IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7982 OF 2008 Ajitkumar Vadilal Kapasi ...Petitioner V/s. Smt.Neelam Wd/o.Nagindas Kapasi & Ors. ...Respondents ...... Mr.P.K.Dhakephalkar i/b Mr.Ajay S.Patil for Petitioner. Ms.Ranjana Parikh for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 10, 2009. FEBRUARY 10, 2009. FEBRUARY 10, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Parikh, waives notice for Respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition takes exception to the Judgment and Order passed by the Small Causes Court at Mumbai dated 6th September 2008 in Appeal No.430 of 2003 remanding the case back to the Trial Court for deciding it afresh after giving both parties opportunity to lead evidence. 5. Insofar as the jurisdiction of the Small Causes Court is concerned, that issue is no more res integra. The Appellate Court has rightly followed the decision of the Full Bench of our High Court in that regard. Once that issue is to be answered in favour of the Petitioner/Plaintiff, the Appellate Court was obliged to consider the evidence which is already on record and examine the correctness of the finding recorded by the Trial Court on the basis of such evidence. The Court below has curiously proceeded on the assumption that the finding recorded by the Small Causes Court on the relevant issues on the earlier occasion were without jurisdiction. That approach is manifestly wrong. The Full Bench has merely restated the legal position which obtains from the provisions of : 3 : the relevant enactment. The provisions referred to by the Full Bench of this Court always recognised jurisdiction of the Small Causes Court to try and decide the controversy in issue. In fact, the Trial Court has already considered all the aspects of the matter and recorded its finding on the basis of evidence adduced by the parties. What was left for consideration of the Appellate Court was the correctness of the said opinion and nothing more. The question of remanding the case to the Trial Court, therefore, was wholly unwarranted and improper. To that extent, the impugned decision will have to be set-aside and the Appeal No.430 of 2003 will stand restored to the file of the Appellate Bench of the Small Causes Court at Mumbai, to be decided on its own merits in accordance with law. 6. The fact that in terms of the impugned order, the parties appeared before the Trial Court or that the Trial Court has taken on record purshis filed by the parties that they do not intend to adduce further evidence would make no difference in view of this decision setting aside the remand : 4 : order. In other words, the Appellate Court will be obliged to consider the entire matter on its own merits in accordance with law on relevant issues on the basis of evidence already produced by the parties before the Trial Court. 7. Petition disposed of on the above terms leaving all questions on merits open to be decided by the Appellate Court. The Appellate Court may consider expediting hearing of the Appeal. 8. The parties shall appear before the Appellate Bench of Small Causes Court on 2nd March 2009, on which date, the Appellate Court may proceed to hear the appeal or assign suitable date to ensure that the Appeal is finally disposed of not later than 30th June 2009. Both the parties through their respective Counsel assure to extend full cooperation to the Appellate Court for early decision in the matter. That assurance is accepted. A.M.KHANWILKAR, J.