vsa 1 WP8144_2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8144 OF 2010 Mr. Bhimrao Krishna Shevale ... Petitioner vs. Mr. Ganpat Dhondu Kadam ... Respondent Mr. R.N. Jawal, Advocate for the Petitioner. Mr. Suresh Gole, Advocate for the Respondent CORAM : A.S.OKA, J. DATE : 23rd December, 2011 P.C.: By order dated 16th September, 2011, notice for final disposal at the admission stage was issued. 2. The facts of the case are very peculiar. The petitioner is the original plaintiff. The petitioner filed a suit under Section 41 of Presidency Small Causes Court Act, 1882 (herein referred to as the said Act) for eviction of the respondent. It was alleged that the respondent was a gratuitous licensee. The suit was resisted by the respondent. It was contended that the respondent has become the absolute owner of the suit premises. The suit was dismissed on merits. However, the learned Judge of the Court of Small Causes held that the said Court has no jurisdiction to entertain the suit. An appeal, being appeal no. 114 of 1999 was preferred by the petitioner before the Appeal Bench of the Court of Small Causes . When the appeal came up, the Judgment of the Division Bench of this Court in the case of Ramesh Mehra vs. Indrawati Mehra [(2001) 4 MH.L.J. 483] was holding the field. The view taken by the Division Bench was that a suit filed by a licensor against a vsa 2 WP8144_2010 gratuitous licensee for possession of the premises subject matter of license was not maintainable under section 41 of the said Act and the suit was maintainable in the regular Civil Court. Following the decision of the Division Bench, the appeal preferred by the petitioner was allowed. The judgment and decree of the Trial Court was set aside and the plaint was ordered to be returned for presentation to the proper Court. The plaint was taken back and was presented to the City Civil Court. After the plaint was presented to the City Civil Court, a Full Bench of this Court in the case of Prabhudas Damoder Kotecha and Another vs. Smt. Manharbala Jeram Damoder and Others [(2007) 5 Mh. L.J. 341] overruled the decision of the Division Bench in the case of Ramesh Mehra (supra) and held that a suit for eviction filed by a licensor against the gratuitous licencee was maintainable under section 41 of the said Act. Therefore, the learned Judge of the City Civil Court returned the plaint for presentation to the Small Causes Court. Accordingly, the plaint was returned. 3. It appears that the Appeal Bench of the Court of Small Causes took up the same appeal, being appeal no. 114 of 1999 for hearing, which was earlier allowed by passing an order of return of plaint. The appeal was dismissed on merits by the impugned Judgment dated 4th December, 2008 which is the subject matter of challenge. The submission of the learned counsel appearing for the respondent is that as a result of the decision of the Full Bench and subsequent return of the plaint by the City Civil Court on the basis of the judgment of the Full Bench, the original suit filed in the Small Causes Court was restored to the stage at which it was pending and therefore, the Appeal Bench has rightly taken up the appeal for vsa 3 WP8144_2010 hearing afresh. He submitted that in any case the Petitoner has no case on merits. 4. I have considered the submissions. Against the decree dismissing the suit on merits, the petitioner preferred appeal No. 114 of 1999. By judgment and order dated 9th July, 2001, the Appeal Bench of the Court of Small Causes set aside the said decree and by restoring the suit ordered the return of the plaint. As narrated earlier, the said decision of the Appeal Bench was on the basis of the decision of the Division Bench of this Court, which was overturned subsequently by a Full Bench. The plaint was accordingly filed in the City Civil Court. As a consequence of the subsequent decision of the Full Bench, the City Civil Court rightly returned the plaint. The result of the judgment and order dated 9th July, 2001 in Appeal No. 114 of 1999 was that the suit filed by the petitioner stood restored. Therefore, as a consequence of return of the plaint by the City Civil Court, the suit ought to have gone back to the stage at which it was pending when the Appeal Court decided the matter on 9th July, 2001. In any case by the said judgment, the decree of the Trial Court was set aside. Therefore, after return of the plaint by the City Civil Court, the Appeal Bench took up for hearing an appeal which was not pending. Unfortunately, this aspect was not pointed out to the Appeal Bench even by the petitioner. Thus, the impugned judgment and order of the Appellate Court has been rendered in an appeal which was non-existing as it was not pending. Hence, the impugned judgment and order will be quashed and set aside. The learned counsel appearing for the respondent at this stage submitted that the original judgment of the Trial court dated 17th November, 1998 was not set aside on merits, but the Appeal Court only dealt with the issue of jurisdiction. However, at this vsa 4 WP8144_2010 stage this aspect need not be dealt with and all contentions of the parties in that behalf are kept open. 5. Hence, I pass following order: (i) The impugned judgment and order dated 4th December, 2008 is quashed and set aside and Appeal No. 114 of 1999 shall be treated as disposed of. (ii)The Appeal Court shall return the record of the suit to the Trial Court and the Trial Court shall treat the plaint as filed after it was returned by the City Civil Court. Thereafter, the Trial Court shall proceed with the suit in accordance with law. (iii)The Writ Petition is allowed on above terms. (iv)It is made clear that as the evidence has been already adduced by the parties in the suit and as it is held by the Full Bench that the Court of Small Causes has jurisdiction, there is no question of allowing the parties to adduce any further evidence. The Trial Court shall consider the evidence which is already on record. The Trial Court shall proceed to decide the suit as expeditiously as possible and in any event within a period of three months from the date on which Writ of the judgment is received by the said Court. (A.S.OKA, J)