B.P. Saraf, J.
1. The writ petitioners are in occupation of certain premises owned by the respondents (original applicants). The respondents filed an ejectment application before the Court of Small Cause at Bombay under section 41 of the Presidency Small Cause Courts Act, 1882 for recovery of possession of the same from the petitioners. The said application, which was filed in the year 1974, was numbered as Ejectment Application 262-E of 1974. On receipt of notice of the said application, the petitioners appeared before the Small Cause Court and filed their reply claiming, inter alia, that they were tenants of the applicants within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act LVII of 1947) and in consequences thereof entitled to the protection of that Act.
2. After the issues were framed by the Court, the original applicants (respondents herein) filed an application on 5th October, 1984 praying for framing of a preliminary issue to decide the above claim of the occupants (original respondents). This application was opposed by the original respondents (petitioners herein) on the ground that no preliminary issue could be framed as envisaged by section 42-A of the Presidency Small Cause Courts Act, as the said section stood deleted with effect from 1st July, 1976 consequent to the substitution of Chapter VII of the said Act (which contained section 41 to 46 including section 42-A) by the Maharashtra Act, IX of 1976. The Small Cause Court did not accept this objection and fixed the case on 23rd January, 1985 for framing the preliminary issue.
3. Aggrieved by the above order, the petitioners (original respondents) filed a revision application in the Court of Small Cause. The said revision application was rejected and the order of the trial Court fixing the case for framing of the preliminary issue as envisaged by section 42-A of the Presidency Small Cause Courts Act was affirmed on the ground, inter alia, that the amendment of Chapter VII was not applicable as the ejectment application in this case had been prior to 1976. The petitioners seek to challenge the above revisional order on the ground, inter alia, that no preliminary issue can be framed after 1st July, 1976 after the deletion of section 42-A.
4. When this writ petition came up for admission, a 'notice before admission' was issued to the respondents. The respondents are present in pursuance of the said notice and oppose the admission on the ground that this writ petition is misconceived and based on erroneous construction of the 1976 Amendment. Our attention was drawn to section 46 of the Amendment Act which provides that all applications and other proceedings pending in the Small Cause Courts on the date of coming into force of the 1976 Amendment Act shall be continued and disposed of as if the said Amendment Act had not been passed. The learned Counsel for the petitioners, however, reiterated the contention that section 42-A of the Presidency Small Cause Courts Act is a procedural section and the same having been deleted by the Amendment Act of 1976 with effect from 1st July, 1976, no preliminary issue can be framed by relying on the same. Learned Counsel submits that after the amendment of the Act, all procedural matters, including framing of preliminary issue, will be governed by the amended law and reliance on section 42-A of the Act, after the deletion thereof by the Amendment Act of 1976 with effect from 1st July, 1976, for the purpose of the framing of a preliminary issue is not tenable in law. In support of this proposition, reliance was placed on the decisions of the Supreme Court in Balumal Jamnadas v. State of Maharashtra, : 1975CriLJ1862 ; Union of India v. Sukumar A.I.R. 1966 S.C. 1207 and K.E. Chako v. Provident Investment Co. A.I.R. 1976 S.C. 2610.
5. I have carefully considered the rival submissions. The admitted position in this case is that the ejectment application was filed in the Small Cause Court in the year 1974 and said application was pending in the Court on the date of coming into force of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Maharashtra Act, XIX of 1976). The uncontroverted legal position is that prior to the amendment of the Presidency Small Cause Courts Act, in its application to the State of Maharashtra, by the above Amendment Act, section 42-A provided that the controversy whether the occupant was a tenant of the premises within the meaning of the Bombay Rent Control Act and in consequence thereof entitled to the protection should be decided by the Small Cause Court as a preliminary issue. The said section was inserted in Chapter VII of the Act, in its application to the State of Maharashtra, by the Maharashtra Act 41 of 1963. It read :---
'42-A. Procedure where occupant contests as lawful tenant, etc.:---
(1) If in any application pending in the Small Cause Court immediately before the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963 (Mah. XLI of 1963) or made to it on or after such date, the occupant appears at the time appointed and claims that he is a tenant of the applicant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (Bom. LVII of 1947) and in consequence whereof he is entitled to the protection of the Act, and if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question shall be decided by the Small Cause Court as a preliminary issue.
(2) An appeal against the decision on this issue shall lie to a bench of two Judges of the Small Cause Court.
(3) Every appeal under sub-section (2) shall be made within thirty days from the date of the decision appealed against :---
Provided that, in computing the period of limitation prescribed by this sub-section the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908 (IX of 1908) shall, so far as may be, apply.(4) No further appeal shall lie against any decision in appeal under sub-section (2).'In the substituting Chapter VII, there is no provision corresponding to section 42-A.
