2024:BHC-AS:38175 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 493 OF 2024 Vishwanath Sakharam Churi And Ors. … Applicants Versus Vijay Sakharam Churi And Anr. … Respondents Mr. Prashant G. Karande a/w Mr. Sudam S. Patil i/b Praful S.

Pawar for the Applicants Mr. Hasan Sayed a/w Mr. R. A. Shaikh i/b Ms. Swati Marg for the Respondent No.1.

CORAM : SANDEEP V. MARNE, J.

DATE : 23 SEPTEMBER 2024.

ORAL JUDGMENT :-

1) This Revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (Code) is invoked by the Applicants for setting up a challenge to order dated 21 August 2024 passed by the learned Judge of the Small Causes Court, Mumbai rejecting the application filed by the Applicants seeking rejection of the Plaint under provisions of Order VII Rule 11 (d) of the.

Digitaly MANE s M Si Og An NNe AEd L b Iy ___ Page No . 1 of 9 ___

SONALIDILIP DILIP D 20a 2te 4: .09.26 23 September 2024 +0530

2) Mr. Sayed, the learned counsel appearing for Respondent No.1/Plaintiff raises of preliminary objection about maintainability of the present application relying on judgment of this Court in Jasraj Lalaji Oswal Vs. Raziya Mehboob Patel, [2020 (1) ABR 782]. He would submit that Applicants have an alternate and equally efficacious remedy of filing of Revision under provisions of sub-Section (4) of Section 34 of the Maharashtra Rent Control Act, 1999 (MRC Act).

3) Mr. Karande, the learned counsel appearing for Petitioner seeks to distinguish the judgment of this Court in Jasraj Lalaji Oswal (supra) submitting that the judgment is rendered after recording a finding that the application for rejection of Plaint, if allowed in the facts of that case, would have affected substantial rights of the parties therein. He would submit that in the present case, even if the application filed under Order VII Rule 11 (d) was to be allowed, the same would not affect substantive rights of Plaintiff. He would place reliance on judgment of Division Bench of this Court in Vishankumari Udaysingh Varma Thr. Her Dauther And Constituted Attorney Manju U. Varma & Anr. Vs. Vijaysingh Rajasingh Varma & Ors² in support of his contention that a suit challenging compromise decree is not maintainable and the proper remedy for aggrieved party is to file an application seeking recall of the order effecting compromise decree. Mr. Karande would accordingly submit that since the Plaintiff would still be left with a proper remedy of filing an application before the same learned Judge seeking recall of compromise decree, it cannot be stated that his substantive rights

2

2016 (4) Mh. L.J. 805 would be affected, if the application under Order VII Rule 11 (d) was to be allowed.

4) In Jasraj Lalaji Oswal (supra), Single Judge of this Court has taken into consideration the law expounded by full Bench of this Court in Bhartiben Shah Vs. Smt. Gracy Thomas & Ors³. The Full Bench has held in Paragraph 84 to 88 as under:

"84. In the result, therefore, our answer to question No.2 referred for our consideration is as under:-

A revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999 is not maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of Maharashtra Rent Control Act, if such order does not affect the rights of parties under the Maharashtra Rent Control Act or any other substantive law. While an order to be revisable need not necessarily be an order for possession or fixation or recovery of rent, nevertheless, the order sought to be revised must directly affect the substantive rights and liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act.

85. For an order to be revisable under Section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of t