:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 4481 OF 2004 Sahebrao Maruti Bhosale deceased through his heir ...Petitioners Versus Smt. Parvatibai S. Pawar ....Respondent ====== Ms.Gunjan Shah i/by. Mr. S.A.Sawant Adv. for the petitioners. None for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 25TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The concurrent finding of the courts below decreeing the Suit of Respondent-Plaintiff for possession is subject matter of challenge in these proceedings. 2. The only argument canvassed before me by the learned Counsel appearing for the petitioners is that the Courts below could not have decreed the suit because the Small Causes Court had no jurisdiction to :2: :2: :2: entertain and try it. It is contended that the suit was filed in the court of Small Causes at Pune. Although, the Original plaintiff disputed the applicability of the Rent Control Act to the premises in question, yet, the suit was filed in the court of exclusive jurisdiction. The Rent control Act became applicable to the premises during the pendency of the Appeal. Therefore, once the Rent Control Act was not applicable, the Small Causes Court had no jurisdiction. The issue of jurisdiction therefore goes to the root of the matter and should have been framed. Once there is a omission to frame and decide the same, then, the impugned orders and Decrees suffers from error apparent on the face of the record and should be interfered with. 3. It is not possible to accept this contention for more than one reason. The suit premises are a Room admeasuring 10 ft x 10 ft alongwith a potmala and situated as more particularly described in para-1 of the plaint in Village-Lohgaon, Taluka-Haveli, District-Pune. At the relevant time, Lohgaon :3: :3: :3: Village was a Gram Panchayat. The suit premises after being described, it was stated in paras-2 and 3 that originally the premises were given for 11 months and for a further period stipulated in para-3 which expired on 9.5.1983, but, the petitioners-Original Defendants continued in possession. Therefore a Notice under Section 106 of the Transfer of Property Act was issued terminating their rights to occupy and calling upon them to hand over possession. 4. In para-2 of the Written Statement, the defence is that the suit of the plaintiff is based upon alleged Leave and License Agreement and therefore the Small Causes Court does not have jurisdiction to entertain and try the suit. However, the petitioners did not appear to substantiate the same. They did not avail of the opportunity of cross-examination made available to them. Naturally, the Trial Court did not frame the issue of jurisdiction in the light of these pleadings. It was not called upon to do so as well. The facts were more or less admitted. A perusal of the judgment of the Trial court would show that all contentions including that of jurisdiction have been considered. :4: :4: :4: 5. The judgment of the Trial Court was challenged in Appeal and during the course of arguments in the Appeal, it was contended that Village-Lohgaon came within the municipal limits of Pune Municipal Corporation and therefore Bombay Rent Act is applicable. 6. Assuming this position to be true and correct, then, all the more the Small Causes Court has jurisdiction to entertain and try the suit. That apart, concurrently it has been found that the suit notice was served. The suit Notice to Quit was received. The petitioners did not comply with the same and therefore a Suit was filed. At the hearing of the suit, enough opportunity was granted to the petitioners to cross-examine the plaintiffs, but, they did not avail of this opportunity. Despite liberal adjournment by the Trial Court, they did not turn up. In such circumstances, the suit was decreed. It is not open now to urge that the judgment and order is a nullity because the Trial Court has no jurisdiction. On the :5: :5: :5: own showing of parties if the nature of the occupation being Leave and License and subsequently the Rent Control Act becoming applicable, then, the Trial Court was right in taking cognisance of the suit and decreeing the same. More so, when on merits the version of the Original Plaintiff has not been challenged. There is no substance in the Writ petition and it is dismissed. 7. At this stage, the learned counsel appearing for the petitioners requests for continuation of the ad-interim order granted by this court. None is appearing for the respondent. In the peculiar facts of this case, and considering that the Writ Petition is of the year 2004, interest of justice would be subserved, if the ad-interim order/stay is continued for a period of 4 weeks. This order is passed because the learned Counsel states that the petitioners are in physical possession of the suit premises. sd/- ******