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Savitribai and anr. Vs. Vithal Hari Petakar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 781 of 1980
Judge
Reported inAIR1981Bom430; (1981)83BOMLR434
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 20, 28, 28(1), 28(2) and 50; Bombay Civil Courts Act, 1869 - Sections 7 and 23; Provincial Small Cause Courts Act, 1887 - Sections 33; Code of Civil Procedure (CPC), 1908 - Sections 12, 14, 16, 17, 21, 22, 22-A, 23, 24, 25, 32 and 32(2)
AppellantSavitribai and anr.
RespondentVithal Hari Petakar
Appellant AdvocateG.R. Rege, Adv.
Respondent AdvocateM.V. Paranjpe and;Subodh M. Paranjpe, Advs.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lv1i of 1947), section 28(1)(b) - bombay civil courts act (act xiv of 1869) sections 23, 28(1) -- civil procedure code (act v of 1908 section 24 -- provincial small cause courts act (act ix of 1887), sections 33, 32, 16 -- expression 'if there is no such civil judge' in section 28(1)(b) of bom. act lvii of 1947 -- meaning of -- scope of section 33 of act ix of 1887 -- absence of court of civil judge, junior division at a place -- forum for exercise of jurisdiction under bombay rent act -- court of civil judge, senior division at kolhapur whether has jurisdiction to entertain and try suit under bombay rent act.;from section 23, para. 5 of the bombay civil courts act, 1869 it is clear that a joint civil judge (junior division),.....shah, j.1. this revisional application raises a question of jurisdiction of court under section 28 of the bombay rents, hotel and lodging house rates control act, 1947. the petitioners filed regular civil suit no. 504 of 1971 against the respondent for recovery of possession of their premises bearing city survey no. 2258 (b) situate at kolhapur under section 12 of the act. this suit was filed in the court of the civil judge (senior division), kolhapur. the civil judge (senior division), kolhapur transferred the suit to the second joint civil judge (junior division), kolhapur. thereafter, the district judge passed an order under section 24 of the code of civil procedure withdrawing the suit from that court and transferred it to the court of second joint civil judge (senior division) for.....
Judgment:

Shah, J.

1. This revisional application raises a question of jurisdiction of Court under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The petitioners filed Regular Civil Suit No. 504 of 1971 against the respondent for recovery of possession of their premises bearing City Survey No. 2258 (B) situate at Kolhapur under Section 12 of the Act. This suit was filed in the court of the Civil Judge (Senior Division), Kolhapur. The Civil Judge (Senior Division), Kolhapur transferred the suit to the Second Joint Civil Judge (Junior Division), Kolhapur. Thereafter, the District Judge passed an order under Section 24 of the Code of Civil Procedure withdrawing the suit from that Court and transferred it to the court of Second Joint Civil Judge (Senior Division) for disposal. Again, by another order dated January 3, 1976, the District Judge withdrew the suit from the file of the Second Joint Civil Judge (Senior Division) and transferred it to the Civil Judge (Senior Division) for disposal. That Court heard the suit and dismissed it on January 28, 1976. The petitioners preferred an appeal in the District Court at Kolhapur. The appellate Court allowed the appeal and passed a decree for possession in favour of the petitioners. The petitioners then filed an execution petition. By order dated November 21, 1977, the executing Court issued a warrant for possession. But, in the meanwhile, the respondent appeared and filed an application resisting the execution. It was contended by him that the decree was a nullity and without jurisdiction as under Section 28(1)(b) of the Rent Act, the suit could be tried only by a Civil Judge, Junior Division, and not by Civil Judge (Senior Division). This contention of the respondent was upheld and the executing Court by its order dated April 5, 1980 dismissed the execution petition. This order has been challenged by the petitioners. The only question, therefore, that arises for consideration is whether the Civil Judge, Senior Division, was competent to try the suit, having regard to the provisions of Section 28 of the Rent Act.

2. Section 28(1) of the Rent Act in so far as is material provides-

'Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,

(a) in Greater Bombay, the Court of Small Causes, Bombay,

(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, it there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction shall have jurisdiction to entertain and try any suit or proceeding between landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply ..... and subject to the provisions of Sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

(2) (a) Notwithstanding anything contained in Clause (aa) of Sub-section (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Cause Courts Act. 1887, and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area.

