Bombay High Court
Kailashchandra Harakchand Soni vs Amarlal Vedaram Talreja on 27 April, 2016
Bench: S.P. Deshmukh
1 WP-933.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 933 OF 2016
Kailaschandra s/o Harakchand Soni,
age 65 years, occupation : Nil, .. Petitioner/
R/o Naya Bazar, Sadar Bazar, Jalna, Original
Tq. and Dist. Jalna Plaintiff
versus
Amarlal s/o Vedaram Talreja,
Age 50 years, occup. Trade,
Proprietor of Shop Sapna Booth House,
Soni Complex, Shop No. 5, in front of .. Respondent/
Maratha Building, Charwaipura, Original
Sadar Bazar, Jalna, Tq. and Dist. Jalna Defendant
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Mr. B. A. Darak, Advocate for petitioner
Respondent no. 1 served.
CORAM : SUNIL P. DESHMUKH, J.
DATE : 27TH APRIL, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Respondent
despite service has not put in appearance. Heard learned
counsel for petitioner finally.
2. Petitioner-original plaintiff, aggrieved by order passed
on 26-11-2015 by Joint Civil Judge, Senior Division, Jalna,
rejecting application moved by him at Exhibit - 26 seeking
transfer of rent suit bearing regular civil suit no. 8 of 2014 to
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the court of Civil Judge, Junior Division, Jalna, is before this
court.
3. The petitioner has filed eviction proceedings bearing
regular civil suit no. 8 of 2014 in the court of Civil Judge,
Senior Division, Jalna, seeking possession of suit property
according to provisions of the Maharashtra Rent Control Act,
1999 [for brevity, "The Act").
4.
It appears that the suit came to be assigned to the court
of Joint Civil Judge, Senior Division, Jalna.
5. Section 33 in chapter VII of the Act which reads thus;
"33. Jurisdiction of courts.
(1) Notwithstanding anything contained in any law for the time
being in force, but subject to the provisions of chapter VIII, and
notwithstanding that by reason of the amount of the claim or for any
other reason, the suit or proceeding would not, but for this
provision, be within its jurisdiction, -
(a) ..................
(b) ..................
(c) elsewhere, the court of the Civil Judge (Junior division)
having jurisdiction in the area in which the premises are situate or,
if there is no such Civil Judge, the court of the Civil Judge (Senior
Division) having ordinary jurisdiction, shall have jurisdiction to
entertain and try any suit or proceeding between a landlord and a
tenant relating to the recovery of rent or possession of any premises
and to decide any application made under this Act (other than the
applications which are to be decided by the State Government or
an officer authorized by it or the Competent Authority), and subject
to the provisions of sub-section (2), no other court shall have
jurisdiction to entertain any such suit, proceeding, or application or
deal with such claim or question."
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6. Taking into account aforesaid provision, an application
Exhibit-26 was moved by petitioner-original plaintiff to
transfer said rent suit to the court of Civil Judge, Junior
Division, Jalna, for hearing. In support of said application,
certain citations were relied on as referred to in the
application.
7. Learned counsel contends that to application Exhibit-26,
there was no
ig particular resistance on behalf of the
respondent-defendant. He further points out that it is the
practice that the suits are generally instituted addressing to
the Court of Civil Judge, Senior Division and upon filing, the
same are made over / assigned to the respective courts viz.
the court of Joint Civil Judge, Senior Division or court of Civil
Judge, Junior Division, according to general directions of
district judge or having regard to provisions of the Bombay
City Civil Courts Act, 1948.
8. Having regard to the provisions of section 33
aforestated, it was but incumbent to assign / make over the
suit to the court of Civil Judge, Junior Division, however,
unfortunately suit had been assigned to the court of Joint Civil
Judge, Senior Division. Learned counsel, therefore, submits
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that Exhibit-26 had been moved for taking corrective action in
respect of the same.
9. Learned counsel further refers to that attention had
been drawn of the learned trial judge to the position that
there are courts of Civil Judge Junior Division available at
Jalna and, therefore, having regard to the authorities referred
to in the application Exhibit-26, suit ought to be transferred to
the court of Civil Judge, Junior Division.
10. The position almost appears to have been conceded to,
on behalf of respondent having regard to narration as
occurring under the impugned order.
11. Learned judge in paragraph 6 of the impugned order
has referred to occurrences of certain events under which the
matter has been assigned / transferred to his court which
depict that as a matter of fact, initial assignment of the suit
was to the court of Joint Civil Judge, Junior Division.
12. In the present case, perusal of impugned order shows
that paragraph no. 10 of the judgment in the case of Sukhlal
vs. Vinayak, reported in 2014 (3) Mh.L.J. 939 has been apparently
considered in paragraph no. 7 of impugned order. However,
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the purport underlying the same appears to have been missed
out, for, the provisions of law show that where-ever there is
no court of civil judge, junior division, it would be the court of
civil judge, senior division which may be able to decide lis
between the parties under the provisions of the Act.
13. In the present case, it is not that the court of civil
judge, junior division was not available at Jalna and further
that as a matter of fact, suit had earlier on been assigned to
the court of civil judge, junior division whereas, on
reshuffling, it came to be assigned and transferred to the
court of joint civil judge, senior division. However, no details
of such assignment and exercise of powers for the same have
been placed on record. Looking at the plain legislative
intendment under the phraseology employed in section 33 of
the Act it was but natural that the matter in regular course
ought to have been assigned to the court of civil judge, junior
division, yet, it is assigned to the court of joint civil judge,
senior division.
14. Thus, impugned order does not ostensibly appear to be
sustainable pursuant to powers under section 23 of the
Bombay City Civil Court Act, 1948 or section 24 of the Code
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of Civil Procedure, 1908. In a way, it may appear to be
proper, learned judge saying that senior division would also
have jurisdiction, however, operation of the provision would
require that senior division may deal with the suit only in
case court of civil judge, junior division not being available.
15. Having regard to the decisions as referred to and relied
on in the application Exhibit-26, as also paragraphs 10 of the
judgment in the case of Sukhlal vs. Vinayak as has been referred
to in paragraph no. 7 of order impugned, it is in the absence
of court of civil judge, junior division, that the court of civil
judge, senior division would be able to deal with the suit of
the kind under the Act. May be that the learned judge found
it difficult to pass appropriate orders on application on his own
for want of powers to deal with the application. However,
considering overwhelming decision as has been referred to in
impugned order, the matter should be assigned to the court of
civil judge, junior division and application may be moved by
present petitioner before the district judge for proper
assignment of the suit.
16. In view of aforesaid, impugned order does not deserve
to be kept on record and as such stands set aside with liberty
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to the present petitioner as referred to in paragraph no. 12
hereinabove.
17. Learned counsel for the petitioner, at this stage,
submits that in stead of referring the matter to the district
court, powers of this court may be exercised. However, being
not provided with requisite details, it would be difficult for this
court to pass order directing suit to be transferred to the
court of Civil Judge, Junior Division. Said exercise can be
done by the District Court.
18. Writ petition stands allowed. Rule made absolute in
aforesaid terms.
SUNIL P. DESHMUKH,
JUDGE
pnd
