MOTIBHAI RAMABHAI v. PANACHAND MOHANLAL SHAH — 1971 DIGILAW 124 (GUJ)

P. N. BHAGWATI, T. U. MEHTA, J. ( 1 ) THIS group of eleven petitions under Article 227 of the Constitution raises an interesting question as to the procedure to be followed by the Court of Small Causes at Ahmedabad while trying a suit by a landlord for recovery of possession of premises let to a tenant. The question is whether the evidence given by witnesses is to be recorded in the manner set out in Rule 38 of the Ahmedabad Small Cause Court Rules or in the manner prescribed by Order XVIII Rule 5 of the Code of Civil Procedure. ( 2 ) THE determination of this question depends on the true interpretation of Rules 5 and 8 of the Rules made by the State Government under sec. 49 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act ). But before we proceed to consider these Rules it would be convenient to refer to some of the relevant provisions of the Rent Act. The Rent Act was enacted for the purpose of controlling the rents of premises situate primarily in the urban areas of the State and giving protection to tenants against eviction by greedy and rapacious landlords. The Legislature with a view to making the protection really effective conferred exclusive jurisdiction on certain existing Courts under sec. 28 to entertain and try suits and proceedings between a landlord and a tenant relating to recovery of rent or possession of any premises to which the provisions of the Rent Act apply as also to decide claims or questions arising under the Rent Act or any of its provisions. Sec. 28 as pointed out by the Supreme Court in Khemchand v. Mohmedbhai (1970) 11 G. L. R. 173 did not set up new Courts to try suits or proceedings between landlord and tenant:- it merely invested existing Courts with exclusive jurisdiction to try suits and proceedings of the nature set out in the section and claims and questions arising out of any provisions of the Rent Act. It is not necessary for the purpose of the present petitions to set out the changes which sec. 28 suffered in its application to the City of Ahmedabad but suffice it to state that by reason of the amendment made in sec. It is not necessary for the purpose of the present petitions to set out the changes which sec. 28 suffered in its application to the City of Ahmedabad but suffice it to state that by reason of the amendment made in sec. 28 by the Ahmedabad City Courts Act 1961 the Court of Small Causes at Ahmedabad was given exclusive jurisdiction to entertain and try suits and proceedings of the nature set out in sec. 28 as also claims and questions arising under any provisions of the Rent Act. Sec. 17 of the Ahmedabad City Courts Act 1961 also provided that the Presidency Small Cause Courts Act 1882 shall extend to and come into force in the City of Ahmedabad on and from the appointed day and sec. 18 effected certain amendments in the Presidency Small Cause Courts Act 1882 in its application to the City of Ahmedabad. The result was that the Court of Small Causes at Ahmedabad was from and after the appointed day governed by the provisions of the Presidency Small Cause Courts Act 1882 as amended by sec. 18 of the Ahmedabad City Courts Act 1961 The Court of Small Causes at Ahmedabad governed by the provisions of the amended Presidency Small Cause Courts Act 1882 thus became by reason of the amendment in sec. 28 of the Rent Act a Court of exclusive jurisdiction to entertain and try suits and proceedings of the nature specified in sec. 28 as also claims and questions arising under the provisions of the Rent Act. Sec. 29 of the Rent Act provided for appeals against the decisions of the Courts specified in sec. 28 and conferred appellate jurisdiction on certain specified Courts to heal such appeals. Now when exclusive jurisdiction to entertain and try suits and proceedings of the nature specified in sec. 28 as also to hear appeals against decisions in such suits and proceedings was conferred on certain specified Courts the question would arise as to what procedure should be followed by such Courts in trying and hearing matters which might be brought before them under secs. 28 and 29. This question was resolved by the Legislature by enacting in sec. 21:-31 The Courts specified in secs. 28 and 29 shall follow the prescribed procedure in trying and hearing suits proceedings applications and appeals and in executing orders made by them. 28 and 29. This question was resolved by the Legislature by enacting in sec. 21:-31 The Courts specified in secs. 28 and 29 shall follow the prescribed procedure in trying and hearing suits proceedings applications and appeals and in executing orders made by them. THE prescribed procedure would be procedure prescribed by Rules made under the Rent Act and therefore we must turn to sec. 49 which confers rule making power on the State Government. Sec. 49sub-sec. (1) provides that the State Government may by notification in the Official Gazette and subject to the condition of previous publication make rules for the purpose of giving effect to the provisions of the Rent Act and sub-sec. (2) clause (iii) says that in particular and without prejudice to the generality of the foregoing part the rules made by the State Government may provide for the procedure to be followed in trying or hearing suits proceedings (including proceedings for execution of decrees and distress warrants) applications appeals and execution of orders. The State