(b) Where any suit, proceeding or application has been withdrawn under Clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceeding or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn.

(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under Clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be,

be deemed to be the Court of Small Causes .....'

It would appear that under Section 28 of the Act, a special jurisdiction to try the suits or proceedings under the Act was conferred upon ordinary Courts of the land which have been set up under the Civil Courts Act. The Courts on which such jurisdiction has been conferred have been enumerated under Section 28(1)(a). In Greater Bombay, this special jurisdiction is conferred on the Court of Small Causes at Bombay, and under Clause (aa), the same is conferred on the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887. Such Courts under the Provincial Small Cause Courts Act have been established at Pune and Nagpur in the State. Therefore, under Section 28(1)(aa), the Small Cause Courts at Pune and Nagpur will have the jurisdiction to try the suits under the Act Then under Section 28(1)(b), elsewhere, it would be the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate which will have jurisdiction to try suits arising under the Act and if there is no such Civil Judge, it is the Court of the Civil Judge (Senior Division) having ordinary jurisdiction which will have the jurisdiction to try suits or proceedings arising under the Act. Now the Act itself does not provide as to how the Courts of the Civil Judge (Junior Division) or the Court of the Civil Judge (Senior Division) are to be constituted, or how the territorial limits within which these two types of Courts are to exercise their jurisdiction to be determined. For that purpose, one has to turn to the Civil Courts Act, 1869, under which the ordinary Courts are constituted. In most of the Taluka places, there are Courts presided by the Civil Judge (Junior Division), while in the district places, we have the Courts presided over by the Civil Judge (Senior Division) having ordinary jurisdiction. In the absence of any guidelines in Section 28 or any other provisions of the Rent Act regarding the constitution or territorial jurisdiction within which the two Courts mentioned in Section 28(1)(c) are to function, we must turn to the provisions of the Bombay Civil Courts Act, 1869 under which the ordinary Courts are constituted and their jurisdiction defined. This has been explained in a Full Bench decision of this Court in Ranchhodlal v. Mahendrakumar, : AIR1956Bom481 . The question before the Full Bench relating to the interpretation of Section 28(2)(a) of the Rent Act. It was argued before the Full Bench that when the District Judge exercises his powers under Section 28(2)(a) of withdrawing a suit and transferring the same for trial to the Court of the Civil Judge (Senior Division), he can only transfer it to the Civil Judge (Senior Division) and to no other Judge. While rejecting this argument, the Full Bench observed (at p. 482 of AIR):

'In advancing this argument the provisions of the Bombay Civil Courts Act, 1869, are ignored. Before we look at that Act a certain well established principle may be enunciated.

When the Legislature confers special jurisdiction upon an ordinary Court of the land, that jurisdiction has to be exercised by the ordinary Court according to the procedure of that Court unless in the legislation conferring special jurisdiction there is some provision to the contrary. All the ordinary administrative and other powers of the Court are to be exercised as laid down in the law setting up that Court. All that the special legislation does is to confer special jurisdiction upon that Court. In other words, that Court, over and above the ordinary jurisdiction that it exercises, also exercises a certain special jurisdiction, but unless we find some indication in the law creating the special jurisdiction that that special jurisdiction has to be exercised in a special manner or that the Court has to function in a particular manner, the Court must function in the ordinary way and according to the ordinary law of the land. In Section 28 there is no indication whatever that the Court of the Civil Judge, Senior Division, to which suits have to be transferred under Section 28(2)(a), has to function in any different manner than it would function as the ordinary Court, or that the procedure which has got to be followed has to be any different procedure. Therefore, we must now turn to the Civil Courts Act to find out what are the powers and the functions and the procedure of the Courts of the Civil Judge, Senior Division.'

