Vijay Shrihari Khandar vs Shriram S/O Sitaram Gaikwad And ...
2005 Latest Caselaw 1495 Bom

JUDGMENT

R.C. Chavan, J.

1. Defendant Vijay, who was ordered to be evicted from the suit premises, in pursuance of the decree passed by the learned 3rd Joint Civil Judge Junior Division, Ramtek and affirmed on appeal by the learned 14th Ad hoc Additional District Judge, Nagpur, has preferred this Second Appeal.

2. The facts which led to the presentation of this appeal are as under:

The plaintiffs had purchased house bearing No. 31 C.T.S. 2035, Sheet No. 8 of Rakhi Bank Road at Ramtek by registered sale deed on 1-10-1987 from Nalini Joshi and others. The defendant was a tenant in respect of part of this premises on monthly rent of Rs. 125/-. Since the plaintiffs required the premises bona fide and reasonably for their own occupation and since the provisions of C.P. and Berar Letting of Premises, 1989 applied to the suit premises they approached the Rent Controller for permission to issue notice under Section 106 of the Transfer of Property Act. The Rent Controller accorded necessary permission and thereafter the plaintiff sent notice on 28-5-1993 terminating tenancy of the defendant and seeking recovery of the possession on expiry on 30th June, 1993. Since the tenant did not vacate, the plaintiffs filed suit for defendant's ejectment with damages @ Rs. 40/- per day, arrears of rent, notice charges etc.

3. The defendant contested the proceedings, contending that he was tenant of Smt. Nalinibai Joshi and stating that the plaintiffs were not entitled to recover possession from him.

4. After considering the evidence tendered before him, the learned 3rd Joint Civil Judge Junior Division, Ramtek decreed the suit and also ordered the defendant to pay Rs. 5,647/- plus future mesne profit @ Rs. 30/- per day.

5. Aggrieved thereby, the appellant/defendant preferred appeal before the District Court at Nagpur, which was decided by the learned 14th Ad-hoc Additional District Judge, Nagpur. By his judgment, the learned judge upheld the order of ejectment of the appellant, passed by the learned trial Judge, but only modified the order in respect of future mesne profit, directing that an enquiry under Order XX, Rule 12 of the Code of Civil Procedure, be held in respect of future mesne profit. Aggrieved thereby, the appellant approached this Court, by first filing civil revision application, which was allowed to be converted into the second appeal.

6. I have heard Shri R.L. Khapre, learned Counsel for the appellant and Shri Vyawahare, learned Counsel for the respondent.

7. The learned Counsel for the appellant contended that there are substantial questions of law required to be decided in this second appeal. According to the learned Counsel, the proceedings were governed by the provisions of Section 26 of the Provincial Small Cause Courts Act, between landlady and tenant. Since the learned Civil Judge Jr. Dn., Ramtek had no jurisdiction to try small causes suit he should have returned the same for presentation to the Court of Civil Judge Sr. Dn., Nagpur who also has powers to try the suits under the Small Causes Courts Act. Since this is not done, there is serious jurisdictional error. It was also contended that service of notice upon the defendant was not proved, bona fide need of the plaintiff was not proved, the appellant ought to have been offered an opportunity to deposit the arrears of rent and therefore, the learned Counsel submits that the suit ought to have been dismissed.

8. Relying on decision of this Court, in Gurunathappa v. Dharwar Municipality, reported at AIR (32) 1945 Bom. 197 (FB), the learned Counsel submitted that, when small causes suit, is tried as a regular suit, second appeal could not be treated as revision under Section 115 of the Civil Procedure Code, since it would prejudice the appellant. It was observed in Gurunathappa's case that the provisions of Section 25 of the Provincial Small Causes Court Act are wider than those of Section 115 of the Civil Procedure Code and therefore, the Court ordered remand of the proceedings for retrial by the Court of Small Causes. The case arose out of the suit for recovery of Rs. 380 and 7 Annas, which had been illegally levied by Municipal Borough of Dharwar from the plaintiff. The suit was held to be triable by the Court of Small Causes. However, it was tried by the Extra Joint Subordinate Judge at Dharwar who did not have Small Causes Court's powers. The Court held that, had the suit been tried by the Judge having Small Causes Court's powers, the appellant could have had right to approach the High Court under Section 25 of the Provincial Small Cause Courts Act, provisions whereof are much wider than those of Section 115 of the Civil Procedure Code. It may be seen that at Dharwar, which is a district place, a Small Causes Court was functioning, inasmuch as the first sub-judge of Dharwar had small causes powers. Therefore, it was possible to say that, since the suit was triable by the Court of Small Causes, and since there was a Small Causes Court at Dharwar, in view of the provisions of Section 16 of the Provincial Small Causes Courts Act, the suit could not have been tried by any other Court having jurisdiction within the local limits of the Court of Small Causes, by which the suit was triable. Such is not the present case.

9. The Civil Judge Junior Division at Ramtek is a distinct and independent Civil Court. Though Civil Judge Senior Division at Nagpur has jurisdiction over the entire district, it does not follow that it has ordinary jurisdiction to entertain the suits arising out of local limits of the jurisdiction of the Civil Court at Ramtek. It has special jurisdiction to try the suits which are beyond pecuniary jurisdiction of Civil Judge Jr. Dn. at Ramtek. In view of this, whatever may the effect on the prospects of hearing a revision in the High Court under Section 25 of the Provincial Small Cause Courts Act or under Section 115 of the Civil Procedure Code since the Small Causes Court was not in existence at Ramtek, Civil Judge Jr. Dn. at Ramtek had the power to try the suit.

10. Incidentally, it may be seen that the grounds of appeal raised before the District Court at Nagpur do not refer to the incompetence of the Civil Judge Jr. Dn., Ramtek to try the suit. Such a defence was not even raised in the written statement before the learned Civil Judge.

11. The question of service of notice, bona fide need of the landlords or opportunity to the appellant to deposit arrears of rent, are all questions of facts and do not warrant any interference in a second appeal.

12. In view of this, since the appeal does not throw up any substantial question of law for decision, it is dismissed.