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1992 DIGILAW 27 (BOM)

Narendra Rajaram Shinde and others v. Rukminibai widow of Gopal Mahadeo Mahajan and others

1992-01-16

A.A.CAZI

body1992
JUDGMENT - A.A. CAZI, J.:---This writ petition is directed against an order dated 25th September 1991 passed by the Appellate Bench of the Court of Small Causes, Bombay, ordering for listing the petitioners' appeal for admission. 2. Prima facie one would wonder as to what is all this writ petition about when the order is only for the appeal to be listed for admission. It is urged by Shri Pradhan that the appeal before the Small Causes Court should be straightway admitted and not listed for admission. 3. In the first place I see no such impropriety in the order as it should give rise to interference by this Court in a writ petition where this Court is concerned with seeing that justice is done. That apart the petitioners' appeal to the Appellate Bench of the Court of Small Causes, Bombay is under the provisions of section 29 of the Bombay Rent Act. The procedure is governed by Rules 9 and 13 of the rules under the said Act. Under those rules "the Court shall, as far as may be and with the necessary modifications, follow the practice and procedure prescribed for appeals from original decrees by the Code." The Civil Procedure Code provides for appeals in section 96 and the procedure is given in Order 41. Under Rule 11 of Order 41 of the Civil Procedure Code it is provided "(1) the Appellate Court, after sending for the record, if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader." It is urged by Shri Pradhan that this particular provision contained in Rule 11 of Order 41 should not be made applicable to appeals under the Rent Act. I do not see any justification for this contention. The provision contained in Rule 11 will not prevent or come in the way of the right of the appellant to be fully heard before his appeal is decided. The provision of Rule 11 does not violate principles of natural justice. No right of the appellant is adversely affected by the said Rule 11. The provision contained in Rule 11 will not prevent or come in the way of the right of the appellant to be fully heard before his appeal is decided. The provision of Rule 11 does not violate principles of natural justice. No right of the appellant is adversely affected by the said Rule 11. It appears that the only purpose of the appellant in obtaining an order as sought in the present writ petition is to see that his own appeal is prolonged as long as possible even if there is no substance in it. I see nothing wrong or illegal or without propriety in the impugned order. 4. The writ petition is summarily dismissed. Petition dismissed. *****