In the present matter, the suit was filed
in the Court of Civil Judge, (Senior Division)
and was made over to the Joint Civil Judge,
(Junior Division). Keeping in view the law as
discussed above, the decree as passed by the Joint
Civil Judge, (Junior Division) was perfectly valid
and enforceable by the executing Court.
IN THE HIGH Court OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.125 OF 2005
Shri. Sukhlal Bhivsan Dhobi(Suryawanshi),
VERSUS
Shri. Vinayak Sadashiv Sangale,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 14TH FEBRUARY, 2014.
Read original judgment here;click here
Citation; 2014(3) MHLJ939 Bom
1. Petitioner Sukhlal
Bhivsan Dhobi
(original Defendant) filed the present Revision
against Respondents (original Plaintiffs D.
H.)
being aggrieved by order below Exhibit 21 passed
in Regular Darkhast No.55 of 2004 by the trial
Court, dated 15th April, 2005. Petitioner –
Defendant (J.D.) had filed application under
Sections 47 and 151 of the Code of Civil
Procedure, 1908 (“C.P.C.” in brief) and raised
objection to the execution on two grounds. One
ground raised was that the coowner
of the suit
premises, Sanjay Sadashiv Sangale expired leaving
behind his widow Megha and two sons and one
daughter, but the sons were not made parties and
so the decree was a nullity. Other ground raised
was that as per Section 33 of the Maharashtra Rent
Control Act, 1999 (for short “Maharashtra Rent
Act”), Civil Judge,(Junior Division) and where no
Court of Civil Judge, (Junior Division) is
functioning then Civil Judge, (Senior Division) is
empowered to entertain and try the suit. In the
present matter, decree was passed by Joint Civil
Judge,(Junior Division) in Regular Civil Suit No.
68 of 2000 and thus the same was without
jurisdiction.
2. The trial Court heard both the sides and
by reasoned order, rejected the application
objecting the execution of decree in Regular
Civil Suit No.68 of 2000.
3. When this Revision came up for hearing,
the counsel for Respondents did not appear or
argue the matter. However the learned counsel for
Petitioner – J.D. has argued the same. The learned
counsel did not make submissions regarding the
point which was raised in the trial Court
regarding non joining of sons of deceased coowner
Sanjay Sangle. Even otherwise, widow of the coowner
was already on record and the trial Court
rejected the contention in this regard, observing
that the mother and natural guardian of the minor
children was party to the suit and it could not be
said that decree was not executable. The point has
not been pursued and I find no reason to interfere
on this count.
4. Rule was issued in this matter on 1st
March, 2006. Now when this matter came up for
final hearing, none appeared for Respondents but
the matter is heard finally the same being
Revision. Learned counsel for Petitioner submitted
that during the pendency of this Revision
Application, the decree holders have already
executed the decree and taken the possession. He,
however, insisted on arguing the matter on merits,
as according to him, if the decree is nullity, the
J.D. is entitled to a finding and entitled to
pursue restitution under Section 144 of the C.P.C.
5. In this matter Regular Civil Suit No.68
of 2000 was filed in the Court of Civil Judge,
(Senior Division) at Shahada and was made over to
Joint Civil Judge, (Junior Division). The suit was
under the Maharashtra Rent Act. The suit was
decreed and Civil Appeal No.12 of 2003 was filed.
The decree came to be confirmed. Petitioner – J.D.
filed writ petition and then filed Special Leave
to Appeal to the Hon'ble Supreme Court, but both
of the same got dismissed. Respondents decree
holders thus filed the execution.
. According to the learned counsel for
petitioner – J.D., under the provisions of Section
33 of the Maharashtra Rent Act, Joint Civil Judge,
(Junior Division) at Shahada could not be said to
be a Rent Court. According to him, there is a
Court of Civil Judge, (Senior Division) at Shahada
and then there is Court of Joint Civil Judge,
(Junior Division). He submitted that, there is no
Court of Civil Judge, (Junior Division) and so the
suit could have been tried in the Court of Civil
Judge, (Senior Division) and not by Joint Civil
Judge, (Junior Division). It is claimed that
Section 33(1)(c) of the Maharashtra Rent Act,
which is applicable to the present matter, clearly
provides that in areas other than Brihan Mumbai,
or areas other than where Court of Small Causes
has been established under the Provincial Small
Causes Courts Act, 1897, the Court having
jurisdiction is the Court of Civil Judge, (Junior
Division) and if there is no such Civil Judge,
(Junior Division), the Court of Civil Judge,
(Senior Division) having ordinary jurisdiction
shall have jurisdiction to entertain and try any
suit under the Maharashtra Rent Act.
