Bombay High Court
Hindustan Petroleum Corporation Ltd., … vs Shivaji S/O Gangadas Patel And Others on 6 March, 2025
2025:BHC-NAG:2404
Judgment
370 cra53.21
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.53 OF 2021
Hindustan Petroleum Corporation
Ltd., having registered office
Petroleum House, 17, Jamshetji Tata
Road, Mumbai-400020. ..... Applicant.
:: V E R S U S ::
1. Shivji s/o Gangadas Patel, aged
about 59 years, occupation business,
r/o Mangalwaripeth, Umrer, tahsil
Umrer, district Nagpur.
2. Prakash s/o Natthuji Dewadkar,
aged about 63 years, business,
r/o Navegaon (Sahu), Umrer,
district Nagpur.
3. Pranay s/o Shravanji Parate, aged
about 56 years, r/o Pranjal, plot
No.262-D, Near Water Tank,
Laxminagar, Nagpur-440022. ..... Non-applicants.
Shri V.V.Bhangde, Counsel for the Applicant.
Shri Dilip C.Daga, Counsel for Non-applicant No.3.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 12/02/2025
PRONOUNCED ON : 06/03/2025
.....2/-
Judgment
370 cra53.21
2
JUDGMENT
1. Heard learned counsel Shri V.V.Bhangde for the
applicant and learned counsel Shri Dilip C.Daga for non-
applicant No.3.
2. By this civil revision application, the applicant has
challenged order dated 6.3.2021 passed below Exh.15 by
learned 19th Civil Judge Senior Division, Nagpur in
Special Civil Suit No.926/2018 whereby the application
filed by the applicant/defendant No.2 under Order VII
Rule 11(d) of the Code of Civil Procedure was rejected.
3. The non-applicant Nos.1 and 2, who are landlords,
filed suit bearing Special Civil Suit No.926/2018 for
possession and recovery of rent on the contention that
they are joint owners of the land admeasuring 115×200
total 23000 square feet bearing plot N.2/3 A, Khasra
No.2/3 in Patwari Halka No.35 of Mauja Gohni (Sim),
…..3/-
Judgment
370 cra53.21
3
Gram Panchayat Bahadurpura, Umrer Road, Nagpur and
house admeasuring 100 square feet constructed on the
said land. The said suit premises was given on monthly
lease to the defendant No.1 for a period of 29 years
commencing from 24.1.2000 in view of Registered Lease
Deed dated 24.1.2000 for running retail outlet/petrol
pump and petroleum products. As per the Lease
Agreement, the tenancy month commences on 1st day of
each month and ends accordingly on the last day of each
month as per the English Calendar. The agreed rent of
the suit premises payable by the defendant Nos.1 and 2 is
Rs.1500/- per month upto December 2015. From
January 2016, the agreed rent was increased to
Rs.41,667/- per month. Defendant No.1, in terms of the
said Lease Deed dated 24.1.20000, has sublet the suit
premises to the defendant No.2 vide Lease Deed dated
27.7.2000 executed between the defendant Nos.1 and 2.
…..4/-
Judgment
370 cra53.21
4
defendant No.1 failed to tender and pay the rent of the
suit premises and, therefore, a Notice was issued
thorough an Advocate on 13.6.2017 claiming arrears of
rent. The defendant No.1 replied the Notice and denied
arrears of rent and failed to pay the amount of rent. As
defendant No.1 failed pay the amount of rent as agreed,
another Notices were issued on 21.5.2018 and 1.10.2018.
By the Notice dated 1.10.2018, the defendants were
asked to evict the premises and to deliver the suit
premises to the plaintiff. The said suit was filed by the
plaintiff before learned CJSD at Nagpur.
4. After receipt of the suit summons, defendant No.2
filed an application under Order VII Rule 11(d) of the
CPC for rejection of the plaint on the ground that the
entire plaint shows that their exists landlord-tenant
relationship between the plaintiff and the defendants. As
defendant No.1 failed to pay the rent, the plaintiff was
…..5/-
Judgment
370 cra53.21
5
constrained to file the suit for eviction. From the contents
of the plaint, the suit is not maintainable before learned
CJSD, but it is required to be filed before the Small
Causes Court in view of Section 16 read with 26 of the
The Provincial Small Cause Courts Act, 1887. The said
application is opposed by the plaintiff on the ground that
the suit property is situated out of the Nagpur Municipal
Corporation and the same falls under the jurisdiction
Mauja Gohni (Sim), Gram Panchayat Bahadurpura, Umrer
Road, Nagpur and, therefore, the application deserves to
be rejected.
