SAVITRIBAI Vs. VITHAL HARI PATAKAR

JUDGEMENT

(1.) This revisional application raises a question of jurisdiction of Court under section 28 of the Bombay Rents, Hotel and Lodging House Rate Control Act, 1947. The petitioners filed Regular Civil Suit No. 504 of 1971 against the respondent for recovery of possession of their premises Bearing City Survey No. 2258(B) situated at Kolhapur under section 12 of the Act. This suit was filed in the Court of the Civil Judge (Senior Division), Kolhapur The Civil Judge (Senior Division), Kolhapur transferred the said to the Second Joint Civil Judge (Senior Division), Kolhapur. Thereafter the District Judge passed an order under section 24 of the Code of Civil Procedure withdrawing the suit from that Court and transferred it to the Court of Second Joint Civil Judge (Senior Division) for disposal. Again, by another order dated January 3, 1976, the District Judge withdrew the suit from the file of the Second Joint Civil Judge (Senior Division) and transferred it to the Civil Judge (Senior Division) for disposal. The Court heard the suit and dismissed it on January 28, 1976. The petitioners preferred an appeal in the District Court at Kolhapur. The Appellate Court allowed the appeal and passed a decree for possession in favour of the petitioners. The petitioners then filed an execution petition. By order dated November 21, 1977, the executing Court issued a warrant from possession. But, in the meanwhile, the respondent appeared and filed an application resisting the execution. It was contended by him that the decree was a nullity and without jurisdiction as nullity under section 28(1)(b) of the Rent Act, the suit could be tried only by a Civil Judge (Junior Division), and not by Civil Judge (Senior Division). This contention of the respondent was upheld and the executing Court by its order dated April 5, 1980 dismissed the execution petition. This order has been challenged by the petitioners. The only question, therefore, that arises for consideration is whether the Civil Judge (Senior Division) was competent to try the suit, having regard to the provisions of section 28 of the Rent Act.

(2.) Section 28(1) of the Rent Act in so far as is material provides.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 proceedings would not, but for this provision, be within its jurisdiction.

(3.) It would appear that under section 28 of the Act, a special jurisdiction to try the suits or proceedings under the Act was conferred upon ordinary Courts of the land which have been set up under the Civil Courts Act. The courts on which such jurisdiction has been conferred have been enumerated under section 28(1)(a). In Greater Bombay, thus special jurisdiction is conferred on the Court of Small Causes at Bombay, and under Clause (aa), the same is conferred on the Court of Small Causes established under the Provincial Small Causes Court Act, 1887. Such courts under the Provincial Small Causes Court Act have been established at Pune and Nagpur in the State. Therefore, under section 28(1)(aa), the Small Causes Court at Pune and Nagpur will have the jurisdiction to try the suits under the Act. Then under section 28(1)(b), elsewhere it would be the Court of the Civil Judge (Junior Division) having jurisdiction in the area which the premises are situated which will have jurisdiction to try the suit arising under the Act and if there is no such Civil Judge, it is the Court of the Civil Judge (Senior Division) having ordinary jurisdiction which will have the jurisdiction to try suits or proceedings arising under the Act. Now the Act itself does not provide as to how the Court of the Civil Judge (Junior Division) or the Court of the Civil Judge (Senior Division) are to be constituted, or how the territorial limits within which these two types of courts are to exercise their jurisdiction to be determined. For that purpose, one has to turn to the Civil Courts Act, 1869, under which the ordinary courts are constituted. In most of the taluka places, there are courts presided by the Civil Judge (Junior Division), while in the district places, we have the courts presided over by the Civil Judge (Senior Division) having ordinary jurisdiction. In the absence of any guidelines in section 28 or any other provisions of the Rent Act regarding the Constitution or territorial jurisdiction within which the two courts mentioned, in section 28(1)(b) are to function, we must turn to the provisions of the Bombay Civil Courts Act, 1869 under which the ordinary courts are constituted and their jurisdiction defined. This has been explained in a Full Bench decision of this Court in (Ranchhodlal v. Mahendra Kumar), 58 Bom.L.R. 465. The question before the Full Bench related to the interpretation of section 28(2)(a) of the Rent Act. It was argued before the Full Bench that when the District Judge exercise his powers under section 28(2)(a) of withdrawing a suit was transferring the same for trial to the Court of the Civil Judge (Senior Division), he can only transfer it to the Civil Judge (Senior Division) and to no other Judge while rejecting this argument, the Full Bench observed :