. According to the learned counsel, the
provisions of Section 33 of the Maharashtra Rent
Act and erstwhile Section 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947
(“Bombay Rent Act” in brief) are almost parimateria
except for the fact that now Section 33 is
subject to the provisions of Chapter VIII of the
Maharashtra Rent Act, dealing with summary
disposal of certain applications. Learned counsel
relied on the case of Vijaykumar s/o Vinaykarao
Pathak vs. Madhukar s/o Dinkar Chitale, reported
in 2002(5) Mh.L.J. Page 415. It was a decision of
learned Single Judge of this Court dealing with
Section 28 of the Bombay Rent Act and where with
reference to Section 28, it was observed that it
was necessary for the decree holder to institute
execution proceedings in the Court of Civil Judge,
(Junior Division) and not in the Court of Civil
Judge, (Senior Division) and the matter was
remanded back to the Court of Civil Judge, (Junior
Division), Ahmednagar.
6. It would be appropriate to juxtapose
relevant provisions of Section 33 of the
Maharashtra Rent Act with relevant portions of
Section 28 of the Bombay Rent Act, to the extent
of subsection
1 and 2(a):
Section 33 of the Maharashtra
Rent Act
Relevant portion of Section
28 of the Bombay Rent Act
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) in Brihan Mumbai, the
28. Jurisdiction of Courts
[(1)] Notwithstanding anything
contained in any law 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) in Greater Bombay, the
Court of Small Causes,
Mumbai,
(b) in any area for which a
Court of Small Causes is
established under the
Provincial Small Causes
Courts Act, 1897, such court,
and
(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 authorised by it or
the Competent Authority); and
subject to the provisions of
subsection(
2),no other court
shall have jurisdiction to
entertain any such suit,
proceeding, or application or
to deal with such claim or
question.
Court of Small Causes,
Bombay,
(aa) in any area for which, a
Court of Small Causes is
established under the
Provincial Small Cause Courts
Act, 1887, such Court and
(b) 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 to
which any of the provisions
of this Party apply [or
between a licensor and a
licensee relating to the
recovery of the licence fee
or charge]
and to decide any application
made under this Act and to
deal with any claim or
question arising out of this
Act or any of its provisions
and [subject to the
provisions of subsection(
2),] no other court
shall have jurisdiction to
entertain any such suit,
proceeding, or application or
to deal with such claim or
question.
(2)(a) Notwithstanding
anything contained in clause
(b) of subsection(
1), the
District Court may at any
stage withdraw any such suit,
proceeding or application
pending in a Court of Small
Causes established for any
area under the Provincial
Small Causes Courts Act,
1887, and transfer the same
for trial or disposal to the
Court of the Civil Judge
(Senior Division) having
ordinary jurisdiction in such
area.
[(2) (a) Notwithstanding
anything contained in clause
(aa) of subsection(
1), the
District Court may at any
stage withdraw any such suit,
proceeding or application
pending in a Court of Small
Causes established for any
area under the Provincial
Small Causes Courts Act,
1887, and transfer the same
for trial or disposal to the
Court of the Civil Judge
(Senior Division) having
ordinary jurisdiction in such
area.]
7. Present matter needs to be considered
keeping in view the earlier and present provisions
as above, to decide the dispute.
8. With regard to the present controversy,
the same can be decided by referring to the case
of Smt. Savitribai and another vs. Vithal Hari
Petakar, reported in AIR 1981 Bombay Page 430. The
Division Bench in that matter, considered above
Section 28 of the Bombay Rent Act. It was a matter
where the landlord filed regular civil suit for
recovery of possession in the Court of Civil
Judge, (Senior Division), Kolhapur. The Civil
Judge, (Senior Division), Kolhapur transferred
the suit to Second Joint Civil Judge, (Junior
Division), Kolhapur. Later on District Judge
passed orders under Section 24 of C.P.C.
withdrawing the suit from Civil Judge, (Junior
Division), Kolhapur and transferred the same to
Second Joint Civil Judge, (Senior Division) for
disposal. Still, later on by another order dated
3rd January, 1976, District Judge withdrew the suit
from the file of Second Joint Civil Judge, (Senior
Division) and transferred the same back to Civil
Judge, (Senior Division) for disposal. The Court
heard the suit and dismissed the same. In
execution of the decree, it was claimed that same
was nullity as it was without jurisdiction as
under Section 28(1)(b) of the Bombay Rent Act suit
could be tried only by a Civil Judge, (Junior
Division) and not by Civil Judge, (Senior
Division). The executing Court upheld the
contention of J.D. and dismissed the execution
petition and the same came to be challenged before
the High Court. The High Court considered the
question whether Civil Judge, (Senior Division)
was competent to try the suit having regard to the
provisions of Section 28 of the Bombay Rent Act.
While considering the question, Division Bench
considered the whole scheme keeping in view
provisions of Section 28 of the Bombay Rent Act as
well as Bombay Civil Courts Act, 1869, now known
as "Maharashtra Civil Courts Act" (hereinafter
referred to as "Bombay Civil Courts Act"). The
Court elaborately dealt with the various
provisions relevant for the purposes of deciding
how questions of jurisdiction under Section 28 of
the Bombay Rent Act are required to be dealt with.
It was observed in Para 5 as under:“
5........................................
