Executing court can even decide issue of tenancy in execution proceeding

The legal position can be summarized as follows :

Under Rule 101 read with Rule 99 of Order XXI of the Civil P.C., 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 :

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 executing Court has the jurisdiction to pass that order under Rule 100 (a) ;

The bar contained under Section 41(2) of the Presidency Small Cause Courts Act or the bar that may be implied by Sec. 28 of the Bombay REnt Act, does not apply to the field covered by Rule 101 of Order XXI of the Code ;

Bombay High Court

Nusserwanji E. Poonegar And Ors. vs Shirinbai F. Bhesania And Ors. on 12 January, 1984

Equivalent citations: AIR 1984 Bom 357

Bench: Jahagirdar

1. The facts leading to this petition have been set cut in great details and with sufficient accuracy in the judgments of the two Courts below and hence it is not necessary for me to narrate the same. However, for the disposal of this petition a brief restatement of the facts is warranted.

2. The suit premises in so far as the petition is concerned, consist of the first floor of a building bearing No. 10-A and situate on Shankarsheth Road, Bombay 400 007. Original respondents 1 and 2 were, according to the petitioners, the legal representatives of the original licensee.

3. The petitioners filed a suit being L.E. Suit No. 145/407 of 1976 in the Small Cause Court at Bombay against respondents 1 and 2 under Section 41 of the Presidency Small Cause Courts Act, 1882, as amended by Maharashtra Act No. 19 of 1976. Prior to this amendment, Section 41 of the Act provided for proceedings which could be initiated by a licenser against a licensee through an application. After the amendment, in effect a licensor has to file a regular suit and it is thus that the aforesaid suit ws filed by the petitioners against respondents Nos. 1 and 2. The said suit which was filed on 22nd Sept 1976, came to be decreed ex parte on 5th July, 1977. In execution of the said decree the 3rd respondents ....... Respondents 1 and 2 in this petition have been deleted by an order of this Court and, therefore, the 3rd respondent will hereinafter be referred to as "the respondent" for brevity's sake.

4. The respondent filed an application under Order XXI, Rule 99 of the Civil P.C. for restoration of possession of the suit premises by contending that he was in possession of the suit premises in his own right and not through the original judgment debtors. It was his contention that he was in such possession as a tenant of the suit premises. The learned Additional Chief Judge of Court Room No. 9, hereinafter referred to as "the trial Court" , heard this application as Miscellaneous Notice No. 1575 of 1977. He heard the application bearing in mind the provisions contained Rr. 99 to 105 of Order XXI of the Code. It needs no mentioned that the said rules have been amended by the Parliament by ACt No. 104 of 1976. To this, further reference would be made later in this judgment. The trial Court by its judgment and order dated 3rd July, 1981 made the notice absolute by holding that the respondent had proved that he was a tenant of the suit premises in his own right. The trial Court, therefore, proceeded to direct that the petitioners should restore the possession of the suit premises to the respondent by the end of August 1981.

5. In passing, it may be noted that the petitioners after obtaining possession from the original respondents 1 and 2 inducted Kersy P. Golwala and Kashmira K. Golwala as tenants. The execution of the order dated 3rd July, 1981 was obstructed by the said Golwalas. Thereafter Obstructionist Notice No.63 of 1982 was taken out. During the course of the hearing of the said notice Golwalas made an application to the executing Court contending that neither the executing Court contending that neighter the executing Court nor any Court under O.XXI of the Civil P.C. had jurisdiction to try and decide the question of tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". This application was rejected by the trial Court by its order dated 4th July 1983 which order was challenged by the Gllwalas by filing a revision application. The revision application being Civil Revision Application No. 113 of 1983 was heard and dismissed by a bench of two Judges of the Small Cause Court by its judgment and order dated 19th August, 1983. Against this order the Golwalas has preferred Writ Petition No. .... of .....

6. To return to the narration of the facts leading to the present petition it may be stated that against the order dated 3rd July, 1981 by which order the trial Court made absolute Miscellaneous Notice No. 1575 of 1977 the petitioners preferred an appeal being Appeal No. 468 of 1981. The said appeal was heard and dismissed by the Appellate Bench of the Court of Small Causes by its judgment and order dated 1st Feb., 1982 Against the aforesaid order the petitioners have approached this Court under Article 227 of the Constitution.

