Bombay High Court
Shri. Krishana S/O Namdeorao ... vs Smt. Rukhamabai Wd/O Namdeorao ... on 12 September, 2017
Bench: S.B. Shukre
(Judgment) 1209 CRA 109-2017 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL REVISION APPLICATION NO. 109/2017
Shri Krishna S/o Namdeorao Balpande,
Aged about 47 years, Occu: Service,
R/o. Plot No. 201-A, Ladikar Layout,
Manewada Road, Nagpur. APPL IC
ANT
.....VERSUS.....
Smt. Rukhamabai Namdeorao Balpande,
Aged about 68 years,
R/o. C/o. Narayanrao Balpande,
Plot No.33, Dhomne Layout,
Ayodhaya Nagar, Nagpur. NON-APPLICANT
Shri P.V. Dandwate, counsel for applicant.
Shri S.S. Bhongade, counsel for non-applicant/respondent.
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 12, 2017.
ORAL JUDGMENT :
Heard.
2] Rule. Rule made returnable forthwith.
3] Heard finally by consent.
(Judgment) 1209 CRA 109-2017 2/5
4] This revision application challenges the
legality and correctness of the order dated 15/11/2014
passed below the application vide Exh.30 by 2 nd
Additional Small Causes Court, Nagpur. By this order,
the learned Judge has taken a view that the application
filed under Section 10 of the Code of Civil Procedure
praying for stay of the suit, which is R.C.S. No.
152/2011 cannot be granted for two reasons, firstly the
reliefs claimed in R.C.S. No. 152/2011, a later suit,
cannot be granted by Civil Court in Special Civil Suit No.
1219/2010, a previous suit, and that the issues involved
in both the suits are also not directly and substantially
similar.
5] After considering the submissions of both
sides, I find that, so far as the first reason stated by the
learned Judge in passing the impugned order is
concerned, no fault with the same can be found. The
subsequent suit R.C.S. No. 152/2011 claimed such
reliefs as decree of ejectment, possession and arrears of
rent, flowing from the contention of the respondent that
she is the landlord of the suit property and this applicant
(Judgment) 1209 CRA 109-2017 3/5
is the tenant. There can be no dispute about the fact that
when a suit is filed by the landlord against his tenant for
ejectment, possession and arrears of rent, such suit can
be tried and disposed of on merits by a Small Causes
Court, established under the provisions of Provincial
Small Causes Court Act (in short, "said Act") and not by
Civil Court. So, these reliefs could not be granted by a
Civil Court at Nagpur, where there is already in
existence a Small Causes Court, established under the
said Act. But, the matter does not end here and it
transcends to something more basic, which has
repercussions on the title of the respondent to house
property, which is the subject matter of the previous suit
as well as the later suit.
6] In the previous suit, which has been filed by
the applicant against the respondent and her two
children, ownership of the respondent to the house
property has been questioned. The respondent, in the
later suit, claimed that she is the owner of the house
property by virtue of a Will dated 16/01/2010 executed
in her favour by her deceased husband, which case has
(Judgment) 1209 CRA 109-2017 4/5
been vehemently denied by the applicant. Even in the
later suit, the claim of the respondent that she is the
landlord of the applicant, is based upon her ownership
by virtue of a Will dated 16/01/2010. But, this Will
itself is in question and in the previous suit, a declaration
that this Will is bogus and sham has been sought by the
applicant. So, in the later suit, the Small Causes Court
will also have to consider the issue, as to whether or not
the relationship of the landlord and the tenant, exists
between the parties. This issue which has a bearing upon
the jurisdiction upon the Small Causes Court to try the
suit filed subsequently before it, however, is not involved
in these proceedings. At this juncture, it is informed by
the learned counsel for the applicant that an application
filed under Section 23 of the said Act claiming that Small
Causes Court does not have jurisdiction to try the suit, is
pending for adjudication before it.
7] In view of above, I am of the opinion that
although no fault in the passing of the impugned order
can be found with the Small Causes Court, the Small
Causes Court would have to decide, in accordance with
(Judgment) 1209 CRA 109-2017 5/5
the law, application filed under Section 23 of the said
Act, by the applicant. This is also the view taken by the
learned Single Judge of this Court in the case of
Minocher Behramji Damania - Vs-
Hema N.
Dadachanji and others , AIR
Bom
bay
. In this
view of the matter, I am not inclined to interfere with
the impugned order.
8] The revision application stands dismissed
accordingly.
9] No costs.
10] Rule is discharged.
JUDGE
Yenurkar
