ORDER
1. In this writ petition the petitioner has challenged the order passed by the Small Cause Court Bombay in Miscellaneous Notice No. 960 of 1976 decided on 19th November 1976. Respondent Laxman Dube filed an application under Section 41 of the Bombay . Presidency Small Cause Courts Act, 1882 against Smt. Parvati w/o Shankar Salunke and four others, who are heirs and legal representatives of the deceased Shankar Salunke. The said application related to the delivery of possession of the Stall bearing Municipal No. C/2180/3(A) 86-384-A/86 situate on Jagannath Shankar Sheth Road, Bombay. The said application proceeded ex parte against the legal representatives of Shankar and therefore the learned trial Judge made an order in favour of Laxman Dube under Section 43 of the Act on 17-9-1975. In execution of that order the present petitioner is dispossessed of the premises. It appears from the record that one Pandurang Koli at the initial stage tried to obstruct the warrant of possession for which the respondent took out obstructionist notice No. 359 of 1975. The said Pandurang Koli did not appear in Court and, therefore, the said notice was made absolute ex parte removing the obstruction of Pandurang Koli. The present petitioner later on took out a notice on 6th of May 1975, under Order 21, Rule 100 of the Code of Civil Procedure for restoration of possession of stall.
2. In the said application it was the case of the petitioner that the stall was initially owned by three brothers viz. Vinayak, Bhalchandra and., Vasantrao. In the year 1962 the landlord leased out the stall to him on rental basis as a tenant on a monthly rent of Rs. 25/- and has, accordingly received rent from him till 31st of March 1973, though no receipts are issued for the same. It was also his case that he has paid all along the municipal taxes since 1961-62, though the assessment bills were issued in the name of the landlord because he was the owner of the property. He further contended that he obtained assessment receipts in the year 1969 onwards. It is his case that he is conducting a bidi shop in a part of the stall and in the remaining part of the stall his son is conducting business in electrical goods. This business of electrical goods was handed over to Pandurang Koli to conduct the same on behalf of his son on certain terms and conditions, In substance, therefore, it is his case that all through he was in possession of the premises in his own right. Before the trial Court he had also made a reference to the letter received by him from the Municipal Corporation some time on or before 25th of May 1974, According to him the deceased Shankar Salunke was never a licensee of the respondent. It is his specific case that the respondent in collusion with the heirs of Shankar Salunke managed to get an ex parte order in the proceedings instituted by them under Section 41 of the Act. He also contended that this ex parte order was obtained in collusion is clear from the fact that the legal representative of Shankar had chosen not to appear and defend the application. He also contended that respondent No. 1 is merely a rent collector of the landlord and the premises were never in possession of Shankar Salunke as licensee. In these circumstances according to the petitioner he has been wrongly dispossessed by the respondent and hence he is entitled to the restoration of possession of suit premises under Order 21, Rule 100 of the Code of Civil Procedure. As the respondent had parted with the possession of the suit premises subsequently in favour of one Miss Kunda Naik, she was also joined as a correspondent in this application. However, she remained absent at all the stages and the application filed by the petitioner under Order 21, Rule 100 was only resisted by respondent No. 1. It was contended by the respondent that the application is not maintainable as the provisions of Order 21. Rule 100 are not applicable to the summary proceedings instituted under Chapter VII of the Act. He also contended that the petitioner was claiming possession not in his own right but through the judgment-debtor and hence on that count also the application filed by him was liable to be rejected.
3. The learned Judge of the trial Court, relying upon an unreported decision of this Court in Civil Revn. Appln, No. 386 of 1974 Shamji v. Indermal Dhanraj decided on 24-9-1974 by Joshi J. as well as an un-reported decision of the Calcutta High Court reported in the Notes section of AIR 1955 NUC 1021 : Duliram Guganmull v. Jalan Brothers Ltd., came to the conclusion that an application under Order 21, Rule 100, C. P. C. 1908 was not maintainable. So far as the merits of the controversy are concerned relying upon the admission of the petitioner incorporated in the reply to the notice dated 2-5-1973 the learned trial Judge came to the conclusion that even though the petitioner was in possession at the time of the filing of the ejectment application as well as at the time of passing the execution order, his possession was not on his own account and hence on that count also the application was not maintainable. Therefore the learned Judge of the trial court dismissed the said application. As already observed it is against this order that the present writ petition is filed.