Government in exercise of the power conferred under sec. 49 subsec. (1) as also sec. 49 sub-sec. (2) clause (iii) made the Bombay Rents Hotel and Lodging House Rates Control Rules 1948 (hereinafter referred to as the Rent Act Rules ). Chapters IV IV-A V VI-A and VII of the Rent Act Rules prescribe the procedure to be followed by the Courts specified in secs. 28 and 29 in trying and hearing suits proceedings (including proceedings for execution of decrees and distress warrants) applications appeals and execution of orders. We are concerned in these petitions only with the procedure required to be followed by the Court of Small Causes at Ahmedabad and we may therefore refer only to Chapters IV and VI-A. Chapter VI-A consists of only one Rule namely Rule 15a and this rule provides that notwithstanding anything contained in Chapter V and Rule 15 in the City of Ahmedabad the provisions of Chapter IV and Rule 14 shall mutates mutandis apply to suits proceedings applications appeals and execution of orders under sec. 28 and 29 of the Rent Act. The procedure to be followed by the Court of Small Causes at Ahmedabad in trying and hearing suits proceedings applications appeals and execution of orders under sec 28 and 29 would therefore be governed by the provisions of Chapter IV and Rule 14. 28 and 29 of the Rent Act. The procedure to be followed by the Court of Small Causes at Ahmedabad in trying and hearing suits proceedings applications appeals and execution of orders under sec 28 and 29 would therefore be governed by the provisions of Chapter IV and Rule 14. Chapter IV consists of several Rules but we need refer only to Rules 5 7 and 8 as those are the only Rules relevant to the question in controversy between the parties. Rules 5 7 and 8 omitting portions immaterial read as follows :- ( 3 ) IN such of the following suits and proceedings as are cognizable by the Court of Small Causes Bombay on the date of the coming into force of these Rules namely (1) suits relating to the recovery of rents or charges for boarding lodging or other service provided in a hotel or a lodging house when the amount or value of the subject matter does not exceed Rs. 3 0 (2) proceedings under Chapter VII and VIII of the Presidency Small Cause Courts Act 1882 and (3) proceedings for execution of any decree or order passed in any such suit or proceedingthe Court of Small Causes Bombay shall follow the practice and procedure provided for the time being (a) in the said Act except Chapter VII thereof and (b) in the rules made under sec. 9 of the said Act. ( 4 ) (1) In miscellaneous applications the Court of Small Causes Bombay shall follow as far as may be and with the necessary modifications the practice and procedure applicable to suits referred to in Rule 5 as if such applications were suits for sums not exceeding Rs. 1 0. . . . . . . . . . . . . . . . . . . . . . . . . . ( 5 ) IN suits and proceedings other than those referred to in Rules 5 and 7 the Court of Small Causes Bombay shall as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code (including Order XXXVII as modified in its application to the State of Bombay. . . . . . . . . IT will be seen that so far as suits and proceedings referred to in Clauses (1) (2) and (3) of Rule 5 are concerned Rule 5 makes applicable the practice and procedure provided for the time being in the Presidency Small Cause Courts Act 1882 except Chapter VI thereof and in the rules made under sec. 9 of the Act. Sec. 9 of the Presidency Small Cause Courts Act 1882 confers power on the High Court to make from time to time rules prescribing the procedure to be followed and the practice to be observed by the Court of Small Causes at Ahmedabad. This High Court has in exercise of the power conferred under sec. 9 made the Ahmedabad Small Cause Court Rules which have been brought into force with effect from 4th November 1961. Rule 38 of the Ahmedabad Small Cause Court Rules makes the following provision in regard to recording of evidence of witnesses :- ( 6 ) (1) In cases to which sec. 38 of the Act applies or in which an appeal is allowed on facts under any enactment for the time being in force the Judge as the examination of each witness proceeds shall either (i) make in his own hand or cause to be made at his dictation a memorandum of the substance of what the witness deposes or (ii) cause the evidence of the witness to be taken down in writing in his presence and under his personal superintendence as far as possible not in the form of question and answer but in the narrative form and the Judge shall. if necessary correct the same. (2) Such memorandum or evidence taken down in writing shall be signed by the Judge and shall form part of the record. if necessary correct the same. (2) Such memorandum or evidence taken down in writing shall be signed by the Judge and shall form part of the record. THIS provision made in Rule 38 is a little different from that made in Order XVIII Rule 5 of the Code of Civil Procedure which says how evidence shall be taken in appealable cases :- ( 7 ) IN cases in which an appeal is allowed the evidence of each witness shall be taken down in writing in the language of the Court by or in the presence and under the personal direction and superintendence of the Judge not ordinarily in the form of question and answer but in that of a narrative and when completed shall be read over in the presence of the Judge and of the witness and the Judge