Chamber Summons No. 1620 of 2010 in Suit No. 2688 of 2008 with Chamber Summons No. 216 of 2011 in Suit No. 2688 of 2008. Case: Anjanabai Hanumantrao Sonawane Vs Hindustan Construction Co. Ltd.. High Court of Bombay (India)
| Case Number | Chamber Summons No. 1620 of 2010 in Suit No. 2688 of 2008 with Chamber Summons No. 216 of 2011 in Suit No. 2688 of 2008 |
| Counsel | For Respondents: Girish Godbole, Paritosh Jaiswal i/b Kanga and Co., Sanmish Gala i/b Makrand Gandhi & Co. |
| Judges | K. R. Shriram, J. |
| Issue | Arbitration and Conciliation Act, 1996 - Sections 2(3), 5; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [Repealed Act] - Sections 15A, 28, 28(1); Code of Civil Procedure, 1908 (CPC) - Order VII Rule 10; Maharashtra Rent Control Act, 1999 - Section 33; Presidency Small Cause Courts Act, 1882 - Sections 41, 41(1), 41(2) |
| Judgement Date | September 05, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
K. R. Shriram, J.
1. Whether this Court should hear and dispose of this suit or the suit has to be tried by the Court of Small Causes, Mumbai is the issue. It is the case of the defendant that this Court does not have jurisdiction in view of Section 41 of the Presidency Small Causes Court Act 1882 (for brevity referred as 'the said Act') and therefore, the plaint has to be returned to the plaintiffs under Order VII Rule 10 of Code of Civil Procedure, 1908 and to be presented to the appropriate forum, viz., the Court of Small Causes at Bombay.
2. The plaintiffs have filed an affidavit in reply opposing the chamber summons whereby the stand is that the present suit is not between the lessees/landlord/tenants and therefore, this Court has jurisdiction.
3. The case of the defendant, in short however, is that, the plaint as it reads clearly shows that the dispute raised by the plaintiffs is for possession of the suit property and that the plaintiffs' wish to be declared as lessees of the suit property. Hence, the plaintiffs claim to be a tenant, the issue is a dispute between the land-lord and the tenant for possession and therefore this Court has no jurisdiction. This being a short point, before we proceed further, let us examine what the plaint states. It should also be kept in mind that while deciding the jurisdiction of the Court at this stage, we need to look into only the averments in the plaint taking them to be true. The admitted position in the plaint is that the defendant is the owner of the suit property.
According to the plaintiffs, one Hari Fakira Kharvi (the said Fakira) was, prior to 1946, cultivating the land belonging to the defendant. Sometime, in the year 1954, the said Fakira leased the suit land and put one deceased Hanumantrao Phakdu Sonawane in possession of the suit land along with existing structure thereon. In 1969, when the defendant filed a suit against the said Fakira in this Court, consent terms were arrived at between the parties to the suit whereby the defendant is alleged to have conceded that the said Hari Fakira was lessee and has got right of lease to sublet the suit land. The said Fakira allegedly let out the suit land for 999 years in perpetuity to the said Hanumantrao Phakdu Sonawane and one Kishan Tatoba Jadhav namely plaintiff No. 5. The plaintiffs also stated that prior to execution of the said Lease Deed, the said Hanumantrao Phakdu Sonawane and after his death, the plaintiffs have been in exclusive use, occupation and possession of the suit land as lessees and have been exercising all rights as lessees in respect of the suit land. It is also the case of the plaintiffs that the said Hanumantrao Sonawane was acting as a lessee to the knowledge of the defendant. With this background, the plaintiffs are seeking a declaration that the plaintiffs are lessees of the suit land and owners of the structure standing thereupon. The plaintiffs have also alleged that the defendant is trying to wriggle out of their obligations as owners of the property leased to the plaintiffs' predecessors in title.
4. For the purposes of this chamber summons, it is better to reproduce paragraphs 14 and 15 and prayer clause (a) of the plaint:
14) Plaintiffs submit that as admitted by the defendants in the said Consent Terms, said Fakira was a lessee and had right to sublet the land and to receive the lease money and also transfer his rights to any person. The said Suit No. 431 of 1969 filed by defendants herein in which aforesaid Consent Terms were executed at the stage of Notice of Motion and thereafter the said suit was dismissed for default. Defendants herein though aware of the dismissal have not taken any steps for revival of the suit. Defendants are bound by the admissions made by them in the said Consent Terms. Pursuant to the said confirmation, said Fakira executed lease of suit in favour of Hanumantrao and sadi Kishan Tatoba Jadhav (Plaintiff No. 5) on 23rd May 2974 and the said Indenture was duly registered with Sub Registrar of Assurances. Defendants as owners of land are bound by the said Indenture of lease executed by Lessee of Defendant. Attempt on the part of the defendants by their Advocates letter dated 28th February 2008...
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