DEVIDAS MOHANLAL GUPTA Vs. AJESH SURESH SARVAIYYA

JUDGEMENT

(1.) Considering the nature of controversy, Rule is made returnable forthwith and both matters are heard finally at the stage of admission itself. I have heard Advocate S/s. P. Y. Deshpande for Petitioners/tenants and advocate V. M. Deshpande for Respondents landlords. The orders impugned in both these petitions are identical and by said order, separate objections raised by present Petitioners that the suits filed by the respective landlords be registered as Regular Civil Suits have been rejected by Second Joint Civil Judge (Junior Division) Amravati on 21st March 2006. There is no dispute about facts between parties and at one stage, Advocate V. M. Deshpande for landlords stated that he will not mind even if the petitions are allowed because the tenants are only trying to delay the suits. However considering the arguments advanced and view of the lower court in its order, I am considering the controversy on merits.

(2.) Respondents have instituted Small cause Civil suits no. 110 and 117 of 2004 on the file of Second Civil Judge, Junior Division amravati for recovery of possession against petitioners under Section 16 (1) (C) (G) (K) and (N) of Maharashtra Rent Control Act, 1999, referred to as Rent Act, and for damages. Tenants (all Petitioners in both petitions) have filed their written statement in their respective suit. Thereafter, they moved identical application on 23/1/2006 styled as application under section 33 (1) (C) of Rent Act and raised the objection that in view of provisions of Section 33 (1) (C) (2) of Rent Act jurisdiction of all other courts to take cognizance of such dispute is barred and further said Act containing special provisions and procedure for filing of appeal and revisions. Hence section 25 or 26 (A) of provincial Small Cause Courts Act, [hereinafter referred to as Provincial Act], have no application to these suits. They requested the court therefore to register the suit as Regular suits and to try the same accordingly. The applications were opposed by Landlords and court below after hearing both sides, was pleased to pass impugned order on 21st March 2006 rejecting the request and objection of petitioners. It found that the suit can be tried by small cause court and also by it and there is no discrimination made by Rent Act between the two forums. It therefore, dismissed the applications.

(3.) Advocate P. Y. Deshpande for tenants has contended that the view taken by court below is erroneous. He has invited attention to provisions of Rent Act, Provincial act also to Bombay Civil Courts Act, 1869 (hereinafter Civil Court Act) to contend that lower court i. e. Second Joint Civil Judge, Junior division was not Small Cause Court established under Provincial Act and it was invested with powers of small cause by High Court under section 28 of Civil Court Act and hence,procedure prescribed under Rent Act was only relevant. It was argued that there is difference in procedure adopted by Small Cause court and Court of junior Division and hence tenant is put to prejudice. Attention is invited to judgment of this Court reported at 2001 (1) ALL MR 763 (Vijaykumar Pathak Vs. Madhukar Chitale) to state that as per law it is Court of junior Division alone which is competent to try the suit and procedure prescribed by statute cannot be bypassed. Reliance is also placed upon A. I. R. 1981 bombay 430 (Smt. Savitribai Vs. Vithal) ; 1993 Mh. L. J. 1812 (Dinyar Irani Vs. Kshirsagar) ; A. I. R. 1964 Bombay 85 (Ramkishore Pandit Vs. Vijayabahadursingh) ; A. I. R. 1958 SC 677 (Babulal Vs. Nandram) ; 1970 Mh. LJ. 848 (Khemchand Vs. Mohammadbhai) ; 1987 mh. LJ. 283 (Salimkhan Vs. Mohammad) and 2006 (4) ALL MR 48 (Mrs. Shantabai Vs. Shri Shankar).