13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 7350 OF 2009 With WRIT PETITION NO. 7351 OF 2009 Baby Krishna Shetty .... Petitioner Vs. Vijay Mallya ,sole proprietor of Ameya Developers… Respondent ..... Mr. Bhavesh Parmar, Advocate for the petitioners. Mr.M.M.Vashi i/b Ms.Archana Khan, Advocate for the respondents. ..... CORAM :- A.S.OKA, J. DATED :- 17TH February , 2010. P.C.- 1. These two writ petitions can be conveniently disposed of by a common judgment. The petitioner filed a civil suit in the City Civil Court at Mumbai against the respondent herein as well as against a society registered under the Maharashtra 13 Co-Operative Societies Act, 1960 for injunction. The respondent herein filed a suit against the petitioner in the Court of Small Causes at Mumbai praying for decree for possession against the petitioner. 2. The respondent claimed that he was the owner and landlord of the land admeasuring 607 square meters bearing CTS Nos. 231 and 231 (1)to (3) of the village Andheri , Taluka Andheri together with a structure known as Gulam Mohommed building . According to the case of the respondent, the petitioner is the widow of original tenant in respect of the flat number 2 (hereinafter referred to as the suit premises) in the said building. The respondent claimed to be a developer of the adjacent property under a development agreement executed by the Parivar Co- operative housing Society Ltd which is the owner of the adjoining property. The respondent claimed possession of the suit premises on the ground that the same was required for immediate demolishion. The suit was filed under the provisions of section 16 (1) (i) of the Mahrashtra Rent Control 13 Act, 1999 (hereinafter referred to as "the said Act of 1999"). The suit filed by the petitioner in the City Civil Court was for injunction restraining the respondent and the said society from dispossessing the petitioner from the suit premises without taking recourse to due process of law. 3. In the suit filed by the respondent in the Court of Small Causes, an application was made by the respondent for temporary injunction and for appointment of a Court Commissioner. The said application was allowed by appointing a Court Commissioner. A revision application was preferred against the said order by the present petitioner. The revision application was allowed by setting aside the order appointing Court Commissioner. While allowing the revision application, the Appellate Bench of the Court of Small Causes directed the trial Court to frame a preliminary issue as regards jurisdiction in accordance with section 9A of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). 4. Accordingly, the learned trial judge framed a preliminary 13 issue of jurisdiction. By judgment and order dated 27th February 2009, the learned trial judge held that the Court of Small Causes had jurisdiction to entertain and try the suit. The petitioner challenged the said order by filing a revision application before the Appellate Bench of the Court of Small Causes. By judgment and order dated 15th July 2009, the said revision application was dismissed. It was held that the finding of the trial Court on the issue of jurisdiction was correct in view of the averments made in the plaint. Writ petition no. 7350 of 2009 has been preferred by the petitioner for challenging the aforesaid orders dated 27th of February 2009 and 15th July 2009. 5. The petitioner made an application in the suit filed by the respondent in the Court of Small Causes praying for stay of proceedings of the suit in accordance with section 10 of the said Code. It must be stated here that in the suit filed by the petitioner in the City Civil Court, a preliminary issue of jurisdiction was raised under section 9A of the said Code. It was contended by the respondent in the said suit that the 13 dispute was between a tenant and landlord and therefore, a Civil Court had no jurisdiction to entertain the suit. It was also contended that the suit was liable to be dismissed as a notice under section 164 of the said Act of 1960 was not served before filing the suit against a co-operative society which was second defendant in the said suit. The preliminary issue of jurisdiction was decided by the City Civil Court in favour of the petitioner. By judgment and order dated 27th February 2009, the learned judge of the Court of Small Causes rejected the application made by the petitioner for stay of the suit. A revision application was preferred by the petitioner for challenging the said order. The Appellate Bench of the Court of Small Causes rejected the revision application by judgment and order dated 15th July 2009. These two orders of rejection of application under section 10 of the said Code have been challenged by the petitioner by filing writ petition no. 7351 of 2009. 6. The learned counsel appearing for the petitioner submitted that the suit filed by the petitioner in the City Civil Court was 13 prior in point of time. He submitted that the preliminary issue of jurisdiction framed in the suit filed in the City Civil Court was decided in favour of the petitioner by holding that there was no merit in the contention of the respondent that the City Civil Court had no jurisdiction to try a suit on the ground that the dispute is between a tenant and landlord. He submitted that while deciding revision application against an order passed by the Court of Small Causes on the preliminary issue of jurisdiction, the Appellate Bench has erroneously observed that the issue whether the respondent is a landlord within the meaning of the said Act of 1999 will to be decided at the time of trial of the suit. He submitted that in view of mandate of section 9A of the said Code, the issue regarding existence of the landlord-tenant relationship ought to have been decided while deciding the preliminary issue. He submitted that the respondent had an opportunity to lead evidence to establish that he was the landlord. He submitted that the respondent has chosen not to lead evidence. He submitted that as the respondent failed to 13 prove the existence of landlord- tenant