shall if necessary correct the same and shall sign it. THE question is which of these two provisions is applicable in a suit filed by a landlord for recovery of possession of premises let to a tenant. Should the evidence of witnesses be recorded in the manner prescribed in Rule 38 or should it be recorded according to the procedure prescribed by Order XVIII Rule 5 ? The petitioners who are tenants contended before the learned Judge of the Court of Small Causes when she was trying the suit for possession filed against them by respondent No. I who is the landlord that the evidence of witnesses should be recorded in the manner prescribed by Order XVIII Rule 5 and not according to the procedure set out in Rule 38 but this contention was negatived by the learned Judge and hence the petitioners preferred the present petitions challenging the view taken by the learned Judge. ( 8 ) NOW it is clear that though sec. 9 empowers the High Court to make Rules prescribing the procedure to be followed and the practice to be observed by the Court of Small Causes and the Ahmedabad Small Cause Court Rules made by this High Court in exercise of the power conferred under sec. 9 prescribe the procedure to be followed by the Court of Small Causes at Ahmedabad the Ahmedabad Small Cause Court Rules cannot apply proprio vigore to suits and proceedings cognizable by the Small Cause Court under sec. 28 of the Rent Act. The reason is that sec. 9 prescribe the procedure to be followed by the Court of Small Causes at Ahmedabad the Ahmedabad Small Cause Court Rules cannot apply proprio vigore to suits and proceedings cognizable by the Small Cause Court under sec. 28 of the Rent Act. The reason is that sec. 31 of the Rent Act provides that the Small Cause Court shall follow the procedure prescribed by Rules made by the State Government under sec. 49 sub-sec. (1) and sub-sec. (2) clause (iii) in trying and hearing suits and proceedings exclusively triable by it under sec. 28 of the Rent Act. The Rent Act Rules made by the State Government under sec. 49 sub (1) and sub-sec. (2) clause (iii) must therefore govern the procedure of the Small Cause Court in respect of suits and proceedings under sec. 28 of the Rent Act. It is only if the Rent Act Rules make the procedure prescribed by the Ahmedabad Small Cause Court Rules applicable to any category of suits or proceedings under sec. 28 of the Rent Act that such procedure would govern that particular category of suits or proceedings We find that such a provision is made in Rule 5 of the Rent Act Rules. Rule 5 provides that the Small Cause Court shall while trying and hearing suits and proceedings belonging to any of the categories specified in Clauses (1) (2) and (3) follow the practice and procedure provided in the Presidency Small Cause Courts Act 1882 except Chapter VI thereof and the Ahmedabad Small Cause Court Rules. The procedure prescribed in the Ahmedabad Small Cause Court Rules would therefore clearly be applicable in respect of suits and proceedings falling within any one of the three categories described in Clauses (1) (2) and (3) of Rule 5. So also by reason of the mandate of the State Government expressed in Rule 7 the procedure prescribed in the Ahmedabad Small Cause Court Rules would apply in respect of miscellaneous applications such as applications for fixing standard rent. But so far as suits and proceedings other than those referred to in Rules 5 and 7 are concerned Rule 8 declares in terms clear and explicit that the Court of Small Causes shall as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure. But so far as suits and proceedings other than those referred to in Rules 5 and 7 are concerned Rule 8 declares in terms clear and explicit that the Court of Small Causes shall as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure. The procedure which is required to be followed by the Court of Small Causes while trying and hearing suits and proceedings other than those referred to in Rules 5 and 7 is not that prescribed in the Ahmedabad Small Cause Court Rules but it is the procedure prescribed for a Court of first instance by the Code of Civil Procedure. Now a question may arise here as to what is the meaning of the expression with the necessary modifications. Does it mean any modifications which may be made by the High Court under sec. 9 of the Presidency Small Cause Courts Act 1882 ? We do not think so. The expression with the necessary modifications must be read in the context in which it occurs and particularly with the words as far as may be and if it is so read? it can mean only one thing namely that the procedure prescribed for a Court of first instance by the Code of Civil Procedure shall be followed by the Small Cause Court as far as may be with such modifications as may be required in order to make it applicable to the Court of Small Causes. The modifications which are contemplated by the rule-making authority in Rule 8 are nothing more than necessary changes in points of detail in order to make the Ahmedabad Small Cause Court Rules intelligible in their application to the Court of Small Causes. The expression with the necessary modifications cannot be construed to mean as if the High Court is given by necessary implication power to make modifications in the procedure prescribed for a Court of first instance by the Code of Civil Procedure and the procedure so modified by the High Court is to govern suits and