3. Establishment of subordinate Civil Courts, their constitution and their powers are traceable to the Bombay Civil Courts Act, 1869. The Scheme of the Act shows that there arc District Courts and Civil Courts subordinate to the District Courts. Section 5 provides that there shall be in each district a District Court presided over by a Judge to be called the District Judge. Under Section 7, the District Court shall be the principal Court of original civil jurisdiction in the district within the meaning of the Code of Civil Procedure. Section 12 provides that the State Government may appoint in any district a Joint Judge who shall he invested with co-extensive powers and a concurrent jurisdiction with the District Judge, except that he shall not keep a file of civil suits and shall transact such civil business only as he may receive from the District Judge, or as may have been referred to the Joint Judge by order of the High Court. Then there are Assistant Judges who are appointed under Section 14 of the Act which provides that the State Government may appoint one or more assistants to the District Judge. Sections 16 and 17 show that the Assistant Judges are to transact business as may be referred to them by the District Judge in respect of matters mentioned in those sections.

4. Then there are provisions in the Civil Courts Act relating to the Civil Courts which are subordinate to the District Courts. Section 21 provides that there shall be in each district so many Civil Courts subordinate to the District Court as the State Government shall from time to time direct. Section 22 provides that the Judges of such Subordinate Courts shall be appointed by the State Government, and shall be called Civil Judges. Under Section 22-A, the State Government may, by notification in the Official Gazette fix, and by a like notification, from time to time, alter the local limits of the ordinary civil jurisdiction of the Civil Judges. Section 21 inter alia provides :--

'for the purpose of assisting the Judge of any subordinate Court in the disposal of the civil business on his file, the High Court may appoint to such Court from the members of the Subordinate Civil Judicial Service of the State one or more Joint Civil Judges, or the District Judge may, with the previous sanction of the High Court, depute to such Court the Judge of another subordinate Court within the district. A Civil Judge thus appointed or deputed to assist in the Court of another Civil Judge shall dispose of such civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Judge of such Court. He may also dispose of the civil business of his Court at the place of his deputation subject to the general or special orders of the High Court in this behalf.'

Then Section 24 provides that the Civil Judges shall be of two classes viz. Civil Judge, Junior Division and Civil Judge, Senior Division. The jurisdiction of a Civil Judge (Senior Division) extends to all original suits and proceedings of a civil nature. The jurisdiction of a Civil Judge (Junior Division) extends to all original suits and proceedings of a civil nature wherein the subject-matter does not exceed in amount or value twenty five thousand. Under Section 25, a Civil Judge (Senior Division) in addition to his ordinary jurisdiction shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by Civil Judges (Junior Division) and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by Section 24. It is further provided in Section 25 that in districts to which more than one Civil Judge (Senior Division) have been appointed the District Judge, subject to the orders of the High Court, shall assign to each the local limits within which his said special jurisdiction is to be exercised. Section 32 inter alia provides that no subordinate Court other than the Court of a Civil Judge (Senior Division) and no Court of Small Causes shall receive or register any suit in which the Government or any officer of the Government in his official capacity is a party. Sub-section (2) provides that in every such case the plaint shall be referred to the Court of the Civil Judge (Senior Division) and such suit shall be instituted only in the Court of the Civil judge (Senior Division) and shall be heard by such Civil Judge, subject to the provisions of Section 24 of the Code of Civil Procedure, 1908.

5. The scheme underlying the abovementioned provisions has been summed up by the Full Bench in Ranchhodlal's case : AIR1956Bom481 in the following words:--

'The underlying scheme of the Bombay Civil Courts Act, 1869, is that it sets up District Courts and it also sets up in each district so many Civil Courts subordinate to the District Court as the State Government shall from time to time direct. Therefore, ordinarily in each place, whether it is a taluka place or a district town, there is one Court other than the District Court and to that Court one or more Judges may be appointed. Section 23, Para 5 provides:

