The submission made on behalf of the petitioner about
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3470 of 2003
Shri Suresh S/o Manikchand Patni,
Versus
Kachrulal s/o Shankarlal Sarda,
CORAM : Z.A. HAQ, J
DATE : JULY 7, 2014.
1] The dispute is in between petitioner-tenant and the
respondents-landlords.
2] The petitioner has challenged the judgment and decree
passed by the subordinate Court in favour of the original
respondent no.1 on the ground that the petitioner was in arrears of
rent for the period from 1st February 1999 till 31st July 2001.
3] Though the judgment and decree passed by
subordinate Court under the provisions of Maharashtra Rent
Control Act, 1999 are challenged in this petition and there is
controversy whether a petition can be entertained or revision
would lie against judgment and decree passed by the subordinate
Court, in my view, writ petition having been admitted in 2003 and
now it is to be considered for final hearing, I would not like to delve
into this issue. In my view, the petition has to be considered on its
merits.
4] Shri Deshpande, learned Advocate for the petitioner
has submitted that agreed rent in respect of the property was
Rs.400/- per month and in support of his submission, he relies on
the rent receipt dated 5th April 1989 which shows that the
respondent no.1 had issued receipt in token of having received
rent for Rs. 400/- for the month of March 1988. It is submitted that
the document i.e. rent receipt filed on record show that the original
respondent no.1-landlord had issued receipt in token of having
received rent of Rs.440/- for the month of March 1990, Rs. 485/-
as rent for the month of June 1990, Rs. 535/- as rent for the month
of April 1991 and Rs. 590/- for the month of April 1992 and in view
of this, the notice issued by the respondent no.1 demanding
arrears of rent at the rate of Rs. 950/- per month was illegal and
he could not have sought decree for eviction on the basis that the
petitioner was in arrears of rent payable @ Rs. 950/- per month.
The submission on behalf of the petitioner is that, under Section 15
of the Maharashtra Rent Control Act 1999, a landlord is not entitled
to the recovery of possession of any premises so long as the
tenant pays, or is ready and willing to pay the amount of the
standard rent and permitted increases, if any. The submission on
behalf of the petitioner is that the petitioner was always ready and
willing to pay the arrears of rent as per the standard rent and the
demand of arrears of rent @ Rs 950/- per month being illegal, the
decree passed by the subordinate Court for possession is
unsustainable in law.
5] Shri Deshpande, the learned Advocate for the petitioner
has relied on the definition of “standard rent” as given in Section
7(14) of the Maharashtra Rent Control Act, 1999 and has
submitted that if the standard rent or fair rent is not so fixed, then
the tenant is liable to pay the rent at which the premises were let
on the 1st of October 1987 and if the premises were not let on the
1
st day of October 1987, additional increase of 5% in the rent of
the premises let before the 1st day of October 1987. It is
submitted that in view of this, the demand of rent @ Rs. 950/- per
month is unjustified and cannot entitle the original respondent
no.1- landlord for the decree for possession.
6] Shri Deshpande, the learned Advocate for the petitioner
has submitted that the civil suit filed by the respondent
no.1-landlord is tried as Regular Civil Suit, which is not permissible
in view of the provisions of Section 33 (1)(b) of the Maharashtra
Rent Control Act, 1999 which lays down that the civil suit should
have been tried by the Court of Small Causes established under
the Provincial Small Causes Courts Act, 1887.
7] Shri C.A. Joshi, the learned Advocate for the respondent
nos. 1(a) to 1(g) has submitted that original respondent no.1-
landlord was required to file Special Civil Suit No.155/1997 for
recovery of the arrears of rent, in which decree was passed on
15th December, 1998 and the judgment given in this Civil Suit
specifically records that the monthly rent of suit shop is Rs. 950/-
per month. The learned Advocate for the respondent nos. 1(a) to
1(g) has submitted that the original respondent no.1-landlord was
again required to file Regular Civil Suit No.42/1992 for the
recovery of the arrears of rent for the period from July 1997 till
1999 and this suit is also decreed on 29th January 2001 and in the
judgment specific finding is recorded that the monthly rent of
premises is Rs. 950/- per month. The learned Advocate for the
respondent nos. 1(a) to 1(g) has submitted that the petitioner
accepted these decrees and these decrees are also executed and
the decretal amount has been recovered from the petitioner. The
learned Advocate for the respondent nos. 1(a) to 1(g) has
submitted that the petitioner can not now raise the challenge
based on Section 15 of the Maharashtra Rent Control Act 1999 and
submit that the original respondent no.1-landlord had claimed the
arrears of rent at the rate more than the standard rent. The
learned Advocate for respondent nos. 1(a) to 1(g) prays for
dismissal of the writ petition.
