1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3617 OF 2009 Ramkumar Ramdayal Loodh .. Petitioner Versus Radhakrishna Gangaprasad Lodh .. Respondent Mr.R.R.Sharma for petitioner Mr.Rajesh Singh for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 20th April 2009. P.C. . Petitioner is aggrieved by an order of the Appellate Bench of Small Causes Court, over-ruling his objections to the maintainability of Appeal No.155 of 2001 in L.E.Suit No.96 of 1980. 2. Petitioner is the defendant in this suit. 3. Petitioner had filed a declaratory suit 2 being R.A.D. Suit No.2333 of 1980 seeking a declaration that he is a tenant of the suit property. Respondent to this petition filed eviction suit being L.E.Suit No.96 of 1980. 4. Suit filed by respondent was dismissed by the Trial Court whereas suit filed by petitioner for declaration was decreed. 5. Respondent filed two appeals. Appeal No.155 of 2001 was against dismissal of his Suit No.96 of 1980 and Appeal No.156 of 2001 challenges decree in favour of present petitioner in R.A.D. Suit No.2333 of 1980. 6. It appears from the record that Appeal No.156 of 2001 was allowed and the declaration in favour of the present petitioner was set aside. 7. After this course, rather strange things happened in the proceedings. Respondent stated 3 before the Lower Appellate Court, when Appeal No.155 of 2001 was being heard, that in the light of the legal position a suit against present petitioner, who is treated by the respondent as gratuitous licensee, must be filed in an ordinary Civil Court and not in the Court of Small Causes which is the special Tribunal. In these circumstances, he sought return of his plaint for presentation to the ordinary Civil Court. 8. Accordingly, the plaint in L.E.Suit No.96 of 1980 was returned to the respondent for presentation to the Bombay Civil Court. The Bombay City Civil Court numbered it as Suit No.1575 of 2004. 9. Noticing that there is again a change in law, inasmuch as a Full Bench decision of this Court held that even a suit against gratuitous licensee would be maintainable before the Court of Small Causes, that respondent - plaintiff 4 prayed before the ordinary civil court that the plaint should be once again returned to him for presentation to the Small Causes Court. That application was allowed on 20th October 2007 by the following order:- ". The records and proceedings of S.C.Suit No.1575 of 2005 be sent to the Small Causes Court Appellate Bench (Bandra Branch) Mumbai for further trial on merits and in accordance with the law giving full and fair opportunity to both the parties to appear before the said Court." 10. In the light of this operative portion the suit came before the Appellate Bench of the Court of Small Causes, Bombay and before that bench the present petitioner raised an objection that the Appellate Bench is functus officio and it has no jurisdiction to try the suit. In any 5 event, the Bench is not a Trial Court Judge. It is an Appellate Bench. In such circumstances, even otherwise, the Appellate Bench could not proceed with the trial of the suit, was the objection. That objection having been over-ruled, this present petition. 11. Having heard the learned Counsel for parties, I am of the view that on account of the confusion created by operative part of the order of the Civil Court that the present petition came to be filed. Plain reading of the legal provisions and the order of the ordinary civil court would mean that the plaint is allowed to be presented to the court of Small Causes because it is the Court of Small Causes which will deal with the suit as L.E. Suit instituted by the respondent. That suit will have to be tried in accordance with law. That must go before a Judge who is trying suits and not before the Appellate Bench which hears appeals. Merely because there 6 was a direction in the operative portion of the ordinary civil court’s order that the matter must go before the Appellate Bench that all this confusion and unnecessary delay has occurred. In such circumstances, following clarification will meet the ends of justice. 12. The order of the Appellate Bench passed in this petition on 12th December 2008 is set aside. The suit which is filed by the respondent shall be treated as L.E. Suit and shall be tried by the Judge trying L.E.Suits in the Court of Small Causes. Trial should not be held by the appellate bench. 13. Needless to state that the trial of the said suit will be held in accordance with law and all objections can be raised by the petitioner during the course of proceedings. Equally, the respondent plaintiff can point out that the suit is maintainable and the legal effect of earlier 7 decisions of small causes court cannot prevent him from proceeding with the trial of the suit in accordance with law. Petition allowed in the above terms. (S.C.Dharmadhikari, J)