'For the purpose of assisting the Judge of any subordinate Court in the disposal of the civil business on his file, the High Court may appoint to such Court from the members of the Subordinate Civil Judicial Service of the province one or more Joint Civil Judges, or the District Judges may, with the previous sanction of the High Court, depute to such Court the Judge of another subordinate Court within the district. A Civil Judge thus appointed or deputed to assist in the Court of another Civil Judge shall dispose of such civil business within the limits of his pecuniary jurisdiction as may, subject to the control of the District Judge, be referred to him by the Judge of such Court.' Therefore, the Principal Judge,, if one might so designate the Judge of the Court, in each place may have other Judges appointed to assist him in disposing of the work and it is left to the Principal Judge to refer cases for disposal to one or more of his colleagues. But the Court is one and the Court may consist, as we have already pointed out, of one Principal Judge or one Principal Judge and one or more Judges to assist him. Then Section 24 deals with the classes of Judges and they are Civil Judge, Senior Division and Civil Judge, Junior Division, and it lays down what the jurisdiction of these Judges is; and Section 25 deals with the special jurisdiction of the Civil Judge, Senior Division.'

In most taluka towns, we have Courts presided over by the Civil Judges (Junior Division), while at District places, there is a Court presided over by the Civil Judge (Senior Division). Under Section 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 fry 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 situate. This would show that a Joint Civil fudge (Junior Division), who has been appointee to assist the Principal Judge of the Court has no jurisdiction to receive any suit directly nor has he jurisdiction to dispose of any civil business which has nut been referred to him.

6. At Kolhapur, there is only one Court i.e. the Court of the Civil Judge (Senior Division), and it is presided over by a Civil Judge, Senior Division. There is no separate independent Court of the Civil Judge (Junior Division). However, there are one or more Joint Civil Judges (Senior Division) or Joint Civil Judges (Junior Division) appointed to assist the Principal Judge as provided in para 5 of Section 23. It is not disputed before us by the counsel on both sides that there is only one Court at Kolhapur, viz., the Court of the Civil Judge, Senior Division. This is also clear from the Government Notification No. 5293/46-III dated 14th Sep., 1949, issued by the Political and Services Department, published in the Bombay Government Gazette Extraordinary in Part IV-A, which has been issued under Sections 21, 22-A and 23 of the Bombay Civil Courts Act, 1869. This Notification relates to Kolhapur District as well as some other Districts. The relevant portion of the Notification runs as follows:

'In exercise of the powers conferred by Sections 21, 22-A and 23 of the Bombay Civil Courts Act, 1869 (XIV of 1869), the Government of Bombay is pleased to direct that with effect on and from the 4th Oct., 1949 :--

(1) (a) there shall be new Civil Courts specified in column 2 of the First Schedule appended hereto, subordinate to the District Courts specified against them in col. 1 of the said First Schedule, to be presided over by a Civil Judge specified in column 2 of the First Schedule who shall hold his Court at the place specified against him in column 4 of the said First Schedule;

(b) the local limits of the ordinary jurisdiction of the Civil Judge of the Court, specified in column 2 of the said First Schedule shall comprise the area specified against it in column 3 of the said First Schedule;

(2) The area specified in column 3 of the Second Schedule appended hereto shall be included in the local limits of the ordinary jurisdiction of the Civil Judges of the Courts specified in columns 1 and 2 of the said Second Schedule;

(3) the areas specified in column 3 of each of the said First and Second Schedules shall cease to form part of the local limits of the ordinary jurisdiction of the Court or Courts in which they were included immediately before the said date.

Column No. 1 ... Name of the District Court ... KOLHAPUR

Column No. 2 ... Name of the Civil Court ... The Court of the Civil Judge (Senior Division), KOLHAPUR.

Column No. 3 mentions the ordinary jurisdiction of the Civil Court, Column No. 4 mentions the place for holding the Civil Court, viz, Kolhapur ..... Column No. 1 ... Name of the District..

KOLHAPUR

Column No. 2 . Name of the Civil Court... The Court of the Civil Judge (Junior Division), Ichalkaranji.

Column No. 3 describes the area, i.e., territorial jurisdiction, and

Column No. 4 mentions that the place for holding the Civil Court would be Ichalkaranji. Similar provision is made with regard to the establishment of Courts of Civil Judge (Junior Division) at different places (other than Kolhapur) in the District. The above Notification would show that there is only one Court at Kolhapur, viz. Civil Judge (Senior Division) established at Kolhapur. The Courts of Civil Judges (Junior Divisions) are located at other places in the District.