proceedings other than those referred to in Rules 5 and 7. The other expression namely the procedure prescribed for a Court of first instance by the Code was also the subject matter of comment in the course of the arguments and a contention was sought to be advanced that it means the procedure prescribed by the Code of Civil Procedure for the particular Court of first instance in question which would be here the Small Cause Court governed by the Presidency Small Cause Courts Act 1882 Sec. 8 of the Code of Civil Procedure it was said enacts that save as provided in certain sections of the Code and by the Presidency Small Cause Courts Act 1882 the provisions in the body of the Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta Madras Bombay and Ahmedabad and Order LI Rule 1 also provides that save as provided in certain rules of certain Orders and by the Presidency Small Cause Courts Act 1882 the First Schedule to the Code shall not extend to any suit or proceeding in any such Court of Small Causes. Order XVIII Rule 5 of the Code of Civil Procedure not being one of the provisions specifically mentioned in Order LI Rule 1 does not therefore apply to suits or proceedings in the Court of Small Causes and a fortiori it would have no application in respect of suits and proceedings other than those referred to in Rules 5 and 7. But this argument is based on a mis reading of the expression the procedure prescribed for a Court of first instance by the Code. What this expression means is not the procedure prescribed by the Code for any particular Court of first instance such as a Small Cause Court governed by the Presidency Small Cause Courts Act 1882 In fact there is no distinctive procedure prescribed by the Code for a Court of Small Causes established under the Presidency Small Cause Courts Act 1882 Sec. 8 and Order LI Rule 1 merely exclude the applicability of certain provisions of the Code to a Small Cause Court established under the Presidency Small Cause Courts Act 1882 because in respect of the subject matter of those provisions the High Court would make rules under sec. 9 of the Presidency Small Cause Courts Act 1882 The expression the procedure prescribed for a Court of first instance by the Code is intended to refer only to the procedure prescribed by the Code for a Court of first instance as distinguished from an appellate Court. The procedure which is to be followed by the Court of Small Causes is the procedure which is to be found in the Code in regard to a suit or proceeding before a trial Court. Order XVIII Rule 5 is clearly a part of the procedure prescribed by the Code for a Court of first instance that is the trial Court and it must therefore apply in suits and proceedings other than those referred to in Rules 5 and 7. ( 9 ) BUT a contention was urged that a suit by a landlord for possession of premises let to a tenant was a suit or proceeding referred to in Rule 5 and the procedure set out in Order XVIII Rule 5 had therefore no application but the procedure was governed by Rule 38 of the Ahmedabad Small Cause Court Rules. Now this contention would be irrefutable if the on which it is founded were correct namely that a suit by a landlord against a tenant for recovery of possession of premises is a suit or proceeding referred to in Rule 5. But the question is:- is this premise correct ? Does such a suit fall within any one of the three categories specified in Clauses (1) (2) and (3) of Rule 5 ? Clauses (1) and (3) can have obviously no application and the only question can be whether such a suit falls within Clause (2 ). The proceedings referred to in Clause (2) are proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act 1882 The proceedings under Chapter VIII are proceedings for recovery of arrears of rent by issuing distress warrant. Sec. 53 which occurs in Chapter VIII confers power on the Small Cause Court established under the Presidency Small Cause Courts Act 1882 to issue distress warrant for recovery of arrears of rent and the Small Cause Court Ahmedabad has therefore power to issue distress warrant and that power can be exercised even in respect of suits and proceedings which are exclusively triable by it by virtue of the Rent Act. Vide Khemchand v. Mohmedbhai (supra ). If therefore a proceeding is instituted in the Court of Small Causes for issue of distress warrant for recovery of arrears of rent under Chapter VIII the procedure in such proceeding would by reason of Rule 5 be governed by the Ahmedabad Small Cause Court Rules. But this provision would not help in regard to a suit by a landlord for recovery of possession of premises let to a tenant for such a suit would clearly not be a proceeding under Chapter VIII so as to attract the applicability of Rule 5. ( 10 ) THE only question is whether such a suit can be said to be a proceeding under Chapter VII. If we look at Chapter VII it is clear that it provides a summary remedy for recovery of possession of immovable property. The Scheme of Chapter VII is that when any person has had possession of any immovable property of which the annual value at rack rent does not exceed two thousand rupees as tenant or by permission of another person and such tenancy or permission has determined or been withdrawn an application may be made by such other person to the Small Cause Court for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. When such an application is made a summons would be served on the