**1** IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1528/2009 Popat Ramchandra Kamble. ....Petitioner -VERSUS- Mahadev Savla Kamble and others. ......Respondents ........... Mr.Suresh Bhosale, Advocate for the Petitioner. ........... CORAM : A.S. OKA, J. DATE : 14th October, 2009. P.C. : 1 The learned counsel appearing for the Petitioner states that though the first Respondent has died, the Respondents Nos.2-a to 2-c and Respondent No.3 are the legal representatives of the first Respondent. None appears for the Respondents Nos.2-a to 2-c and 3 though the notice is duly served. By order dated 20th August, 2009 notice for final disposal of writ petition was issued. 2 The Petitioner filed a suit under Section 41 of the Presidency Small Cause Courts Act, 1882 (herein after referred to as “the said Act”) against the Respondents in the Court of Small Causes at Mumbai. The Suit was decreed. Relying upon a decision of the Division Bench of this court, in appeal preferred by the Respondents, the Appellate Bench of Court of Small Causes interfered and held that the Court of Small Causes has no jurisdiction to entertain and try the suit filed by the Petitioner. Therefore, by setting aside the said decree, the Appellate Bench directed **2** that the plaint shall be returned to the Petitioner for presentation to the appropriate Court. In view of the law as prevailing at that time in the light of the decision of the Division Bench in case of Ramesh Dwarkadas Mehra v/s Indravati Dwarkadas Mehra (2001(4) Bombay Cases Reporter 417), the Petitioner accepted the decision of the Appellate Bench of the Small Causes Court and lodged the plaint in the City Civil Court at Mumbai. It is stated in the petition that in the suit filed in the City Civil Court, now the Respondents have raised an objection to the jurisdiction of the City Civil Court on the ground that the law laid down by the Division Bench of this Court in case of Ramesh Dwarkadas Mehra (supra) is no longer good law in the light of decision of the Full Bench in case of Prabhudas Damodar Kotecha & another v/s Manharbala Jeram Damodar and others (2007(5) Bombay Cases Reporter 1). Therefore, the Petitioner has invoked extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for challenging the order passed by the Appellate Bench of the Court of Small Causes. 3 I have given careful consideration to the submissions made by the learned counsel appearing for the Petitioner. None appears for the Respondents Nos.2-a to 2-c and 3 though the said Respondents are duly served with notice. As the law laid down by the Division Bench of this Court in case of Ramesh Dwarkadas Mehra (supra) was in force on the date on which the Appellate Bench of Court of Small Causes passed the order of return of the plaint, there was every justification for the Petitioner to accept the return plaint and to file it in the Civil Court. Now in view of the subsequent decision of the Full Bench of this Court in the **3** case of Prabhudas Kotecha (supra), it is crystal clear that the Court of Small Causes has the jurisdiction to entertain and try the suit filed by the Petitioner. In the circumstances, the Petitioner cannot be allowed to suffer as he had initially filed the suit in the Court having jurisdiction. Therefore, the order returning the plaint will have to be set aside. 4 In these circumstances, I pass the following order:- (1) Impugned judgment and order dated 26th June, 2004, by which the plaint was returned by the Court of Small Causes, is quashed and set aside. (2) Appeal No.370/2001 is restored to file of the Appellate Bench of Court of Small Causes, Mumbai. (3) The suit registered with the City Civil Court shall be de-registered as the order of return of plaint has been set aside. (4) The City Civil Court at Mumbai will transfer the plaint and other papers filed by the Petitioner to the Court of Small Causes at Mumbai. (5) The Appellate Court will decide the appeal afresh. However, the issue of jurisdiction will not remain open and the appeal will be decided on merits. (6) The Appellate Court to issue notice of the date fixed for hearing to the Respondents and shall proceed to dispose of the appeal as expeditiously as possible. (7) Writ Petition is partly allowed in the above terms. [A.S. OKA, J.] kps