Hawabai Wd/O Late Suleman Haji Vs. Abdul Sattar Suleman Haji Ahmed Oomer and anr. - Court Judgment

R.G. Vaidyanatha, J.

1. This is a First Appeal filed by the plaintiff against the Judgment and Decree dated 21-7-1994 in Suit No. 2653 of 1989, on the file of City Civil Court, Bombay.

2. The learned Counsel appearing for the respondent raised a preliminary objection that the Appeal is not maintainable. I have heard both the Counsel on the question of maintainability of the Appeal.

3. The Appellant-plaintiff filed the suit in the trial Court under section 6 of the Specific Relief Act for possession of the suit property on the allegation that the defendants dispossessed her from the suit property within 6 months prior to the date of the suit.

The defendants contested the suit by filing written statement.

After trial the learned trial Court dismissed the suit. The trial Court recorded a finding that the plaintiff failed to prove her possession and then dispossession within 6 months prior to the date of the suit.

Being aggrieved with the dismissal of the suit, the plaintiff has come up with this first appeal.

4. The learned Counsel for the respondents contended that no appeal is provided against an order under section 6 of the Specific Relief Act, 1963 and, therefore, the present appeal is not maintainable. On the other hand, the learned Counsel for the appellant contended that having regard to the provisions of the Bombay City Civil Court Act, an appeal lies against every decree passed by the City Civil Court.

The short point for consideration is whether the present appeal against an order under section 6 of the Specific Relief Act is maintainable or not?

5. Though the learned Counsel appearing for both the parties referred to constitutional provisions and the rights of parties under the Bombay City Civil Court Act, my view is that we have to confine ourselves to section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') to find out as to whether an appeal lies or not. Section 6 of the Act reads as follows:-

'6. Suit by person dispossessed of immovable property---(If) any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.'

6. On perusal of the above provisions shows that it is a complete Code in itself providing a summary procedure for giving relief to a person in possession who has been dispossessed recently within six months.

7. Sub-section (1) provides that any person dispossessed from an immovable property may file a suit for possession under this provision. Then sub-section (2) provides that such a suit must be filed within six months from the date of dispossession. Further such a suit cannot be filed against a Government.

8. Sub-section (3) provides that no Appeal nor review shall lie against any order passed under this section.

9. Then sub-section (4) provides that any order passed under this section will not bar any person to agitate his right in a title suit.

10. It is, therefore, seen that the Legislature has provided a summary procedure under certain circumstances. In my view, this section is an exhaustive and complete code by itself and we cannot go outside section 6 to find out the rights of parties including a right of appeal.

11. This is not a suit filed under the ordinary jurisdiction of the City Civil Court under section 9 of the Civil Procedure Code. This is a special suit under section 6 of the Act which provides an exhaustive and summary procedure for a particular type of suit. The plaintiff cannot say that he wants to come to Court and ask for the relief for possession under section 6(1) of the Act that he is not bound by sub-sections (2) or (3) or (4) of section 6 of the Act. If the plaintiff wants a summary remedy under section 6(1) of the Act and approaches the Court with a special suit under section 6(1) of the Act, he is bound by sub-sections (2), (3) and (4) of section 6 of the Act. Having filed a suit under section 6(1) of the Act the plaintiff cannot say that the period of limitation is 12 years under Articles 64 or 65 of the Limitation Act for possession of a immovable property, but he has to come to Court within a period of 6 months as provided in sub-section (2) of section 6 of the Act. The plaintiff may have a separate remedy to file a title suit for possession within 12 years under Articles 64 or 65 of the Limitation Act, but if he invokes the special jurisdiction of the Court under section 6(1) of the Act he will have to file the suit within six months. Similarly, the special provisions made in sub-section (3) will apply to such a suit and consequently no appeal will lie against an order passed under the Act. The Legislature intended to create a special jurisdiction in a Court for providing a quicker and summary remedy for a person who has been dispossessed recently within six months. That is why the appeal provision is also taken away, but the Legislature has further provided a safeguard namely that an aggrieved party can file a separate title suit and establish his claim. Even though no appeal is provided, the parties are not put to disadvantage since they have a right to file a fresh suit to establish their title in a Court of law.

