1. The tenant has questioned order dated 02.05.2011 passed in Misc. Civil Application No. 434/2011 and the judgment dated 28.02.2011 in Writ Petition No.132/2011, delivered by the learned Single Judge of this Court. Writ Petition was filed by the appellant / tenant challenging concurrent judgments and decrees of his eviction passed by the Small Causes Court, under Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the 1999 Act" for short) and the Appellate Court confirming it. The learned Single Judge accepted the contentions of tenant that both the Courts below have not considered whether partial eviction of tenant from premises would meet the needs of respondent / landlord. This requirement of Section 16[2] of the 1999 Act, is found to be not satisfied, hence the matter came to be remanded to the Appellate Court for recording additional evidence, if any, and to decide it after giving parties due opportunity.
2. This judgment dated 28.02.2011 was then questioned in Misc. Civil Application No.434/2011. Particular contention in review was, remand ought to have been to the Trial Court so as not to deny the Appellant/ Tenant right of appeal against that finding under Section 16[2] of the 1999 Act. The learned Single Judge after hearing the counsel for appellant dismissed the review with costs of Rs.5000/-. Challenging both these orders, present Letters Patent Appeal has been filed.
3. I have heard Shri M.G. Bhangde, learned Senior Counsel with Shri Dani, learned Counsel for appellant / tenant and Shri S.V. Manohar, learned Counsel for respondent / landlord.
4. Learned Single Judge has in paragraph no.11 of its judgment dated 28.02.2011, expressly referred to exercise under Articles 226 and 227 of the Constitution of India. Similarly the infraction of statutory provision is also noted. In this situation, though Authority against whom writ of certiorari has been sought, was not a party, the respective counsel have stated that the issue of tenability of Letters Patent Appeal does not arise for consideration.
5. Learned Senior Counsel has after pointing out the relevant facts contended that the appeal is a statutory remedy conferred upon tenant, and it cannot be taken away in this mode and manner. It is urged that the parties have been given opportunity to lead additional evidence and it is under Order 41 Rule 27 of the Code of Civil Procedure, the Appellate Court is required to record a finding about the propriety of partial eviction in this situation. Said finding of the Appellate Court cannot be challenged in any appeal, and thus right of appeal available to present appellant under Section 34 of the 1999 Act is, violated. Had the remand been to the trial Court, said findings could not have been subjected to appeal under section 34 of the 1999 Act in accordance with remedy made available to the appellant/ tenant by law. It is, therefore, urged that by directing remand to Appellate Court, the learned Single Judge has followed the course of action not sustainable in law, and has also thereby deprived the appellant of his statutory right.
6. Judgments of Hon'ble Apex Court reported at AIR 1959 SC 144 (Pranab Kumar Mitra .vrs. State of W.B. and another.), (1995) 2 SCC 474 (Surjit Ghosh .vrs. Chairman & Managing Director, United Commercial Bank and others.), (2006) 4 SCC 348 (A. Sudhakar .vrs. Postmaster General, Hyderabad and another.), (2009) 8 SCC 646 (Nahar Industrial Enterprises Ltd. vrs. Hong Kong and Shanghai Banking Corporation ) and 1993 Supp (1) SCC 439 (Krishna Murari Prasad .vrs. Mitar Singh) are relied upon to substantiate this contention. Attention is also invited to law as laid down by the Hon'ble Apex Court in (1988) 2 SCC 602 (A.R. Antulay .vrs. R.S. Nayak and another), for this purpose.
7. Shri S.V. Manohar, learned Counsel appearing for respondent / landlord has contended that the alleged violation of Section 16[2] of the 1999 Act was not made a ground of defence before the trial Court or then even before the Appellate Court. The appellant / tenant who is interested in killing time has raised that plea for the first time before the learned Single Judge and in this situation, after due application of mind and having noted the provisions of Order 41 Rule 27 of the Code of Civil Procedure, the Appellate Court has been directed to record its finding in this connection. The appellant / tenant thereafter, with a view to further gain time filed Misc. Civil Application No. 434/2011 and the learned Single Judge has rightly dismissed it with costs of Rs. 5000/- on 02.05.2011. As the particular course of action is selected with due application of mind and there is no error or perversity, the interference with that exercise in Letters Patent jurisdiction is unwarranted.