7. It is clear that under S, 28 (1) (b) of the Rent Act, primarily it is the Court of the Civil Judge (Junior Division) who has jurisdiction in the area in which the premises are situated to try the suit. So far as the Courts in the Taluka towns in Kolhapur District are concerned, there is no difficulty, because there we have only the Courts of the Civil Judge (Junior Division) and they will have the exclusive jurisdiction to try the suit. At Kolhapur, however, there is no Court of the Civil Judge (Junior Division), but there is only the Court of the Civil Judge (Senior Division). In view of Section 28(1)(b), in the absence of a Court of the Civil Judge (Junior Division) constituted at Kolhapur, it would follow that it is the Court of the Civil Judge (Senior Division) which shall have the jurisdiction to entertain and try the suit. Further in view of the provisions of Section 23 of the Bombay Civil Courts Act, 1869, not only the Principal Judge of that Court, viz., the Civil Judge, Senior Division, but also the other Joint Judges, who are assisting him whether they be Joint Civil Judges (Senior Division), or Join! Civil Judges (Junior Division), will have jurisdiction to try the suit. Of course, such Joint Judges can try only those suits or proceedings which may be referred to them by the Principal Judge.

8. Relying on the wording of Section 28(l)(b), it was urged by Mr. Paranjpe appearing for the petitioners that it is only if there is no Civil Judge (Junior Division) appointed to assist the Principal Judge that the Civil Judge (Senior Division) or a Joint Civil Judge, Senior Division, can have the jurisdiction to try the suit. Now, it is true that in Section 28(1)(b), the expression used is 'if there is no such Civil Judge' and not the elaborate words 'if there is no Court of the Civil Judge, Junior Division'. But having regard to the scheme underlying the Civil Courts Act, 1869, which cannot be ignored while interpreting Section 28(1)(b), the expression 'if there is no such Civil Judge' will have to be given the same meaning, viz. 'if there is no Court of the Civil Judge, Junior Division'. The qualifying word 'such' is of significance. It has relation to the preceding words, viz. 'the Court of the Civil Judge, Junior Division' and consequently the expression 'such Civil Judge' means the Court presided over by the Civil Judge, Junior Division. If one were to accept the narrow interpretation as suggested by Mr. Paranjpe, it would lead to absurd results. To illustrate, suppose there are more than one Joint Civil Judge (Junior Division) (which is very often, the case) who have been appointed to assist the Principal Judge in his work at a District place where there is only one Court, viz., the Court presided over by a Civil Judge (Senior Division), each one of the Junior Division Judges will be entitled to receive the plaints simpliciter. The result of such an interpretation would be that while the Court of the Civil Judge, Senior Division, would not be entitled to entertain or receive the plaint, the plaints could be received directly by any of the Junior Division Judges. It would be left to the sweet-will of a litigant to file the plaint before any one of the Joint Junior Division Judges. We do not think that the Legislature intended such a result nor do we think that such an interpretation is possible on the wording of the section. Obviously it is not intended that the Civil Judge is a persona designata under Section 28(1)(b). If it is to be held that only the Civil Judge Junior Division) at Kolhapur has jurisdiction to entertain and try the suit, then each one of the Joint Civil Judges (Junior Division) who is appointed to assist the Civil Judge (Senior Division) will get independent jurisdiction to receive the plaints simpliciter. Similarly, once he receives the plaints, there would be no power in him to transfer that suit or proceeding directly entertained by that particular Civil Judge (Junior Division) and he alone will have the jurisdiction to try such suit. If such Civil Judge is not persona designata, then it will also mean that for the purposes of Section 28(1)(b) of the Rent Act, there are constituted as many Courts of Civil Judge, Junior Division, as there are Joint Civil Judges, Junior Division, who have been appointed by the High Court as Joint Judges under Section 23, para 5 of the Civil Courts Act, it is well settled rule of construction of statutory provision that a construction which leads to absurd results should as far as possible be avoided. The provisions of Section 28(1)(b) read in the light of the scheme of the Bombay Civil Courts Act, 1869, must clearly mean that where there are no Courts of Civil Judge, Junior Division, established under the Civil Courts Act, the suits or proceedings under the Rent Act would be triable by the Principal Judge of the Court, viz., the Civil Judge (Senior Division), or by any of the Joint Judges whether he be a Joint Civil Judge, Junior Division, or Senior Division, to whom the matter has been referred to by the Principal Judge.

