1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR A.O. 12/2008 Bandu s/o Pandurang Kumbhare Vs. Gangadhar s/o Maroti Sirke. ----------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Gandhi, Adv. for the appellant. Mr. Sagdeo, Adv. for the respondent. CORAM: K. U. CHANDIWAL, J. DATE : 15th JUNE 2010. 1] Heard finally. 2] The parties are referred with their original status as plaintiff and defendant. This is defendant's A.O. challenging the order of First Appellate Court whereby the First Appellate Court directed return of plaint in terms of Order VII Rule 10 CPC to present the same to the Court of Small Causes Court at Nagpur. 3] Learned counsel appearing for the defendants submits, when the suit was dismissed by learned Civil Judge, Junior Division, Nagpur, he did not accept the return of plaint in terms of Order VII Rule 10 CPC to Small Causes Court, such exercise should not have been addressed by learned First Appellate Court. Consequently, the defendant feels that the 2 order of the Appellate Court is not in tune with the statutory arrangement. 4] Learned counsel also submits that the issues answered by learned Joint Civil Judge, Jr. Dn. Nagpur while delivering the judgment dated 27.4.1993 and particularly, issue no.1 revolves to the factum that the plaintiff could not establish his title to the suit property and consequently inter se relations with the defendant and hence, the exercise of powers of remand by First Appellate Court was uncalled for. 5] The finding recorded by learned Joint Civil Judge, Junior Division about the status of the plaintiff, did not find approval with the learned First Appellate Court, which was certainly on assumption of the record and available evidence. The First Appellate Court having realised that the learned Court of first instance erred in recording the incorrect finding to the issues, was required to correct the same and in the said exercise the learned First Appellate Court felt that in the light of provisions of Section 26 of Provincial Small Causes Courts Act jurisdiction was certainly to be with the Small Causes Court situated at Nagpur. The learned First Appellate Court found that the nature of controversy having reflected in the plaint 3 clearly demonstrate that the defendant was a licensee. If on reassessment of evidence, learned Judge of the Small Causes Court finds even otherwise, it will be open for him to do so. With the above observation, the appeal from the order lacks of merit. Dismissed. No costs. (K.U. Chandiwal ) JUDGE Ambulkar.