8. He contends that judgments relied upon by the learned Senior Advocate do not consider this situation and are therefore, not relevant, when in exercise of appellant right of appeal, a provision in Civil Procedure Code namely Order 41 Rule 27 has been directed to be adhered to by the learned Single Judge. He has relied upon the judgment reported at AIR 1978 SC 413 (Rahman Jeo Wangnoo .vrs. Ram Chand and others), (2000) 6 SCC 533 (Hajuri P.C. Khuntia and others .vrs. Brundaban R. Das and others ) and 2000 (3) Mh.L.J. 535 (Association of Engineering Workers .vrs. Indian Smelting and Refinery Co. Ltd. and others) to substantiate his contentions. He has, therefore, prayed for dismissal of Letters Patent Appeal with costs.
9. In Pranab Kumar Mitra .vrs. State of W.B. and another (supra), the Hon'ble Apex Court has in paragraph no.6 found that the appeal is a statutory right, which has been recognized by law courts and where the right of appeal exists, it cannot be denied even in exercise of discretionary powers. In Surjit Ghosh .vrs. Chairman & Managing Director, United Commercial Bank and others (supra), the punishment after disciplinary proceedings was inflicted by an authority treated as Appellate Authority under the Rules and Regulations regulating the Departmental inquiry. Contention before the Hon'ble Apex Court was, as punishment was inflicted by higher authority than disciplinary authority, no prejudice was caused to the appellant. The Hon'ble Apex Court found arguments weak, as the remedy of appeal available to such employee was being denied in the process. Hon'ble Apex Court found that the Rules and Regulations containing such remedy of appeal were thus attempted to be placed on par with Rules and Regulations which do not contain such remedy, and an employee cannot be deprived of his substantive right of appeal. In A. Sudhakar .vrs. Postmaster General, Hyderabad and another (supra), the Hon'ble Apex Court has found that an authority superior in rank than the disciplinary authority may also function as disciplinary authority, provided the charged officer is not denied his right of appeal thereby. In Nahar Industrial Enterprises Ltd. vrs. Hong Kong and Shanghai Banking Corporation (supra), the Hon'ble Apex Court has noted that a right of appeal is vested on the date of filing of the suit, and it can be taken away only by express provision of law and not even by it. The discussion in paragraph no.131 again emphasizes this fact and notes that right of appeal cannot be curtailed. Observations of Hon'ble Apex Court in A.R. Antulay .vrs. R.S. Nayak and another (supra), in paragraph no.39 again show absence of such power in Courts.
10. Shri Bhangde, learned Senior Counsel has placed strong reliance upon the larger bench judgment of Hon'ble Apex Court in the case of Krishna Murari Prasad .vrs. Mitar Singh (supra), wherein paragraph no.5 the Hon'ble Apex Court has observed that the investigation into such facts needs to be done by the trial Court and hence, matter was remitted back to trial Court. This judgment considers issue of partial eviction under Section 11[1][c] of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. (2009) 16 SCC 343 (Dwarika Lal and another .vrs. Kanindi Devi), is the other judgment of Hon'ble Apex Court which considers the same enactment. It is obvious, that there after decree of trial Court, the aggrieved party has remedy of filing revision before the High Court and there is no appeal provided in that enactment. The issue of partial eviction therefore, which needed investigation into facts has been directed to be placed before the trial Court.
11. The learned Single Judge has relied upon the earlier view taken by him in 2010 (2) Mh.L.J. 829 (Joginder Pal .vrs. Naval Kishore Behal) where for non compliance with Section 16[2] of the 1999 Act, matter was remanded to the trial Court. One of us (B.P. Dharmadhikari, J) has in similar circumstances in judgment reported at 2010 (6) Mh.L.J. 561 (Gyanchand Pramanand Jain and others .vrs. Wamanrao Vyankatrao Shinde), directed remand to trial Court.
