Undisputedly, the dispute pertains to open land and the appellate Court should have seen that under the provisions of Provincial Small Causes Courts' Act, the Small Cause Court had jurisdiction even otherwise to entertain, try and decide such a suit. The decree passed by the trial Court could not have been set aside on that count and the appeal should have been decided on merits.
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Bombay High Court
Abdul Shahid Patel vs Smt. Rameshwari Devi Gyarsilal ... on 3 February, 2014
Bench: Ravi K. Deshpande
Additional Judge, Small Causes Court, Nagpur, has passed a decree for eviction and possession against the respondent-tenant. This was the subject matter of challenge in Regular Civil Appeal No. 345/2009 filed by the respondent-tenant, which has been allowed by the learned District Judge-16, Nagpur, by its judgment and order dated 21st October, 2011. The decree passed by the Small Cause Court has been set aside with a direction to the trial Court to return the plaint to the plaintiff for presentation to the proper Court. It is this judgment and order of the appellate Court which is the subject matter of challenge in this writ petition by the landlord.
3] In Regular Civil Appeal No. 345/2009, the appellate Court has recorded the findings on all points on merit in favour of the petitioner landlord, however, the appeal has been allowed only on the ground that the suit premises are the open lands which are not governed by the 3 wp3098.13.odt provisions of the Maharashtra Rent Control Act and hence, the Small Cause Court has no jurisdiction to entertain, try and decide the suit. It is on this sole ground that the appeal has been allowed and the decree passed by the trial Court has set aside.
4] Undisputedly, the Small Cause Court has jurisdiction under the provisions of the Provincial Small Causes Courts' Act to entertain, try and decide the suit between the landlord and the tenant. The suit in question was registered as Regular Civil Suit No. 386/2007 in the Small Causes Court at Nagpur. The decree passed by the trial Court on 23rd April, 2009 has been challenged by filing an appeal under Section 96 of the Code of Civil Procedure, which was registered as Regular Civil Appeal No.345/2009.
Undisputedly, the dispute pertains to open land and the appellate Court should have seen that under the provisions of Provincial Small Causes Courts' Act, the Small Cause 4 wp3098.13.odt Court had jurisdiction even otherwise to entertain, try and decide such a suit. The decree passed by the trial Court could not have been set aside on that count and the appeal should have been decided on merits.
5] It is not possible to accept the contention of the learned counsel for the petitioner that since the appellate Court has recorded the findings in favour of the landlord on merits of the matter, it is not necessary to remand the matter back to the appellate Court, once this court comes to the conclusion that the appellate Court has committed an error in holding that the Small Cause Court has no jurisdiction to entertain, try and decide the suit in question and the decree passed by the trial Court can be restored. If the appeal is decided on merits under Section 96 of the Civil Procedure Code by the Appellate Court then it would be the second appeal which would lie before this Court. In this writ petition preferred by the landlord, it is not possible for this Court to 5 wp3098.13.odt uphold the decree passed by the trial Court and to deprive the right of the other side to challenge the decree and the findings recorded by the appellate Court on merits. The matter has, therefore, to be remanded back and the judgment and order passed by the appellate Court will have to be set aside.
6] In the result, the writ petition is allowed. The judgment and order dated 21st October, 2011, passed by the learned District Judge-16, Nagpur, in Regular Civil Appeal No. 345/2009 is hereby quashed and set aside. The matter is remanded back to the appellate Court to decide the appeal on its own merits in accordance with law. The parties to appear before the appellate Court on 24th February, 2014.
The appellate court to decide the appeal within a period of six months thereafter. No orders as to costs.
JUDGE Rvjalit
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