1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 772 OF 2008 WITH CIVIL APPLICATION NO. 928 OF 2008 Shri Vilas Malhar Alias Bapurao Bhadbhade & Ors. ..Appellants. Vs. Smt. Shruti Alias Manju Rajiv Veerkar ...Respondents. ..... Mr. Tejas Dande, for the Appellants. Mr. D.M. Gupte, for the Respondents and Applicant in 29660/08. ..... CORAM: S.C. DHARMADHIKARI,J. DATE : 26 th APRIL, 2010. P.C. 1. Heard the learned counsel appearing for the parties. 2. Admit 3. Respondents waive service. By consent, Appeal from Order is taken up for hearing and disposed of by the short Order. 4. This Appeal from Order is filed by the Original Defendants against the Judgment and Decree dated 1.9.2007 in Regular Civil Appeal No.478 of 2005. 2 5. The Court below has passed an Order in this Civil Appeal which reads as follow: 1] Appeal is partly allowed as under, without any order as to the costs. 2] The judgment and decree dated 06.9.2004 in Reg. Civil Suit No.448 of 1999 as well as the counters claim are set aside. 3] The plaint is hereby directed to be returned to the Plaintiff for presentation to the Court in which the suit have should have been instituted. 4] The counter claim is also directed to be returned to Defendants for presentation to the Court in which it should have been instituted. 5] Period of one month is allowed for Plaintiff and Defendants for presentation of Plaint and counter-claim to the proper court. 6] Decree be drawn accordingly. 6. The Regular Civil Suit No.448 of 1999 was filed by the Respondent-Plaintiff before the Trial Court for declaring that he is a co- owner of the suit premises. In that suit the Appellant-Defendant herein filed the counter claim seeking eviction of the Respondents from the premises. 7. The Trial Court dismissed the Respondent No.1’s suit but allowed the counter claim of the Appellant thereby evicting Respondent No. 1 herein who is the Defendant to the counter claim from the suit premises. 3 8. Aggrieved by such an Order and decree of the Trial Court the first Respondent preferred an Regular Civil Appeal being Regular Civil Appeal No.478 of 2005. It is common ground that in this Regular Civil Appeal the first Respondent questioned the dismissal of his suit and the grant of counter claim of the Appellant-original Defendants. 9. It is further common ground that during the course of the argument attention of the Lower Appellate Court was invited to Section 26 of the Provincial Small Causes Courts Act. The first Respondent argued that the Provincial Small Causes Courts Act contains identical provisions which is on par with section 41 of the Presidency Small Causes Courts Act, 1882. That interpreting section-41 of the Presidency Small Causes Courts Act, 1882, a Full Bench of this Court had rendered a Judgment holding that the suit, to evict a the Gratuitous Licensee from an immovable property, to which Rent Control Act does not apply, would lie in the Small Causes Court and not the ordinar Civil Court. Therefore, Respondent No.1 contended that the counter claim was not maintainable in the Civil Court and should have been filed in an appropriate Court. 10. It appears from the Judgment of the Lower Appellate Court that while upholding this objection, the Lower Appellate Court proceeded to not only set aside the Decree in the counter claim but also directed Respondent No.1-Plaintiff that he should have presented the suit in an appropriate Court. In other words, both Plaint and counter claim are 4 directed to be returned to the respective parties for presentation to an appropriate Court. 11. From such a Judgment and Decree of the Lower Appellate Court, naturally both parties are aggrieved and therefore before me is the Appeal from Order of the Original Defendants directing that their counter claim be returned to them for presentation to an appropriate Court and there is cross objection of the first Respondent-Plaintiff in which it is urged that there was no occasion for directing return of the plaint for presentation to an appropriate Court in as much as the Civil Court was the appropriate Court in this case. The suit was on the basis of title and such suit has been dismissed after recording of evidence. Therefore, the Lower Appellate Court should have decided the appeal as a First Appeal by scrutinizing the entire oral and documentary evidence on record. In other words, the learned Judge should have heard the parties on all issues and not on jurisdiction alone. 12. Similar is the contention of Shri Dande appearing on behalf of the Appellants. He submits that it was the plain duty of the Lower Appellate Court to have scrutinized the Judgment and Decree in the counter claim since the parties had led evidence. Grave loss and prejudice is caused to the appellants by the Lower Appellate Court’s directions which would mean that the counter claim will have to be now presented to some other Court. The Lower Appellate Court should have avoided this exercise. 5 In any event, if the Plaintiff succeeds before the Lower Appellate Court, then, the Lower Appellate Court would not have been called upon to decide as to whether the counter claim seeking eviction from the premises should be decreed or not. 13. I see substance in these contentions of both counsel. The Lower Appellate Court failed in its duty as Court of First Appeal. This is Regular Civil Appeal and therefore there was no occasion for the Lower Appellate Court to have avoided rendering findings on merits and considering all issues including that of jurisdiction. By the method and procedure adopted by the Lower Appellate Court, there is grave loss to both parties. The Lower Appellate Court should have avoided such an exercise. Moreover, the Lower Appellate Court’s ultimate order reproduced above is unsustainable as either of the proceeding was maintainable before the Civil Court. That has missed the attention of the Lower Appellate Court. 14. In the result, the Appeal from Order and cross objections are allowed. The Lower Appellate Court’s Order is quashed and set aside. The Regular Civil Appeal is restored to the file of the Lower Appellate Court. 15. Shri Gupte appearing on behalf of Respondents submits that to avoid any technical objection, within four weeks from today the Respondent No.1-original Plaintiff would file a Regular Civil Appeal against the Judgment and Decree in the counter claim. Thus, there will be two 6 appeals before the Lower Appellate Court now. If as contended by Shri Gupte the appeal is filed within the aforesaid period, the Lower Appellate Court shall condone the delay in filing the same and take up both appeals for hearing and final disposal afresh and decide them without being influenced by any of the observations in the Order under challenge. 16. To enable the parties to appear before the Lower Appellqate Court and argue their respective cases, it is directed that for a period of two months from today, the first Respondent-original Plaintiff to the suit and Defendant to the counter claim shall not be dis-possessed from the suit premises. 17. The Appeal From Order and cross-objection is accordingly disposed off. The Civil Application does not survive in the light of dismissal of the Appeal from Order. No costs. (S. C. DHARMADHIKARI, J.)