5. After hearing both the sides, learned CJSD, Nagpur
rejected the application. Being aggrieved and dissatisfied
with the same, the present revision is filed by the
defendant No.2 on the ground that plaintiffs who are
landlords filed the suit for eviction and vacant suit
premises and recovery of rent. In view of clear language
…..6/-
Judgment
370 cra53.21
6
of Section 2(2) read with 33 of The Maharashtra Rent
Control Act, 1999, the suit is maintainable before the
Small Causes Court.
6. Learned counsel for the applicant submitted that
the suit in question is required to be filed before the Small
Causes Court in view of Section 16 read with 26 of the
The Provincial Small Cause Courts Act, 1887. The
plaintiff entered into the case with the defendants on
24.1.2000 and on that date The Central Provinces and
Berar Letting of Houses and Rent Control Order, 1949 was
in force. Under Chapter I, Section 1(2) of the Rent
Control Order, it has been stated that the rent control
order shall extend to such areas as the State Government
may, from time time, by notification direct. Chapter VII of
the Maharashtra Rent Control defines jurisdiction of
court. By exercising the powers conferred by Section 2 of
The Central Provinces and Berar Regulation of Letting of
…..7/-
Judgment
370 cra53.21
7
Accommodation Act, 1946, the Rent Control Order, 1949
was applicable to all the Gram Panchayats. Section 33 of
The Maharashtra Rent Control Act, 1999 explains
jurisdiction of the court which starts with non obstante
clause. A non obstante clause is a legislative device
which is usually employed to give overriding effect to
certain provision over some contrary provision. Section 2
of the Maharashtra Rent Act states about the application
and defines that the act shall apply to premises let for the
purposes of residence, education, business, trade or
storage in the areas specified in Schedule I and Schedule
II. Sub section (2) of the said Section states it shall apply
to the premises or, as the case may be, houses let out in
the areas to which the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 or the Central Provinces
and Berar Letting of Houses and Rent Control Order, 1949
issued under the Central Provinces and Berar Regulation
…..8/-
Judgment
370 cra53.21
8
of Letting of Accommodation Act, 1946 and Hyderabad
Houses(Rent, Eviction and Lease) Control Act, 1954 were
extended and applied before the date of commencement
of this Act and such premises or houses continue to be so
let on that date in such areas which are specified in
Schedule I to this Act, notwithstanding that the area
ceases to be of the description therein specified. He
further submitted that perusal of the provisions would
show that prior to coming of The Maharashtra Rent
Control Act, 1999, whenever The Central Provinces and
Berar Letting of Houses and Rent Control Order, 1949 was
extended and applicable, The Maharashtra Rent Control
Act, 1999 would apply in respect of the fact that the said
area is not described in Schedule I of The Maharashtra
Rent Control Act, 1999. He submitted that despite of
Schedule I wherein only Nagpur Municipal Corporation
has been specified but prior to coming of The
…..9/-
Judgment
370 cra53.21
9
Maharashtra Rent Control Act, 1999, The Central
Provinces and Berar Letting of Houses and Rent Control
Order, 1949 was applicable to the suit property. On
enactment of The Maharashtra Rent Control Act, 1999
w.e.f. 31.3.2000 the same is made applicable to the suit
property and therefore in view of Section 2(2) read with
section 33 of the Act, it is only the Small Causes Court
that will have jurisdiction to decide the present dispute
between the parties. Therefore, the order passed by
learned CJSD is illegal and liable to be quashed and set
aside.
7. Despite the service of the Notice, original plaintiffs
Nos.1 and 2 remained absent. The non-applicant No.3
supported the contention of the defendant No.2 who is
applicant in the present revision application.
…..10/-
Judgment
370 cra53.21
10
8. After hearing both the sides and perusing
averments in the plaint, it reveals that relationship
between the plaintiffs and the defendants is landlord and
tenant. The suit is filed by the plaintiffs for eviction on
the ground of arrears of the rent and also for the mesne
profit. Section 16 of The Provincial Small Cause Courts
Act, 1887 deals with exclusive jurisdiction of Courts of
Small Causes, which reads as follows:
16. Exclusive jurisdiction of Courts of Small
Causes. – Save as expressly provided by this
Act or by any other enactment for the time
being in force, a suit cognizable by a Court of
Small Causes shall not be tried by any other
Court having jurisdiction within the local
limits of the jurisdiction of the Court of Small
Causes by which the suit is triable.
