Mrs. Kutubunisa Begum W/O Mahemood Ur Rahman Vs. Mrs. Bilquees Jahan Begum W/O Mohd. AzizuddIn Siddiqui - Court Judgment

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civil - appeal - section 104 of code of civil procedure, 1908 and sections 24, 26 and 26-a of provincial small causes courts act, 1887 - maintainability of appeal against interim order - section 26-a of act of 1887 mention words decree as well as order - even if there is no decree appeal would lie against order. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].n.p. chapalgaonker, j.1. rule. rule made returnable forthwith by consent.2. the learned 2nd additional district judge, aurangabad took the view that an appeal under section 26-a of the provincial small cause courts act, 1984 would be maintainable only against the final disposal of the suit and not against any interim order and was pleased to dismiss the appeal as not maintainable, vide his judgment and decree dated 24-8-1995. this civil revision application challenges this decree passed by the learned 2nd additional district judge, aurangabad.3. chapter iv-a1 was inserted by maharashtra act no. xxiv of 1984, by which small cause courts were invested with the powers to deal with certain class of suits between the licensor and licensee or landlord and tenant relating to recovery of possession of any immovable property, irrespective of the value of the subject matter of such suits or proceedings. the whole chapter iv-a deals with the class of suits mentioned in section 26.4. section 24 is a general provision regarding all kinds of small cause suits, which provides:--'if there is any order under clause (ff) and (h) of sub-section (1) of section 104 of the code of civil procedure, 1908, an appeal shall lie to the district court.'relying on this provision, of section 24 of p.s.c. act it was contended before the learned 2nd additional district judge, aurangabad that the right of appeal, so far as interim orders are concerned, is restricted only to two kinds of orders mentioned in clauses (ff) and (h)of section 104(1) of the code of civil procedure, since no other order is available (appealable).5. had this been the correct position, the legislature would not have provided in section 26-a that an appeal shall lie from a decree or order made by the court of small causes exercising jurisdiction under section 26 of the district court. in sub-section (1) of section 26-a, the use of the word 'order' cannot be assumed to be meaningless. in every small cause suit, a decree is drawn at the time of disposal of the suit and, therefore, if the legislature intended that there should not be an appeal in respect of any interim order, it would have provided that an appeal shall lie from a decree passed by the small cause court under section 26 to the district court but the legislature has specifically mentioned both the terms i.e. the decree or the order meaning thereby that even if there is no decree, an appeal would lie against the order.6. the provincial small cause courts act, 1887 is a special statute dealing with a special class of civil suits and the procedure prescribed by this act will override the provisions of the civil procedure code whenever they are contrary to each other. similarly, the provisions of chapter iv-a of the provincial small cause courts act, 1887 will prevail over the provisions contained in other part of the statute so far as the litigation specified in section 26(1) is concerned. when the law provides special procedure and makes special provision applicable to a certain class of litigation, any limitation, contrary to the said provision contained in the general laws, will stand excluded. the limited right of appeal under section 24 is applicable to small cause suits other than those mentioned in section 26 and so far as the suits specified in section 26(1) are concerned, an appeal shall lie against every decree or order whether it is final or interim.7. this court, in the case of sk. jusa v. ganpat dagdu gire, reported in : air1976bom222 , while deciding the question whether an appeal under order 43, rule 1(r) of the civil procedure code would lie against an ad-interim order, when the application is not finally disposed of, held that the rule provides for appeal against an order meaning thereby any order whether it is final or interlocutory. order 15-a inserted in the code of civil procedure by this high court's notification dated 5th september, 1983, is a drastic provision providing for penal consequence. there is nothing in the statute permitting to interpret that the appeal provided under section 26-a does not include an appeal against order passed under order 15-a.8. the learned single judge of this court in the case of salimkhan v. mohammed ibrahimkhan, reported in 1987 mah.l.j. 283 : 1987(2) bom.c.r. 245, considered the contention whether the provisions of section 96 of the code of civil procedure would apply to an appeal under section 26-a and was pleased to hold that the provisions of section 96 will not apply to an appeal under section 26-a. therefore, the limitation in sub-section (4) of section 96 that no appeal shall lie in respect of the decree passed by the courts of small causes in any suit, where the amount or the value of the subject matter does not exceed rs. 3,000/-, is not applicable to the appeals maintainable under section 26-a.9. the learned single judge of the mysore high court in the case of f.m. subbayya v. venkataramanna, reported in a.i.r. 1959 mys 145 was pleased to observe :--'if, however, such adjudication amounts only to an order and not a decree, then in terms of section 104 of the code, no appeal will lie unless it is expressly provided by the special law. when the special law itself contains a provision for appeal, revision or other remedy, then obviously the special provision alone has to be looked into for ascertaining whether or not a party has a right of appeal and if so, before which court or tribunal.'therefore, the view taken by the learned appellate judge is not correct. an appeal against any order will not lie unless specifically provided for but if an appeal has been provided for, then the scope of the appeal will have to be determined on the basis of the special provision providing the appeal and the general provisions of the code of civil procedure, which may stand contrary to the special provision, cannot be looked into.10. the order of the learned 2nd additional district judge, aurangabad dated 24-8-1995 in misc. civil appeal no. 142 of 1995 and the consequent decree are hereby set aside. the appeal is restored and is remitted to the learned judge for decision according to law. rule made absolute accordingly. there shall be no order as to costs.