4. Mr. Gole, learned counsel appearing for the petitioner contended before me that the view taken by Joshi J. in Civil Revn. Appln, No. 386 of 1974 (Bom) is contrary to the specific provisions of the Act itself. According to Mr. Gole, Joshi J. has not noticed the provisions of Section 48 of the Act as well as the rules framed by the High Court under the said Act. Therefore, in substance it is the contention of Mr. Gole that the said decision of Joshi J. is given per incuriam and is not binding upon this Court. According to Mr. Gole if the provisions of Chapter VII of the Act are read with Section 48 of the Act as well as the rules framed by the High Court thereunder, it is quite obvious that the proceedings under the said chapter are governed by the Civil P. C. In support of this contention Mr. Gole has relied upon the decisions of the Madras High Court in (1) Mahomed Ghouse Sahib v. Sk. Mohiddin AIR 1924 Mad 74, (2) K. Arumugham Naicker v. Tiruvaluva Nainar Temple, : AIR1954Mad985 ; as well as the decision of the Calcutta High Court In (1) Rajani Kanta Das v. Dayal Chand De : AIR1950Cal244 and (2) Mono Mohon Das v. Umarani Sanyal : AIR1951Cal395 and also a decision of this Court in Yeshbai v. Ganpat Irappa Jangam : AIR1975Bom20 .
5. In my opinion there is much substance in the contentions raised by Mr. Gole, From the bare reading of the decision of Joshi J. in Shamji v. Indermal it is quite clear that the provisions of Section 48 of the Presidency Small Cause Courts Act, 1882 as well as the rules framed thereunder were not brought to the notice of the learned Judge. It is no doubt true that it has been held by this Court as well as the Supreme Court in Nalinakhya Bysack v. Sham Sunder Haldar : [1953]4SCR533 that the order passed under Chapter VII of the said Act is not a decree. However from this alone an inference cannot be drawn that the provisions of the Code of Civil Procedure are not applicable to the said proceedings. On the other hand Section 48 of the Act in terms lays down that the proceedings under the said Chapter shall be regulated by the Code of Civil Procedure. The section reads as under:--
'Section 48, Proceeding to be regulated by Code of Civil Procedure:-- In all proceedings under this Chapter, the Small Cause Court shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure.'
It is an admitted position that it has not been otherwise provided by the said Act that the provisions of Order 21, Rule 100 shall not apply to the proceedings under Chapter VII of the said Act. On the other hand under the said Act rules are framed by the High Court, which are known as Presidency Small Cause Court Rules, hereafter referred to as the Rules, Sub-rule (2) of Rule 1 of the said Rules reads as under:--
'(2) The portions of the Code of Civil Procedure, 1908 (Act V of 1908) as modified from time to time by any competent legislature in its application to the State of Maharashtra with its first Schedule as amended by the High Court of Judicature at Bombay under Section 122 of the said Coda fromtime to time upto 1st May 1968 specified in the first column of the Schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the second and the third columns of that Schedule, extend and shall be applied to the Small Cause Court, and the procedure prescribed thereby shall be the procedure to be followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882.'
In the Schedule attached to the Rules a specific reference is made to Order 21 dealing with the execution of the decrees and orders. Then additions, alterations and modifications are also specified in the said Schedule. The relevant part of the Schedule reads as under:--
'Rule 100 (1): omit the words 'or where such property has been sold in execution of a decree by the purchaser thereof,'
Add the following sub-rule as sub-rule (3) of Rule 100:-- (3) the applications under this rule may be disposed of by affidavits.' It is also an admitted position that no other procedure has been provided by the Presidency Small Cause Courts Act, 1882, which could be said to be inconsistent with the procedure prescribed by the Code of Civil Procedure 1908 or the rules made by the High Court viz., Presidency Small Cause Court Rules. Therefore, if the relevant provisions of Chapter VII of the Presidency Small Cause Courts Act 1882 are read with Section 48 of the said Act as well as the Rules, in my opinion it is quite clear that the provisions of Order 21, Rule 100 of the Code of Civil Procedure, 1908 will apply to the proceedings under Chapter [VII of the said Act, irrespective of the fact whether the orders passed under the said Chapter could be termed as decrees or not. In this view of the matter it is not possible for me to agree with the view taken by Joshi J. in Civil Revn, Appln, No. 386 of 1974 (Bom) Shamji Asoo v, Indermal Dhan-raj. From the bare reading of the order in the said Civil Revision Application it is quite obvious that Joshi J. had taken the said view only because it is held by this Court and the Supreme Court that the proceeding under Chapter VII is not a suit and the order passed therein is not a decree. In my opinion, in view of the specific provisions of Section 48 of the said Act and the Rules it is not correct to say that the provisions of the Code of Civil Procedure, 1908 and particularly those of Order 21, Rule 100 of the said Code which are not consistent with the provisions of the said Act, are not applicable to the proceedings under Chapter VII of the Act only because the said proceeding is not a suit and the order passed therein is not a decree. On the contrary whether the proceeding is a suit or the order passed therein is a decree or not is not relevant for deciding the question in issue in view of the specific provisions of the said Act as well as the Rules framed thereunder.
