: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE WRIT PETITION NO.6551 OF 2005 Mrs. Smita Mukesh Shah .. ..Petitioner Versus The Phoenix Mills Limited .. ..Respondent Mr.G.S.Godbole for petitioner Mr.P.K.Dhakephalkar with Mr.R.D.Suvarna for respondent CORAM : P.V.KAKADE, J. DATE : 2ND MAY, 2006. P.C.: 1. Heard the learned counsel for both the parties. Perused the record. . Rule, rule made returnable forthwith by consent. 2. The petitioner has preferred this petition against the judgment and order passed by District Judge, : 2 : Pune dated 25.7.2000 allowing the appeal of the respondents-defendants and set aside the order passed by the trial court in Civil Suit No.659/2000 which was decreed by the Small Causes Court, Pune. It was further directed that the plaint be returned to the plaintiff for presenting it before proper court that is Civil Judge, Senior Division at Pune. 3. The petitioner-plaintiff filed the suit against the defendant - The Poenix Mills Ltd. for possession of the suit property. The suit premises consisted of 375.6 sq.mtrs. which form the part of CTS No.712, Narayan Peth, Pune owned by the plaintiff and tenement described in para 1B of the Plaint and ground floor which was numbered as Apartment No.2 admeasuring about 557.92 sq. ft. was the subject matter of the suit. It was let out to M/s. Dawn Mills jointly by predecessor-in-title of the plaintiff in the year 1996. Agreement to that effect was executed between the parties. The rent was agreed at the rate of Rs.1200/= per month subject to increase as per the agreement. By notice dated 3.7.2000 the plaintiff terminated the tenancy of the defendant with effect from 31.7.2000 and directed the defendant to hand over peaceful and vacant possession of the suit : 3 : premises. The notices was received by the defendant which was received in due course and it was replied. As the defendant did not vacate the suit premises, the suit came to be filed. . The defendant contested the suit, denying the allegations made by the plaintiff taking various defences. . The learned trial judge on the basis of pleadings of the parties and available evidence came to the conclusion that the plaintiff had proved that the defendant had lost protection of the provision of Maharashtra Rent Control Act. It was further held that the tenancy of the defendant was properly terminated. It was further held that the Small Causes Court had jurisdiction to entertain and try the suit and as such the suit came to be decreed. . The appeal was carried to the District Judge. The learned district judge after hearing both the parties came to the conclusion that the Small Causes Court had no jurisdiction to try the suit and hence decree passed by the Trial Court set aside and appeal : 4 : was allowed and plaint was directed to be returned to the plaintiff for presenting it to the Civil Court, Senior Division, Pune. Hence the present petition. 4. At the outset, it may be noted, without going into the merits of the dispute, that the perusal of the judgment of the trial court shows that it has come to the conclusion that the Small Causes Court had jurisdiction to entertain and try the suit by virtue of Section 26 of the Provincial Small Causes Courts Act, 1887. The trial court appears to have elaborately discussed as to how it had come to the conclusion that the suit was maintainable in the Small Causes Court under the said provisions of the Provincial Small Causes Courts Act. However, perusal of the judgment of the lower appellate court shows that it is conspicuously silent with regard to the finding recorded by the trial court on the provisions of Section 26 of the said Act, but has come to the conclusion that the Small Causes Court has no jurisdiction to try and decide the said suit. 5. It is needless to mention, it was incumbent upon the lower appellate court, which is last court of facts : 5 : to take up each and every issue adjudicated by the trial court in the course of the first appeal and record its finding either accepting the same or discarding the same. This is especially so when the appeal is allowed when it is held that the Small Causes Court had no jurisdiction to entertain and try the suit by virtue of Section 26 of the said Act. 6. Therefore, without going into the other merits of the matter, I am inclined to remit the matter to the lower appellate court to hear the appeal afresh and record its findings in clear terms on each and every issue discussed by the trial court. 7. Hence, the rule is made absolute. The judgment and order passed by the District Judge, Pune dated 25.7.2000 is hereby set aside. The matter is remanded to the District Court, Pune for hearing the appeal afresh in the light of the observations made herein before. 8. It is further clarified that the observations made hereunder shall not influence the lower appellate court while deciding the appeal on merits. The hearing : 6 : of the appeal to be expedited and shall be concluded within four months from the date of receipt of Writ of this Court. With this direction the petition stands disposed of with no order as to costs.