The main legal point established in the judgment is that the trial court should have considered the objection to its jurisdiction as a preliminary issue before proceeding with the suit, in accordance with the legal provisions of the Provincial Small Causes Court Act, 1887.

A.P. Bhangale, J.

1. This second appeal is directed against judgment and order dated 10.9.2013, passed by the learned Adhoc District Judge-2, Nagpur, in Regular Civil Appeal No. 43 of 2010, whereby the appeal was dismissed, which arose from judgment and order dated 21.11.2009, passed by the learned Additional Judge, Small Causes Court, Nagpur, in Regular Civil Suit No. 44 of 2004, whereby the suit was partly decreed with costs. This second appeal was admitted on 19.12.2013, by my learned brother Judge Shri S.B. Shukre, on the following substantial questions of law, thus:

(1) Whether in the facts and circumstances of the case Small Causes Courts could be said to have jurisdiction to try the suit, when the suit is based on relationship of partnership and seeks a declaratory relief, in view of the bar created by Item 19 and Item 29 of 2nd Schedule of the Provincial Small Causes Court Act, 1887?

(2) Whether in the facts and circumstances of the case, oral evidence inconsistent with and contrary to the terms of partnership Exh.62 and Exh.92, could have been considered?

(3) Whether in the facts and circumstances of the case, it can be said that fixed payment of Rs. 1,500/- provided in the partnership deed was permissible for a valid partnership, specially when the premises of the partnership was to be used as shop premises?

Thus, at the time of admission, the question regarding jurisdiction of the Small Causes Court to entertain and try the suit was to be considered as the suit was based upon the averments as to relationship arising from partnership and declaratory relief.

2. According to learned Counsel appearing for appellants in view of the provisions of The Provincial Small Cause Courts Act, 1887 (for short, "the said Act"), considering Section15 of the said Act relating to cognizance of suits by the Small Causes Court, though the objection to the jurisdiction of the Small Causes Court was taken in the trial Court that the Small Causes Court had no jurisdiction at all to try and decide the suit, the said Court proceeded further to entertain and decide the suit without considering the preliminary objection taken as to jurisdiction of the Small Causes Court.

According to the submission advanced on behalf of appellants the learned trial Judge ought to have considered the provisions of Section 15 of the said Act, in juxtaposition with Item Nos. (11), (19) and (29) of the Second Schedule, which deal with the suits excepted from the cognizance of the Small Causes Court. Said Item Nos. (11), (19) and (29) read, thus:

Item No. (11):-a suit for the determination or enforcement of any other right to or interest in immovable property;

Item No. (12):-a suit for possession...........

Item No. (19):-a suit for a declaratory decree, not being a suit instituted under section 283 or section 332 of the Code of Civil Procedure, 1882 (14 of 1882);

Item No. (20):-a suit instituted..........

Item No. (29):-a suit--

(a) for a dissolution of partnership or for the winding up of the business of a partnership after its dissolution;

(b) for an account of partnership-transaction; or

(c) for a balance of partnership-account, unless the balance has been struck by the parties or their agents...........

Thus, Item No. 11 provides an exception of a suit for the determination or enforcement of any other right to or interest in immovable property while Item No. 19 relates to a suit for a declaratory decree, not being a suit instituted under Sections 283 or 332 of the Code of Civil Procedure; and Item No. 29 relates to a suit for a dissolution of partnership or for the winding up of the business account etc. in relation to the partnership firm.

3. In the present case, the partnership deed was subject of the suit before the trial Court. Therefore, according to learned Counsel appearing for appellants an objection was taken in the trial Court itself as preliminary objection requiring the trial Court to decide the objection as to the jurisdiction of the Court to entertain a