In most taluka towns, we have Courts
presided over by the Civil Judges (Junior
Division), while at District places, there
is a Court presided over by the Civil
Judge (Senior Division). Under S.28(1)(b),
where there is a Court of the Civil Judge
(Junior Division), that Court alone has
jurisdiction, but, where there is no such
Court, the Court of the Civil Judge
(Senior Division), will have jurisdiction
to try, suits under the Rent Act. Though
there may be one Court of Civil Judge,
Senior Division, at a particular place,
Joint Civil Judges may be either Joint
Civil Judges, Senior Division, or Joint
Civil Judges, Junior Division, and under
ordinary circumstances, such Joint Judges
can dispose of civil business as may be
referred to them by the Judge i.e. the
Principal Judge of that Court within the
limits of his pecuniary jurisdiction.
Besides, the Principal Judge, who is a
Civil Judge, Senior Division, there may
also be Joint Civil Judges appointed under
para 5 of Section 23 to assist the
Principal Judge. Such Joint Civil Judges
have to dispose of only such work as has
been referred to them either by the
Principal Judge of the Court to which they
are joint or as has been referred to them
by the District Judge of the district in
which such Courts are situated. This would
show that a Joint Civil Judge (Junior
Division), who has been appointed to
assist the Principal Judge of the Court
has no jurisdiction to receive any suit
directly nor has he jurisdiction to
dispose of any civil business which has
not been referred to him."
(Emphasis supplied)
. Further in Para 12 the conclusions drawn
were as under:“
12. In view of the above discussion, we
hold that there being no Court of the
Civil Judge (Junior Division) at Kolhapur,
it is the Court of the Civil Judge (Senior
Division) which has the jurisdiction to
entertain and try the suit under Section
28 of the Rent Act. The suit could be
tried by the Civil Judge (Senior Division)
who is the Principal Judge. It could also
be tried by all the Joint Civil Judges
(Senior Division) or by Joint Civil Judges
(Junior Division) to whom the suit may be
referred to for disposal by the Principal
Judge or by the District Judge under
Section 23 of the Civil Courts Act, 1869,
or transferred to that Court under Section
24 of the C.P.C. This being the position
in law, the Civil Judge (Senior Division),
Kolhapur, was competent to try the suit in
this case and consequently the decree
passed therein is valid and executable."
(Emphasis supplied)
. The Division Bench, in support of its
findings, referred to the Full Bench Judgment of
this Court in the matter of Ranchhodlal Vallabhdas
vs. Mahendrakumar Ambalal, reported in A.I.R. 1956
Bombay, Page 481 (Vol.43, C.187 July). In that
matter Section 28(2)(a) of the Bombay Rent Act and
Scheme of Bombay Rent Act was considered. The Full
Bench dealt with the question relating to
jurisdiction in the context of Section 28 of
Bombay Rent Act. After referring to provisions of
Section 28, the Full Bench observed in Para 1,
that:“
1.........................................
Therefore the scheme of S.28(2)(a) is very
clear. Only in cases pending before the
Court of Small Causes established under the
Provincial Small Cause Courts Act, the
District Court has been given the special
power of withdrawing the suits pending in
that Court and transferring them to another
Court which is designated as a Court which
would have the same special jurisdiction
that the Small Cause Court has been given,
and that Court is the Court of the Civil
Judge, Senior Division."
(Emphasis supplied)
. The Full Bench then read provisions of
section 28 of the Bombay Rent Act with provisions
of Bombay Civil Courts Act, 1869, as to how the
Courts are set up and referring to intent of
Legislature, it was observed in Para 4 as under:“
4........................................
The transfer is not to the Civil Judge,
Senior Division, but the transfer is to
the Court of the Civil Judge, Senior
Division. This is not matter of
interpretation; it is the very language
used by the statute. Therefore, if the
transfer is to be Court of the Civil
Judge, Senior Division, the provisions to
which reference has just been made in S.
23, para 5, must apply. Once the Court is
seized of the matter transferred to it by
the District Court under S.28(2)(a), the
Principal Judge of that Court is vested
with the power conferred upon him under S.
23, para 5. Therefore in our opinion, on
the transfer of a rent suit from the Small
Cause Court by the District Court under S.
28(2)(a) to the Court of the Civil Judge,
Senior Division, the Principal Judge of
that Court has the power to refer that
case to any one of his colleagues who has
been appointed to assist him in the
disposal of the cases on his file. The
colleague may be a joint Civil Judge,
Senior Division, or he may be a Civil
Judge, Junior Division, because not only
the Joint Civil Judge, Senior Division,
but also the Civil Judges, Junior
Division, are Judges of one and the same
Court, the Court presided over by the
Civil Judge, Senior Division."
(Emphasis supplied)
. In Para 6 of the Judgment, the Full Bench
observed thus:"
6........................................
if the District Judge withdraws the suit
from the Small Cause Court and transfers
it to a Joint Senior Civil Judge or to a
Junior Civil Judge, he is validly and
properly exercising his power under S.24,
Civil P.C. because both the Joint Senior
Civil Judge and the Junior Judge have
jurisdiction to try the rent suit under S.