9. Reliance was placed by Mr. Paranjpe on the decision of Desai, J. sitting singly in Appasaheb Kalgond Patil v. James Luchas Ranbhise, Writ Petition No. 447 of 1980, decided on 16th June, 1980. That was also a case from Kolhapur. In the judgment, it is mentioned that the suit was originally filed by the landlord for possession of the suit premises in the Court of the Joint Civil Judge, Junior Division, Kolhapur, against the tenant. The Joint Civil Judge directed issue of suit summonses and fixed a date for settlement of issues. However, by a subsequent administrative order dated 6th Oct., 1975, the learned District Judge purporting to act under Section 24 of the Civil Procedure Code passed an order transferring the said suit to the Court of Joint Civil Judge, Senior Division, Kolhapur. In the said suit the evidence of the plaintiff was recorded and thereafter the defendant filed an application requesting the Court for amending the written statement. By the said amendment, he wanted to take objection to the jurisdiction of the Court of the Joint Civil Judge (Senior Division) to record the evidence and try the suit. An order was passed on that day and the evidence of plaintiff's witness and of the defendant was recorded by that Judge. Thereafter, by an administrative order, the District Judge re-transferred the suit from the Court of the Joint Civil Judge (Senior Division) to the Court of the Civil Judge (Junior Division). No directions were given as to how the further trial was to proceed. After the administrative order of retransfer the defendant-tenant filed another application requesting the Court of the Joint Civil Judge (Junior Division) to start de novo trial inter alia contending that the evidence already recorded by the Joint Civil Judge, Senior Division, was vitiated as that Court had no jurisdiction to deal with the suit. These contentions were rejected and ultimately the Joint Civil Judge, Junior Division, passed a decree in favour of the plaintiff. The tenant preferred an appeal in the District Court. At the hearing of the appeal, it was contended on behalf of the tenant that the trial of the suit was vitiated because the evidence was recorded by the Joint Civil Judge (Senior Division) who had no jurisdiction to entertain or try the suit and secondly he could not record the evidence of the plaintiff's witness and the defendant. These contentions were accepted by the learned District Judge and a de novo trial was ordered. The landlord challenged the order of the learned District Judge. The question that arose for consideration in the writ petition before the learned single Judge was whether under Section 24 of the Civil Procedure Code, the District Judge could transfer the suit from the Court of the Joint Civil Judge, Junior Division, to the Court of the Joint Civil Judge, Senior Division. The learned Judge held that under Section 24(1)(b) of the Code, the transfer could be only to a Court which is competent to try the suit, and not to any Court. He further held that under Section 28(1)(b), it was the Court of the Civil Judge (Junior Division) which had the jurisdiction to try the suit under the Rent Act, and the suit which was filed in the Court of the Joint Civil Judge (Junior Division) could not be transferred to the Court of the Civil Judge (Senior Division) and consequently the trial of the suit by the Joint Civil Judge (Senior Division) was vitiated and the evidence recorded by that Court was without jurisdiction. On a perusal of the judgment, it appears that it was assumed that there is a Court of the Joint Civil Judge (Junior Division) at Kolhapur. The view taken by the learned single Judge would be correct on the premise that where there is a Court of a Civil Judge (Junior Division), the suit could be tried only by that Court in view of Section 28(1)(b) of the Rent Act and further under Section 24(1)(b) of the Code of Civil Procedure, the District Judge had the power to transfer the suit administratively only to a Court which is competent to try the suit and not to any Court. That the transfer can only be effected to a Court competent to try the suit is also clear from the provisions of Section 24(1)(b)(ii) of the Code. However, as mentioned above, as a matter of fact, there is only one subordinate Court, viz. Civil Judge (Senior Division) at Kolhapur. There is no Court of the Civil Judge (Junior Division) at Kolhapur. It may be that under the impression that under Section 28(1)(b), the Civil Judge, Junior Division, alone can entertain and try the suit at Kolhapur, in the title to the plaint it might have been mentioned that the suit had been filed in the Court of the Joint Civil Judge, Junior Division, at Kolhapur; but in law, the suit is really filed in the Court of the Civil Judge (Senior Division). It is only because of the provisions of Section 23, para 5 of the Civil Court Act that a Joint Judge who may be a Civil Judge (Junior Division) or Civil Judge (Senior Division) might have occasion to try the suit because the same has been referred to him for disposal. The judgment shows that the only question that arose for the consideration of the learned single Judge was whether the order of transfer of the suit from the Court of the Joint Civil Judge (Junior Division) to the Court of the Joint Civil Judge (Senior Division) was justified by the language of Section 25, or in other words, whether the transfer was from the Court which has been conferred jurisdiction by Section 28 to any Court having competence to try the suit. Unfortunately, it appears that the fact that there is only one Court, viz., the Court of the Civil Judge (Senior Division) established at Kolhapur and no Court of the Civil Judge (Junior Division) has been established there, does not seem to have been brought to the notice of the learned single Judge while deciding that case. With respect, we agree with the view taken by the learned Judge so far as the construction of Section 24(1)(b)(2) of the Code of Civil Procedure is concerned, but the conclusion reached by him so far as the competency of the Joint Civil Judge (Senior Division) to try the suit would not be correct on a true interpretation of the provisions of Section 28(1)(b) of the Rent Act.

