Bombay High Court
Mangesh S/O. Vasant Ajmire vs Pradeepkumar Bansilal Mohta on 5 July, 2016
Bench: Z.A. Haq
Judgment 1 wp3305.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3305 OF 2015
Mangesh S/o. Vasant Ajmire,
Aged 42 years, Occupation :
Business, resident of Mangilal Plot,
Camp Amravati, Tahsil : Amravati,
District : Amravati.
ig .... PETITIONER.
ORG. PLAINTIFF.
// VERSUS //
Pradeepkumar Bansilal Mohta,
aged 58 years, Occupation : Business,
Resident of Mathuradas Building, Jaistambh
to Balaji Temple Road, Near Jaistambh
Square, Amravati, Tahsil and District :
Amravati.
.... RESPONDENT
.
ORG. DEFENDANT.
___________________________________________________________________
Shri J.J.Chandurkar, Advocate for Petitioner.
Shri D.V.Dhondarkar, Advocate for Respondent.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JULY 05, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
Judgment 2 wp3305.15.odt
3. The plaintiff had filed civil suit praying for decree for eviction
and for other ancillary reliefs. The civil suit was registered as small cause
civil suit and tried by Civil Judge (Junior Division). The trial Court decreed
the civil suit. The respondent filed appeal under Section 34 of the
Maharashtra Rent Control Act. The learned Principal District Judge, by the
impugned judgment, has partly allowed the appeal. The learned Principal
District Judge concluded that the civil suit filed by the petitioner ought to
have been tried and decided by Civil Judge (Senior Division) and the Civil
Judge (Junior Division) had no jurisdiction to try and decide the civil suit.
The learned Principal District Judge has set aside the judgment passed by the
trial Court and has remitted the matter to the trial Court with direction that
it should be allotted to Civil Judge (Senior Division) for fresh trial. The
petitioner, being aggrieved by this judgment has filed the present petition.
4. Shri J.J. Chandurkar, learned advocate for the petitioner has
submitted that the Civil Judge (Junior Division) who tried and decided the
civil suit was not invested with powers of Small Cause Court and therefore,
civil suit was tried by him as regular civil suit. The learned advocate for the
petitioner has argued that the valuation of the claim of the plaintiff in the
civil suit was Rs.20,700/- and at that time the Court of Civil Judge (Junior
Division) had jurisdiction to entertain and decide the civil suits valued up to
Rs.1,00,000/- and therefore, the civil suit was maintainable in the Court of
Judgment 3 wp3305.15.odt
Civil Judge (Junior Division). It is argued that the learned Principal District
Judge has misread the provisions of Section 33(1)(b) of the Maharashtra
Rent Control Act and has misconstrued the judgment given by the Division
Bench of this Court in the case of Radheshyam Vs. District Judge, reported in
2011(1) Mh.L.J. 399. It is prayed that the impugned judgment be set aside
and as the other points which fell for consideration in appeal are not delved
into by the learned Principal District Judge, the matter be remanded to the
District Court for deciding the appeal on merits.
5. Shri Dhondarkar, learned advocate for the respondent has
submitted that as per the proposition laid down in the judgment given in the
case of Radheshyam Zumbarlal Chandak (supra) the Court of Civil Judge
(Junior Division) is competent to decide the civil suits which fall within the
jurisdiction of the Court of Small Causes upto the valuation of Rs.6,000/-
and as the valuation of claim of the plaintiff in the civil suit was Rs.20,700/-,
the civil suit could not have been decided by the Civil Judge (Junior
Division). The learned advocate has submitted that the civil suit is not tried
by the learned trial Judge as Regular Civil Suit but is tried as Small Cause
Civil Suit. It is submitted that the conclusions of the learned Principal District
Judge are proper and the impugned judgment does not require any
interference. It is prayed that the petition be dismissed with costs.
Judgment 4 wp3305.15.odt
6. After considering the rival contentions and after examining the
judgment given by the Division Bench of this Court in the case of
Radheshyam Zumbarlal Chandak (supra), I find that the conclusions of the
learned Principal District Judge are erroneous and unsustainable.