9. Section 26 of The Provincial Small Cause Courts
Act, 1887 deals with suits or proceedings between the
…..11/-
Judgment
370 cra53.21
11
licensors and licensees or landlords and tenants for
recovery of possession of immovable property and licence
fees ore rent, except those to which other Acts apply, to lie
in Court of Small Causes to lie in court of small causes.-
(1) Notwithstanding anything contained elsewhere in this
Act, but subject to the provisions of sub-section (2), the
Court of Small Causes shall have jurisdiction to entertain
and try all suits and proceedings between a licensor and
licensee, or a landlord and tenant, relating to the recovery
of possession of any immovable property situated in the
area within the local limits of the jurisdiction of the Court
of Small Causes, or relating to the recovery of the licence
fee or charges therefor, irrespective of the value of the
subject-matter of such suits proceedings.
(2) Nothing contained in sub-section (1) shall apply to
suits or proceedings for the recovery of possession of any
immovable property or of licence fee or charges or
…..12/-
Judgment
370 cra53.21
12
thereof, to which the provisions of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, the
Bombay Government Premises (Eviction) Act, 1955, the
Bombay Provincial Municipal Corporations Act, 1949, or
the Maharashtra Housing and Area Development Act,
1976, or any other law for the time being in force, apply.
10. These two Sections, if read with Section 33 of The
Maharashtra Rent Control Act, 1999, which defines
jurisdiction of the courts, which is reproduced for the
reference:
33. Jurisdiction of courts.
(1) Notwithstanding anything contained in, any
law for the time being in force, but subject to the
provisions of Chapter VIII, 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,-
…..13/-
Judgment
370 cra53.21
13
(a) in Brihan Mumbai, the Court of Small
Causes, Mumbai,
(b) in any area for which a Court of Small
Causes is established under the Provincial
Small Causes Courts Act, 1897, such court,
and(c)elsewhere, the court of the Civil
Judge (Junior Division) having jurisdiction
in the area in which the premises are situate
or, if 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 a landlord and a tenant relating to
the recovery of rent or possession of any
premises and to decide any application
made under this Act (other than the
applications which are to be decided by the
State Government or an officer authorised
by it or the Competent Authority); and
subject to the provisions of sub-section (2),
no other court shall have jurisdiction to
entertain any such suit, proceeding, or
…..14/-
Judgment
370 cra53.21
14
application or to deal with such claim or
question.
(2)(a) Notwithstanding anything contained in
clause (b) 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 Causes 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
…..15/-
Judgment
370 cra53.21
15
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.
11. Thus, the provisions of Section 33 of The
Maharashtra Rent Control Act, 1999 and Section 26 of
The Provincial Small Cause Courts Act, 1887 need to be
read together. A bare reading of the Section would make
it clear that the powers to exercise the jurisdiction under
The Maharashtra Rent Control Act, 1999 are vested in
Small Causes Court, it in fact, becomes tribunal under of
The Maharashtra Rent Control Act, 1999. While dealing
with suit under the Maharashtra Rent Act, it does not
function as Small Causes Court but function as court
constituted under that act i.e. Maharashtra Rent Act. The
provisions of Section 26 of The Provincial Small Cause
…..16/-
Judgment
370 cra53.21
16
Courts Act, 1887 make it more clear and leave no manner
of doubt.
12. Thus, sub-section (2) of Section 26 of The
Provincial Small Cause Courts Act, 1887, clearly shows
that when the suit is initiated under the provisions, it
would lie before small causes court.
13. Admittedly, Section 33 of The Maharashtra Rent
Control Act, 1999, starts with non obstante clause which
gives overriding effect to certain provision over some
contrary provision. Section 2 of the Maharashtra Rent Act
specifically states about the application and defines that
the act shall apply to premises let for the purposes of
residence, education, business, trade or storage in the
areas specified in Schedule I and Schedule II. Sub section
(2) of Section 2 of The Maharashtra Rent Control Act,
1999 has non obstante clause which states that
…..17/-
Judgment
370 cra53.21
17
notwithstanding anything contained in sub-section (1), it
shall apply to the premises or, as the case may be, houses
let out in the ares to which the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 or the Central
Provinces and Berar Letting of Houses and Rent Control
Order, 1949 issued under the Central Provinces and Berar
Regulation of Letting of Accommodation Act, 1946 and
Hyderabad Houses (Rent, Eviction and Lease) Control
Act, 1954 were extended and applied before the date of
commencement of this Act and such premises or houses
continue to be so let on that date in such areas which are
specified in Schedule I to this Act, notwithstanding that
the area ceases to be of the description therein specified.
