Bombay High Court
Shri. Sukhlal Bhivsan ... vs Shri. Vinayak Sadashiv Sangale on 14 February, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
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IN THE HIGH Court OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.125 OF 2005
1) Shri. Sukhlal Bhivsan Dhobi(Suryawanshi),
since deceased through his L.Rs:
1-A] Tarabai w/o Sukhlal Dhobi(Suryawanshi),
Age-47 years, Occu:Household,
R/o-Kazipura, Shahada,
Tq-Shahada, Dist-Nandurbar,
1-B] Shobha w/o Narayan Bhakulde,
Age-25 years, Occu:Household,
R/o-As Above,
1-C] Sau. Ratna w/o Prakash Ikshi,
Age-23 years, Occu:Household,
R/o-Simadagam, Varada Road, Surat,
Tq. & Dist-Surat (Gujrath),
1-D] Ku. Rekha D/o Sukhlal Dhobi(Suryawanshi)
Age-16 years, Occu:Nil,
Minor U/g. of her natural mother
i.e. Applicant No.1-A, R/o-Kazipura,
Shahada, Tq-Shahada, Dist-Nandurbar.
...PETITIONERS
(Original Defendant -J.D.
Through L.R.s.)
VERSUS
1) Shri. Vinayak Sadashiv Sangale,
Age-53 years,
Occu:Agriculture & Business,
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2) Smt. Megha Sanjay Sangale,
Age-42 years,
Occu:Household and Business,
Respondent Nos.1 and 2 Both
R/o-Shahada, Tq-Shahada,
Dist-Nandurbar.
...RESPONDENTS
(Original Plaintiffs-D.H.)
...
Shri A.S. Abhyankar Advocate for Petitioners.
None present for Respondent Nos. 1 and 2.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 31ST JANUARY,2014.
DATE OF PRONOUNCING JUDGMENT: 14TH FEBRUARY, 2014.
JUDGMENT :
1. Petitioner - Sukhlal Bhivsan Dhobi (original Defendant) filed the present Revision against Respondents (original Plaintiffs -D.H.) being aggrieved by order below Exhibit 21 passed in Regular Darkhast No.55 of 2004 by the trial Court, dated 15th April, 2005. Petitioner -
Defendant (J.D.) had filed application under ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 3 Sections 47 and 151 of the Code of Civil Procedure, 1908 ("C.P.C." in brief) and raised objection to the execution on two grounds. One ground raised was that the co-owner of the suit premises, Sanjay Sadashiv Sangale expired leaving behind his widow Megha and two sons and one daughter, but the sons were not made parties and so the decree was a nullity. Other ground raised was that as per Section 33 of the Maharashtra Rent Control Act, 1999 (for short "Maharashtra Rent Act"), Civil Judge,(Junior Division) and where no Court of Civil Judge, (Junior Division) is functioning then Civil Judge, (Senior Division) is empowered to entertain and try the suit. In the present matter, decree was passed by Joint Civil Judge,(Junior Division) in Regular Civil Suit No. 68 of 2000 and thus the same was without jurisdiction.
2. The trial Court heard both the sides and by reasoned order, rejected the application ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 4 objecting the execution of decree in Regular Civil Suit No.68 of 2000.
3. When this Revision came up for hearing, the counsel for Respondents did not appear or argue the matter. However the learned counsel for Petitioner - J.D. has argued the same. The learned counsel did not make submissions regarding the point which was raised in the trial Court regarding non joining of sons of deceased co-owner Sanjay Sangle. Even otherwise, widow of the co-
owner was already on record and the trial Court rejected the contention in this regard, observing that the mother and natural guardian of the minor children was party to the suit and it could not be said that decree was not executable. The point has not been pursued and I find no reason to interfere on this count.
4. Rule was issued in this matter on 1st March, 2006. Now when this matter came up for ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 5 final hearing, none appeared for Respondents but the matter is heard finally the same being Revision. Learned counsel for Petitioner submitted that during the pendency of this Revision Application, the decree holders have already executed the decree and taken the possession. He, however, insisted on arguing the matter on merits, as according to him, if the decree is nullity, the J.D. is entitled to a finding and entitled to pursue restitution under Section 144 of the C.P.C.
5. In this matter Regular Civil Suit No.68 of 2000 was filed in the Court of Civil Judge, (Senior Division) at Shahada and was made over to Joint Civil Judge, (Junior Division). The suit was under the Maharashtra Rent Act. The suit was decreed and Civil Appeal No.12 of 2003 was filed.