7. The main point which has been urged by Mr.Rane appearing in support of this petition is that in proceedings under R. 101 read with Rule 99 of Order XXI of the Civil P.C., 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 certan issues and to give certain reliefs. These Courts can be briefly called the Special Courts. Certain issues and certain relief's are within the special jurisdiction of these Courts and the Courts acting under Order XXI of the Civil P. C. cannot try those issues and cannot also grant those reliefs. Despite the amendments made in the year 1976 in Order XXI of the Civil P.C. the spcial 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 tive exclusive jurisdiction to special Courts to try certain issues and to give certain reliefs and Order XXI of the Civil P.C. as amended in the year 1976, that convlict should be avoided by interpreting provisions in such a manner that the exclusive jurisdiction of the special Courts is retained unimpaired.

8. Mr.Rane referred to the provisions of Section 28 of the Bombay Rent Act which bestows upon the special Courts mentioned therein the jurisdiction to try, among others, suits relating to the recovery of rent and possession between a landlord and a tenant. S. 41 of the Presidency Small Cause Courts Act which finds its place in Chapter VII of the said Act mentions that notwithstanding .... Or in any other law for the time being in force, the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licenser and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay. This is the provision contained in sub-section (1) of Section (2) may be usefully reporduced :

"(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 Bombay Housing Board Act, 1948 or any other law for the time being in force, applies,"

9. Mr.Rane has placed great reliance upon the language of sub-section (2) wherein it has been mentioned that all suits or proceedings for the recovery of possession of any immovable property to which the provisions of the Bombay Rent Act apply are not covered by sub-section (1) of Section 41. In other words, says Mr.Rane, poroceedings, which must necessarily include the execution proceedings, to recover possession of an immovable property by the tenant from the landlord or vice versa, are not covered by sub-section (1) of Section 41. In other words, says Mr.Rane, proeedings, which must necessarily include the execution proceedings to recover possession of an immovable property by the tenant from the landlord or vice versa, are not covered by sub-section (1) of Section 41. The embargo imposed upon such a suit by sub-section (2) of Section 41 is total and cannot be lifted by any provision contained in any other law including the law under Order XXI of the Civil P.C.

10. As is well-known, Order XXI of the Civil P.C. was amended on a large scale pursuant to the recommendations made by the Law Commission. The provisions with which we are concerned, are to be found in Rules 99 to 105 of Order XXI. Where any person other than the judgment - debtor is dispoissed of immovable property by the holder of a decree for the possession of make an application to the Court complaining of such dispossession. After the receipt of such an application the Court, is required to adjudicate upon the application in accordance with the provisions contained in the subsequent rules. This is provided by Rule

99. Rule 100 provides that upon the determination of the questions referred ........ order allowing the application and directing that the applicant be put into the possession of the property. If however the determination of the question warrants otherwise, then the application will naturally be dismissed. The Court has also been given discretion to pass such other orders, as in the circumstances of the case, it may deem fit. The provisions of Rule 101 are important and fall for determination by me directly ; hence they are reproduced :

"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. "

11. 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.

12. 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 questins," If the legislature by amending Rr.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 ...

13. Rule 103 of Order XXI lays down that any order made upon adjudication of an application made under Rule 100 shall have the same force and be subject to the same conditions as to an appeal or other wise as if it were a decree. This means that despite the fact that what is heard and decided under Rule 100 is an application and despite the fact that what is passed after hearing of the application is an order, the effect is to treat the said application as a suit and the said order as a decree. The intention of the legislature was to get all questions which may arise after the passing of the decree to be decided in execution proceedings and not by a separate suit. The result is telescopic of three proceedings suit, execution proceedings and obstructionist proceedings. The fact that the plaintiffs' difficulties arose after the passing of the decree was notorious and had been taken judicial notice of earlier. In order to correct this situation the legislature thought it necessary to enlarge the jurisdiction of the executing Courts in the manner it has been done by the amendment of 1976.

14. it is Mr.Rane's contention that the provisions contained in the Bombay Rent Act are a special law and the provisions contained in the Civil P.C. are a general law. In such a case the special law should prevail and the general law should give way to it. He relied upon the principle "generalia specialibus non derogant". As far as the amendment of 1976 is concerned, Mr. Rane relied upon the following to be found in Maxwell 12th edn. p. 196. It is from a judgment of Viscount Haldane and is as follows :

"We are bound .... .. ... to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it sun ambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared."

15. From what has been extracted above it is seen that if an intention to do otherwise appears then the earlier legislation must be deemed to have been modified by the subsidiary ... as it stood prior to the amendment. To this extent a general law which specifically modifies the special law will naturally prevail over the special law. This is especially so when the Legislature was fully aware of the existing law and by an amendment sought to alter the said law.

16. 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 P.C. on the other. Therefore, the question of resolving a conflict does not arise at all. In the face of the clear language of the provisions 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 Civil P.C. the Civil Courts have jurisdiction to try all suits of a civil nature. However, the suits cognisance 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 out of that exclusive jurisdiction should be returned to the general Courts. This is exactly what has happened by the amendment of 1976.

17. The question may also be looked at from another point of view. Section 28 of the Bombay Rent Act has been on the Statute book long before the Civil P.C. was amended in the year 1976. Chapter VII of the Presidency Small Cause Courts Act has been amended by Maharashtra Act XIX of 1976. The said Act has received the assent of the President on 29th April, 1976 and Chapter VII came into force on 1st July, 1976.

18. The provisions in Order XXI with which we are concerned, were amended by the Parliament by Act 104 of 1976. The said Act received the assent of the President on 9th Sept., 1976. The provisions amended by Act 104 of 1976 came into force with effect from 1st Jan. 1977. The subject of ......Parliament and the Legislature of a State have power to make laws in respect of the civil procedure. However, by virtue of the provision contained in the proviso to Article 254(2) of the Constitution, the law made by the Parliament in the instant case must prevail. Conflict, if any, therefore, must be resolved in favour of the central legislation. My conclusion in respect of the plenary nature of the jurisdiction of the executing Court is supported on either of the two grounds discussed above.

19. Mr. Rane has made a grievance that the proceedings in the instant case have been disposed of in a summary manner. There is substance in the contention of Mr. Rane that the proceedings under Rule 101 of Order XXI of the Civil P.C. are in the nature of a suit. Issues must be framed, upon the points which are to be decided, evidence must be allowed to be led and documents should be allowed to be produced and relied upon. The adjudication under Rule 101 cannot be made on the basis of an affidavit alone unless the parties themselves so desire. Substantial questions including the questions of title to immovable property of high value are very often involved even in execution proceedings of the type with which we are concerned. R. 103 of X. XXI of the Civil P.C. specifically mentioned that the order passed in the said adjudication proceedings shall have the same force and be subject to the same conditions as to the appeal or otherwise as if it were a decree. In other words, the order is a decree and is applicable as any other decree is applicable. An order passed after such adjudication will also act as re judicata. Considering all these aspects, one must agree that the proceedings are in the nature of a suit and should be conducted in an appropriate manner. Rule 105 of Order XXI only broadly prescribes the outline of the procedure which the Court has to follow.

20. On facts, however, Mr. Rane's grievance is totally unjusitfied. In this case the respondent led his own evidence on oath and also led evidence ot two witnesses who were examined on oath. He also got produced several documents on which he wanted to place reliance. It is only after the respondent closed his case that the petitioners were required to meet the same. While doing so, they only got some documents produced before the Court. None of the petitioners .... Ness on oath. All this has mentioned in para 5 of the judgment of the trial Court. The trial Curt has also mentioned that in view of the provisions of O. XXI,R. 101and R. 103 of the Civil P.C. "the parties in this matter let all the evidence they desired to adduce and the matter is fought tooth and nail by both the sides and dragged to a great extent." In the light of this clear statement of the nature of the proceedings in the trial Court. I do not see how Mr. Rane can make a grievance that the trial Court in the instant case treated all the proceedings in a summary manner.

21. The legal position can be summarized as follows :

Under Rule 101 read with Rule 99 of Order XXI of the Civil P.C., 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 :

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 executing Court has the jurisdiction to pass that order under Rule 100 (a) ;

The bar contained under Section 41(2) of the Presidency Small Cause Courts Act or the bar that may be implied by Sec. 28 of the Bombay REnt Act, does not apply to the field covered by Rule 101 of Order XXI of the Code ;

In Maharashtra, however, the following proviso to Rule 101 of Order XXI of the Civil P.C. has been added and it has come into force from 1st Oct., 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."

22. The proceedings under Rule 101 and Rule 105 of Order XXI of the Civil P.C. are in the nature of a suit and it would be appropriate for the executing Court to frame ..... petition must fail. Rule is accordingly discharged with, however, no order as to costs.

23. Rule discharged.