The submissions made on behalf of the respondent that the civil
suit is tried as small cause civil suit cannot be accepted. The judgment
passed by the trial Court shows that the civil suit is tried as regular civil suit
after following the procedure laid down for trial of the regular civil suit. In
the judgment given in the case of Devidas Vs. Ajesh, reported in 2007(1)
Mh.L.J. 62 this Court has held that the categorization of the civil suit as
small cause civil suit or regular civil suit is not relevant and what is required
to be considered is how the civil suit is tried. Therefore, merely because the
civil suit was registered as small cause civil suit it cannot be said that the
learned Civil Judge (Junior Division) had no jurisdiction to entertain and
decide the civil suit when the record shows that the civil suit is tried as
regular civil suit.
7. The conclusions of the learned Principal District Judge that the
Civil Judge (Junior Division) could not have tried the civil suit as he was not
invested with powers of the Small Causes Court and he could not have
entertained and tried the civil suit valued above Rs.6,000/-, are also
unsustainable. The learned Principal District Judge has committed an error in
Judgment 5 wp3305.15.odt
recording that the provisions of Section 33(1)(b) of the Maharashtra Rent
Control Act, 1999 are attracted. In the present case, the provisions of Section
33(1)(c) of the Maharashtra Rent Control Act, 1999 will be applicable.
Section 33(1)(c) of the Maharashtra Rent Control Act, 1999 lays down that
if the valuation of the civil suit is upto the limit of the jurisdiction of the Civil
Judge (Junior Division), then he can entertain and decide the civil suit. The
Division Bench of this Court, in the judgment given in the case of
Radheshyam Zumbarlal Chandak (supra) has clarified that if the Court of
Small Causes is not established at a particular place or the High Court,
exercising powers under Section 28(1) of the Maharashtra Civil Courts Act,
has not invested any Civil Judge with the jurisdiction of the Court of Small
Causes for the trial of civil suits cognizable by such Courts, then the ordinary
original civil jurisdiction conferred upon the Civil Judge (Junior Division) or
the Civil Judge (Senior Division) will be available to the parties and the civil
suit will have to be tried by the Civil Judge as Regular Civil Suit depending
upon the pecuniary limits of the Civil Judge as provided by Section 24 of the
Maharashtra Civil Courts Act. The conclusions of the learned Principal
District Judge are unsustainable.
8. After examining the documents placed on the record of the
petition, I find that the point of jurisdiction was not raised by the defendant
before the trial Court. Of course, if the point raised by the party goes to the
root of the jurisdiction of the Court dealing with the matter, it can be
considered at any stage. However, the point raised by the defendant is of
Judgment 6 wp3305.15.odt
such a nature that it is required to be pleaded and proved. The present
respondent had not raised this point even in the memo of appeal filed before
the District Court. This point is raised subsequently by filing an application.
9. I find that the impugned order is unsustainable and has to be
set aside. As the learned Principal District Judge has not dealt with other
points, it would be appropriate that the matter is remitted to the District
Court for deciding the appeal on merits.
10. Hence, the following order :
i) The impugned judgment is set aside.
ii) The appeal is remitted to the learned Principal District Judge
for deciding the appeal afresh.
iii) As the appeal is of 2009, the learned Principal District Judge
or the Court to which the appeal may be made over shall
dispose the appeal till 30th September, 2016 as it was already
taken up for final hearing when the preliminary objection came
to be raised by the respondent.
iv) The petitioners and the respondent shall appear before the
learned Principal District Judge on 5th August, 2016 and abide
by the further orders in the matter.
Judgment 7 wp3305.15.odt
Rule made absolute in the above terms.
The respondent shall pay costs of Rs.Ten Thousand to the
petitioner and produce receipt on record of the appeal before
District Court on 5th August, 2016. If the receipt showing
payment is not produced, the learned District Judge shall
consider it to be non-compliance of the order passed by this
Court and pass appropriate orders.
ig JUDGE
RRaut..
Judgment 8 wp3305.15.odt
C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : R.B. Raut, PS Uploaded on : 25.07.2016.
