BHOLA WAJARESHWAR SETHI Vs. HOTEL NANDANVAN PRIVATE LIMITED

JUDGEMENT

(1.) THIS civil revision application is directed against the order passed by Joint Civil Judge, Senior Division, Aurangabad on 6th July, 1990 on the application Exh. 17 from the Small Cause Suit No. 84 of 1990.

(2.) BY the application Exh. 17, the original defendant/present petitioner has raised a question of jurisdiction of the Small Cause Court, Aurangabad, in view of the provisions of section 26 of the Provincial Small Cause Court Act of 1887 and section 28 (1) of the Bombay Civil Courts Act, 1869.

(3.) THE respondent has filed a Small Cause Suit No. 84 of 1990 for recovery of the licence fee amounting to Rs. 1,20,522. 60 Ps. The respondent is owner of hotel building consisting of the three floors; ground floor and two floors. On the ground floor, the premises provided a permit room, dining hall, ground floor storage room, lawn, etc. The licence fee has been stated in paragraph No. 4 of the plaint. As in accordance with the agreement, licence fee was not paid and the amount referred above was found due, the small cause suit has been filed for recovery of suit amount. The amount of Rs. 3,600/- by way of a Court fee has been paid on this amount. However, the said suit was being entertained by the Small Cause Court. In view of the suit being entertained by the Small Cause Court, in a written statement paragraph No. 9 the objection was raised " that the plaintiff has not paid the proper Court fee and the determination of the jurisdiction is also incorrect. The suit does not lie before the trial Court. The deflated claim and valuation of the suit is imaginary, incorrect and not conferring the jurisdiction upon the Honourable Court. The suit is not maintainable for lack of jurisdiction and for non payment of adequate Court fee. There is no cause of action to file a suit. " In view of the objection in paragraph No. 9, the application at Exh. 17 was submitted and as the said application is rejected, the present Civil Revision Application has been filed. The objection raised by the learned Counsel is to the effect that even though the subject matter of the suit is covered by section 26 of the Provincial Small Cause Courts Act, 1887 the Joint Civil Judge Senior Division, Aurangabad which entertained the suit as Small Cause Court, was not a Court constituted under the Provincial Small Cause Courts Act of 1887 and, therefore, the said Court is not entitled to entertain the suit. The learned Counsel submitted that the benefit of section 26 of said Act can be extended to those Small Causes Courts which are established under section 5 of the Small Causes Court Act and as the Courts which are empowered with the powers of the Small Causes Courts under section 28 of the Bombay Civil Courts Act of 1869 are not the Courts covered under section 5 of the Provincial Small Cause Courts Act: those Courts cannot entertain the suits covered under section 26. This objection was opposed by Mr. Naik, learned Counsel appearing for the respondent. He stated that the courts which are empowered under section 28 of the Bombay City Civil Courts Act, 1869 are also Small Causes Courts with a limited pecuniary jurisdiction and, therefore, those courts are entitled to entertain the suits covered under section 26 of the Provincial Small Causes Courts Act and in that eventuality, whenever the subject-matter is covered under section 26, the bar of a pecuniary jurisdiction will not apply and those courts are entitled to decide those small causes suits.