Appeal from Order No. 673 of 1990. Case: Ram Gopal Gupta Vs Rajesh J. Kothari. High Court of Bombay (India)

Case NumberAppeal from Order No. 673 of 1990
CounselFor Appellant: V.T. Walavalkar and C.G. Govnekar, Advs. and For Respondents: Ranjana Parekh, Adv.
JudgesH. Suresh, J.
IssuePresidency Small Cause Courts Act, 1882 - Section 41; Civil Procedure Code (CPC), 1908 - Section 9A
Citation1990 (3) BomCR 596
Judgement DateSeptember 17, 1990
CourtHigh Court of Bombay (India)

Judgment:

H. Suresh, J.

  1. The appellant-plaintiff filed a suit in the Bombay City Civil Court, being Suit No. 7879 of 1989 as against the respondent defendant for a decree or an order, in effect, to remove him from a certain cabin, which is in the occupation of the defendant.

  2. The plaintiff's case is that he is a tenant in respect of a second floor of a building bearing No. 35, Hamam Street, Fort, Bombay, since about the year 1953. The plaintiff has built number of cabins in the said premises. Each of the cabin is provided with a door. The original keys of the doors of all the cabins have also been in the custody of the plaintiff all the time since 1953. Different cabins have been given to different persons from time to time. So, the plaintiff's case is that he is in possession and control of the entire premises, while the defendant is allowed the use and occupation of one of the cabins. After filing of the suit the plaintiff took out a notice of motion for certain reliefs when the defendant raised an objection under section 9-A, C.P. Code and submitted that as the plaint stands, the Bombay City Civil Court will have no jurisdiction to entertain and try the suit as the suit would fall within the scope of section 41 of the Presidency Small Cause Courts Act, 1882, as recently amended. The learned Judge decided this question and upheld the contention of the defendant and by his order dated 10th July, 1990 returned the plaint to the plaintiff for presentation in a proper Court. It is against this order dated 10th July, 1990, the plaintiff has preferred the present appeal.

  3. It is an accepted proposition that the jurisdiction of a Court will have to be decided on the basis of the averments in the plaint. Mr. Walawalkar, appearing for the plaintiff, submitted that If one goes through the plaint, it becomes clear that it is the case of the plaintiff that he is in joint possession of the premises with the defendant and that in such a suit it is not necessary that the plaintiff should seek any decree for possession of the property. Mr. Walawalkar submitted that under section 41 of the Presidency Small Cause Act, 1882, the Court of Small Causes at Bombay only will have jurisdiction to entertain and try the suit or proceedings between licensees or landlords and tenants for recovery of possession of immovable property situated in Bombay. Therefore, Mr. Walawalkar a proposition is that if on the basis of the averments made in the plaint and the documents annexed thereto, it could be said that the plaintiff and the defendant are in join possession of the property, then, it cannot be said that the suit relates to recovery of possession of any immovable property and that, therefore, the Bombay City Civil Court at Bombay will have jurisdiction to entertain and try this suit.

  4. As against this, Miss Parekh submitted that the suit herein is the suit between a licensor and licensee, and if it relates to recovery of possession, whether joint of otherwise, it is the Court of Small Causes, which will have jurisdiction to entertain and try the suit. She further submitted that in such a suit, it is not necessary that the licensee should have any protection under section 15A of the Bombay Rent Act, 1947, She submitted that if a licensee is in possession of any defined area and the licence having been terminated, such suits cannot be filed in any Court except under section 41 of the presidency Small Cause Courts Act.

  5. It is also well settled that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT