( 1 ) DEFENDANT Vijay, who was ordered to be evicted from the suit premises, in pursuance of the decree passed by the learned 3rd Joint civil Judge Junior Division, Ramtek and affirmed on appeal by the learned 14th ad hoc Additional District Judge, Nagpur, has preferred this Second Appeal.

( 2 ) THE facts which led to the presentation of this appeal are as under: the plaintiffs had purchased house bearing No. 31 C. T. S. 2035, Sheet No. 8 of Rakhi Bank Road at Ramtek by registered sale deed on 1-10-1987 from nalini Joshi and others. The defendant was a tenant in respect of part of this premises on monthly rent of Rs. 125/ -. Since the plaintiffs required the premises bona fide and reasonably for their own occupation and since the provisions of c. P. and Berar Letting of Premises, 1989 applied to the suit premises they approached the Rent Controller for permission to issue notice under section 106 of the Transfer of Property Act. The Rent Controller accorded necessary permission and thereafter the plaintiff sent notice on 28-5-1993 terminating tenancy of the defendant and seeking recovery of the possession on expiry on 30th June, 1993. Since the tenant did not vacate, the plaintiffs filed suit for defendants ejectment with damages @ Rs. 40/- per day, arrears of rent, notice charges etc.

( 3 ) THE defendant contested the proceedings, contending that he was tenant of Smt. Nalinibai Joshi and stating that the plaintiffs were not entitled to recover possession from him.

( 4 ) AFTER considering the evidence tendered before him, the learned 3rd joint Civil Judge Junior Division, Ramtek decreed the suit and also ordered the defendant to pay Rs. 5,647/- plus future mesne profit @ Rs. 30/- per day.

( 5 ) AGGRIEVED thereby, the appellant/defendant preferred appeal before the district Court at Nagpur, which was decided by the learned 14th Ad-hoc Additional district Judge, Nagpur. By his judgment, the learned judge upheld the order of ejectment of the appellant, passed by the learned trial Judge, but only modified the order in respect of future mesne profit, directing that an enquiry under Order XX, rule 12 of the Code of Civil Procedure, be held in respect of future mesne profit. Aggrieved thereby, the appellant approached this Court, by first filing civil revision application, which was allowed to be converted into the second appeal.

( 6 ) I have heard Shri R. L. Khapre, learned counsel for the appellant and shri Vyawahare, learned counsel for the respondent.

( 7 ) THE learned counsel for the appellant contended that there are substantial questions of law required to be decided in this second appeal. According to the learned counsel, the proceedings were governed by the provisions of section 26 of the Provincial Small Cause Courts Act, between landlady and tenant. Since the learned Civil Judge Jr. Dn. , Ramtek had no jurisdiction to try small causes suit he should have returned the same for presentation to the Court of Civil Judge Sr. Dn. , Nagpur who also has powers to try the suits under the Small Causes Courts act. Since this is not done, there is serious jurisdictional error. It was also contended that service of notice upon the defendant was not proved, bona fide need of the plaintiff was not proved, the appellant ought to have been offered an opportunity to deposit the arrears of rent and therefore, the learned counsel submits that the suit ought to have been dismissed.

( 8 ) RELYING on decision of this Court, in Gurunathappa vs. Dharwar municipality, reported at AIR (32) 1945 Bom. 197 (FB), the learned counsel submitted that, when small causes suit, is tried as a regular suit, second appeal could not be treated as revision under section 115 of the Civil Procedure Code, since it would prejudice the appellant. It was observed in Gurunathappas case that the provisions of section 25 of the Provincial Small Causes Court Act are wider than those of section 115 of the Civil Procedure Code and therefore, the court ordered remand of the pr

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