28."
(Emphasis supplied)
9. Thus, in that matter, it was clearly held
by the Full Bench that Joint Senior Civil Judge,
and Junior Civil Judge, have jurisdiction to try
the rent suit under section 28 of the Bombay Rent
Act.
10. Keeping in view the Judgment of the
Division Bench in the matter of Smt. Savitribai
(supra), which took support also from the matter
of Ranchhodlal Vallabhdas(supra), there is no
manner of doubt that where there is Court
established of Civil Judge, (Senior Division), as
well as Joint Civil Judge, (Junior Division), and
the institution is in the Court of Civil Judge,
(Senior Division), the Civil Judge, (Senior
Division), Joint Civil Judge, (Senior Division)
(if such Judge is also there), as well as Joint
Civil Judge, (Junior Division), all these Courts
have jurisdiction to decide the matter. On
institution of the Rent matter in the Court of
Civil Judge (Senior Division) he can try it
himself, or make it over to Joint Civil Judge
(Senior Division) or Joint Civil Judge (Junior
Division). It is clear from the Judgments
referred, which have interpreted Section 28 of
the Bombay Rent Act, that where no Court of Civil
Judge, (Junior Division) is there, the Court of
Civil Judge, (Senior Division), which has
jurisdiction to entertain and try the suit, can
try the same and it could be tried by all the
Joint Civil Judges, (Senior Division) or by Joint
Civil Judge, (Junior Division) to whom the suit
may be referred to for disposal by the Civil
Judge, (Senior Division) or by the District Judge
under Section 23 of the Civil Courts Act or by way
of transfer under Section 24 of C.P.C. At (taluka)
places where there is Court of Civil Judge (Junior
Division) and Joint Civil Judge (Junior Division)
and institution is in the Court of Civil Judge
(Junior Division), such matters on institution can
be tried by Civil Judge (Junior Division) as well
as Joint Civil Judge (Junior Division) to whom the
matter is made over. In view of this, under
Section 31 of the Maharashtra Rent Act, Courts
specified in Sections 28 and 29 as interpreted in
the Judgments of the Division Bench and Full
Bench, referred above, shall follow the prescribed
procedure in trying and hearing suits,
proceedings, applications and appeals and in
executing orders made by them.
11. Learned counsel for the Petitioner tried
to distinguish the Judgment in the matter of Smt.
Savitribai (supra) stating that it was with
reference to competency of Civil Judge, (Senior
Division) to try the suit and not of the Joint
Civil Judge, (Junior Division), as in the present
matter. The argument has no substance, looking to
the Judgment as a whole.
12. In the matter of Vijaykumar s/o
Vinaykarao Pathak (supra) relied on by the learned
counsel for the Petitioner, the jurisdiction of
the Civil Judge, (Senior Division), to entertain
proceedings for execution of decree was
challenged. Contention raised was similar and it
was submitted that competent Court to deal with
the suit as well as execution in relation to
matters arising under Section 28 of the Bombay
Rent Act was Civil Judge, (Junior Division),
outside the territorial jurisdiction of Greater
Bombay and that in the said case, the Taluka
wherein suit premises were situated being provided
with the Court of Civil Judge, (Junior Division),
the proceedings for execution of decree could not
have been entertained and proceeded with by the
Civil Judge, (Senior Division), Ahmednagar. In
Para 9 it was observed that in the case concerned,
indisputably there is Court of Civil Judge,
(Junior Division) for the area in which the suit
premises are situated and therefore it was
necessary for the Respondent to institute the
execution proceedings in the said Court of Civil
Judge, (Junior Division). Consequently, the
learned Single Judge of this Court remanded the
matter to the Civil Judge, (Junior Division) at
Ahmednagar to deal with the application for
execution.
13. I find that the above Judgment in the
matter of Vijaykumar s/o Vinaykarao Pathak(supra)
is not helpful to the Petitioner. That judgment
was on the basis of statement made before the
Court. Again, there is nothing to show that in
that matter, Judgments in the matter of
Ranchhodlal Vallabhdas (supra), and Smt.
Savitribai (supra) were brought to the notice of
the learned Single Judge. With respect to the
learned Single Judge, I find myself bound by the
observations and findings of the Division Bench
and Full Bench in the matters of Smt. Savitribai
(supra) and Ranchhodlal Vallabhdas (supra), which
elaborately and specifically dealt with the
provisions regarding jurisdiction. Thus I find
that the law on this count is as laid down in the
matter of Smt. Savitribai (supra) and Ranchhodlal
Vallabhdas (supra).
14. In the present matter, the suit was filed
in the Court of Civil Judge, (Senior Division)
and was made over to the Joint Civil Judge,
(Junior Division). Keeping in view the law as
discussed above, the decree as passed by the Joint
Civil Judge, (Junior Division) was perfectly valid
and enforceable by the executing Court.
15. There is no substance in the Civil
Revision Application. Civil Revision Application
is rejected. No orders as to costs. Rule stands
discharged.