12. In Rahman Jeo Wangnoo .vrs. Ram Chand and others (supra), to consider similar issue, Hon'ble Apex Court has placed the matter before first appellate Court with liberty to parties to lead evidence on that question of partial eviction. In Hajuri P.C. Khuntia and others .vrs. Brundaban R. Das and others (supra), the Hon'ble Apex Court has remanded the matter to Member, Board of Revenue to decide the issue to find out whether landlord was not in possession of suit land on the date of vesting. The Hon'ble Apex Court noted that the matter was old and hence view taken is, remand was not required to be made to primary authority. The Orissa Estates Abolition Collector (Tahsildar) is the primary authority, while the Additional District Magistrate is the Appellate Authority under said enactment namely - Orissa Estates Abolition Act, 1951. The Member, Board of Revenue is the revisional authority.
13. Division Bench of this Court in Association of Engineering Workers .vrs. Indian Smelting and Refinery Co. Ltd. and others (supra), held that this Court in Letters Patent Appeal is not expected to interfere with the exercise of discretion by the learned Single Judge and substitute its own discretion.
14. The view in Rahman Jeo Wangnoo .vrs. Ram Chand and others (supra) and Hajuri P.C. Khuntia and others .vrs. Brundaban R. Das and others (supra), shows that in old matters the Hon'ble Apex Court also has though it proper to place the matter before the higher authority and not before the trial authority, precedents on which learned Senior Advocate for tenant has placed reliance do not deal with this question. They only consider the issue of denial of appellate remedy. Here the said remedy has been resorted to by the present appellant when he challenged the judgment and decree of trial Court in appeal before 5th Additional District and Sessions Judge, Nagpur under Section 34 of the 1999 Act.
15. The learned Single Judge in judgment delivered on 28.02.2011 has considered these facts and then in paragraph no.17 though it appropriate to place the matter back before the appellate Court. The fact that earlier in Joginder Pal .vrs. Naval Kishore Behal (supra) matter was remanded back to the trial Court, is also noted and thereafter, the question whether remand should be before Trial Court or appellate Court has been gone into. The provisions of Order 41 Rule 27 of Civil Procedure Code are then noticed and it has been held that question of depriving present appellant/tenant of his right to appeal does not arise. In review, after noticing these findings, review has been dismissed on 02.05.2011 by imposing costs of Rs.5000/- upon the appellant / tenant. Course to be followed while order remand was not in issue either in Joginder Pal .vrs. Naval Kishore Behal (supra) or then in Gyanchand Pramanand Jain and others .vrs. Wamanrao Vyankatrao Shinde (supra).
16. Thus, learned Single Judge has adopted said course after noticing all relevant factors and there is no jurisdictional error or perversity. The fact that the present appellant is already in appeal before the District and Sessions Court as per Section 34 of the 1999 Act, itself shows futility of argument of deprivation of appellate remedy. The appellant did not raise defence of sufficiency of partial eviction or otherwise before the trial Court at the first available opportunity. This was not the ground to assail the judgment and decree in appeal under Section 34 of the 1999 Act. The ground has been entertained and accepted by the learned Single Judge in writ jurisdiction. In this situation, it is apparent that the appellant / tenant is trying to keep the litigation pending as long as possible by raising various pleas. He is already prosecuting his remedy of appeal under Section 34 and hence, argument of its deprivation in present facts are totally misconceived. Order 41 Rule 27 of Civil Procedure Code itself contemplates an opportunity to a party like appellant to lead fresh evidence and hence, it cannot be argued that its exercise or invocation constitutes denial of right of appeal. It cannot, therefore, be said that learned Single Judge has in any way interfered with any right of appeal of the appellant.
17. We, therefore, see no substance in this Appeal, the same is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
18. The judgment is pronounced today at Nagpur under Chapter XI Rule 1 of the Bombay High Court Appellate Side Rules, 1960. Shri Bhangde, learned Senior Counsel appearing on behalf of the appellant seeks continuation of interim order for a further period of four weeks.
19. Shri Manohar, learned Senior Counsel appearing for respondent in this situation makes a statement that the respondent will not proceed with hearing of the appeal before the Appellate Court for a period of four weeks.
20. In view of this statement, the anxiety of Shri Bhangde, learned Senior Counsel is taken care of.