opponent under sec. 42. If the occupant does not appear at the time appointed and show cause to the contrary and the Small Cause Court is satisfied that the applicant is entitled to apply under sec. 41 an order for possession would be issued by the Small Cause Court and such an order may be executed by the bailiff and the applicant may be put into possession of the property. There is no right of appeal against the order for possession which may be made by the Small Cause Court but the procedure prescribed is that the occupant if aggrieved can file a suit for compensation for trespass against the applicant. If the applicant was not entitled to make an application for possession his act of making the application would be trespass and the occupant would be entitled to claim compensation for trespass from the applicant. If the applicant was not entitled to make an application for possession his act of making the application would be trespass and the occupant would be entitled to claim compensation for trespass from the applicant. The occupant may file a suit for compensation for trespass before an order of possession is made by the Small Cause Court or even after such an order is made. The City Civil Court in which such a suit is filed by the occupant would decide after taking evidence and bearing parties whether the applicant was entitled to make an application for possession. The right of the applicant to recover possession of the premises from the occupant would thus be adjudicated upon on merits in the suit which may be filed by the occupant against the applicant. This procedure is to be found in secs. 41 to 47 which form the group of sections in Chapter VII. Now this procedure would continue to be applicable where the applicant seeks to recover possession from the occupant on the ground that the occupant was in possession of the premises by permission of the applicant and such permission has been withdrawn by the applicant. But where a landlord seeks to recover possession of the premises from the tenant on the ground that the tenancy has been determined this procedure would now be clearly displaced by the provisions of the Rent Act. The jurisdiction to entertain and try a suit for possession by a landlord against a tenant is now exclusively conferred on the Small Cause Court under sec. 28 of the Rent Act and the Small Cause Court would finally subject of course to appeal under sec. 29 determine the claim of the landlord for recovery of possession against the tenant. The City Civil Court would have no jurisdiction to determine whether the landlord was entitled to recover possession of the premises from the tenant. The Small Cause Court can therefore no longer make an order for possession in a proceeding under Chapter VII which can be challenged by the tenant by filing a suit in the City Civil Court contending that the landlord was not entitled to file the application against the tenant and he was therefore guilty of trespass. The Small Cause Court can therefore no longer make an order for possession in a proceeding under Chapter VII which can be challenged by the tenant by filing a suit in the City Civil Court contending that the landlord was not entitled to file the application against the tenant and he was therefore guilty of trespass. Hence it would seem to be clear and beyond dispute that after the coming into force of the Rent Act it is not permissible to a landlord to adopt a proceeding under Chapter VT1 for recovering possession of the premises let to a tenant. Vide Ranjit Patiraj v. Behram 65 Bom. L. R. 464 and Ramkishore v. Vijayabahadursingh 65 Bom. L. R. 712. Now if after the coming into force of the Rent Act there can be no proceeding under Chapter VII between a landlord and a tenant would the inclusion of the words proceedings under Chapter VII in Clause (2) of Rule 5 be not an exercise in futility ? Why should the State Government have made a provision for procedure to be followed by the Court of Small Causes in proceedings under Chapter VII if such proceedings were wholly displaced by the Rent Act ? The argument of the first respondent therefore was that the words proceedings under Chapter VIl should not be construed literally but they should be read to mean a proceeding by a landlord for recovery of possession of premises let to a tenant which but for the provisions of the Rent Act would have been a proceeding under Chapter VII. The first respondent contended that this was the only meaning which could be given to the words proceedings under Chapter VII if they were not to be held superfluous or devoid of meaning. The decision of Mr. Justice Sarela in Chandrakant v. Dr. Harjivandas Karelia (1970) 11 G. L. R. 798 was strongly relied upon by the first respondent in support of this contention. Now it is true that this decision of Mr. Justice Sarela does support the construction put forward on behalf of the first respondent but we do not think that is the right construction to be placed on the words proceedings under Chapter VII. The words proceedings under Chapter VII must mean what they say. Now it is true that this decision of Mr. Justice Sarela does support the construction put forward on behalf of the first respondent but we do not think that is the right construction to be placed on the words proceedings under Chapter VII. The words proceedings under Chapter VII must mean what they say. It is a well known rule of interpretation that if the words