10. Reference was made to a decision of a Division Bench in Ranchhodlal Maneklal Vyas v. Maneklal Pranjivandas Shah, (1954) 56 Bom LR 962. The facts were that the landlord had filed the suit in the Court of the Civil Judge, Senior Division, Ahmedabad. During the pendency of the suit, the Rent Act of 1947 came into force and thereafter the suit was decreed by the Court of Civil Judge, Senior Division. By virtue of Section 50 of the new Rent Act, it was necessary that the suit be transferred to a Court which would have jurisdiction to try the suit under the Rent Act. After referring to Section 28 and Section 50 of the Rent Act, the Division Bench observed that by reason of these provisions, the suit which was then pending before the Civil Judge, Senior Division, had to be transferred to the Civil Judge, Junior Division, which alone had the jurisdiction to try and dispose of the suit under Section 20 of the Rent Act. It was, therefore, held that the decree passed by the Civil Judge, Senior Division, was without jurisdiction. It, however, does not appear that the matter was fully argued in that case. The points which are now canvassed before us have not at all been argued or considered by the Division Bench. The Division Bench did not consider the impact of the scheme of the Civil Courts Act, 1869, on the question of jurisdiction under Section 20(1)(b) of the Rent Act. The consideration of Section 28(1)(b) simpliciter is obviously incomplete. Further, in our view, this decision must be deemed to have been overruled by the aforesaid decision of the Full Bench. The Full Bench decision clearly lays down that while construing question of jurisdiction under Section 28 of the Rent Act, the provisions of the Bombay Civil Courts Act cannot be ignored. It may also be incidentally mentioned that the Ranchhodlal Maneklal's case was relied on by another Division Bench in Narayanbhai Shankarbhai Patel v. Nandlal, Civil Reference No. 22 of 1954, decided on Dec. 16, 1955 (unreported) which decision has been expressly overruled by the Full Bench. It is true that the question before the Full Bench related to the interpretation of Section 28(2)(a) and not Section 28(1)(b), but the principles enunciated and applied in that case for construing Section 28(2)(a) hold good for construing Section 28(1)(b), and, therefore, the Division Bench decision in Ranchhodlal Maneklal ((1954) 56 Bom LR 962) must be deemed to have been impliedly overruled by the Full Bench decision. Even otherwise with respect, we do not consider ourselves bound by the decision in Ranchhodlal Maneklal's case in view of the fact that the point canvassed before us was not argued or considered in that case. That decision, in our view, is in the nature of sub silentio and, therefore, not binding on as.