The decree came to be confirmed. Petitioner - J.D. filed writ petition and then filed Special Leave to Appeal to the Hon'ble Supreme Court, but both of the same got dismissed. Respondents -decree ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 6 holders thus filed the execution.
. According to the learned counsel for petitioner - J.D., under the provisions of Section 33 of the Maharashtra Rent Act, Joint Civil Judge, (Junior Division) at Shahada could not be said to be a Rent Court. According to him, there is a Court of Civil Judge, (Senior Division) at Shahada and then there is Court of Joint Civil Judge, (Junior Division). He submitted that, there is no Court of Civil Judge, (Junior Division) and so the suit could have been tried in the Court of Civil Judge, (Senior Division) and not by Joint Civil Judge, (Junior Division). It is claimed that Section 33(1)(c) of the Maharashtra Rent Act, which is applicable to the present matter, clearly provides that in areas other than Brihan Mumbai, or areas other than where Court of Small Causes has been established under the Provincial Small Causes Courts Act, 1897, the Court having jurisdiction is the Court of Civil Judge, (Junior ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 7 Division) and if there is no such Civil Judge, (Junior Division), the Court of Civil Judge, (Senior Division) having ordinary jurisdiction shall have jurisdiction to entertain and try any suit under the Maharashtra Rent Act.
. According to the learned counsel, the provisions of Section 33 of the Maharashtra Rent Act and erstwhile Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("Bombay Rent Act" in brief) are almost pari-
materia except for the fact that now Section 33 is subject to the provisions of Chapter VIII of the Maharashtra Rent Act, dealing with summary disposal of certain applications. Learned counsel relied on the case of Vijaykumar s/o Vinaykarao Pathak vs. Madhukar s/o Dinkar Chitale, reported in 2002(5) Mh.L.J. Page 415. It was a decision of learned Single Judge of this Court dealing with Section 28 of the Bombay Rent Act and where with reference to Section 28, it was observed that it ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 8 was necessary for the decree holder to institute execution proceedings in the Court of Civil Judge, (Junior Division) and not in the Court of Civil Judge, (Senior Division) and the matter was remanded back to the Court of Civil Judge, (Junior Division), Ahmednagar.
6. It would be appropriate to juxtapose relevant provisions of Section 33 of the Maharashtra Rent Act with relevant portions of Section 28 of the Bombay Rent Act, to the extent of sub-section 1 and 2(a):
Section 33 of the Maharashtra Relevant portion of Section Rent Act 28 of the Bombay Rent Act
33. Jurisdiction of courts. 28. Jurisdiction of Courts (1) Notwithstanding anything [(1)] Notwithstanding anything contained in, any law for the contained in any law and time being in force, but subject to the provisions of Chapter VIII, and notwithstanding that by notwithstanding that by reason of the amount of the reason of the amount of the claim or for any other claim or for any other reason, the suit or reason, the suit or proceeding would not, but for proceeding would not, but for this provision, be within its this provision, be within its jurisdiction- jurisdiction.-
(a) in Brihan Mumbai, the (a) in Greater Bombay, the ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 9 Court of Small Causes, Court of Small Causes, Mumbai, Bombay,
(b) in any area for which a (aa) in any area for which, a Court of Small Causes is Court of Small Causes is established under the established under the Provincial Small Causes Provincial Small Cause Courts Courts Act, 1897, such court, Act, 1887, such Court and and
(c) elsewhere, the court of (b) elsewhere, the Court of the Civil Judge (Junior the Civil Judge (Junior Division) having jurisdiction Division) having jurisdiction in the area in which the in the area in which the premises are situate or, if premises are situate or, if there is no such Civil Judge, there is no such Civil Judge the court of the Civil Judge the Court of the Civil Judge (Senior Division) having (Senior Division) having ordinary jurisdiction, shall ordinary jurisdiction, have jurisdiction to entertain and try any suit or shall have jurisdiction to proceeding between a landlord entertain and try any suit or and a tenant relating to the proceeding between a landlord recovery of rent or and a tenant relating to the possession of any premises recovery of rent or possession of any premises to which any of the provisions of this Party apply [or between a licensor and a licensee relating to the recovery of the licence fee or charge] and to decide any application and to decide any application made under this Act (other made under this Act and to than the applications which deal with any claim or are to be decided by the question arising out of this State Government or an Act or any of its provisions officer authorised by it or and [subject to the the Competent Authority); and provisions of sub-
subject to the provisions of section(2),] no other court sub-section(2),no other court shall have jurisdiction to shall have jurisdiction to entertain any such suit, entertain any such suit, proceeding, or application or proceeding, or application or to deal with such claim or to deal with such claim or question. question.