of a statute are in themselves precise and unambiguous then no more is necessary than to expound their meaning according to their natural and ordinary sense. The words themselves in such a case best declare the intention of the law giver. It is only as a matter of last resort where the intention of the Legislature is manifest but the language used by the Legislature is not apt to express such intention that the Court would be justified in departing from the rules of grammar giving an unusual meaning to particular words altering their collocation or rejecting them altogether and such a course would be adopted by the Court under the influence of an irresistible conviction that the Legislature possibly did not intend what its words signify and the modifications thus made are mere corrections of careless language and really give the true meaning as intended by the Legislature. Here we do not find any reason or justification for departing from the plain natural meaning of the words used by the rule making authority. It is apparent that the words proceedings under Chapter VII were used by the rulemaking authority with reference to proceedings under Chapter VII which were pending at the date when the Rent Act came into force. These proceedings could no longer be dealt with under Chapter VII because by reason of the proviso to section 50 they were required to be disposed of according to the provisions of the Rent Act. Sec. 51 which was retrospectively introduced by sec. 11 of Bombay Act 3 of 1949 made this position abundantly clear by declaring that reference to suits and proceedings in the Rent Act shall include references to proceedings under Chapter VII. Sec. 51 which was retrospectively introduced by sec. 11 of Bombay Act 3 of 1949 made this position abundantly clear by declaring that reference to suits and proceedings in the Rent Act shall include references to proceedings under Chapter VII. The rule making authority had therefore to make provision prescribing the procedure to be followed by the Court of Small Causes in proceedings under Chapter VII which were pending at the date when the Rent Act came into force and which were now required to be disposed of in accordance with the provisions of the Rent Act. The words proceedings under Chapter VII were therefore not at all superfluous or unnecessary and no argument can be sustained on behalf of the first respondent that by reading these words according to their plain natural meaning the Court would be rendering them superfluous or meaningless. This particular aspect of the question it appears was not presented before Mr. Justice Sarela and with the greatest respect to the learned Judge we cannot regard his decision as laying down the correct law. We may point out that even if the words proceedings under Chapter VII were not referable to any existing situation and the effect of construing them according to their plain natural meaning were to render them superfluous and meaningless we would still not be inclined to read them in the manner suggested on behalf of the first respondent. It would be doing violence to the language of the rule making authority to construe these words as referable to a proceeding by a landlord for recovery of possession of premises let to a tenant which but for the provisions of the Rent Act would have been a proceeding under Chapter VII. If the Court were to adopt such a construction the Court would be legislating and not interpreting. Moreover it is difficult to see how it can ever be said that a suit filed by landlord against a tenant for recovery of possession of premises is a proceeding which would but for the Rent Act lie under Chapter VII. If the Rent Act had not been enacted such a suit would not have lain under Chapter V31 but it would have been filed in the City Civil Court. If the Rent Act had not been enacted such a suit would not have lain under Chapter V31 but it would have been filed in the City Civil Court. We are therefore unable to persuade ourselves to accept the view contended for on behalf of the first respondent supported though it is by the decision of Mr. Justice Sarela in Chandrakant v. Dr. Harjivandas Karelia (supra) and we hold that a suit by a landlord for recovery of possession of premises let to a tenant does not fall within any of the categories specified in Clauses (1) (2) and (3) of Rule 5 and it is therefore not governed by the Ahmedabad Small Cause Court Rules. Such a suit being a proceeding not covered by Rule 5 and also admittedly not covered by Rule 7 would fall within Rule 8 and the procedure to be followed by the Small Cause Court in such a suit would be the procedure for a Court of first instance by the Code of Civil Procedure. Order XVIII Rule 5 of the Code of Civil Procedure and not Rule 38 of the Ahmedabad Small Cause Court Rules would consequently apply in the matter of recording of evidence of witnesses in such a suit. ( 11 ) WE therefore allow these petitions and make the rule in each petition absolute by issuing a writ of certiorari quashing and setting aside the decision given by the learned Judge of the Small Cause Court taking a contrary view from the one taken by us in this judgment. There will be no order as to costs in each of the petitions. The interim stay 8ranted by this Court in each petition will stand vacated. Since the suits before the Small Cause Court are old suits they should be expedited and disposed of as early as possible. .