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2012 DIGILAW 111 (BOM)

Madan Gangadhar Pitale v. Jaywant Baburao Vagal

2012-01-17

A.S.OKA

body2012
Judgment On the last occasion when this Revision Application was placed before this Court for hearing as to interim relief, the parties were put to notice that the Revision Application itself will be taken up for final disposal. Accordingly, the same is taken up for final disposal. 2. The facts leading to filing of Revision Application are peculiar. The Revision Applicant is the Defendant and the Respondents are the original Plaintiffs. There were cross suits filed by the parties. The Respondents filed a suit for eviction under Section 41 of the Presidency Small Causes Courts Act, 1882 (hereinafter referred to as "the said Act of 1882"), against the present Applicant. In the said suit, it was contended that the Revision Applicant was a gratuitous licensee of the Respondents in respect of the suit premises. Therefore, by invoking Section 41 of the said Act of 1882 eviction of the Applicant was sought. The Revision Applicant filed a suit against the Respondents in the same Court for declaration of tenancy in respect of the suit premises. The suits were tried together and disposed of by a common Judgment. The Trial Court held that the Applicant has failed to prove that he is the tenant of the Respondents in respect of the suit premises. The Trial Court held that the Applicant has failed to prove that he was in exclusive possession of the suit premises. The Trial Court accepted the case of the Respondents that the Applicant was a gratuitous licensee. However, the Trial Court declined to pass a decree for possession by holding that the Court of Small Causes had no jurisdiction to entertain a suit by a licensor against a gratuitous licensee. Appeals were preferred both by the Applicant and the Respondents for challenging the decrees passed in the respective suits. The Appellate Court decided the Appeals by a common Judgment. The Appellate Court confirmed the finding of the Trial Court that the Applicant has failed to prove that he is the lawful tenant in respect of the suit premises. The Appellate Court, therefore, proceeded to confirm the decree of dismissal of the suit for declaration filed by the Applicant. The Appellate Court did not disturb the finding of the Trial Court that the Applicant was a gratuitous licensee. However, relying upon a decision of the Division Bench of this Court in the case of Ramesh D. Mehra Vs. The Appellate Court, therefore, proceeded to confirm the decree of dismissal of the suit for declaration filed by the Applicant. The Appellate Court did not disturb the finding of the Trial Court that the Applicant was a gratuitous licensee. However, relying upon a decision of the Division Bench of this Court in the case of Ramesh D. Mehra Vs. Indravati Dwarkadas Mehra ( 2001 (4) Mh.L.J. 483 ), the Appellate Court held that the Court of Small Causes had no jurisdiction to entertain a suit filed by a licensor against a gratuitous licencee by invoking Section 41 of the said Act of 1882. Therefore, while confirming the decree passed against the Applicant in a suit for declaration, the Appellate Court proceeded to set aside the decree passed in the suit filed by the Respondents on the ground that Court of Small Causes had no jurisdiction. The Appellate Court, therefore ordered return of the plaint filed by the Respondents for presentation to the appropriate Court. It appears that in view of the Judgment of the Division Bench, the Respondents accepted the Judgment of the Appellate Court and received back the plaint and presented it to the Civil Court i.e. the City Civil Court. 3. After the plaint was presented in the Court of City Civil, the aforesaid decision of the Division Bench in the case of Ramesh Mehra (supra) was held as not correct by a Full Bench of this Court in the case of Prabhudas Damodar Kotecha Vs. Jeram Damodar ( 2007 (5) Mh.L.J. 341 ). It was held by the Full Bench that a suit filed by the licensor against the gratuitous licensee was maintainable under Section 41 of the said Act of 1882. In view of the decision of the Full Bench, by order dated 18th October, 2007, the learned Judge of the City Civil Court passed an order of return of the plaint for presentation to the Court of Small Causes. It appears that the Respondents presented the plaint before the Registrar of the Court of Small Causes. It appears that in view of presentation of plaint, the