1 905 caw.307.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 307 OF 2011 IN WRIT PETITION NO. 1403 OF 2007 Sadanand A Shetty and another. ... Applicants Versus Laxman Deju Shetty and others. ... Respondents ----- Mr. M.C.Hegde for the Applicants. Sameer Bhalekar for Respondent No.1. Mr. Laxman Deju Shetty and Smt. Jaya U. Pawar for Respondent Nos.2, 4 to 8. ----- CORAM : A.S.OKA, J. DATE : 01 st April, 2011. P.C. 1 Heard the learned counsel appearing for Applicants, the learned counsel appearing for Respondent No.1 as well as the learned counsel appearing for Respondent Nos.2 and 4 to 8. 2 This is an application made by the Applicants, who are the original plaintiffs and the Petitioners in petition No. 1403 of 2007 for review of the judgment and order dated 29 th January, 2010 passed by this 2 905 caw.307.11 Court in the writ petition. 3 The Applicants filed a suit in City Civil Court at Mumbai praying for possession of the suit premises and the business carried on therein. One of the contentions raised by the Respondents by way of defence was that in view of Section 41 of the Presidency Small Causes Court Act, 1882 (hereinafter referred to as “the said Act”), only the Court of Small Causes had exclusive jurisdiction to entertain the suit. The City Civil Court framed a preliminary issue and by order dated 29 th January, 1999, the plaint was ordered to be returned to the Applicants for presentation to the Court of Small Causes. The Court of Small Causes decreed the suit filed by the Applicants. An appeal was preferred by the Respondent No.1 for challenging the decree. The Appeal Bench of the Small Causes by passing the order impugned in the writ petition came to the conclusion that the suit was not governed by Section 41 of the said Act and the Court of Small Causes had no jurisdiction to entertain the suit. It was observed by the Appeal Bench that after the plaint was returned by the City Civil Court, the Applicants had not amended the 3 905 caw.307.11 plaint. The Appeal Bench proceeded to dismiss the suit on the ground that the same was not maintainable in the Court of Small Causes. The challenge in the writ petition was to the judgment of the Appeal Bench of the Court of Small Causes. By the judgment and order dated 29 th January, 2010 passed in the writ petition, this Court affirmed the view taken by the Appeal Bench on the ground that Section 41 of the said Act will not apply to the suit. This Court also held that the findings originally recorded by the City Civil Court while passing the order of return of the plaint for presentation to the Court of Small Causes will not bind the parties to the petition and therefore, the Appeal Bench of the Court of Small Causes was right when the conclusion was recorded that the suit will not be maintainable in the Court of Small Causes. Therefore, this Court proceeded to dismiss the petition filed by the Applicants. In paragraph No.9 of the judgment of this Court, it is observed thus: “9. Thus, the finding of the Appeal Bench on the issue of jurisdiction is correct. It must be stated that after the petition was fully argued, an adjournment was granted to the petitioners to enable them to consider whether they want to amend the plaint. As the learned counsel appearing for the petitioners stated that the petitioners do not desire to amend the plaint, the writ petition was posted for judgment. ” 4 905 caw.307.11 4 It appears that the Special Leave Petition filed by the Applicants for challenging the judgment of this Court was dismissed as withdrawn. In paragraph No.8 of the present civil application, the Applicants have states thus: “8. The Applicants submit that in view of the suit having been ordered to be dismissed for the reason that Court of Small Causes had no jurisdiction to try and entertain the suit it would only be appropriate that the Plaint in the said L.E.Suit No. 130/160 of 1999 be returned to the Plaintiffs to be presented to proper Court as that could be the only order that could be passed under the circumstances.” 5 The averments made in paragraph No.8 show that the Applicants have also accepted the fact that the Court of Small Causes did not have jurisdiction to entertain the suit filed by them. Prayer clause (a) of this Application reads thus: “a) that the order dated 29/1/2010 passed by this Hon’ble Court on Writ Petition No.1403 of 2007 be reviewed and papers be remanded to the Trial Court with direction to return the Plaint to the Plaintiff to be presented to proper court;” 6 Even the prayer indicates that the Applicants are accepting 5 905 caw.307.11 the finding that the suit filed by them was not competent before the Court of Small Causes. 7 As set out earlier, when the suit was presented in the City Civil Court at Mumbai, the same was returned for presentation to the Court of Small Causes and now the Court of Small Causes has held that the suit is not maintainable in the said Court. As held by this Court in the Writ Petition, the findings recorded by the City Civil Court while returning the plaint will not be binding the parties. Thus, as far as issue of jurisdiction is concerned, the Applicants are accepting the view taken by the Appeal Bench of the Court of Small Causes which has been confirmed by this Court. 8 In view of the prayers made in the application, the final order of this Court needs modification by providing that as the suit was not maintainable in the Court of Small Causes, the plaint should be returned to the Applicants for presentation to the appropriate Court. There does not appear to be serious opposition by the Respondent No.1 for adopting 6 905 caw.307.11 the said course. Perusal of the judgment impugned in the writ petition of the Appeal Bench of the Court of Small Causes shows that it was one of the contentions raised by the Respondent No.1 itself that Section 41 of the said Act was not applicable. Hence, prayer clause (a) of this application will have to be granted. It is obvious that as the plaint is being ordered to be returned for presentation to the appropriate Court, all contentions of the parties on merits of the suit remain open. 9 Hence, I pass the following order: i) Subject to what is observed above, the judgment and order dated 29 th January, 2010 in Writ Petition No. 1403 of 2007 is modified and it is directed that though the finding of the Appeal Bench of the Court of Small Causes on the issue of jurisdiction of the Court of Small Causes is confirmed, the plaint be returned to the Applicants for presentation to the appropriate Court ; ii) The judgment and order dated 22 nd November, 2006 passed by the Court of Small Causes 7 905 caw.307.11 accordingly stands modified to aforesaid extent ; iii) Civil Application is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]