6. The bone of contention of the writ petitioners in this case is that after the coming into force of the above amendment, no preliminary issue can be framed as envisaged by section 42-A of the Act as it stood in Chapter VII prior to its substitution, as framing of preliminary issue is a procedural matter which would be governed by the law applicable at the time the issue is sought to be framed and not by the law as it stood at the time of filing of the application.
7. This contention, in my view, is devoid of any merit in view of the provision in section 46 of the Act contained in Chapter VII of the Act, as substituted by Maharashtra Act XIX of 1976, which provides for saving of pending proceedings. It reads :
'46. Saving of pending proceedings
(1) All suits and other proceedings cognizable by the Small Cause Court under this chapter and pending in the High Court or the Bombay City Civil Court, on the date of coming into force of the Presidency Small Cause Court (Maharashtra Amendment) Act, 1975, shall be continued and disposed of by the High Court or the City Civil Court, as the case may be, as if this Act had not been passed.
(2) All applications and other proceedings filed in the Small Cause Court under this chapter and pending in that Court, on the date aforesaid shall be continued and disposed of by the Small Cause Court, as if this Act had not been passed.
On a plain reading of sub-section (2) of the above section, it is abundantly clear that the substituting Chapter VII is not applicable to applications and other proceedings filed in the Small Cause Court under the substituted Chapter and pending in that Court on the date of coming into force of the Maharashtra Act XIX of 1976 i.e. on 1st July, 1976. All such applications and other proceedings are to be continued and disposed of by the Small Cause Court 'as if the Maharashtra Act, XIX of 1976 had not been passed.'
8. It is thus clear that for the purpose of disposal of the applications and other proceedings filed in the Small Cause Court under section 41 and pending with that Court on 1st July, 1976, the Court has to proceed under Chapter VII as it stood prior to the enactment of the Amendment Act of 1976. In view of this clear provision saving all pending proceedings from the operation of the Amending Act, the claim of the occupants in this case that they are tenants under the Rent Control Act and entitled to the protection thereof has to be decided as a preliminary issue as envisaged by section 42-A of the Act. The Court has no option in this regard. The requirement of deciding this question as a preliminary issue is mandatory. Moreover, section 42-A has an overriding effect over the provisions of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, as is evident from the expression 'notwithstanding anything contained in that Act' preceeding the operative part thereof which provides that 'the question shall be decided by the Small Cause Court as a preliminary issue'. This mandatory requirement is not effected in any way by the Maharashtra Act, XIX of 1976 in so far as applications and proceedings filed and pending on the date of coming into force of the above Amendment Act are concerned. I am, therefore, of the clear opinion that the courts below were fully justified in holding that the question of tenancy and protection under the Rent Control Act in the present case has to be decided as a preliminary issue and in directing accordingly.
9. Counsel for the petitioners at this stage referred to section 43 of the Act which requires the Small Cause Court to follow the procedure prescribed by the Code of Civil Procedure, 1908 and submitted that in view of the same, it is not incumbent on the part of the Small Cause Court to frame a preliminary issue as contemplated by section 42-A of the Act. I have carefully considered the above submission which, in my view, is totally devoid of any merit for reasons more than one. Firstly, section 43 is a part of Chapter VII of the Act as substituted by the Maharashtra Act, XIX of 1976 which, as stated earlier, is not applicable to applications and proceedings specified in section 46 of the said Chapter. Secondly, section 43 is a general provision which provides that in all suits, appeals and proceedings under this Chapter, the Small Cause Court shall, as far as possible and except as herein otherwise provided, follow the procedure prescribed by the Code of Civil Procedure, 1908 whereas section 42-A is a specific provision which mandates the Court to decide a particular question as a preliminary issue. In such a situation the maxim generalibus specialia derogant will apply and the special provision in section 42-A will prevail over the general provision in section 43. However, this controversy being academic in this case in view of section 46 of the Act, it is not necessary to deal with the same in any greater detail.
10. In view of the legal position set out above, it is clear that the learned trial Court was justified in allowing the application of the original applicants for framing a preliminary issue and fixing a date for that purpose and the Revision Court was justified in confirming the same and dismissing the revision application of original respondents (petitioners herein) for the reversal thereof.
11. In the premises aforesaid, this writ petition is devoid of any merit and is liable to be dismissed at the admission stage itself. It is accordingly dismissed. In the facts and circumstances of the case, I make no order as to costs.