[A.I.S. CHEEMA, J.]
in the Court of Civil Judge, (Senior Division)
and was made over to the Joint Civil Judge,
(Junior Division). Keeping in view the law as
discussed above, the decree as passed by the Joint
Civil Judge, (Junior Division) was perfectly valid
and enforceable by the executing Court.
IN THE HIGH Court OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.125 OF 2005
Shri. Sukhlal Bhivsan Dhobi(Suryawanshi),
VERSUS
Shri. Vinayak Sadashiv Sangale,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 14TH FEBRUARY, 2014.
Read original judgment here;click here
Citation; 2014(3) MHLJ939 Bom
1. Petitioner Sukhlal
Bhivsan Dhobi
(original Defendant) filed the present Revision
against Respondents (original Plaintiffs D.
H.)
being aggrieved by order below Exhibit 21 passed
in Regular Darkhast No.55 of 2004 by the trial
Court, dated 15th April, 2005. Petitioner –
Defendant (J.D.) had filed application under
Sections 47 and 151 of the Code of Civil
Procedure, 1908 (“C.P.C.” in brief) and raised
objection to the execution on two grounds. One
ground raised was that the coowner
of the suit
premises, Sanjay Sadashiv Sangale expired leaving
behind his widow Megha and two sons and one
daughter, but the sons were not made parties and
so the decree was a nullity. Other ground raised
was that as per Section 33 of the Maharashtra Rent
Control Act, 1999 (for short “Maharashtra Rent
Act”), Civil Judge,(Junior Division) and where no
Court of Civil Judge, (Junior Division) is
functioning then Civil Judge, (Senior Division) is
empowered to entertain and try the suit. In the
present matter, decree was passed by Joint Civil
Judge,(Junior Division) in Regular Civil Suit No.
68 of 2000 and thus the same was without
jurisdiction.
2. The trial Court heard both the sides and
by reasoned order, rejected the application
objecting the execution of decree in Regular
Civil Suit No.68 of 2000.
3. When this Revision came up for hearing,
the counsel for Respondents did not appear or
argue the matter. However the learned counsel for
Petitioner – J.D. has argued the same. The learned
counsel did not make submissions regarding the
point which was raised in the trial Court
regarding non joining of sons of deceased coowner
Sanjay Sangle. Even otherwise, widow of the coowner
was already on record and the trial Court
rejected the contention in this regard, observing
that the mother and natural guardian of the minor
children was party to the suit and it could not be
said that decree was not executable. The point has
not been pursued and I find no reason to interfere
on this count.
4. Rule was issued in this matter on 1st
March, 2006. Now when this matter came up for
final hearing, none appeared for Respondents but
the matter is heard finally the same being
Revision. Learned counsel for Petitioner submitted
that during the pendency of this Revision
Application, the decree holders have already
executed the decree and taken the possession. He,
however, insisted on arguing the matter on merits,
as according to him, if the decree is nullity, the
J.D. is entitled to a finding and entitled to
pursue restitution under Section 144 of the C.P.C.
5. In this matter Regular Civil Suit No.68
of 2000 was filed in the Court of Civil Judge,
(Senior Division) at Shahada and was made over to
Joint Civil Judge, (Junior Division). The suit was
under the Maharashtra Rent Act. The suit was
decreed and Civil Appeal No.12 of 2003 was filed.
The decree came to be confirmed. Petitioner – J.D.
filed writ petition and then filed Special Leave
to Appeal to the Hon'ble Supreme Court, but both
of the same got dismissed. Respondents decree
holders thus filed the execution.
. According to the learned counsel for
petitioner – J.D., under the provisions of Section
33 of the Maharashtra Rent Act, Joint Civil Judge,
(Junior Division) at Shahada could not be said to
be a Rent Court. According to him, there is a
Court of Civil Judge, (Senior Division) at Shahada
and then there is Court of Joint Civil Judge,
(Junior Division). He submitted that, there is no
Court of Civil Judge, (Junior Division) and so the
suit could have been tried in the Court of Civil
Judge, (Senior Division) and not by Joint Civil
Judge, (Junior Division). It is claimed that
Section 33(1)(c) of the Maharashtra Rent Act,
which is applicable to the present matter, clearly
provides that in areas other than Brihan Mumbai,
or areas other than where Court of Small Causes
has been established under the Provincial Small
Causes Courts Act, 1897, the Court having
jurisdiction is the Court of Civil Judge, (Junior
Division) and if there is no such Civil Judge,
(Junior Division), the Court of Civil Judge,
(Senior Division) having ordinary jurisdiction
shall have jurisdiction to entertain and try any
suit under the Maharashtra Rent Act.
