R.A. Jahagirdar, J.
1. The petitioner was the defendant and the respondent was the plaintiff in suit, being Declaratory Suit No. 5693 of 1971, filed in the Court of Small Causes at Bombay, purported to be one under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act'. The parties will be referred to by their character in the trial Court itself instead of as petitioner and respondent. The question touching upon the jurisdiction of the Small Causes Court under section 28 of the Bombay Rent Act has arisen in these proceedings and in the light of the judgment of this Court in Sarfarzali Nawabali Mirza v. Miss Maneck G. Burjorji Reporter, 78 Bom.L.R. 704, 1975 Bom.C.R. 450, the question is concluded and the disposal of this petition should not present any difficulty.
2 The plaintiff is the owner of the suit premises and according to him one Gajadhar Ramavatar was the licensee. The plaintiff filed an ejectment Application under section 41 of the Presidency Small Cause Courts Act as it stood before the amendment of 1976. The ejectment application, being No. 91/E of 1970, was decided ex parte and an order for ejectment was passed. While executing this order the defendant obstructed the same. The plaintiff took out Obstructionist Notice bearing No. 613/71 against the and that notice was discharged. The plaintiff therefore, had to filed a suit under Order 21, Rule 103 of the Code of Civil Procedure. This is the present declaratory suit.
3. The defendant resisted the suit by contending, among other things, that the Court of Small Causes had no jurisdiction under section 28 of the Bombay Rent Act to entertain a suit as it was not one between a landlord and a tenant and it was not one where the question under the Bombay Rent Act as mentioned in Sarfarzali's case arises.
4. The learned trial Judge by his judgment and order dated 7th February, 1979 rejected this contention and relying upon a judgment of Palekar, J., in Pranlal Calanchand Shah v. Dinyar Apsandya Karmani, Civil Revision Application No. 1934 of 1962 decided on 1st February, 1967, held that the suit was maintainable under section 28 of the Bombay Rent Act. Consistent with this view the learned trial Judge directed that the suit should proceed. This was challenged by the defendant in Appeal No. 502 of 1979. This appeal was dismissed by the Appellate Bench of the Court of Small Causes by its judgment and order dated 11th June, 1981 upon holding that an appeal did not lie against an order rejecting the objection relating to the maintainability of the suit on the ground of jurisdiction. In the body of the judgment, however, the Appellate Bench thought it was difficult to say as to how the suit in question could be a suit under the Bombay Rent Act as the same was filed by a defeated plaintiff in the obstructionist notice in the ejectment application. Since the appeal itself was not maintainable the Appellate Bench was left with no alternative but to dismiss the appeal and confirm the order of the learned trial Judge. The defendant has now approached this Court under Article 227 of the Constitution.
5. Mr. Ram Singh, the learned Advocate appearing in support of the petition, has fairly conceded that he could not assail the order of the Appellate Bench relating to the maintainability of the appeal but proceeded to challenge the order of the learned trial Judge himself. There is an oral party that the petition should be treated as one challenging the order of the leaned trial Judge and in view of the mistaken prosecution of the appeal the delay may be condoned.
6. On the facts of this case I am inclined to condone the delay because admittedly there was a mistake on the part of the defendant in filling the appeal which was not maintainable. There is no lack of bona fides while he did so. Looking to the merits of the case I have no hesitation in holding that the Court of Small Causes under section 28 of the Bombay Rent Act has no jurisdiction to entertain a suit by the defeated plaintiff in obstructionist notice in ejectment application filed under section 41 of the presidency Small Cause Courts Act as it stood before the amendment of 1976. Reliance placed by the learned trial Judge on the judgment of Palekar, J. in the above mentioned civil revision application is misplaced. The facts of the case decided by Palekar, J. disclose that the original decree which was resisted was itself filed under section 28 of the Bombay Rent Act. It was for the purpose of removing an obstruction to a decree passed under the Bombay Rent Act that a suit was filed. Moreover, it had been contended in that suit that the defendants were bound by the decree passed earlier because they were claiming through the original defendant.
7. In the instant case no decree has been passed under section 28 of the Bombay Rent Act. On the other hand, the execution order which was resisted by the defendant was one which was passed under section 41 of the Presidency Small Causes Courts Act. The facts of the instant case. Therefore, did not attract the provisions of section 28 of the Bombay Rent Act at all. It is not necessary for me to dwell at length on the law relating to the jurisdiction of the Small Cause Court under section 28 of the Bombay Rent Act vis-a-vis the jurisdiction of regular Civil Courts under section 9 of the Code of Civil Procedure. Respective limits of these jurisdictions have been set out with sufficient precision in Sarfarzali's case. It is sufficient if I only extract the following from the said judgment:
'Similarly if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary Civil Court and not the special Court that will have jurisdiction to entertain the suit.'
It must, therefore, be held that the suit filed by the plaintiff-respondent against the defendant-petitioner is not entertainable by the Court of Small Causes at Bombay under section 28 of the Bombay Rent Act. The plaint will, therefore, be returned to the plaintiff-respondent for being presented to the proper Court.
8. In the result. I allow this petition, and set aside the order dated 7th February, 1979 passed by the learned Judge of the Court of Small Causes in Declaratory Suit No. 5693 of 1971. The learned trial Judge shall post the wait for orders and, thereafter directed that the plaint be returned to the plaintiff for being presented to the proper Court. There will be no order as costs in this petition.