Registrar of the Court of Small Cause directly placed the disposed of Appeal being Appeal No.351 of 2011 before the Appeal Bench of the Court of Small Causes. It appears that the Respondents presented the plaint before the Registrar of the Court of Small Causes. It appears that in view of presentation of plaint, the Registrar of the Court of Small Cause directly placed the disposed of Appeal being Appeal No.351 of 2011 before the Appeal Bench of the Court of Small Causes. In fact, an Application was made by the Applicant at Exhibit 8 before the Appeal Bench contending that earlier findings recorded by the Court of Small Cause had no legal effect and therefore, the suit may be placed before the Trial Court for de-novo hearing. The said Application was opposed by the Respondents. The Appeal Bench of the Court of Small Causes rejected the said Application. 4. Thereafter, the Appeal was taken up for hearing. By the impugned Judgment and decree dated 15th October, 2009, the Appeal was allowed and the decree of eviction was passed against the Applicant on the ground that he was merely a gratuitous licensee. 5. Thus, what emerges from the aforesaid narration is that the decree of dismissal passed in the suit for declaration filed by the Applicant has attained finality. The Trial Court dismissed the said suit and the decree of dismissal has been confirmed by the Appeal Bench of the Court of Small Causes by its Judgment and decree dated 14th January, 2005. The said Judgment has become final. Therefore, the issue whether the Applicant is entitled to claim tenancy has been finally concluded against the Applicant as the Applicant did not challenge the decision of the Appeal Bench in the Appeal preferred by him. 6. As far as the suit filed by the Respondents is concerned, the parties adduced evidence before the Small Causes Court. Only on the basis of the decision of the Division Bench in the case of Ramesh Mehra (Supra), the Appeal Bench proceeded to set aside the decree and ordered return of the plaint. As narrated earlier, the plaint was presented in the City Civil Court which was again returned in the light of the decision of the Full Bench. From the Application made by the Applicant himself at Exhibit-8 before the Appeal Bench, it appears that the plaint was lodged with the Registrar of the Court of Small Causes who in turn placed the Appeal No.353 of 2003 arising out of the suit filed by the Respondents before the Appeal Bench. From the Application made by the Applicant himself at Exhibit-8 before the Appeal Bench, it appears that the plaint was lodged with the Registrar of the Court of Small Causes who in turn placed the Appeal No.353 of 2003 arising out of the suit filed by the Respondents before the Appeal Bench. The earlier Judgment of the Appeal Bench dated 14th January, 2005 in the said Appeal No.353 of 2003 of setting aside the decree passed by the Trial Court and of return the plaint was not challenged by any of the parties to the proceedings. When the plaint was again returned by the City Civil Court, in fact the said Appeal was not pending in as much as by the earlier Judgment dated 14th January, 2005, the decree of the Trial Court passed in the suit filed by the Respondents was set aside and the Appeal was disposed of. As the Judgment and decree of the Trial Court passed in the suit filed by the Respondents already stood set aside, in fact, Appeal No.353 of 2003 was not pending. Therefore, there were no occasions for the Appeal Bench to again hear and decide the said Appeal on merits which was not pending. The Appeal could not have been heard as the decree of the Trial Court was already set aside and hence the Appeal against the said decree was not pending. In fact, on presentation of the plaint by the Respondents to the Small Causes Court, the said Court ought to have proceed with the suit. 7. The learned counsel appearing for the Respondents rightly accepted the aforesaid legal position that the Appeal was not at all pending when it was decided by the Appeal Bench by passing the impugned Judgment and decree. Therefore, the only course open for this Court is to direct the Trial Court to decide the suit. 8. The learned counsel appearing for the Applicant submitted that as the plaint was returned by the Court of Small Causes, the trial has to be conducted de-novo. He has placed reliance on the decision of the Apex Court in the case of Amar Chand Inani Vs. Union of India (AIR 1973 SUPREME COURT 313). He also placed