. According to the learned counsel, the
provisions of Section 33 of the Maharashtra Rent
Act and erstwhile Section 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947
(“Bombay Rent Act” in brief) are almost parimateria
except for the fact that now Section 33 is
subject to the provisions of Chapter VIII of the
Maharashtra Rent Act, dealing with summary
disposal of certain applications. Learned counsel
relied on the case of Vijaykumar s/o Vinaykarao
Pathak vs. Madhukar s/o Dinkar Chitale, reported
in 2002(5) Mh.L.J. Page 415. It was a decision of
learned Single Judge of this Court dealing with
Section 28 of the Bombay Rent Act and where with
reference to Section 28, it was observed that it
was necessary for the decree holder to institute
execution proceedings in the Court of Civil Judge,
(Junior Division) and not in the Court of Civil
Judge, (Senior Division) and the matter was
remanded back to the Court of Civil Judge, (Junior
Division), Ahmednagar.
6. It would be appropriate to juxtapose
relevant provisions of Section 33 of the
Maharashtra Rent Act with relevant portions of
Section 28 of the Bombay Rent Act, to the extent
of subsection
1 and 2(a):
Section 33 of the Maharashtra
Rent Act
Relevant portion of Section
28 of the Bombay Rent Act
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) in Brihan Mumbai, the
28. Jurisdiction of Courts
[(1)] Notwithstanding anything
contained in any law 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) in Greater Bombay, the
Court of Small Causes,
Mumbai,
(b) in any area for which a
Court of Small Causes is
established under the
Provincial Small Causes
Courts Act, 1897, such court,
and
(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 authorised by it or
the Competent Authority); and
subject to the provisions of
subsection(
2),no other court
shall have jurisdiction to
entertain any such suit,
proceeding, or application or
to deal with such claim or
question.
Court of Small Causes,
Bombay,
(aa) in any area for which, a
Court of Small Causes is
established under the
Provincial Small Cause Courts
Act, 1887, such Court and
(b) 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 to
which any of the provisions
of this Party apply [or
between a licensor and a
licensee relating to the
recovery of the licence fee
or charge]
and to decide any application
made under this Act and to
deal with any claim or
question arising out of this
Act or any of its provisions
and [subject to the
provisions of subsection(
2),] no other court
shall have jurisdiction to
entertain any such suit,
proceeding, or application or
to deal with such claim or
question.
(2)(a) Notwithstanding
anything contained in clause
(b) of subsection(
1), the
District Court may at any
stage withdraw any such suit,
proceeding or application
pending in a Court of Small
Causes established for any
area under the Provincial
Small Causes Courts Act,
1887, and transfer the same
for trial or disposal to the
Court of the Civil Judge
(Senior Division) having
ordinary jurisdiction in such
area.
[(2) (a) Notwithstanding
anything contained in clause
(aa) of subsection(
1), the
District Court may at any
stage withdraw any such suit,
proceeding or application
pending in a Court of Small
Causes established for any
area under the Provincial
Small Causes Courts Act,
1887, and transfer the same
for trial or disposal to the
Court of the Civil Judge
(Senior Division) having
ordinary jurisdiction in such
area.]
7. Present matter needs to be considered
keeping in view the earlier and present provisions
as above, to decide the dispute.
8. With regard to the present controversy,
the same can be decided by referring to the case
of Smt. Savitribai and another vs. Vithal Hari
Petakar, reported in AIR 1981 Bombay Page 430. The
Division Bench in that matter, considered above
Section 28 of the Bombay Rent Act. It was a matter
where the landlord filed regular civil suit for
recovery of possession in the Court of Civil
Judge, (Senior Division), Kolhapur. The Civil
Judge, (Senior Division), Kolhapur transferred
the suit to Second Joint Civil Judge, (Junior
Division), Kolhapur. Later on District Judge
passed orders under Section 24 of C.P.C.
withdrawing the suit from Civil Judge, (Junior
Division), Kolhapur and transferred the same to
Second Joint Civil Judge, (Senior Division) for
disposal. Still, later on by another order dated
3rd January, 1976, District Judge withdrew the suit
from the file of Second Joint Civil Judge, (Senior
Division) and transferred the same back to Civil
Judge, (Senior Division) for disposal. The Court
heard the suit and dismissed the same. In
execution of the decree, it was claimed that same
was nullity as it was without jurisdiction as
under Section 28(1)(b) of the Bombay Rent Act suit
could be tried only by a Civil Judge, (Junior
Division) and not by Civil Judge, (Senior
Division). The executing Court upheld the
contention of J.D. and dismissed the execution
petition and the same came to be challenged before
the High Court. The High Court considered the
question whether Civil Judge, (Senior Division)
was competent to try the suit having regard to the
provisions of Section 28 of the Bombay Rent Act.
While considering the question, Division Bench
considered the whole scheme keeping in view
provisions of Section 28 of the Bombay Rent Act as
well as Bombay Civil Courts Act, 1869, now known
as "Maharashtra Civil Courts Act" (hereinafter
referred to as "Bombay Civil Courts Act"). The
Court elaborately dealt with the various
provisions relevant for the purposes of deciding
how questions of jurisdiction under Section 28 of
the Bombay Rent Act are required to be dealt with.
It was observed in Para 5 as under:“
5........................................