11. Mr. Paranjpe then advanced on argument based on Section 28 of the Bombay Civil Courts Act, 1869, and the provisions of the Provincial Small Cause Courts Act, 1887. In order to appreciate the argument, some of the provisions of these Acts need to be mentioned. Sub-section (1) of Section 28 of the Civil Courts Act provides that the High Court may invest any Civil Judge with the jurisdiction of a Court of Small Causes for the trial of suits cognizable by such Courts up to such amount as it may deem proper, not exceeding in the case of a Civil Judge (Senior Division) three thousand rupees and in the case of a Civil Judge (Junior Division) one thousand and five hundred rupees. Thus, under Section 28 itself, no independent Courts are established but it merely confers a sort of special jurisdiction restricted to a pecuniary jurisdiction conferred on the ordinary subordinate Courts which are established under Section 21 of that Act. Sections 16, 32 and 33 of the Provincial Small Cause Courts Act were referred to by the learned Counsel. Section 32 provides that so much of Chapters III and IV as relates to matters mentioned in Clauses (a) to (e) of that section applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts. Section 33 is important and it lays down that, a Court invested with the jurisdiction of a Court of Small Causes, with respect to the exercise of that jurisdiction and the same Court, with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of this Act and the Code of Civil Procedure be deemed to be different Courts. The argument of Mr. Paranjpe is that in view of Section 33 of the Provincial Small Cause Courts Act, a Civil Judge (Junior Division) invested with the jurisdiction of a Court of Small Causes under Section 28(1) of the Civil Courts Act becomes an independent Court, and such Court would be a Court established independently of Section 21 of the Civil Courts Act, 1869. His further argument was that as such a Court is not a Court of Small Causes, it will still continue to be a Court of Civil Judge, Junior Division, for purposes of Section 28(1)(b) of the Rent Act, and, therefore, at Kolhapur, there would be an independent Court of Civil Judge, Junior Division, if a Civil Judge (Junior Division) invested with powers under Section 28 of the Civil Courts Act is posted there. The argument cannot be accepted in view of the unambiguous wording of Section 33 of the Provincial Small Cause Courts Act which declares that it is an independent Court only for a limited purpose, viz. for purposes of the Provincial Small Cause Courts Act. Admittedly Section 28(1) of the Civil Courts Act by itself does not create an independent Court but merely makes a provision for conferment of additional jurisdiction on a Civil Judge, whether he is a Civil Judge (Junior Division) or a Civil Judge (Senior Division). Section 33 makes it clear that it is only for the limited purposes of that Act that it is deemed to be a different Court. We are, therefore, unable to accept the argument.

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.

13. Our attention has been invited to a decision of the Gujarat High Court in C.C. Basu v. Dahyabhai : (1967)8GLR123 , where a similar view on the construction of Section 28(1)(b) has been taken by that Court

14. In the result, the revision application succeeds; the impugned order dated April 9, 1980, passed by the Joint Civil Judge (Junior Division) Kolhapur, dismissing the execution application is quashed and set aside and the execution proceedings are restored and sent back to the executing Court for disposal according to law.

15. Mr. Paranjpe submitted that the execution was resisted by the respondent only on the ground of invalidity of the decree. In the view that we have taken, he submitted that the respondent be given some reasonable time to vacate the premises. He stated that the respondent is willing to file an undertaking that he would vacate the premises by November 30, 1981. Mr. Rege has no objection to grant time to the respondent to vacate the premises by November 30, 1981, provided the respondent gives an undertaking to the Court in that behalf.

16. We, therefore, direct that the respondent is given time to vacate the premises and hand over possession to the petitioner till November 30, 1981, on condition that the respondent files the usual undertaking in this Court on or before June 30, 1981- If such an undertaking is given within the prescribed time, the execution proceedings shall be stayed till the end of November 1981. In the event of the respondent not filing the undertaking by June, 1981, the executing Court shall proceed to execute the decree and put the petitioner in possession of the premises. Even if the respondent files the undertaking, it would not prejudice the petitioner's right to execute the decree if the respondent fails to vacate the premises by November 30, 1981.

17. Rule made absolute accordingly with no order as to costs.

18. Revision allowed.


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