal i.e filed against the final Decree. The learned Counsel, in support of the said contention sought to rely upon a Judgment of the Division Bench of Calcutta High Court in the case of Ram Lakshman Singh vs. Girindra Mohan Hazra reported in AIR 1963 Calcutta 13. The learned Counsel would contend that since against the interlocutory order no Appeal was provided, the avenue to challenge the said order when the Decree is challenged is still open to the Defendant.

6. Having heard the learned Counsel for the parties, I have considered the rival contentions. In view of the challenge which is raised in the above Writ Petition namely as to whether the Appellate Bench could have set aside the order of striking of the defences of the Defendant and remand the Suit back to the Trial Court, it is not necessary for this Court to go into other aspects. In the context of the said challenge, it would be relevant to note that the defences of the Defendant were struck of by the Trial Court and thereafter the matter had reached the Appellate Bench by virtue of the decision rendered on the preliminary issue by the Trial Court. The Appellate Bench had set aside the findings of the Trial Court on the preliminary issue as regards the jurisdiction and had remanded the matter back to the Trial Court, circumscribing the said remand by the directions contained in the said order and one of the directions was that since the defences of the Defendant were struck of the same would continue and that on remand the Suit would be proceeded with on the basis of there being no Written Statement filed by the Defendant. The Suit was accordingly proceeded with and was decreed by the Trial Court by the Judgment and Order dated 8th December, 1997. Thereafter, the matter was carried in Appeal by the Defendant by filing the instant Appeal being Appeal No. 313 of 1998. But, in the interregnum, the Defendant had filed an Application for setting aside the order of striking of his defences before the Trial Court. The said Application was rejected by the Trial Court on the ground that the said order was confirmed by the Appellate Bench. Hence, in the Appeal the Defendant had by having recourse to Section 105 of the Civil Procedure Code had also raised the challenge to the said order dated 8th December, 1997 passed by the Trial Court, whereby the striking of his defences was maintained. The Appellate Bench of the Small Causes Court has set aside the said order striking of defences by holding that such a course of action was open in view of Section 105 of the Civil Procedure Code. In my view, the order of striking of defences being confirmed by the Appellate Bench whilst remanding the matter back on the first occasion and which confirmation was not challenged by the Defendant by taking recourse to any proceedings, the said order had therefore become final and conclusive insofar as the Defendant is concerned. The Trial Court, as indicated above, had rejected the Application for setting aside the said order on the ground that the same has been confirmed by the Appellate Bench in the first round. However, the Appellate Bench of the Small Causes Court has set aside the order by having recourse to Section 105 of the Civil Procedure Code. In my view, a Bench of the same Court cannot set aside the order passed by another Coordinate Bench. The Appellate Bench therefore, whilst remanding the matter by the impugned order, has erred in observing that an opportunity would have to be given to the Defendant to prosecute the matter on merits and that the order striking of the defences is required to be set aside.

7. Another aspect which is required to be adverted to is the fact that the Lower Appellate Court has recorded findings on merits though ultimately it has remanded the matter back to the Trial Court. In my view, it was not necessary for the Lower Appellate Court to record exhaustive findings as find a place in the impugned order in respect of the merits of the case of either side, as ultimately the Lower Appellate Court has held that the Trial Court has not properly appreciated the material on record which includes the agreement in question in view of the fact that the defences of the Defendant were struck of. The Judgment of the Division Bench of the Calcutta High Court in the case of Ram Lakshman Singh (supra) has no application, as the Division Bench has only framed the issue whilst considering whether leave to appeal to the Supreme Court in respect of the said issue is required to be granted. Hence, the said judgment does not aid the Respondent in any manner.

8. In my view, since the remand is ordered only on the ground that the Suit has been proceeded with without the Defendant being allowed his defences and since this Court has set aside the Judgment and order of the Appellate Bench of the Small Causes Court, whereby the Defendant was permitted to have his defences, the matter would have to be relegated back to the Appellate Court for denovo consideration of the Appeal in respect of the challenge to the Decree passed by the Trial Court. Hence the following directions:

(i) The Appellate Bench of the Small Causes Court to consider the Appeal on the basis that the defences have been struck of and then adjudicate upon the Decree in question which has been passed by the Trial Court. The said exercise to be carried out by the Appellate Bench of the Small Causes Court within a period of six months of the parties appearing before it.

9. The Writ Petition is accordingly allowed. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petition.

Petition allowed.