8] Shri Joshi, the learned Advocate for respondent nos. 1
(a) to 1(g) has submitted that the Court of Civil Judge, Senior
Division, Washim is vested with the powers of the Small Cause
Court and as per Section 28(1) of the Bombay Civil Courts Act,
1869, the High Court can invest any Civil Judge with the powers
of the Small Cause Court for trying the civil suits valued up to
Rs.12,000/- in case of Civil Judge (Senior Division) and the
valuation of the civil suit being Rs. 46,000/-, the learned Civil
Judge has rightly tried it as the Regular Civil Suit. In support of
this submission, he relies on the judgment given in the case of
Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another reported in 2010 (6) Bom.C.R. 5.
9] Shri N.S.Rao, the learned Assistant Government Pleader
for the respondent nos. 2 and 3 has submitted that they are formal
parties and no submission is required to be made on their behalf.
10] After considering the submissions made on behalf of
the petitioner as regards the first point, it is undisputed that the
petitioner has suffered two decrees for arrears of rent in which the
Court has given specific finding that the rent of suit shop is Rs.
950/- per month. The petitioner has not challenged these decrees
and the decrees are executed. Admittedly, these decrees have
been passed for recovery of amount for the period prior to
Maharashtra Rent Control Act, 1999 came into force. It is not the
case of the petitioner that the rent of premises could not have
been considered as Rs. 950/- per month while passing the earlier
decrees. The petitioner has not placed any material on the record
to justify as to why the rent of Rs. 950/- per month as found by
the Courts while passing the earlier decrees cannot be said to be
standard rent. In view of the provisions of Section 10(1) of the
Maharashtra Rent Control Act, 1999 the original respondent no.1-
landlord is entitled to make the claim for the recovery of the
arrears of rent considering the rent of Rs. 950/- per month.
Moreover, the submission based on Sections 15 and 7(14) of the
Maharashtra Rent Control Act, 1999 are not raised either before
the Trial Court or before the District Court. This submission cannot
be considered for the first time in the writ jurisdiction without there
being any pleadings before the subordinate Courts.
11] The submission made on behalf of the petitioner about
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
12] The submission made on behalf of the petitioner that
the civil suit was required to be tried by the Court of Civil Judge,
Junior Division, in view of Section 33 (1) (c) of the Maharashtra
Rent Control Act, 1999 is also de hors of any factual material on
the record. The petitioner has not pleaded that the Court of Civil
Judge, Junior Division was available at Washim. It is the specific
case of the respondent nos. 1(a) to 1(g) that the Court of Civil
Judge (Junior Division) is not available at Washim and along with
the Court of Civil Judge (Senior Division), Joint Civil Judge (Senior
Division) are available at Washim and in this factual background,
the civil suit is rightly decided by the Civil Judge (Senior
Division). In support of his submission, the learned Advocate for
the respondents 1(a) to 1(g) has relied on the Division Bench
judgment in the case of Savitribai w/o Ramchandra Malavade and
another Vs. Vithal Hari Patakar reported in 1981 Bom. C.R. 654.
In paragraph 6, the Court has recorded as follows:-
“In most taluka towns, we have courts
presided over by the Civil Judge (Junior
Division), while at District places, there is a
Court presided over by the Civil Judge
(Senior Division). Under Section 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 suit under the
Rent Act. Though 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 him
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 situate. This would show as the 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. “
13] Shri Deshpande, the learned Advocate for the petitioner
has prayed that the proceedings should be remitted to the Trial
Court with a direction to decide the Civil Suit as Small Cause suit.
The submission is that as the Civil Suit is tried as Regular Civil Suit,
it has materially affected the entitlement of the petitioner to
challenge the impugned judgment and decree by filing revision in
which the challenges can be considered more elaborately than in
the extraordinary jurisdiction. This submission cannot be accepted
for two reasons. The petitioner has not pointed out as to what
prevented the petitioner from filing revision instead of filing the
petition. I have already observed that the issue as to whether the
judgment and decree passed under the Maharashtra Rent Control
Act, 1999 can be challenged in revision or not requires
consideration and the petition is being now considered on merits
only because it is of 2003 and it would not be proper to relegate
the parties to the revisional jurisdiction at this stage. Moreover,
the petitioner has not raised this ground either before the Trial
Court or in the appeal filed before the District Court.
14] In view of the above, I find no substance in the
challenges raised in the petition. The writ petition is dismissed.
Rule is discharged. In the circumstances, the parties to bear their
own costs.
