-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 436/2008 Smt. Baby Gajanan Choudhari and others - versus- Kewalram Somaji Margade ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 22, 2009. In this Second Appeal the original defendant challenges concurrent judgments and decrees delivered by the Courts below. Only point argued by Shri S.P. Kshirsagar, learned counsel for the appellants, is that as the plaint was returned by the Court of Civil Judge, Junior Division for its presentation to Civil Judge, Senior Division the evidence adduced by parties in the Court of Civil Judge, Senior Division, could not have been looked into by the Court of Civil Judge, Senior Division. It is stated that as no evidence was adduced by any of the parties by the Court of Civil Judge, Senior Division, and hence the suit filed by the plaintiff for eviction of present appellants/defendants -2- must be dismissed. Attention is being invited to the judgment of Hon'ble Apex Court in the case of Amar Chand Inani .vrs. Union of India (AIR 1973 SC 313), to support this contention. Advocate Shri R.L. Khapre, for respondents/plaintiffs states that technically the plaint has been returned, in law there cannot be any return for presentation of suit by the Civil Judge, Junior Division to Civil Judge, Senior Division. He points out that all suits are required to be filed before the Civil Judge, Senior Division and then depending upon its valuation, suits are distributed between Junior Division and Senior Division Courts. He states that this was only a transfer and as it is a transfer, the suit cannot be treated as a new suit. He therefore states that the judgment of Hon'ble Apex Court has no application in the present facts. During hearing it has come on record that earlier suit was before Civil Judge, Junior Division because of its less valuation, after the valuation was raised the suit was transferred to Civil Judge, Senior Division. Instead of transferring it through administration process, it appears that the plaint was returned for its presentation to Civil Judge, Senior Division. The plaint was accordingly re-tendered in the Court of Civil Judge, Senior Division. It is -3- therefore clear that such suit could not have been treated as fresh suit and the order of returning plaint is nothing but only an order of its transfer from the court not having pecuniary jurisdiction to the court possessing pecuniary jurisdiction. It is also pointed out that the plaint only was not handed over for its presentation to the Civil Judge, Senior Division but entire record of the Civil Suit i.e. Written Statement, Issues and documents and evidence adduced were also forwarded by the Court of Civil Judge, Junior Division to the office of Senior Division. This also shows that it was only a transfer of suit on administrative grounds. During hearing it has also come on record that after the matter was sent to the Court of Senior Division, none of the parties adduced any evidence and filed pursis for closure of their evidence. It is also an admitted position that in pursis it was expressly mentioned that because of evidence recorded earlier by the Court of Junior Division, parties were not leading any fresh evidence. The present appellants / defendants who had filed counter claim also did not tender any fresh evidence. The contentions sought to be raised in the second appeal was also not raised before the First Appellate Court. In these circumstances it is apparent -4- that the issue sought to be raised as substantial question of law, really does not arise for consideration. Analogy of Section 21 of C.P.Code can also be used for the present purpose. Yesterday, after hearing the learned counsel for the appellant, he was asked to find out whether the appellant was interested to have some time for vacating the premises. Today upon instructions the learned counsel states that the appellants are not interested in grant of any such time. However, time is being sought to approach the Hon'ble Supreme Court in the matter. Advocate Shri Khapre, for landlord fairly gives no objection, but he states that there should be an undertaking that if within period of 90 days appropriate interim orders are not obtained from the Apex Court, the appellants shall hand over the possession to the landlord. Accordingly, the appellants are directed to file an undertaking with the Registry of this Court by 31.01.2009 with its copy to the present respondents, that if no interim orders are obtained from the Hon'ble Apex Court by 30.04.2009, the appellants shall hand over the vacant possession of the suit premises to the respondents/plaintiffs. Subject to such undertaking stay of coercive recovery of -5- possession till 30.04.2009. As there is no substantial question of law involved in this second appeal, the same is dismissed. No cost. JUDGE Rgd.