Case Note & Summary
The Petitioner, Shree Raj Shrushti Residency Private Ltd., filed a Writ Petition under Article 227 of the Constitution of India challenging an order dated 30th March 2022 passed by the Appellate Court (Small Causes Court, Bandra) in Appeal No. 23 of 2022 in RAE & R Suit No. 54/176 of 1994. The Petitioner, as original Plaintiff, had filed an eviction suit against the Respondents (original Defendants) in respect of suit premises at Gandhigram Road, Juhu, Mumbai, on grounds of illegal subletting, arrears of rent, and bona fide requirement. During the trial, the Petitioner filed an affidavit of evidence along with documents, which were marked by the Trial Court and kept for cross-examination of PW-2. The Respondents objected to the marking of documents, contending that a Power of Attorney executed by Respondent No.1 in favour of Harish Chandar Mishra was not validly executed as Respondent No.1 was in judicial custody at the time. The Trial Court overruled the objection and marked the documents. The Respondents filed an appeal under Section 29A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which was allowed by the Appellate Court, setting aside the Trial Court's order and remanding the suit for fresh trial. The High Court examined the scope of Section 29A and held that the Appellate Court exceeded its jurisdiction by interfering with an interlocutory order that did not finally determine the rights of parties. The marking of documents was a ministerial act, and the documents were marked subject to proof and relevance. The Appellate Court could not set aside the order and remand the suit unless the order was perverse or without jurisdiction. The High Court allowed the Writ Petition, set aside the Appellate Court's order, and restored the Trial Court's order marking the documents. The High Court also directed the Trial Court to expedite the hearing of the suit.
Headnote
A) Rent Control - Eviction Suit - Power of Attorney - Validity - Section 29A Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The appellate court set aside the trial court's order marking documents and remanded the suit for fresh trial on the ground that the Power of Attorney was not validly executed. The High Court held that the appellate court exceeded its jurisdiction under Section 29A as the order marking documents was interlocutory and did not finally determine the rights of parties. The appellate court could not interfere with the trial court's discretion unless perverse or illegal. (Paras 1-30)
B) Evidence - Marking of Documents - Evidentiary Value - The trial court had marked documents subject to proof and relevance. The High Court held that marking of documents is a ministerial act and does not confer evidentiary value. The appellate court's interference was unwarranted as the documents were only marked for identification and their admissibility would be decided at final hearing. (Paras 15-25)
C) Rent Control - Appellate Jurisdiction - Section 29A Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The appellate court's power under Section 29A is limited to confirming, reversing or modifying the decree or order appealed from. It cannot set aside an interlocutory order and remand the suit for fresh trial unless the order is perverse or without jurisdiction. The High Court restored the trial court's order marking documents. (Paras 26-30)
Issue of Consideration
Whether the Appellate Court under Section 29A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 could set aside the trial court's order marking documents and remand the suit for fresh trial on the ground that the Power of Attorney was not validly executed?
Final Decision
The High Court allowed the Writ Petition, set aside the Appellate Court's order dated 30th March 2022, and restored the Trial Court's order marking the documents. The High Court directed the Trial Court to expedite the hearing of the suit.
Law Points
- Power of Attorney
- Evidentiary value of documents
- Marking of documents
- Section 29A Bombay Rents Act
- 1947
- Article 227 Constitution of India
- Appellate court jurisdiction
- Remand for fresh trial
Case Details
2023 LawText (BOM) (11) 71
WRIT PETITION NO. 5010 OF 2022 WITH INTERIM APPLICATION NO. 4298 OF 2023
Mr. Zal Andhyarujina, Senior Advocate with Mr. Shrey Sancheti, Mr. J. A. Khan and Mr. Bipin Joshi for Applicant/Petitioner; Mr. G. S. Godbole, Senior Advocate with Mr. R. L. Gonsalves i/b Ms Eventa Gonsalves for Respondents
Shree Raj Shrushti Residency Private Ltd.
Shri Romesh Sharma, M/s Ramnarain Sons Pvt. Ltd., M/s Jayems Engineering Co. Pvt. Ltd., Mrs. Gayatri Vinay Parekh, Vasantrai Chhaganlal Dave
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Nature of Litigation
Civil Writ Petition under Article 227 of the Constitution of India challenging an appellate order in an eviction suit.
Remedy Sought
Petitioner sought setting aside of the Appellate Court's order dated 30th March 2022 which set aside the Trial Court's order marking documents and remanded the suit for fresh trial.
Filing Reason
The Petitioner challenged the Appellate Court's order on the ground that it exceeded its jurisdiction under Section 29A of the Bombay Rents Act by interfering with an interlocutory order marking documents.
Previous Decisions
The Trial Court had overruled the Respondents' objection and marked the documents. The Appellate Court allowed the appeal and set aside that order, remanding the suit for fresh trial.
Issues
Whether the Appellate Court under Section 29A of the Bombay Rents Act could set aside the trial court's order marking documents and remand the suit for fresh trial?
Whether the marking of documents by the trial court was a ministerial act that did not confer evidentiary value?
Submissions/Arguments
Petitioner argued that the Appellate Court exceeded its jurisdiction under Section 29A as the order marking documents was interlocutory and did not finally determine rights. The marking of documents was a ministerial act and the documents were marked subject to proof and relevance.
Respondents argued that the Power of Attorney was not validly executed as Respondent No.1 was in judicial custody, and therefore the documents could not be marked.
Ratio Decidendi
The Appellate Court under Section 29A of the Bombay Rents Act has limited jurisdiction and cannot interfere with an interlocutory order marking documents unless the order is perverse or without jurisdiction. Marking of documents is a ministerial act and does not confer evidentiary value; the documents are marked subject to proof and relevance. The Appellate Court exceeded its jurisdiction by setting aside the trial court's order and remanding the suit for fresh trial.
Judgment Excerpts
The Petitioner has filed the above Writ Petition under Article 227 of the Constitution of India assailing the order of the Appellate Court dated 30th March, 2022, passed in Appeal No. 23 of 2022 in Exhibit No. 279 in RAE & R Suit No. 54/176 of 1994 before the Small Causes Court, Bandra, (the “said suit”) allowing the Appeal of the original Defendant No.2.
The Petitioner as the original Plaintiff has earlier filed the said suit for eviction against the Respondents/Original Defendants in respect of suit premises... on the grounds of illegal subletting, arrears of rent and bona fide requirement.
It is the case of the Petitioner that on 4th March, 2010 a Power of Attorney (“first Power of Attorney”) was executed by Respondent No.1 in favour of Harish Chandar Mishra as Respondent No.1 was in judicial custody inter alia granting Harish Chandar Mishra physical possession of the said property...
Procedural History
The Petitioner filed an eviction suit (RAE & R Suit No. 54/176 of 1994) before the Small Causes Court, Bandra. During trial, the Petitioner filed documents which were marked by the Trial Court. The Respondents objected, but the Trial Court overruled the objection. The Respondents filed an appeal under Section 29A of the Bombay Rents Act (Appeal No. 23 of 2022), which was allowed by the Appellate Court on 30th March 2022, setting aside the Trial Court's order and remanding the suit for fresh trial. The Petitioner then filed the present Writ Petition under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 227
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947: Section 29A