::: Downloaded on - 01/03/2014 00:11:07 :::cra125.05 10 (2)(a) Notwithstanding [(2) (a) Notwithstanding anything contained in clause anything contained in clause
(b) of sub-section(1), the (aa) of sub-section(1), the District Court may at any District Court may at any stage withdraw any such suit, stage withdraw any such suit, proceeding or application proceeding or application pending in a Court of Small pending in a Court of Small Causes established for any Causes established for any area under the Provincial area under the Provincial Small Causes Courts Act, Small Causes Courts Act, 1887, and transfer the same 1887, and transfer the same for trial or disposal to the for trial or disposal to the Court of the Civil Judge Court of the Civil Judge (Senior Division) having (Senior Division) having ordinary jurisdiction in such ordinary jurisdiction in such area. area.]
7. Present matter needs to be considered keeping in view the earlier and present provisions as above, to decide the dispute.
8. With regard to the present controversy, the same can be decided by referring to the case of Smt. Savitribai and another vs. Vithal Hari Petakar, reported in AIR 1981 Bombay Page 430. The Division Bench in that matter, considered above Section 28 of the Bombay Rent Act. It was a matter where the landlord filed regular civil suit for ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 11 recovery of possession in the Court of Civil Judge, (Senior Division), Kolhapur. The Civil Judge, (Senior Division), Kolhapur transferred the suit to Second Joint Civil Judge, (Junior Division), Kolhapur. Later on District Judge passed orders under Section 24 of C.P.C.
withdrawing the suit from Civil Judge, (Junior Division), Kolhapur and transferred the same to Second Joint Civil Judge, (Senior Division) for disposal. Still, later on by another order dated 3rd January, 1976, District Judge withdrew the suit from the file of Second Joint Civil Judge, (Senior Division) and transferred the same back to Civil Judge, (Senior Division) for disposal. The Court heard the suit and dismissed the same. In execution of the decree, it was claimed that same was nullity as it was without jurisdiction as under Section 28(1)(b) of the Bombay Rent Act suit could be tried only by a Civil Judge, (Junior Division) and not by Civil Judge, (Senior Division). The executing Court upheld the ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 12 contention of J.D. and dismissed the execution petition and the same came to be challenged before the High Court. The High Court considered the question whether Civil Judge, (Senior Division) was competent to try the suit having regard to the provisions of Section 28 of the Bombay Rent Act.
While considering the question, Division Bench considered the whole scheme keeping in view provisions of Section 28 of the Bombay Rent Act as well as Bombay Civil Courts Act, 1869, now known as "Maharashtra Civil Courts Act" (hereinafter referred to as "Bombay Civil Courts Act"). The Court elaborately dealt with the various provisions relevant for the purposes of deciding how questions of jurisdiction under Section 28 of the Bombay Rent Act are required to be dealt with.
It was observed in Para 5 as under:-
"5........................................ In most taluka towns, we have Courts presided over by the Civil Judges (Junior Division), while at District places, there ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 13 is a Court presided over by the Civil Judge (Senior Division). Under S.28(1)(b), where there is a Court of the Civil Judge (Junior Division), that Court alone has jurisdiction, but, where there is no such Court, the Court of the Civil Judge (Senior Division), will have jurisdiction to try, suits under the Rent Act. Though there may be one Court of Civil Judge, Senior Division, at a particular place, Joint Civil Judges may be either Joint Civil Judges, Senior Division, or Joint Civil Judges, Junior Division, and under ordinary circumstances, such Joint Judges can dispose of civil business as may be referred to them by the Judge i.e. the Principal Judge of that Court within the limits of his pecuniary jurisdiction.
Besides, the Principal Judge, who is a Civil Judge, Senior Division, there may also be Joint Civil Judges appointed under para 5 of Section 23 to assist the Principal Judge. Such Joint Civil Judges have to dispose of only such work as has been referred to them either by the Principal Judge of the Court to which they are joint or as has been referred to them by the District Judge of the district in which such Courts are situated. This would show that a Joint Civil Judge (Junior Division), who has been appointed to assist the Principal Judge of the Court ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 14 has no jurisdiction to receive any suit directly nor has he jurisdiction to dispose of any civil business which has not been referred to him."
(Emphasis supplied) . Further in Para 12 the conclusions drawn were as under:-
"12. In view of the above discussion, we hold that there being no Court of the Civil Judge (Junior Division) at Kolhapur, it is the Court of the Civil Judge (Senior Division) which has the jurisdiction to entertain and try the suit under Section 28 of the Rent Act. The suit could be tried by the Civil Judge (Senior Division) who is the Principal Judge. It could also be tried by all the Joint Civil Judges (Senior Division) or by Joint Civil Judges (Junior Division) to whom the suit may be referred to for disposal by the Principal Judge or by the District Judge under Section 23 of the Civil Courts Act, 1869, or transferred to that Court under Section 24 of the C.P.C. This being the position in law, the Civil Judge (Senior Division), Kolhapur, was competent to try the suit in this case and consequently the decree passed therein is valid and executable."::: Downloaded on - 01/03/2014 00:11:07 :::
cra125.05 15 (Emphasis supplied) . The Division Bench, in support of its findings, referred to the Full Bench Judgment of this Court in the matter of Ranchhodlal Vallabhdas vs. Mahendrakumar Ambalal, reported in A.I.R. 1956 Bombay, Page 481 (Vol.43, C.187 July). In that matter Section 28(2)(a) of the Bombay Rent Act and Scheme of Bombay Rent Act was considered. The Full Bench dealt with the question relating to jurisdiction in the context of Section 28 of Bombay Rent Act. After referring to provisions of Section 28, the Full Bench observed in Para 1, that:-
"1......................................... Therefore the scheme of S.28(2)(a) is very clear. Only in cases pending before the Court of Small Causes established under the Provincial Small Cause Courts Act, the District Court has been given the special power of withdrawing the suits pending in that Court and transferring them to another Court which is designated as a Court which ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 16 would have the same special jurisdiction that the Small Cause Court has been given, and that Court is the Court of the Civil Judge, Senior Division."
(Emphasis supplied) . The Full Bench then read provisions of section 28 of the Bombay Rent Act with provisions of Bombay Civil Courts Act, 1869, as to how the Courts are set up and referring to intent of Legislature, it was observed in Para 4 as under:-
"4........................................
The transfer is not to the Civil Judge, Senior Division, but the transfer is to the Court of the Civil Judge, Senior Division. This is not matter of interpretation; it is the very language used by the statute. Therefore, if the transfer is to be Court of the Civil Judge, Senior Division, the provisions to which reference has just been made in S. 23, para 5, must apply. Once the Court is seized of the matter transferred to it by the District Court under S.28(2)(a), the Principal Judge of that Court is vested with the power conferred upon him under S. 23, para 5. Therefore in our opinion, on ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 17 the transfer of a rent suit from the Small Cause Court by the District Court under S. 28(2)(a) to the Court of the Civil Judge, Senior Division, the Principal Judge of that Court has the power to refer that case to any one of his colleagues who has been appointed to assist him in the disposal of the cases on his file. The colleague may be a joint Civil Judge, Senior Division, or he may be a Civil Judge, Junior Division, because not only the Joint Civil Judge, Senior Division, but also the Civil Judges, Junior Division, are Judges of one and the same Court, the Court presided over by the Civil Judge, Senior Division."
(Emphasis supplied) . In Para 6 of the Judgment, the Full Bench observed thus:-
"6........................................ if the District Judge withdraws the suit from the Small Cause Court and transfers it to a Joint Senior Civil Judge or to a Junior Civil Judge, he is validly and properly exercising his power under S.24, Civil P.C. because both the Joint Senior Civil Judge and the Junior Judge have jurisdiction to try the rent suit under S. ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 18
28."
(Emphasis supplied)
9. Thus, in that matter, it was clearly held by the Full Bench that Joint Senior Civil Judge, and Junior Civil Judge, have jurisdiction to try the rent suit under section 28 of the Bombay Rent Act.
