1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5169 OF 2009 (Sajjad Husain s/o Mumtaz Husain vs. Abdul Sami s/o Maqbul Ahmed) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 25, 2010. This Court has on 30.11.2009 issued notice for final disposal. Accordingly, I have heard finally Shri Shams, learned counsel for the petitioner - defendant and Shri Mohta, learned counsel for the respondent – plaintiff. The respondent filed a Regular Civil Suit No. 74 of 2005 before Small Causes Court, Nagpur, for protecting his possession, claiming to be tenant of present petitioner. That suit was dismissed by Small Causes Court on 31.07.2007. That dismissal was challenged by present respondent in Regular Civil Appeal No. 441 of 2007 under Section 34 of Maharashtra Rent Control Act, 1999 and that appeal has been allowed by impugned judgment on 19.08.2009. Shri Shams, learned counsel contends that the plaintiff claimed to be direct tenant of present petitioner – defendant and lower appellate Court has found him a sub-tenant of Dada Miya. He points out that against Dada Miya, for such unauthorized and 2 illegal sub-letting, necessary proceedings under Rent Control Act were initiated under Section 13(3)(iii) of C.P. & Berar Letting of Houses and Rent Control Order, 1949, and those proceedings are now receiving consideration of this Court in Letters Patent Appeal. He further states that only because of long possession of plaintiff, the presumption that he is sub-tenant has been drawn and his possession has been protected by taking recourse to Section 25 of Maharashtra Rent Control Act. Shri Mohta, learned counsel, on the other hand, points out that the respondent – plaintiff never claimed to be sub-tenant of the petitioner – defendant and claimed direct tenancy under him. He further states that present respondent is not party to any Rent Control proceedings or any LPA and he points out that the ground of unauthorized sub-letting has been rejected by Rent Controller only and is not involved in LPA. According to him, because of his long possession, the recourse has been rightly taken under Section 25 of Maharashtra Rent Control Act and hence, no interference is warranted because the appellate authority has only restrained the present petitioner from dispossessing the plaintiff except with due procedure prescribed by law. The Civil Suit was filed by present respondent before Small Causes Court and there has to be relationship of landlord tenant or a license and licensee between the parties. The relationship of landlord and 3 tenant is not found by lower appellate Court. The respondent – plaintiff is not accepting himself to be sub- tenant of the petitioner – defendant. The respondent/ plaintiff, therefore, failed to prove basic facts clothing the Small Causes Court or Appellate Court with jurisdiction. It is, therefore, clear that the Small Causes Court had no jurisdiction to take cognizance of the suit. The recourse to Section 25 of the Maharashtra Rent Control Act, in this situation, is uncalled for. The very basis of impugned judgment delivered by the appellate Court is, therefore, wrong. The said judgment is, therefore, quashed and set aside. The judgment and decree dated 31.07.2007 delivered by Small Causes Court, Nagpur, in Regular Civil Suit No. 74 of 2005 is restored. At this stage, Shri Mohta, learned counsel contends that if Small Causes Court has no jurisdiction, the matter needs to be remanded to Small Causes Court for return of plaint to the respondent – plaintiff. It is apparent that the case of respondent – plaintiff that he is tenant has been found to be not established and therefore, there is no question of return of plaint. The suit as filed was before competent Court Writ Petition is disposed of. Rule accordingly. However, there shall be no order as to costs. JUDGE 4 *GS.