12. Since section 6 of the Act is a complete Code in itself and the plaintiff has approached the Court invoking its special and summary jurisdiction under section 6(1) of the Act, the plaintiff is bound by other clauses in the same section irrespective of his other rights under other laws. This is a special law of summary remedy and a special jurisdiction provided by the Legislature and the party who invokes the same has to submit to the special procedure provided under the Act. Hence, in my view the plaintiff is bound by the special provisions in section 6(3) of the Act which states that no appeal shall lie against any order passed by a Court under section 6(1) of the Act. The plaintiff will not be put to any disadvantage since the plaintiff can file a fresh suit for possession on the basis of title as provided in sub-section (4) of section 6 of the Act. For these reasons I hold that the present appeal filed by the plaintiff is not maintainable.

13. Another line of argument that was addressed before me is that the Bombay City Civil Court Act is a special Act and it prevails over a general Act like the Specific Relief Act. But the contention on the other side is that the Bombay Act to the extent it is inconsistent with section 6 of the Specific Relief Act must be deemed to have been repealed impliedly after the Parliament passed the Specific Relief Act in 1963.

The Bombay City Civil Court Act, 1948 was enacted in order to provide a special forum for trying of suits of civil nature in the city of Bombay. The City Civil Court was established to try all suits arising within the city of Bombay. Section 15 of this Bombay Act provides that an appeal shall lie to the High Court 'from every decree passed by the Judge of the City Civil Court'. We are not concerned with other clauses of section 15 of the Bombay Act. The learned Counsel for the appellant submitted that in view of the specific provision of section 15 of the Bombay Act, an appeal shall lie to this High Court from every decree passed by the City Civil Court, and therefore, the present appeal is maintainable.

We have already seen that under section 6 of the Specific Relief Act no appeal lies from any decree passed in a suit under that section.

In my view, the two provisions cannot stand together. If the Bombay Act prevails, then an appeal shall lie to the High Court from a decree passed in a suit filed under section 6 of the Specific Relief Act. But if section 6 of the Specific Relief Act prevails, then the present appeal is not maintainable. That means there is a clear ambiguity or conflict between the two provisions of two enactments. The short question is as to how this conflict can be resolved and further question is as to which law should prevail over the other?

14. In my view, the answer to this conflict can be resolved if we apply Article 372(1) as the Constitution of India which reads as follows :-

'372. Continuance in force existing laws and their adaptation---(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.'

The other sub-clauses of Article 372 are not relevant for our purposes.

The above provision shows that all laws which were in force prior to the Constitution shall remain in force unless altered or repealed or amended by subsequent law. The Bombay Act of 1948 is pre-constitution law. Therefore, the said Act can continue in force under Article 372(1) of the Constitution of India unless it is repealed or altered or amended by subsequent Act.

We find that the Parliament has passed a law called 'the Specific Relief Act, 1963' in which in section 6 a special forum, a special remedy and a special procedure for a person who is dispossessed from an immovable property is provided. For such a suit it is specifically provided that no appeal shall lie from a decree passed under section 6. If this later law should prevail, then we should read section 15(1) of the Bombay Act to mean that appeal lies to High Court from every decree passed by a City Civil Court Judge provided an appeal is allowed by law. In other words, the later law impliedly amends or alters section 15(1) of the Bombay Act to mean that an appeal shall lie unless it is barred under any other provision of law. This theory of implied amendment or implied repeal is not a new concept, but it has been recognised, accepted and followed by Indian Courts including the Supreme Court.

15. We may also make reference to Article 254 of the Constitution of India which provides that if there is any repugnancy between a provision of law made by Parliament and a provision of law made by Legislature of a State, then the law made by the Parliament shall prevail.