In most taluka towns, we have Courts
presided over by the Civil Judges (Junior
Division), while at District places, there
is a Court presided over by the Civil
Judge (Senior Division). Under S.28(1)(b),
where there is a Court of the Civil Judge
(Junior Division), that Court alone has
jurisdiction, but, where there is no such
Court, the Court of the Civil Judge
(Senior Division), will have jurisdiction
to try, suits under the Rent Act. Though
there may be one Court of Civil Judge,
Senior Division, at a particular place,
Joint Civil Judges may be either Joint
Civil Judges, Senior Division, or Joint
Civil Judges, Junior Division, and under
ordinary circumstances, such Joint Judges
can dispose of civil business as may be
referred to them by the Judge i.e. the
Principal Judge of that Court within the
limits of his pecuniary jurisdiction.
Besides, the Principal Judge, who is a
Civil Judge, Senior Division, there may
also be Joint Civil Judges appointed under
para 5 of Section 23 to assist the
Principal Judge. Such Joint Civil Judges
have to dispose of only such work as has
been referred to them either by the
Principal Judge of the Court to which they
are joint or as has been referred to them
by the District Judge of the district in
which such Courts are situated. This would
show that a Joint Civil Judge (Junior
Division), who has been appointed to
assist the Principal Judge of the Court
has no jurisdiction to receive any suit
directly nor has he jurisdiction to
dispose of any civil business which has
not been referred to him."
(Emphasis supplied)
. Further in Para 12 the conclusions drawn
were as under:“
12. In view of the above discussion, we
hold that there being no Court of the
Civil Judge (Junior Division) at Kolhapur,
it is the Court of the Civil Judge (Senior
Division) which has the jurisdiction to
entertain and try the suit under Section
28 of the Rent Act. The suit could be
tried by the Civil Judge (Senior Division)
who is the Principal Judge. It could also
be tried by all the Joint Civil Judges
(Senior Division) or by Joint Civil Judges
(Junior Division) to whom the suit may be
referred to for disposal by the Principal
Judge or by the District Judge under
Section 23 of the Civil Courts Act, 1869,
or transferred to that Court under Section
24 of the C.P.C. This being the position
in law, the Civil Judge (Senior Division),
Kolhapur, was competent to try the suit in
this case and consequently the decree
passed therein is valid and executable."
(Emphasis supplied)
. The Division Bench, in support of its
findings, referred to the Full Bench Judgment of
this Court in the matter of Ranchhodlal Vallabhdas
vs. Mahendrakumar Ambalal, reported in A.I.R. 1956
Bombay, Page 481 (Vol.43, C.187 July). In that
matter Section 28(2)(a) of the Bombay Rent Act and
Scheme of Bombay Rent Act was considered. The Full
Bench dealt with the question relating to
jurisdiction in the context of Section 28 of
Bombay Rent Act. After referring to provisions of
Section 28, the Full Bench observed in Para 1,
that:“
1.........................................
Therefore the scheme of S.28(2)(a) is very
clear. Only in cases pending before the
Court of Small Causes established under the
Provincial Small Cause Courts Act, the
District Court has been given the special
power of withdrawing the suits pending in
that Court and transferring them to another
Court which is designated as a Court which
would have the same special jurisdiction
that the Small Cause Court has been given,
and that Court is the Court of the Civil
Judge, Senior Division."
(Emphasis supplied)
. The Full Bench then read provisions of
section 28 of the Bombay Rent Act with provisions
of Bombay Civil Courts Act, 1869, as to how the
Courts are set up and referring to intent of
Legislature, it was observed in Para 4 as under:“
4........................................
The transfer is not to the Civil Judge,
Senior Division, but the transfer is to
the Court of the Civil Judge, Senior
Division. This is not matter of
interpretation; it is the very language
used by the statute. Therefore, if the
transfer is to be Court of the Civil
Judge, Senior Division, the provisions to
which reference has just been made in S.
23, para 5, must apply. Once the Court is
seized of the matter transferred to it by
the District Court under S.28(2)(a), the
Principal Judge of that Court is vested
with the power conferred upon him under S.
23, para 5. Therefore in our opinion, on
the transfer of a rent suit from the Small
Cause Court by the District Court under S.
28(2)(a) to the Court of the Civil Judge,
Senior Division, the Principal Judge of
that Court has the power to refer that
case to any one of his colleagues who has
been appointed to assist him in the
disposal of the cases on his file. The
colleague may be a joint Civil Judge,
Senior Division, or he may be a Civil
Judge, Junior Division, because not only
the Joint Civil Judge, Senior Division,
but also the Civil Judges, Junior
Division, are Judges of one and the same
Court, the Court presided over by the
Civil Judge, Senior Division."
(Emphasis supplied)
. In Para 6 of the Judgment, the Full Bench
observed thus:"
6........................................
if the District Judge withdraws the suit
from the Small Cause Court and transfers
it to a Joint Senior Civil Judge or to a
Junior Civil Judge, he is validly and
properly exercising his power under S.24,
Civil P.C. because both the Joint Senior
Civil Judge and the Junior Judge have
jurisdiction to try the rent suit under S.