Print Page
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3470 of 2003
Shri Suresh S/o Manikchand Patni,
Versus
Kachrulal s/o Shankarlal Sarda,
CORAM : Z.A. HAQ, J
DATE : JULY 7, 2014.
1] The dispute is in between petitioner-tenant and the
respondents-landlords.
2] The petitioner has challenged the judgment and decree
passed by the subordinate Court in favour of the original
respondent no.1 on the ground that the petitioner was in arrears of
rent for the period from 1st February 1999 till 31st July 2001.
3] Though the judgment and decree passed by
subordinate Court under the provisions of Maharashtra Rent
Control Act, 1999 are challenged in this petition and there is
controversy whether a petition can be entertained or revision
would lie against judgment and decree passed by the subordinate
Court, in my view, writ petition having been admitted in 2003 and
now it is to be considered for final hearing, I would not like to delve
into this issue. In my view, the petition has to be considered on its
merits.
4] Shri Deshpande, learned Advocate for the petitioner
has submitted that agreed rent in respect of the property was
Rs.400/- per month and in support of his submission, he relies on
the rent receipt dated 5th April 1989 which shows that the
respondent no.1 had issued receipt in token of having received
rent for Rs. 400/- for the month of March 1988. It is submitted that
the document i.e. rent receipt filed on record show that the original
respondent no.1-landlord had issued receipt in token of having
received rent of Rs.440/- for the month of March 1990, Rs. 485/-
as rent for the month of June 1990, Rs. 535/- as rent for the month
of April 1991 and Rs. 590/- for the month of April 1992 and in view
of this, the notice issued by the respondent no.1 demanding
arrears of rent at the rate of Rs. 950/- per month was illegal and
he could not have sought decree for eviction on the basis that the
petitioner was in arrears of rent payable @ Rs. 950/- per month.
The submission on behalf of the petitioner is that, under Section 15
of the Maharashtra Rent Control Act 1999, a landlord is not entitled
to the recovery of possession of any premises so long as the
tenant pays, or is ready and willing to pay the amount of the
standard rent and permitted increases, if any. The submission on
behalf of the petitioner is that the petitioner was always ready and
willing to pay the arrears of rent as per the standard rent and the
demand of arrears of rent @ Rs 950/- per month being illegal, the
decree passed by the subordinate Court for possession is
unsustainable in law.
5] Shri Deshpande, the learned Advocate for the petitioner
has relied on the definition of “standard rent” as given in Section
7(14) of the Maharashtra Rent Control Act, 1999 and has
submitted that if the standard rent or fair rent is not so fixed, then
the tenant is liable to pay the rent at which the premises were let
on the 1st of October 1987 and if the premises were not let on the
1
st day of October 1987, additional increase of 5% in the rent of
the premises let before the 1st day of October 1987. It is
submitted that in view of this, the demand of rent @ Rs. 950/- per
month is unjustified and cannot entitle the original respondent
no.1- landlord for the decree for possession.
6] Shri Deshpande, the learned Advocate for the petitioner
has submitted that the civil suit filed by the respondent
no.1-landlord is tried as Regular Civil Suit, which is not permissible
in view of the provisions of Section 33 (1)(b) of the Maharashtra
Rent Control Act, 1999 which lays down that the civil suit should
have been tried by the Court of Small Causes established under
the Provincial Small Causes Courts Act, 1887.
7] Shri C.A. Joshi, the learned Advocate for the respondent
nos. 1(a) to 1(g) has submitted that original respondent no.1-
landlord was required to file Special Civil Suit No.155/1997 for
recovery of the arrears of rent, in which decree was passed on
15th December, 1998 and the judgment given in this Civil Suit
specifically records that the monthly rent of suit shop is Rs. 950/-
per month. The learned Advocate for the respondent nos. 1(a) to
1(g) has submitted that the original respondent no.1-landlord was
again required to file Regular Civil Suit No.42/1992 for the
recovery of the arrears of rent for the period from July 1997 till
1999 and this suit is also decreed on 29th January 2001 and in the
judgment specific finding is recorded that the monthly rent of
premises is Rs. 950/- per month. The learned Advocate for the
respondent nos. 1(a) to 1(g) has submitted that the petitioner
accepted these decrees and these decrees are also executed and
the decretal amount has been recovered from the petitioner. The
learned Advocate for the respondent nos. 1(a) to 1(g) has
submitted that the petitioner can not now raise the challenge
based on Section 15 of the Maharashtra Rent Control Act 1999 and
submit that the original respondent no.1-landlord had claimed the
arrears of rent at the rate more than the standard rent. The
learned Advocate for respondent nos. 1(a) to 1(g) prays for
dismissal of the writ petition.