6. Normally, as I am differing with the decision of a co-ordinate Bench of this Court, the matter should have been referred to a larger Bench. However, as the matter was decided by Joshi J. without noticing the specific provisions of the Act and the Rules, it can safely be said that the said decision was delivered per incuriam and, therefore, is not binding upon me. As to when it could be said that a precedent is not binding, is by now well settled. A precedent is not binding if it was rendered in ignorance of the statute or a Rule having the force of a statute. In such circumstances it can be said that the matter was decided per incuriam. In this context a reference could usefully be made to a decision of. this Court in Yeshbai v. Ganpat Irappa Jangam : AIR1975Bom20 and particularly towards the following observations hi paras 27 and 28:--
'Now a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to and had not present to its mind the precise terms of the statute. Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of the decision being given per incuriam. In order that a case can be decided perIncuriam, It is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the Court such as a statute (See the observations in 'Salmond on Jurisprudence' Twelfth Edition, pages 150 asd 169).
Mr. Diwan drew our attention to a 'decision of the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. (1944) 1 KB 718 of the Report It is observed -- 'where the Court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is hound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decision given per incuriam. We do not think that it would he right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decision of ' its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts......'
'On a careful consideration of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of courts of coordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we have summarised:--
(1) The Court is entitled and bound to decide which of two conflicting 'decisions of its own it will follow,
(2) The Court is bound to refuse to follow a decision of its own which, though' not expressly overruled, cannot In its opinion stand with a decision of the House of Lords,
(3) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per in-
7. It is quite obvious from the observations of Joshi J, in the said decision, that the decision was given in ignorance of the statutory provisions and hence it could be treated as a decision delivered per incuriam. The relevant observations In the said decision read as under:--
'On the initial point of the locus standi it is worthy to note that the proceedings were initiated under Section 41 of the Presidency Small Cause Courts Act which finds place in Chap, VII, It is a summary proceeding and not a suit, The orders passed in such proceedings are not decrees. This is clear from the language of Section 41 as well as from a couple of authorities of this Court and the Supreme Court,
The earliest authority is to be found in the case of Bai Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar : (1927)29BOMLR1220 , It was an action under Section 41 of the Presidency Small Cause Courts Act, 1882, The Division Bench pointed out that the remedy under Chap, VII of the Presidency Small Cause Courts Act, 1882 for ejectment is a summary proceeding and not a suit and the order made therein cannot amount to a decree. The same view has been registered in the case of Govindram Salamatrai v. Dharampal : AIR1951Bom390 , Speaking for the Court the learned Chief Justice Chagla pointed out:
'It is necessary to remember that under the Presidency Small Cause Courts Act under Chap. VII the Small Cause Court had been given jurisdiction with regard to property of a certain value to pass orders of eviction in favour of owners of property who wanted to eject either their tenants or their licensees, Applications under Chap. VII of that Act were not suits and the orders passed by the Small Cause Court were not decrees and the parties affected by the order made under that Chapter had the right expressly reserved to them to litigate the question of their title in the High Court.' A similar view has been taken by Supreme Court in the case of Nalinakhya Bysack v. Shyam Sunder Haldar, : [1953]4SCR533 . It would be clear from these authorities that the orders are not decrees,
I have made a somewhat detailed reference to this aspect at the inception just to repel the plea taken by Pukhraj Indarmal in the application that the application be treated under Order 21, Rule 100 of the C. P. C. This necessitates a reference to the two Rules 100 and 101 at this stage. Both these rules are required to be read together as they are components of each other. Rule 100 speaks of dispossession by decree-holder or purchaser. When there is such dispossession, any person other than the judgment-debtor who is wrongfully dispossessed can complain of such dispossession. Sub-rule (2) covers the procedure in directing the Court to fix a date for investigating the matter and for summoning the party against whom the application is made to appear and answer the same. Rule 10l which is of -utmost importance further lays down that where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property. These two rules refer to the rights of a person who has been dispossessed in execution of a decree and who is some person other than the judgment-debtor. Both the requisites in the instant case are not fulfilled. Firstly, this is not a decree as noted just now and secondly, Pukhraj Indermal on his own showing cannot be held to be a person other than the judgment-debtor, He has at one stage claimed to be a partner of Messrs. 'Pukhraj Indermal', but dropped the idea of pursuing the same and preferred to style himself as partner of 'Milan Graha Vastu Bhandar.' Apart from the change in the stand taken, it is obvious that he is a member of the joint family along with Indermal Dhanraj and cannot be said to be in possession on his own account. 'If the firm, one or the other, was the tenant and if it was dispossessed, the son who claims to be a partner, would be equally a judgment-debtor along with the other partners including the father. Therefore, looked at from any point of view, he cannot successfully avail of the benefits conferred by R? 100 or 101 of Order 21 of the C. P. C.'