In : [1955]1SCR799 , Zaverbhai v. State of Bombay, a question arose about the jurisdiction of a Magistrate to try a case for violation of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949. According to section 2 of the Bombay Act No. 36 of 1947 an accused has to be tried by a Sessions Judge since the punishment provided was seven years. But subsequently the Central Act viz. the Essential Supplies (Temporary Powers) Act was passed by the Parliament and under that Act the maximum sentence provided was only three years imprisonment, and therefore, the case could be tried by a Magistrate. In view of these two conflicting provisions the question was as to which law shall prevail. The Supreme Court ruled that the rule of implied repeal applies, and therefore, the subsequent Central Act will prevail over the earlier State Act, and therefore, it was held that the Magistrate had jurisdiction to try the case.

In : AIR1990SC104 Ratan Lal Adukia v. Union of India, a similar question arose. The question was about the jurisdiction of a Court to try a suit against railways for short delivery of goods. The question was whether the suit should be filed within a Court having jurisdiction having regard to the provisions of section 20 of the Code of Civil Procedure and section 18 of the Presidency Small Cause Courts Act or the suit should be filed in a particular Court as mentioned in section 80 of the Railways Act, 1890. The Apex Court observed that section 80 is a complete, self-contained, exhaustive Code in regard to the place of suing respecting suits for compensation against Railways constituting a special law for such suits excluding, by necessary implication, the operation of provisions of section 20 of the Code of Civil Procedure and section 18 of the Presidency Small Cause Courts Act. Similarly, in the present case in view of the self-contained and exhaustive procedure mentioned for a special type of suit filed under section 6 of the Specific Relief Act, the procedure mentioned in that section will prevail over the general provisions of the Bombay City Civil Court Act.

In : 1970CriLJ367 A.K. Jain v. Union of India, it was found that there was a conflict between the Bihar Sugar Factories Control Act (1937) and the subsequent law viz. Essential Commodities Act (1955). The Supreme Court observed in para 6 as follows :-

'If the Bihar Act provides anything to the contrary the same must be held to have been altered in view of Article 372 of the Constitution which provides that all laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. Quite clearly the Bihar Act is a pre-Constitution Act and it could have continued to be in force only till it was altered, repealed or amended by a competent legislature or other competent authority...'

Similarly in : 1983CriLJ164 , T. Barai v. Henry Ali Hoe, the Supreme Court has held that the earlier State Act of West Bengal stood repealed by the amendment of the Prevention of Food Adulteration Act, 1954 made in 1976 to the extent the provisions in the two Acts are repugnant to each other.

In : 1956CriLJ315 , Thaivalappil Kunjuvaru Vareed v. State of Travancore-Cochin, the question was whether the prerogative of Maharaja of Cochin regarding commutation of death sentence which was in force prior to the Constitution of India would be available even after coming into force of the Constitution of India and application of the Code of Criminal Procedure to the State of Cochin. It was held that in view of the specific provisions made in the Criminal Procedure Code regarding commutation of sentences and State law being made applicable to Part 'B' States including Cochin in 1951, the prerogative of the Maharaja under the old law of Cochin must be deemed to have been repealed or abrogated by competent legislative authority.

16. The learned Counsel for the appellant invited my attention to 'Principles of Statutory Interpretation' by J.P. Singh (3rd Edition) and in particular Pages 436 and 437 where it is stated that implied repeal should not be readily inferred. The burden is on the party who asserts repeal by implication to substantiate the same. Then the learned Author himself has mentioned at page 436 as follows :-

'The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act 'that the two cannot stand together.'

Of course at page 438 the learned Author has mentioned that if the words in a later Act are capable of reasonable explanation then the earlier law cannot be held to be repealed by implication.

17. The learned Counsel for the appellant has referred to some authorities.

In : (1961)ILLJ540SC , J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh, it is observed that normally when there is a conflict between a specific provision and a general provision, then the specific provision prevails over the general provision. In my view, this decision is of no assistance to the case of the appellant. On the other hand, it strengthens the view taken by me.

The Bombay Act is in a sense general law applicable to all types of suits filed in the city of Bombay. But section 6 of the Specific Relief Act is a special law which provides a particular procedure for a special suit filed under that section. The general law which applies to all types of suits to be filed in the city of Bombay cannot be made applicable to a special suit filed under the special provisions of section 6 of the Specific Relief Act.