8] Shri Joshi, the learned Advocate for respondent nos. 1
(a) to 1(g) has submitted that the Court of Civil Judge, Senior
Division, Washim is vested with the powers of the Small Cause
Court and as per Section 28(1) of the Bombay Civil Courts Act,
1869, the High Court can invest any Civil Judge with the powers
of the Small Cause Court for trying the civil suits valued up to
Rs.12,000/- in case of Civil Judge (Senior Division) and the
valuation of the civil suit being Rs. 46,000/-, the learned Civil
Judge has rightly tried it as the Regular Civil Suit. In support of
this submission, he relies on the judgment given in the case of
Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another reported in 2010 (6) Bom.C.R. 5.
9] Shri N.S.Rao, the learned Assistant Government Pleader
for the respondent nos. 2 and 3 has submitted that they are formal
parties and no submission is required to be made on their behalf.
10] After considering the submissions made on behalf of
the petitioner as regards the first point, it is undisputed that the
petitioner has suffered two decrees for arrears of rent in which the
Court has given specific finding that the rent of suit shop is Rs.
950/- per month. The petitioner has not challenged these decrees
and the decrees are executed. Admittedly, these decrees have
been passed for recovery of amount for the period prior to
Maharashtra Rent Control Act, 1999 came into force. It is not the
case of the petitioner that the rent of premises could not have
been considered as Rs. 950/- per month while passing the earlier
decrees. The petitioner has not placed any material on the record
to justify as to why the rent of Rs. 950/- per month as found by
the Courts while passing the earlier decrees cannot be said to be
standard rent. In view of the provisions of Section 10(1) of the
Maharashtra Rent Control Act, 1999 the original respondent no.1-
landlord is entitled to make the claim for the recovery of the
arrears of rent considering the rent of Rs. 950/- per month.
Moreover, the submission based on Sections 15 and 7(14) of the
Maharashtra Rent Control Act, 1999 are not raised either before
the Trial Court or before the District Court. This submission cannot
be considered for the first time in the writ jurisdiction without there
being any pleadings before the subordinate Courts.
11] The submission made on behalf of the petitioner about
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
12] The submission made on behalf of the petitioner that
the civil suit was required to be tried by the Court of Civil Judge,
Junior Division, in view of Section 33 (1) (c) of the Maharashtra
Rent Control Act, 1999 is also de hors of any factual material on
the record. The petitioner has not pleaded that the Court of Civil
Judge, Junior Division was available at Washim. It is the specific
case of the respondent nos. 1(a) to 1(g) that the Court of Civil
Judge (Junior Division) is not available at Washim and along with
the Court of Civil Judge (Senior Division), Joint Civil Judge (Senior
Division) are available at Washim and in this factual background,
the civil suit is rightly decided by the Civil Judge (Senior
Division). In support of his submission, the learned Advocate for
the respondents 1(a) to 1(g) has relied on the Division Bench
judgment in the case of Savitribai w/o Ramchandra Malavade and
another Vs. Vithal Hari Patakar reported in 1981 Bom. C.R. 654.
In paragraph 6, the Court has recorded as follows:-
“In most taluka towns, we have courts
presided over by the Civil Judge (Junior
Division), while at District places, there is a
Court presided over by the Civil Judge
(Senior Division). Under Section 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 suit under the
Rent Act. Though 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 him
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 situate. This would show as the 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. “
13] Shri Deshpande, the learned Advocate for the petitioner
has prayed that the proceedings should be remitted to the Trial
Court with a direction to decide the Civil Suit as Small Cause suit.
The submission is that as the Civil Suit is tried as Regular Civil Suit,
it has materially affected the entitlement of the petitioner to
challenge the impugned judgment and decree by filing revision in
which the challenges can be considered more elaborately than in
the extraordinary jurisdiction. This submission cannot be accepted
for two reasons. The petitioner has not pointed out as to what
prevented the petitioner from filing revision instead of filing the
petition. I have already observed that the issue as to whether the
judgment and decree passed under the Maharashtra Rent Control
Act, 1999 can be challenged in revision or not requires
consideration and the petition is being now considered on merits
only because it is of 2003 and it would not be proper to relegate
the parties to the revisional jurisdiction at this stage. Moreover,
the petitioner has not raised this ground either before the Trial
Court or in the appeal filed before the District Court.
14] In view of the above, I find no substance in the
challenges raised in the petition. The writ petition is dismissed.
Rule is discharged. In the circumstances, the parties to bear their
own costs.
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