I have quoted the observations of Joshi, J. in extenso to point out that the material provisions of the said Act and the Rules framed thereunder have not been noticed by the learned Judge while deciding the question and the said decision was given in ignorance of the said statutory provisions. If the provisions viz. Section 48 of the Presidency Small Cause Courts Act, 1882 and the Rules framed thereunder are read with the provisions of Chapt. VII of the Act it is quite obvious that the provisions of the Code of Civil Procedure, 1908 will apply even to the proceedings instituted under Chap. VII of the Act. Once it is held that the provisions of the] Code of Civil Procedure apply to the said proceedings and there is nothing] in the Act providing otherwise, then obviously the provisions of Order 21, Rule 100, of the Civil P. C. will also apply to the proceedings instituted under Chapter VII of the Presidency Small Cause Courts Act, 1882.
8. Such a view has been taken by the Calcutta High Court in Rajani Kanta Das v. Dayal Chand De, : AIR1950Cal244 and a reference could usefully be made to the following observations in the said decision:--
'Are we then to say that in the case of a proceeding for recovery of possession under Chap. VII of the Act the person claiming to be in no way bound by the Court's order has no remedy because there is no procedure providing for him to be heard t In my opinion, the answer is clearly, no, and the reason why no specific rules have been framed under Section 9 of the Act for such a procedure are that such rules could not be framed because of the provision of Section 48 in Chap. VII itself which I have already referred to. The Act itself provides that the procedure in the Small Cause Court in these matters under Chap. VII is to be the same as that prescribed in what may be called a mofussil Court by the Civil Procedure Code. In my opinion, this automatically brings into operation the provisions of Chap. (Order ?) XXI and in particular the rules relating to the procedure for hearing claims. This is recognised in the form of Section 141, Civil P. C. as applied to the Calcutta Courts of Small Causes by this Court in exercise of its powers under Section 8 Civil P. C. itself. The section as adapted for these Courts is as follows:--
'The procedure provided in this Code and in the Presidency Small Cause Courts Act, 1882, in regard to suits shall as far as it can be made applicable and except as therein otherwise provided be followed in all proceedings.,.......in the Court of Small Causes of Calcutta.' The words 'and except as therein otherwise provided' have reference to provisions in the Small Cause Courts Act such as those of Section 48. 'Apart from the provisions of Section 48 this would make applicable, to all proceedings other than suits, in the Courts, the procedure ordinarily applicable to suits, as is done; in Section 141, Civil P. C. itself, But the adapted section recognises that as a special provision with regard to procedure for matters under Chap. VII has been laid down in Section 48 of the Act itself, this Court by adaptation of Section 141 under Civil P. C. could not alter that provision. I may add as my opinion that matters could be much simplified if the Presidency Small Cause Courts Act were amended so that all the procedure could be provided for in one place as it were instead of being scattered about as it is, partly in the Act by reference in sections like Ss. 48 and 61 and partly by adaptations of the Code and partly by rules made under Section 9. This is, however, purely a personal opinion. I merely mention it because it seems that owing to those difficulties the actual provision applicable in the present case seems to have been lost sight of. In my opinion, therefore, the appropriate order that the learned Registrar should have made was merely to point out that the application in the form in which it stood could not be dealt with, but that the applicant if he considered he had a grievance and a right, and if and when the order of the Court was sought to be enforced so as to affect his right, could come to the Court under the appropriate provision under Order 21 of the Code and he would be heard.'