10. Keeping in view the Judgment of the Division Bench in the matter of Smt. Savitribai (supra), which took support also from the matter of Ranchhodlal Vallabhdas(supra), there is no manner of doubt that where there is Court established of Civil Judge, (Senior Division), as well as Joint Civil Judge, (Junior Division), and the institution is in the Court of Civil Judge, (Senior Division), the Civil Judge, (Senior Division), Joint Civil Judge, (Senior Division) (if such Judge is also there), as well as Joint Civil Judge, (Junior Division), all these Courts ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 19 have jurisdiction to decide the matter. On institution of the Rent matter in the Court of Civil Judge (Senior Division) he can try it himself, or make it over to Joint Civil Judge (Senior Division) or Joint Civil Judge (Junior Division). It is clear from the Judgments referred, which have interpreted Section 28 of the Bombay Rent Act, that where no Court of Civil Judge, (Junior Division) is there, the Court of Civil Judge, (Senior Division), which has jurisdiction to entertain and try the suit, can try the same and it could be tried by all the Joint Civil Judges, (Senior Division) or by Joint Civil Judge, (Junior Division) to whom the suit may be referred to for disposal by the Civil Judge, (Senior Division) or by the District Judge under Section 23 of the Civil Courts Act or by way of transfer under Section 24 of C.P.C. At (taluka) places where there is Court of Civil Judge (Junior Division) and Joint Civil Judge (Junior Division) and institution is in the Court of Civil Judge ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 20 (Junior Division), such matters on institution can be tried by Civil Judge (Junior Division) as well as Joint Civil Judge (Junior Division) to whom the matter is made over. In view of this, under Section 31 of the Maharashtra Rent Act, Courts specified in Sections 28 and 29 as interpreted in the Judgments of the Division Bench and Full Bench, referred above, shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.
11. Learned counsel for the Petitioner tried to distinguish the Judgment in the matter of Smt. Savitribai (supra) stating that it was with reference to competency of Civil Judge, (Senior Division) to try the suit and not of the Joint Civil Judge, (Junior Division), as in the present matter. The argument has no substance, looking to the Judgment as a whole.
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12. In the matter of Vijaykumar s/o Vinaykarao Pathak (supra) relied on by the learned counsel for the Petitioner, the jurisdiction of the Civil Judge, (Senior Division), to entertain proceedings for execution of decree was challenged. Contention raised was similar and it was submitted that competent Court to deal with the suit as well as execution in relation to matters arising under Section 28 of the Bombay Rent Act was Civil Judge, (Junior Division), outside the territorial jurisdiction of Greater Bombay and that in the said case, the Taluka wherein suit premises were situated being provided with the Court of Civil Judge, (Junior Division), the proceedings for execution of decree could not have been entertained and proceeded with by the Civil Judge, (Senior Division), Ahmednagar. In Para 9 it was observed that in the case concerned, indisputably there is Court of Civil Judge, (Junior Division) for the area in which the suit premises are situated and therefore it was ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 22 necessary for the Respondent to institute the execution proceedings in the said Court of Civil Judge, (Junior Division). Consequently, the learned Single Judge of this Court remanded the matter to the Civil Judge, (Junior Division) at Ahmednagar to deal with the application for execution.
13. I find that the above Judgment in the matter of Vijaykumar s/o Vinaykarao Pathak(supra) is not helpful to the Petitioner. That judgment was on the basis of statement made before the Court. Again, there is nothing to show that in that matter, Judgments in the matter of Ranchhodlal Vallabhdas (supra), and Smt. Savitribai (supra) were brought to the notice of the learned Single Judge. With respect to the learned Single Judge, I find myself bound by the observations and findings of the Division Bench and Full Bench in the matters of Smt. Savitribai (supra) and Ranchhodlal Vallabhdas (supra), which ::: Downloaded on - 01/03/2014 00:11:07 ::: cra125.05 23 elaborately and specifically dealt with the provisions regarding jurisdiction. Thus I find that the law on this count is as laid down in the matter of Smt. Savitribai (supra) and Ranchhodlal Vallabhdas (supra).
14. In the present matter, the suit was filed in the Court of Civil Judge, (Senior Division) and was made over to the Joint Civil Judge, (Junior Division). Keeping in view the law as discussed above, the decree as passed by the Joint Civil Judge, (Junior Division) was perfectly valid and enforceable by the executing Court.
15. There is no substance in the Civil Revision Application. Civil Revision Application is rejected. No orders as to costs. Rule stands discharged.
[A.I.S. CHEEMA, J.] asb/FEB14 ::: Downloaded on - 01/03/2014 00:11:07 :::