Judgment - DHARMADHIKARI B. P. , J.

( 1 ) IN this writ petition under Articles 226 and 227 of Constitution of India the petitioner/original defendant in the Regular Civil suit Number 1039 of 1998 challenges the order dated 23-11-2004 passed by 7th Joint Civil Judge (Jr. Dn.), Nagpur, rejecting application for permission to amend his application raising objection Under Section 47 of C. P. C. It appears that present respondent filed on 29-7-1998 a suit for recovery of possession under section 6 of Specific Relief Act against present petitioner. The respondent has stated that it is tenant in the premises of petitioner and it continued in peaceful and actual possession of said premises up to 20-7-1998. On that day they found that their locks on tenanted premises were broken and the respondent had taken forcible possession of suit premises and, their machinery installed in suit premises and other goods and raw material were found thrown in adjacent premises belonging to one Shri Pohane. After making police complaint, on or about 29-7-1998 the respondents filed Civil suit mentioned above for restoration of possession. The respondent also applied for grant of mandatory temporary injunction of restoration of possession and the same came to be granted by trial Court and was maintained by Appellate court. Writ Petition No. 3815 of 2002 filed by present petitioner challenging this grant came to be dismissed on 26th November, 2002. Thereafter, respondent started proceedings for restoration of possession by executing that order and, petitioner opposed it by filing application/objection under section 47 of C. P. C. respondent moved application at Exh. 94 under Order VII, Rule 11 (d) of C. P. C. , contending that as the respondent is claiming to be tenant and is seeking recovery of possession, Small Causes Court alone has jurisdiction and Civil Suit before Civil Court was not tenable. Said application was considered by trial Court on 21-1-2004 but as on that date nobody appeared for petitioner/defendant, it was adjourned to next date. On 6-3-2004 again defendant remained absent and the trial Court disposed of that application. Thereafter the defendant filed on application for amendment (Exh. 111) and sought leave to amend his objection under section 47 C. P. C. This application was opposed by present respondent and the trial Court after hearing both the sides was pleased to find that objection sought to be added was already moved vide Exh. 94 and had been disposed of on 6-3-2004. The trial Court therefore on 23-11-2004 held that it has already decided said issue and as it had jurisdiction to take cognizance of the suit, application moved by petitioner was not tenable. It is this order which is challenged in present writ petition.

( 2 ) I heard Advocate S. D. Khati for petitioner/defendant and Advocate S. C. Sangamnerkar for respondent/original plaintiff. In view of the nature of controversy, both the Advocates agreed to submit the Xerox copies of their reliances and accordingly, with consent, matter was heard finally for disposal at admission stage itself.

( 3 ) ADVOCATE S. D. Khati contends that the earlier order passed on 6-3-2004 did not decide the issue at all and the objection has been dismissed in default. He therefore argued that principles of res judicata were not attracted and the subsequent application for amendment to the objection could not have been rejected on that ground. He further stated that in view of provisions of section 26 of Provincial Small Causes Courts Act, the Small Causes Court alone had jurisdiction to take cognizance of suit filed by present respondent and Civil suit under section 6 of Specific Relief Act was untenable. He has relied upon the judgment of Hon'ble Apex Court reported at (Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale), 1995 (3) Bom. C. R. 240 : A. I. R. 1995 S. C. 1102 and (Mathura Prasad Sarjoo Jaiswal v. Dossibai N. R. Jeejeebhay), A. I. R. 1971 S. C. 2355, in support of his contention.

( 4 ) AD

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