In : [1964]2SCR87 , Municipal Corporation, Palai v. T.J. Joseph, it is observed that though the Legislature can exercise the power of a repeal by implication, it should not be readily inferred. But the Supreme Court itself has observed that this presumption can be rebutted if the provisions of two laws are inconsistent with each other. It is further observed that a special statute may be repealed by a subsequent general statute. But in the peculiar facts of that case the Supreme Court found that the two laws were not inconsistent with each other and hence there was no question of repeal of the earlier law by the later law.

In : [1966]3SCR663 , Pratap Singh v. Manmohan Dey, it is observed that the later general law does not abrogate earlier special law by mere implication. A perusal of that decision shows that the said decision was given on peculiar facts and circumstances of that case.

18. We may look to this problem from another angle. The Bombay City Civil Court has jurisdiction upto Rs. 50,000/-. If the value of the suit is above Rs. 50,000/- even by one rupee or more, then the suit will have to be filed on the Original Side of this High Court. If the argument of the learned Advocate for the appellant is accepted, then in a suit filed under section 6 of the Specific Relief Act in the Bombay City Civil Court, an appeal lies from the decree passed therein. But if the value of the suit is more than Rs. 50,000/- as a consequence of which it will have to be filed on the Original Side of this High Court, then no appeal lies from the decree passed in such suit in view of section 6 of the Specific Relief Act. It cannot be said that the Legislature intended to create such a situation in respect of suits arising from Bombay city. Similarly, in any suit filed all over India under section 6 of the Specific Relief Act and may be in the lowest Court like the Court of a Munsif or Civil Judge, Junior Division, an appeal does not lie, but appeal lies only in the case of City Civil Court at Bombay though it is manned by senior Judicial Officer like District Judge. Such an interpretation, in my view, does not stand the test of reason.

19. Now the legal position may be summarised. Since we are concerned with an exhaustive and self-contained and complete Code regarding a special suit under a special provision of law viz. Section 6 of the Specific Relief Act, it has to be held that no appeal lies irrespective of the question whether the decree is passed by the City Civil Court at Bombay or any other Court in India. Even if section 15 of the Bombay City Civil Court provides for an appeal against any decree passed by the City Civil Court, it must be deemed to have been repealed by necessary implication by section 6 of the Specific Relief Act to the limited extent that no appeal lies for a suit under section 6 of the Specific Relief Act. In other words, section 15 of the Bombay City Civil Court Act should be read that appeals are allowed from every decree of the City Civil Court unless prohibited by any other law. The two provisions are inconsistent with each other and cannot stand together since the Specific Relief Act is a Central Act passed by the Parliament after the Constitution of India came into force and the Bombay City Civil Court Act is a pre-constitution law, the earlier law will have to yield to the later general law for the reasons already mentioned above. As already stated, no prejudice will be caused to any litigant in view of taking away the right of appeal under section 6 of the Specific Relief Act since the litigants are given a right to file a title suit and get their rights declared. I am informed that there is a practice in Bombay that in cases of this type where no appeal is provided under section 6 of the Specific Relief Act, the aggrieved party can move the High Court in a revision petition under section 115 of the Code of Civil Procedure or by filing a writ petition under Article 227 of the Constitution of India. It may be that the scope of a revision of a writ petition is limited and the High Court may not go into questions of fact, but still error of jurisdiction can be corrected by approaching the High Court under those provisions. Even otherwise, the appellant-plaintiff can file a title suit and establish the title and get possession according to law. In my view, the present appeal filed against a judgment passed under section 6 of the Specific Relief Act is clearly not maintainable and specifically barred by statute.

20. In the result, it is held that the appeal is not maintainable and is rejected. However, this order is without prejudice to the rights of the appellant to take such other legal steps according to law as she may be advised. In the circumstances, there will be no order as to costs.

21. After pronouncement of the judgment, the learned Counsel for the appellants prays that the order regarding status quo about possession of the property may be continued for some more time to enable the appellant to take necessary legal steps. The learned Counsel for the respondents has no objections. Heard. The order of status quo regarding possession passed in this case is hereby extended for another three weeks from today.