1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.132 OF 2008 Dinesh s/o Ambadasrao Bhurewar Age: 45 Yrs., occu. Service, r/o Dhamanandi Narali Bag, Aurangabad. - PETITIONER VERSUS Subhash s/o Harishchandra Kadape Age: 59 Yrs., occu. Pvt.Service, R/o Santoshinagar, Dhanmandi, Narali Bag,Auangabad. - RESPONDENT ***** Mr.DS Manorkar, Adv. h/for Mr.SG Ladda, Advocate for Petitioner; Mr.AR Vaidya, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 26th February, 2010. ORAL JUDGMENT: 1) Heard. Rule made returnable forthwith by 2 consent of learned Counsel for the parties. 2) The landlord/defendant in RCS No.632 of 2008, being aggrieved by the orders of learned Civil Judge, Junior Division, Aurangabad, below Exhibit-12, declining to reject the plaint or to return, to be filed before the competent authority, is in the revision. 3) The status of the parties, the Petitioner/Defendant – Dinesh to be a landlord and Respondent/Plaintiff – Subhash to be a tenant, is not in controversy. 4) The tenant felt aggrieved by the action of threats of the landlord and consequently, moved the learned Civil Judge, Junior Division, seeking injunction. Prayer clause (B) thereof indicate: “or anybody claiming through him may kindly be restrained from interfering into possession of the plaintiff and evicting the plaintiff from the suit property without 3 following due process of law. 5) The landlord challenged, jurisdiction of the Civil Court to entertain the suit. It is barred, as the controversy needs only to be answered by recourse to special statute, i.e. Maharashtra Rent Control Act, 1999, to which parties are governed. 6) In order to substantiate his contention, Mr. Manorkar has taken recourse to the Judgment of the Apex Court in the matter of Mansukhlal Dhanraj Jain and Ors. Vs. Eknath Vithal Ogale (AIR 1995 SC 1102). The Apex Court in the facts of the said case found, that the jurisdiction in respect of protecting possession of immovable property against the alleged illegal attempts on the part of the defendant/landlord to forcibly recover such possession from the plaintiff (tenant), will be covered by the wide sweep of the words “relating to recovery of possession” as employed by Section 41(1) of the Presidency Small 4 Cause Courts Act (15 of 1882) and consequently, the Apex Court observed that the suit filed before the Bombay City Civil Court was not maintainable. 7) Mr.Vaidya representing the tenant took me to the provisions of Section 33 and particularly Section 33(1)(c) of the Rent Act, which read as under : “33.(1) Notwithstanding anything contained in any law for the time being in force, but subject ot the provisions of Chapter VIII, and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision be within its jurisdiction, - (a)................................. (b)................................. (c)elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the 5 court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under this Act (other than the applications which are to be decided by the State Government or an officer authorized by it or the Competent Authority); and subject to sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding, or application to entertain any such claim or question.”, 8) It is not that at Aurangabad there is no Civil Judge, Junior Division having jurisdiction in the area. The Civil Judge, Junior Division at Aurangabad vests with powers to entertain suits under the Bombay Rent Act in terms of Section 33 thereof. The learned Counsel rightly pointed that since the matter was moved before the 6 learned Civil Judge, Junior Division, Aurangabad, it only differs to the extent of nomenclature instead of rent suit which has been named and styled as Regular Civil Suit. However, he has pointed that the nomenclature may not change the colour and complexion to adjudicate the controversy. 9) Learned Counsel took recourse to the judgment in the matter of Devidas Mohanlal Gupta Vs. Shri Ajesh Suresh Sarvaiyya - 2007(1) ALL MR 56, in which this Court has observed about establishment of Courts of Small Causes and powers to invest Civil Judge with Small Causes Court’s powers. In paragraph 7, this Court observed as under : “7. There is nothing in language of Section 33 or 34 of Rent Act which militates with the above scheme of Provincial Act. Whenever a Court of Small Cause is functioning in any area, either established under Provincial Act or because of 7 investing of Small Cause Jurisdiction by High Court under civil Court Act, it is apparent that the suit or proceeding under Section 33 of Rent Act is to be filed before it. In view of Section 32(1)(b) of Provincial Act such Court excludes the jurisdiction of all other Courts in those suits and hence, such Courts invested with jurisdiction are Court of Small Causes established under the Provincial Act itself for purposes of Section 33(1) (b) of Rent Act. Section 33(1)(c) of Rent Act envisages the case where Court of Small Cause whether established or invested with such powers, is not available. In the facts of present case even if it is presumed that after Rent Act, all Courts invested with jurisdiction of small Causes by High Court have lost their status as such, still as both the suits filed by Respondents are before Civil Judge (Junior Division) which is also invested with Small Cause jurisdiction, it satisfied even the requirement of section 33(1)(c). Procedure to be followed 8 by all courts functioning under section 33 of Rent Act is as prescribed by rules framed under Rent Act. Hence, mere categorization of these suits as Regular Civil Suits or Small Cause suits is not relevant for the purposes of adjudication at all.” 10) The learned Counsel for the tenant also took recourse to the judgment in CRA No. 83/2006, decided by this Court (Coram: P.R.Borkar,J.) dated 7.10.2009. This Court has observed that the terminology used in Section 33(1)(c) is, “the Court which naturally mean that the learned Civil Judge, Junior Division vesting with such powers to deal with the cases. 11) Considering the nature of controversy between the parties, since the tenant apprehended his dispossession without following due process of law, it will naturally be within the sweep, as indicated in terms of Section 33(1)(c) of the Maharashtra Rent Control Act, vesting its 9 jurisdiction with learned Civil Judge, Junior Division at Aurangabad. 12) At the most, the nomenclature will have to be changed from `Regular Civil Suit No. 632/2008’ to a `Rent Suit’. After such registration, the parties and the learned Civil Judge, Junior Division, to proceed in accordance with law from the stage it is stalled as on today. 13) Civil Revision Application is partly allowed with above clarification. Rule is partly made absolute as above. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra132.08 Authentic copy (BD VADNERE,PS)