:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 7762 OF PETITION NO. 7762 OF PETITION NO. 7762 OF 2005 2005 2005 Shri Vijay Manohar More (since deceased through L.R’s.) 1A. Smt. Nirmala Vijay More & Anr. ... Petitioners. V/s. Sou. Manorama Sitaram Abhang & Ors. ... Respondents. Mr. P.S. Dani for the Petitioner. Mr. Madhav Jamdar for Respondent 1. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 24TH 24TH 24TH APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Order passed by the Trial Court on an application preferred by the present Petitioners, raising a preliminary issue of jurisdiction, is under challenge in this Writ Petition. 2. The objection raised by the Petitioner to the jurisdiction of the Civil Court is on the basis that the plaint read as a whole clearly points out to a relationship envisaged by Section 28 of the Bombay Rent Act, 1947 and therefore, the Small Causes Court alone was competent to entertain and try the suit. Under an erroneous assumption of law, the Small Causes Court, without any objection being raised by anybody and on its own directed return of plaint for presentation to the :2: Civil Court. The Civil Court refused to take cognizance of this aspect so also the mandate of Section 28 of the Bombay Rent Act and therefore, the order under challenge deserves to be set aside is the submission of Mr. Dani, learned Counsel appearing for the Petitioners. 3. On the other hand, Mr. Jamdar, learned Counsel appearing for the Respondent - Original Plaintiff states that the plaint was returned for presentation to the Civil Court, that is how the matter proceeded before the Civil Court. There was no occasion to raise the objection to the jurisdiction of the Court and in any event the application was misconceived and not tenable. The whole attempt is to call upon the Civil Court to ignore the order of the Small Causes Court which it could not have done and therefore, it rightly proceeded with the instant Suit. 4. I have been taken through the plaint and the order of the Small Causes Court. Possibly, the Small Causes Court misdirected itself by reading the prayers and that too only prayer clause (a) of the plaint. Had it bothered to read the entire plaint and prayers in the light of Section 28 possibly the conclusion which it reached could not have been reached by it. Be that as it may the Small Causes Court proceeded under further erroneous assumption that the jurisdiction is conferred by the Provincial Small Causes Court Act and therefore, the Court does not have :3: jurisdiction, the plaint will have to be returned to the Civil Judge, Senior Division to entertain it. In the instant case, the Small Causes Court had jurisdiction not because of the Provincial Small Causes Courts Act alone but because of the fact that it is a Court stipulated by Section 28 of the Bombay Rent Act, 1947. Section 28 itself is clear and states that whenever there is a Court functional under the Provincial Small Causes Courts Act, then that Court will have jurisdiction to entertain and try the Suits covered by Section 28 and Jurisdiction of all other Courts is excluded from its purview. In the instant case, it is not disputed that the suit claim otherwise falls under Section 28 of the Bombay Rent Act. The Small Causes Court does not dispute it either. In these circumstances, there was no occasion for transferring the proceedings to the Civil Court. The Civil Court found it difficult thereafter to sustain the objection to its jurisdiction. In the light of the peculiar situation that has been brought about by the order of the Small Causes Court, in my view, in the larger interest of justice, it would be desirable to quash and set aside the order dated 8th January 2003 passed by the Judge, Small Causes Court, Pune and restore the Suit which was filed in the Provincial Small Causes Court, Pune back to its file. The Small Causes Court should treat it as a Suit filed in the year 2002 and proceed to deal with it according to law. In the light of this, the earlier order of the Small Causes Court is set aside. Needless to state :4: that the order under challenge passed by the Civil Court (below Exhibit 15) in Regular Civil Suit No. 121 of 2003 would not survive. Since the Suit itself is now made over back to the Provincial Small Causes Court, Pune, needless to state that the Court of Civil Judge, Senior Division shall transfer the papers and proceedings in the R.C.S. No.121 of 2003 on its file to the Small Causes Court, Pune for being dealt with as a Suit instituted in the Small Causes Court. 5. All concerned to act on an authenticated copy of the order of this Court. The Petition is allowed in these terms. All contentions including of limitation and merits are kept open. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)