1 907-sa-245-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.245 OF 2010 WITH CIVIL APPLICATION NO.692 OF 2010 Sou. Kaveri M. Sontakke & Others .. Appellants. V/s. Mr. Sayyad J. Huseni .. Respondent. Mr. Uday Warunjikar, for the Appellant. None for the Respondent. CORAM : G.S.GODBOLE, J. DATE : 27th SEPTEMBER, 2011. P.C.: 1 Considering the fact that the Respondent had filed the suit on the ground that the Respondent was alleged tenant in the suit premises and the fact that the provisions of the Bombay Rent Act, 1947 were applicable to the said suit which was filed on 18th December, 1999, on an oral request made by the learned Advocate for the Appellant, the Second Appeal is allowed to be converted in to Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908. Amendment to be carried out within four weeks from today. Office to assign the number as Civil Revision 2 907-sa-245-2010.sxw Application for statistical purposes. 2 The Respondent/Original Plaintiff had filed Regular Civil Suit No.418 of 1999 in the Court of learned Civil Judge, Junior Division, Wai, seeking a permanent injunction for restraining Applicants from dispossessing the Respondent from and disturbing the possession of the suit premises. According to the Respondent, pending the said suit, Applicants unlawfully dispossessed him by action of constructing a fencing and structures as a result of which, the Respondent filed Applications below Exhibit 36, 41 and 48 in the Trial Court which were allowed on 8th March, 2002. The Applicants unsuccessfully challenged the said order in Civil Misc. Appeal Nos.39 and 40 of 2002 in the District Court which were dismissed on 24th June, 2002. The Applicants thereafter, filed Civil Revision Application No.1322 of 2002 which was allowed by learned Single Judge (Coram: R.M.S. Khandeparkar, J.) on 6th August, 2002 essentially on the ground that the interim reliefs which were granted were beyond the scope of the final relief claimed in the suit. 3 Thereafter, the plaint was amended and a decree for possession of the suit premises was also prayed for on the ground of previous possession. The Defendants contested the suit inter alia on the ground that the agreement dated 18th October, 1996 had not been registered, the open 3 907-sa-245-2010.sxw space surrounding the building in the suit premises had never been given to the Respondents and that the Respondent had voluntarily surrendered possession in October, 1999 prior to the filing of the suit etc., 4 Relying on the notice at Exhibit 142 issued by Applicant No.1, the Trial Court decreed the suit on 4th April, 2008. This decree has been confirmed while dismissing the Regular Civil Appeal No.153 of 2008 by impugned Judgment and Order dated 24th April, 2009 passed by the learned District Judge-III, Satara. 5 By relying on the order passed by learned Single Judge in Civil Revision Application No.1322 of 2002, Mr. Warunjikar contended that the suit was barred by law of limitation since the prayer for amendment to the plaint was made beyond three years of the date of alleged dispossession. In view of the provisions of Articles 64 & 65 of the Schedule of the Indian Limitation Act, I do not find any merit in this contention. 6 It was, thereafter, contended that said suit would be governed by Section 6 of Specific Relief Act, 1963. There is no merit in this contention, since the amended plaint does not indicates that the suit was governed under Section 6 of the Specific Relief Act, 1963. Even the defence of the Applicants shows that according to the Applicants, the suit not having 4 907-sa-245-2010.sxw being filed within three years from the date of dispossession, they had not treated it to be a suit under Section 6 of the said Act. In view of the bar contained under Section 6, the Appeal filed by the Appellants in the District Court would have also not been maintainable. There is no merit in this contention. 7 The third submission is regarding the scope of the decree and it was contended that Trial Court could have passed decree only in respect of the building but no decree could have been passed in respect of the surrounding garden, well etc., In support of this submission, Mr. Warunjikar sought to rely upon the Agreement dated 18th October, 1996. Though in the Trial Court, the Applicants had themselves opposed the evidence of the Plaintiff who had sought to produce this Agreement on the ground that it was not registered; even then, the learned Counsel was allowed to advance the said submission. Clause 2 of the said agreement clearly shows that the Plaintiff had been permitted to use the said land appurtenant, garden and well etc. Hence, the last submission of the learned Advocate for Applicants has no merit. 8 The Trial Court and the District Court have committed no error of jurisdiction whatsoever. The remedy of filing of a suit in the Court of competent jurisdiction, for possession, is always available to the Applicants. 5 907-sa-245-2010.sxw There is no merit in the Civil Revision Application and the same is rejected. 9 In view of dismissal of Civil Revision Application, Civil Application No.692 of 2010 does not survive and same is also disposed off. (G.S.GODBOLE, J.)