28."
(Emphasis supplied)
9. Thus, in that matter, it was clearly held
by the Full Bench that Joint Senior Civil Judge,
and Junior Civil Judge, have jurisdiction to try
the rent suit under section 28 of the Bombay Rent
Act.
10. Keeping in view the Judgment of the
Division Bench in the matter of Smt. Savitribai
(supra), which took support also from the matter
of Ranchhodlal Vallabhdas(supra), there is no
manner of doubt that where there is Court
established of Civil Judge, (Senior Division), as
well as Joint Civil Judge, (Junior Division), and
the institution is in the Court of Civil Judge,
(Senior Division), the Civil Judge, (Senior
Division), Joint Civil Judge, (Senior Division)
(if such Judge is also there), as well as Joint
Civil Judge, (Junior Division), all these Courts
have jurisdiction to decide the matter. On
institution of the Rent matter in the Court of
Civil Judge (Senior Division) he can try it
himself, or make it over to Joint Civil Judge
(Senior Division) or Joint Civil Judge (Junior
Division). It is clear from the Judgments
referred, which have interpreted Section 28 of
the Bombay Rent Act, that where no Court of Civil
Judge, (Junior Division) is there, the Court of
Civil Judge, (Senior Division), which has
jurisdiction to entertain and try the suit, can
try the same and it could be tried by all the
Joint Civil Judges, (Senior Division) or by Joint
Civil Judge, (Junior Division) to whom the suit
may be referred to for disposal by the Civil
Judge, (Senior Division) or by the District Judge
under Section 23 of the Civil Courts Act or by way
of transfer under Section 24 of C.P.C. At (taluka)
places where there is Court of Civil Judge (Junior
Division) and Joint Civil Judge (Junior Division)
and institution is in the Court of Civil Judge
(Junior Division), such matters on institution can
be tried by Civil Judge (Junior Division) as well
as Joint Civil Judge (Junior Division) to whom the
matter is made over. In view of this, under
Section 31 of the Maharashtra Rent Act, Courts
specified in Sections 28 and 29 as interpreted in
the Judgments of the Division Bench and Full
Bench, referred above, shall follow the prescribed
procedure in trying and hearing suits,
proceedings, applications and appeals and in
executing orders made by them.
11. Learned counsel for the Petitioner tried
to distinguish the Judgment in the matter of Smt.
Savitribai (supra) stating that it was with
reference to competency of Civil Judge, (Senior
Division) to try the suit and not of the Joint
Civil Judge, (Junior Division), as in the present
matter. The argument has no substance, looking to
the Judgment as a whole.
12. In the matter of Vijaykumar s/o
Vinaykarao Pathak (supra) relied on by the learned
counsel for the Petitioner, the jurisdiction of
the Civil Judge, (Senior Division), to entertain
proceedings for execution of decree was
challenged. Contention raised was similar and it
was submitted that competent Court to deal with
the suit as well as execution in relation to
matters arising under Section 28 of the Bombay
Rent Act was Civil Judge, (Junior Division),
outside the territorial jurisdiction of Greater
Bombay and that in the said case, the Taluka
wherein suit premises were situated being provided
with the Court of Civil Judge, (Junior Division),
the proceedings for execution of decree could not
have been entertained and proceeded with by the
Civil Judge, (Senior Division), Ahmednagar. In
Para 9 it was observed that in the case concerned,
indisputably there is Court of Civil Judge,
(Junior Division) for the area in which the suit
premises are situated and therefore it was
necessary for the Respondent to institute the
execution proceedings in the said Court of Civil
Judge, (Junior Division). Consequently, the
learned Single Judge of this Court remanded the
matter to the Civil Judge, (Junior Division) at
Ahmednagar to deal with the application for
execution.
13. I find that the above Judgment in the
matter of Vijaykumar s/o Vinaykarao Pathak(supra)
is not helpful to the Petitioner. That judgment
was on the basis of statement made before the
Court. Again, there is nothing to show that in
that matter, Judgments in the matter of
Ranchhodlal Vallabhdas (supra), and Smt.
Savitribai (supra) were brought to the notice of
the learned Single Judge. With respect to the
learned Single Judge, I find myself bound by the
observations and findings of the Division Bench
and Full Bench in the matters of Smt. Savitribai
(supra) and Ranchhodlal Vallabhdas (supra), which
elaborately and specifically dealt with the
provisions regarding jurisdiction. Thus I find
that the law on this count is as laid down in the
matter of Smt. Savitribai (supra) and Ranchhodlal
Vallabhdas (supra).
14. In the present matter, the suit was filed
in the Court of Civil Judge, (Senior Division)
and was made over to the Joint Civil Judge,
(Junior Division). Keeping in view the law as
discussed above, the decree as passed by the Joint
Civil Judge, (Junior Division) was perfectly valid
and enforceable by the executing Court.
15. There is no substance in the Civil
Revision Application. Civil Revision Application
is rejected. No orders as to costs. Rule stands
discharged.
[A.I.S. CHEEMA, J.]
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