reliance on the decision in the case of Pawan Kumar Seithi & Others Vs. Smt. Kiran alias Hema and Others (1999 PUNJAB AND HARYANA 251). He has placed reliance on the decision of the Apex Court in the case of Amar Chand Inani Vs. Union of India (AIR 1973 SUPREME COURT 313). He also placed reliance on the decision in the case of Pawan Kumar Seithi & Others Vs. Smt. Kiran alias Hema and Others (1999 PUNJAB AND HARYANA 251). He submitted that the Applicant desires to adduce evidence to prove that he was paying licence fees. 9. The facts of the present case are peculiar. On the basis of a decision of the Division Bench of this Court holding that the Court of Small Causes had no jurisdiction to entertain a suit filed by a licensor against a gratuitous licensee, the plaint was returned. Now the legal position which exists today in the light of Judgment of the Full Bench is that the Court of the Small Causes was vested with the jurisdiction to entertain the suit filed by the Respondents. Therefore, the evidence which is earlier recorded by the Court of Small Causes cannot be said to be evidence recorded by the Court having no jurisdiction. The evidence recorded in the suit filed by the Respondents was lawfully and correctly recorded by the Small Causes Court which was having jurisdiction. This is not a case where after the return of the plaint by a Court having no inherent jurisdiction, the suit is entertained by the Court having jurisdiction so that the question of de-novo trial has to be considered. In the present case, the evidence has been validly recorded by the Court of Small Causes which was having jurisdiction to entertain the suit. Hence, the request for de-novo trial does not warrant consideration. The decision of the Apex Court in the case of Amar Chand Irani (Supra) holds that the presentation of plaint in proper Court after return is not a continuation of the suit filed in wrong Court. In the present case, in view of binding precedent of the decision of the Full Bench, the suit was not at all filed in wrong Court but it was filed in the proper Court having jurisdiction. Now, the suit has gone back to the same Court. Therefore, the issue of de-novo trial will not arise. 10. The issue whether the Applicant is a tenant in respect of the suit premises has been finally concluded against the Applicant. Now, the suit has gone back to the same Court. Therefore, the issue of de-novo trial will not arise. 10. The issue whether the Applicant is a tenant in respect of the suit premises has been finally concluded against the Applicant. It was never the case of the Applicant that the Applicant was paying any license fees to the Respondents. It is pertinent to note that even in Appeal in which the impugned Judgment and decree has been passed, there was no Application made by the Applicant for leading any additional evidence. It is not the case that the Trial Court did not allow the Applicant to lead evidence. Existence of any subsequent event is not alleged by the Applicant. Therefore, no occasion arises for permitting the parties to lead additional evidence and the Court of Small Causes will have to decide the suit a fresh on the basis of the evidence adduced by the parties which is already on record. 11. Hence, I pass the following order: ORDER i. The impugned Judgment and decree dated 15th October, 2009, passed by the Appeal Bench of the Court of Small Causes in Appeal No.353 of 2003 is set aside only on the ground that when the Appeal was taken up for hearing, the same was not pending. ii. The Trial Court shall decide the L.C. Suit No.17/22 of 1991 filed by the Respondents afresh. The parties are directed to appear before the Trial Court on 13th February, 2012 for fixing the schedule of hearing. iii. It is made clear that it will not be open for the parties to adduce any further evidence in the suit and therefore, on the date of appearance, the Trial Court shall fix a date for hearing of the final arguments in the suit. iv. After hearing the arguments and after considering the evidence on record, the Trial Court shall decide the suit afresh as expeditiously as possible and in any even on or before 11th May, 2012. v. It is made clear that all contentions of the parties on merit of the suit are expressly kept open. vi. The Revision Application is accordingly partly allowed on the above terms with no order as to costs. vii. The Trial Court to act upon an authenticated copy of the Judgment. viii. The writ to be sent forthwith.