A similar view was taken by the Madras High Court in Mahomed Ghouse Sahib v. Sk. Mohiddin Sahib AIR 1924 Mad 74, wherein it was observed by the Madras High Court as under:--
'It is clear Section 48 of the Small Cause Courts Act applies the provisions of the Code of Civil Procedure to proceedings under Chap. VII and the language of it is wide enough to include a power to act under Order 21, Rule 98, Civil P. C. A similar view was taken in the case as reported in Eaggiammal v. Appadurai Gramany, (1910)7 Mad LT 385: 6 Ind Cas 720. To hold otherwise would lead to theextraordinary result that, though Small Cause Court can pass an order in ejectment against a tenant, its order could be defeated by the tenant giving over possession to a third party a day previous to the date fixed for ejectment. The Small Cause Court has power to remove any improper obstruction to the carrying out, of its own order.' Then in K. Arumugham Naicker v. Tiruvalluva Nainar Temple, : AIR1954Mad985 the Division Bench of the Madras High Court also took the same view and held as follows:-- 'Under Section 48, Presidency Small Cause Courts Act, the provisions of the Civil Procedure Code are made applicable to all proceedings under Chap. VII. It states that in all proceedings under the Chapter, the Small Cause Court shall as far as may be and except as herein otherwise provided follow the procedure prescribed for a Court of first instance by the Civil Procedure Code. The machinery provided therefore under the Civil Procedure Code for delivery of possession of immovable property in cases where a decree for possession was granted, is attracted by virtue of Section 48 to proceedings under Chap. VII of the Provincial Small Cause Courts Act.'
Therefore, it is quite obvious to me that if a person is wrongfully dispossessed under an order passed under Chap. VII of the Presidency Small Cause Courts Act, 1882 and if he is entitled to the restoration of possession under Order 21, Rule 100 of the Civil P. C., 1908, then he has a right to approach the said Court for such a relief. Hence the application filed by the petitioner was maintainable,
9. So far as the merits of the controversy are concerned the petitioner before me has raised various contentions indicating that he was in possession of the suit premises in his own right and the order passed by the Small Cause Court, Bombay under Section 41 read with Section 43 was not binding upon him. He has tried to explain his earlier admission incorporated in the reply given by his counsel to a notice given by the respondents. It appears that the learned trial Judge has taken into consideration the said admission and has then recorded a finding. The said finding is seriously challenged before me by Mr. Gole, learned counsel appearing for the petitioner and he has contended that the said finding is perverse. According to Mr. Gole there is no admission at all in the said reply. Assuming there is an admission, the said admission is not unqualified nor it is a true one. Further the learned trial Judge has failed to take into consideration the explanation given by the petitioner in that behalf. According to Mr. Gole, the finding recorded by the learned Judge only on the basis of alleged admission, overlooking the Explanation and other evidence is wholly perverse.
10. On the other hand it is contended by Mr. Vora, learned counsel appearing for the respondents that there is ample material on record to indicate that even on merits the petitioner has no case because he was in possession of the premises through the judgment-debtor. Therefore, according to Mr. Vora even on merits the application filed by the petitioner was liable to be rejected and was rightly rejected, I do not propose to go into this controversy at this stage because in my opinion all the aspects of the. matter were not properly considered by the learned trial Judge before recording a finding in that behalf. This may be so because the learned Judge initially came to the conclusion that an application under Order 21, Rule 100 of the Code of Civil Procedure, 1908 was not maintainable in view of the unreported decision of this Court. Therefore this is a fit case where the matter should be remitted back to the trial Court for deciding the question on merits afresh in accordance with law after giving a reasonable opportunity to both the sides to put forward their respective cases. In the result therefore, the rule is made absolute. The order passed by the Small Cause Court, Bombay dated 19th Nov. 1976 is set aside and the matter is remitted back to the Small Cause Court, Bombay for deciding the same afresh in accordance with law after giving a reasonable opportunity to both the sides to put forward their cases. As the matter is long,, pending, the trial Court is directed to decide the same as expeditiously as possible. However, in the circumstances of the case there will be no order as to costs.
11. Rule made absolute.