14. Thus, perusal of the provisions of Section 33 of The
Maharashtra Rent Control Act, 1999 shows that prior to
coming of The Maharashtra Rent Control Act, 1999,
whenever The Central Provinces and Berar Letting of
…..18/-
Judgment
370 cra53.21
18
Houses and Rent Control Order, 1949 was extended and
applicable, The Maharashtra Rent Control Act, 1999
would apply in respect of the fact that the said area is not
described in Schedule I of The Maharashtra Rent Control
Act, 1999. In view of sub section (2) of Section 2 of the
read with 33 of The Maharashtra Rent Control Act, 1999,
it is only Small Causes Court that would have jurisdiction
to decide the present dispute irrespective of the monetary
claim. In view of the fact that prior to coming of The
Maharashtra Rent Control Act, 1999, The Central
Provinces and Berar Letting of Houses and Rent Control
Order, 1949 was applicable to the suit property and on
enactment of The Maharashtra Rent Control Act, 1999
w.e.f. 31.3.2000 the same would apply to the suit
property.
15. The Notification under the The Central Provinces
and Berar Letting of Houses and Rent Control Order, 1949
…..19/-
Judgment
370 cra53.21
19
issued also states that the provincial government was
pleased to direct that Chapters of The Central Provinces
and Berar Letting of Houses and Rent Control Order, 1949
specified in column No.2 of the table below shall extend
to the areas specified in the corresponding entry in
column No.3 of the table which is reproduced for
reference:
Sl Chapter Area No. (1) (2) (3) 1 1 The whole of the Central Provinces and Berar
and the States integrated with the Central
Provinces and Berar.
2 II and III (a) All the Municipalities in the Central Provinces
and Berar and the States integrated with the
Central Provinces and Berar.
(b) Gram Panchayat, Mahasamund, Gaurella
Sanitation Panchayat Area, Bemetara, Sarkanda,
Tgarbahar, Sirgitti, Torwa and Baloda, Bazar.
3 III Municipaliities of Nagpur Wardha, Akola Chanda.
Amraoti, Amraoti Camp Elltehpur, Hinganghat,
Gondia, Morshi, Daryapur.
4 III and IV Towns of Sukanda, Tarbahar, Sirgitti and Torwa.
…..20/-
Judgment
370 cra53.21
20
16. Thus, reading of averments in the plaint as well as
perusal of the documents on record shows that the suit
premises was let out on monthly rent. Prior to the
application of The Maharashtra Rent Control Act, 1999,
The Central Provinces and Berar Letting of Houses and
Rent Control Order, 1949 was applicable to the suit
property. In view of Section 2(2) read with Section 33 of
The Maharashtra Rent Control Act, 1999, it is only Small
Causes Court that will have jurisdiction to decide the
present dispute between the parties. Section 16 of The
Provincial Small Cause Courts Act, 1887 restricts
jurisdiction of the Small Causes Court, but Section 2(2) of
The Maharashtra Rent Control Act, 1999 states with non
obstante clause and in view of non obstante clause, said
Section 16 will have to consider in view of Sections 2(2)
and 33 of The Maharashtra Rent Control Act, 1999.
…..21/-
Judgment
370 cra53.21
21
17. Thus, bare reading of Sections above would make
it clear that the power to exercise the jurisdiction under
The Maharashtra Rent Control Act, 1999 is vested with
the Small Causes Court on conjoint reading of Section 33
The Maharashtra Rent Control Act, 1999 and Section 26
of The Provincial Small Cause Courts Act, 1887.
18. Under Order VII Rule 11 of the CPC, duty is caste
on the court to determine whether plaintiff discloses by
scrutinizing the averments in the plaint. The law cannot
permit clever drafting which creates cause of action
showing the jurisdiction of the court. There is no dispute
as to the fact that Order VII Rule 11 of the CPC is only as
to the plaint averments and documents annexed with the
plaint can be looked into whether requirements of the
CPC are satisfied. By applying this principle and relying
upon the plaint averments, it reveals that only the Small
Causes Court is having the jurisdiction to entertain the
…..22/-
Judgment
370 cra53.21
22
suit and, therefore, the case of the defendants is covered
under Order VII Rule 11(d) of the CPC which shows that
suit is barred before the civil court.
19. At this stage, the issues or merits of the matter is
not required to be looked into. What is required to be
seen is, pleading of the plaint and on reading of the
pleading it appears that there is a ground that the suit is
filed in court which has no jurisdiction and such
argument is substantiated. As such the plaint is to be
rejected under Order VII Rule 11 of the CPC.
20. In this view of the matter, I proceed to pass
following order:
ORDER
(1) The Civil Revision Application is allowed.
(2) The order dated 6.3.2021 passed below Exh.15 by
learned 19th Civil Judge Senior Division, Nagpur in
…..23/-
Judgment
370 cra53.21
23
Special Civil Suit No.926/2018 is hereby quashed and set
aside.
(3) The application filed below Exh.15 by the defendant
No.2 for rejection of the plaint is allowed.
(4) Accordingly, the plaint of the plaintiff is rejected.
Civil Revision Application stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 11/03/2025 09:48:08
[ad_1]
Source link