relationship, the suit ought to have been dismissed on the ground that the respondent has failed to prove such relationship. He submitted that the issues involved in the suit previously instituted by the respondent in the City Civil Court were directly and substantially in issue in the subsequent suit instituted by the respondent in the Court of Small Causes. Therefore, section 10 of the said Code was squarely applicable. He submitted that the impugned orders are bad in law. 7. The learned counsel appearing for the respondent submitted that while deciding the issue of jurisdiction of the Court of Small Causes, only the averments made in the plaint were required to be seen and it was not necessary to decide the issue of landlord- tenant relationship. He submitted that section 10 of the said Code had no application in as much as the City Civil Court had no jurisdiction to grant relief which could have been granted by the Court of Small Causes in the suit filed by the respondent. He submitted that no 13 interference is called for. 8. I have given careful consideration to the submissions. The suit filed by the respondent in the Court of Small Causes was for eviction of the petitioner under the provisions of the said Act of 1999. Under section 33 of the said Act of 1999, the Court of Small Causes is conferred with exclusive jurisdiction to entertain and try suits between landlord and tenant relating to possession of tenanted premises. As issue of jurisdiction was raised by the petitioner at the time of hearing of application for temporary injunction made by the respondent, the Appellate Bench rightly directed the trial Court to frame an issue of jurisdiction in accordance with section 9A of the said Code. The question is what is the scope of adjudication while deciding the preliminary issue of jurisdiction. The law on this aspect is no longer res Integra. A full Bench of this Court dealt with the issue in its decision dated 4th September 1964 in the case of Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore. What is held by the full Bench is that in order to determine which Court has 13 jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. If on a bare reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is raised by the defendant about the existence of relationship of landlord and tenant, the continuation of the suit in the special Court will depend on the decision of the Court on that issue. 9. Though the Court of Small Causes had no option but to frame issue of jurisdiction , in view of mandate of section 9A of the said Code, while deciding the issue of jurisdiction, the issue was required to be decided on the basis of the averments made in the plaint. However the trial Court seemed to be under an impression that while deciding the 13 issue of jurisdiction, it was necessary to decide the question whether the respondent was the landlord of the petitioner. The Appeal Bench has rightly observed that the trial Court should have decided the preliminary issue on the basis of averments made in the plaint. The Appellate bench rightly observed that the issue of existence of landlord-tenant relationship was required to be decided subsequently after the parties adduced evidence. The appellate bench has recorded a finding that after going through the plaint it is clear that the Court of Small Causes had jurisdiction to entertain the suit. 10.The averments made in the plaint show that there are clear assertions that the husband of the petitioner was the tenant in respect of the suit premises. It is alleged that the respondent is the owner and landlord of the property on which suit premises are situated. The prayer is for possession of the suit premises under section 16 (1) (i) of the said Act of 1999. Therefore, going by the averments made in 13 the plaint, the Court of Small Causes had jurisdiction to entertain the suit in view of section 33 of the said Act of 1999. As rightly observed by the Appellate Bench, the issue of existence of landlord-tenant relationship will have to be decided after evidence is adduced by the parties. The approach of the Appellate Bench is consistent with the law laid down by the full Bench of this Court. The continuation of the suit in the said Court will depend upon the evidence adduced by the respondent to show the existence of landlord-tenant relationship. Therefore, no interference is called for with the impugned orders in writ petition no. 7350 of 2009. 11.The other issue is whether section 10 of the Code will have application. As stated earlier, the suit filed by the petitioner which is earlier in point of time is pending in the City Civil Court. The suit filed by the respondent is pending in the Court of Small Causes which is a special Court having exclusive jurisdiction to entertain and try the suits between a 13 landlord and a tenant. In view of section 33 of the said Act of 1999, the Court of Small Causes exercises exclusive jurisdiction to entertain and try the suits between landlord and tenant relating to possession of the tenanted premises. The City Civil Court has no jurisdiction to grant the relief which is claimed in the suit filed in the Court of Small Causes. In short, the Courts in which the suits are pending are not the Courts of concurrent jurisdiction. Therefore, section 10 of the said Code is not a attrcted. In the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara,(2005) 2 SCC 256, the Apex Court held that “12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal1 it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, 13 Section 10 CPC has no application and consequently, it was not open to the High Court to bypass Section 10 CPC by invoking Section 151 CPC.” Thus, even section 151 of the said Code cannot be invoked in the present case. In the circumstances no interference is called for with the impugned orders subject matter of writ petition no. 7351 of 2009. 12.The writ petitions are accordingly rejected. It is made clear that no adjudication has been made by this Court on the merits of the suits and all contentions of the parties in that behalf are expressly kept open. JUDGE