1 Cra-1005.10 Ash FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 1005 OF 2010 Office Notes, Office memorandum of Coram, appearances, Court’s Court’s or orders or directions & Judge’s orders. Registrar’s orders. Shri Yogesh Mestry i/by RMG Law & Associates for the Applicant. Shri Amit Sheth for the Respondents. -- CORAM : A.S.OKA, J. DATE : 9TH DECEMBER, 2010 P.C.: . Heard learned counsel appearing for the Applicant. The challenge in this Revision Application is to the order of the Trial Court by which an application for stay of suit filed by the Respondents-Plaintiffs pending the probate proceedings was rejected. 2. Learned counsel appearing for the Applicant submits that the issue of maintainability of the suit will certainly arise. He submitted that notwithstanding dismissal of the application for stay, the Revision Applicant may be permitted to file appropriate 2 Cra-1005.10 application before the Trial Court for raising the issue of maintainability of the suit. 3. The request is reasonable. In any event, by the impugned order, the issue of maintainability of the suit has not been decided and in fact, the Trial Court has observed that if there is no relationship of landlord and tenant, or if the suit is not maintainable, ultimately the suit will have to be dismissed. 4. It cannot be disputed that in the suit filed by the Respondent being a suit under Section 41 of the Presidency Small Causes Courts Act, 1882 which is exclusively cognizable by the Court of Small Causes, the Section 10 of the Code of Civil Procedure, 1908 could not have been invoked on the ground of pendency of probate proceedings in testamentary Court. Though no interference is called for with the impugned order, it is made clear that the issue of maintainability of the suit remains open. It will be open for the applicant to file appropriate application before the Trial Court for raising the issue of maintainability of the suit. All contentions of the parties on the issue of maintainability of the suit are kept open. 3 Cra-1005.10 5. The Revision Application is disposed of on above terms. 6. The Trial Court will not proceed with the suit for a period of two weeks from today for enabling the Applicant to file appropriate application. (A.S.OKA, J)