Bombay High Court
Dularam S/O. Gemandas Basantwani ... vs Kanhaiyalal S/O. Himatlal ... on 24 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 6670 OF 2015
1] Dularam Gemandas Basantwani
aged 60 yrs. Occu. Business.
2] Mayadevi Daularam Basantwani
aged 58 yrs. Occu. Business.
3] Lavli Dularam Basantwani,
aged 40 yrs. Occu. Business
Proprietor Om Traders, Akola.
Nos. 1 to 3 R/o Sant Kanwar
Nagar Sindhi Camp, Washim
Tq. & Distt. Washim.
Nos. 1 to 3 or any of them
running business in the name
at Gopal Talkies Road, Opp.
Jaiswal Wine Bar, on the
lower floor of Bhartiya Sindhu
Sahakari Pat Sanstha, ltd.
Akola, Washim Distt. Washim. PETITIONERS.
VERSUS
Kanhaiyalal Himatlal Jeswani
aged adult, Occu. Medical
Practitioner, R/o Rami
Heritage, Flat No. 211, Near
R. T. O. Office, Akola, Distt.
Akola. RESPONDENTS.
Shri J. B. Gandhi, Advocate for the petitioners.
Shri M. G. Sarda, Advocate for the respondent.
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CORAM: A. S. CHANDURKAR J.
Dated : JUNE 24, 2016.
ORAL JUDGMENT:
Heard. The challenge in the present petition is to the order
passed by the trial Court below Ex. 54 rejecting the review application filed
by the petitioners by order dated 17.07.2015 . By said application for review
the order passed below Ex. 47 and 51 was sought to be reviewed.
2]
The respondent is the original plaintiff who has filed Special Civil
Suit No. 55 of 2011 for eviction of the defendants along with other ancilliary
reliefs. The suit was presented before the learned Civil Judge, Senior
Division, Washim. The defendants filed an application below Ex. 27 under
provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for
short, the Code) praying that the suit be dismissed as there was no cause of
action to file the same. Another application at Ex. 47 for return of the plaint
to the Small Causes Court or to the Court of Civil Judge, Junior Division was
filed under provisions of Order VII Rule 10 of the Code. These applications
came to be rejected by the trial Court by holding that the plaint could not be
rejected as it had been properly valued and that the question of valuation was
a mixed question of law and fact. In so far as the objection to jurisdiction is
concerned it was held that the suit was rightly filed in the Court of Civil
Judge Senior Division as the Court of Small Causes was not constituted at
Washim. Another application filed below Ex. 51 seeking proper valuation of
the suit was also rejected. While disposing of the review application moved
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by the petitioners, the trial Court directed the issue with regard to valuation
of the suit be framed.
3] Shri J. B. Gandhi, the learned counsel for the petitioners
submitted that the relationship between the parties were as gratuitous
licencees and licensor due to which the Small Causes Court had jurisdiction.
According to him the plaint ought to have been presented before the Court of
Small Causes. He submitted that the plaint was therefore liable to be
returned for being presented before the Court of Small Causes. According to
him these aspects were highlighted in the review application but the said
application was not entertained on the ground of delay. He further
submitted that the issue with regard to valuation/jurisdiction should be
decided as a preliminary issue. In support of his submissions he placed
reliance upon the judgment of the Hon'ble Supreme Court in Prabhudas
Damodar Kotecha & Ors. Vs. Manhabala Jeram Damodar & Anr.
2013(15) Supreme Court Cases 358.
Shri M. G. Sarda, the learned counsel for the respondent
supported the impugned order. According to him in absence of the Court of
Small Causes at Washim the plaint was rightly presented before the Court of
Civil Judge, Senior Division. The suit was valued at Rs. 6,62,200/- and was
rightly treated as a special civil suit. He therefore submitted that the trial
Court rightly rejected the applications below Exhs. 47 and 51. He then
submitted that the question of framing any preliminary issue did not arise in
the present case. He relied upon the judgment of the Radheshyam
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Zumbarlal Chandak Vs. District Judge, Amravati and another 2011(1)
Maharashtra Law Journal 399.
4] Having heard the respective counsel I do not find that any case
has been let out to interfere in writ jurisdiction. On the basis of the claim as
made and its valuation, the suit has been presented in the Court of Civil
Judge Senior Division. Admittedly, the Court of Small Causes has not been
constituted at Washim. Considering the law laid down in Radheshyam
(supra) the orders passed below Exhs. 47 and 51 cannot be faulted. Even if it
is assumed that by virtue of being gratuitous licencee the suit was to be tried
by the Small Causes Court, the plaint would in any event have to be
presented before the Court of Civil Judge, Senior Division in absence of the
Court of Small Causes.
5] In so far as aspect of valuation is concerned, the trial Court has
framed an issue in that regard. In the facts of the present case I do not find
that the same is required to be decided as preliminary issue.
In view of aforesaid there is no case made out to interfere. The
Writ Petition is dismissed. No costs.
The proceedings in Special Civil Suit No. 55 of 2011 are
expedited.
JUDGE
svk
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