PUSHPABAI ANANDJI GALA Vs. SUKUMAR JINNAPPA BHARE

JUDGEMENT

(1.) In our opinion, this Letters Patent Appeal must be rejected as not maintainable. The appellants filed a civil suit against the respondent in the Court of the Civil Judge, Junior Division, Sangli, for possession of the suit premises under section 13(1)(hh) of the Bombay Rent Act. The suit was dismissed by the trial Court. The appeal preferred by the appellants in the District Court was allowed and the appellants suit for possession was decreed. Aggrieved by the aforesaid decision in appeal, the respondent filed a writ petition in this Court purportedly under Article 226 of the Constitution. The learned Single Judge by his judgment and order dated 24/25th February, 1987, allowed the writ petition, set aside the decree for possession passed by the District Court and restored the order of dismissal of the suit passed by the trial Court. The appellants have filed this appeal under Clause 15 of the Letters Patent Act challenging the decision of the learned Single Judge.

(2.) In our opinion, though the writ petition was stated to be filed under Article 226 of the Constitution, in substance the reliefs claimed were under Article 227 of the Constitution and the reliefs granted were also in exercise of the powers of superintendence under Article 227. No inter appeal, therefore, lies in this Court under Clause 15 of the Letters Patent Act.

(3.) Shri Page, the learned Counsel, appearing for the appellants, however, submitted that since admittedly the respondent had invoked the jurisdiction of the Court under Article 226 of the Constitution and not under Article 227 as is evident from the mention of Article 226 in the petition, the exercise of the powers by the learned Single Judge was also under Article 226 and, therefore, appeal would lie, to a Division Bench of this Court. He further submitted that under sub-section 3-A of section 13 the landlord is required to produce at the time of the institution of the suit a certificate issued by the Tribunal constituted under sub-section 3-B of section 13 of the Act and the suit for possession under section 13(1)(hh) of the Act is not maintainable unless the landlord produces along with the plaint the certificate granted by the Tribunal as provided in sub-section 3-A of section 13 of the Act. He, therefore, submitted that in a writ petition the challenge is essentially to the order of the competent authority granting the certificate under sub-section 3-A of section 13 of the Act and the mere fact that the original suit was filed in the Civil Court against the respondent did not alter the position. In support of his contentions Shri Page relied on a Special Bench decision of this Court in the case of (State of Maharashtra v. Kusum) 1981 Maharashtra Law Journal, 93. He particularly relied on conclusions Nos. 25,26,27, 28, 33 and 34 which are at pages 188 and 189 of the report. These conclusions are: