: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2209 of 2003 SUIT NO.2209 of 2003 SUIT NO.2209 of 2003 Smt.Ram Janki Devi w/o. Jagdish Narain Khandelwal & Anr. .. Plaintiffs. Versus Smt.Lalita Devi wd/o. Durgaprasad Khandelwal & Ors. .. Defendants. Mr.R.D.Dave i/b.N.N.Vaishnawa & Co. for plaintiffs. Ms.Bindu S. Parikh i/b.Gabriel Pillai for defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 12th August, 2008. DATE : 12th August, 2008. DATE : 12th August, 2008. P.C. :- P.C. :- P.C. :- 1. The suit premises covered by this suit is flat No.10, Sindhu Building, 2nd floor, 87, Netaji Subhash Road, Marine Drive Road, Mumbai - 400 020 (hereinafter referred to as the "suit premises"). One Mr.Janak Raj Kakar was the member of Shikarpuri Co-operative Housing Society Ltd. wherein the suit premises were situated and on account of he being the member of the said society he claimed ownership in respect of said suit flat as put up in paragraph No.2A to 2D of the plaint. The said Janak Raj executed a leave and licence agreement in favour of M/s.Radhavallabh & Sons for consideration in the year 1971. The present plaintiff Smt.Ram Janki Devi purchased the suit premises from Mr.Janak Raj Kakar. After becoming : 2 : the owner of the suit premises in April, 1971, she permitted defendant i.e. her brother Durgaprasad Khandelwal to occupy the suit premises without any compensation or charge and as a licensee of the plaintiff as the defendant was her brother. This is stated in paragraph 6 of the plaint. It is seen that the suit came to be filed in the Court of Small Causes at Bombay being Suit No.R.A.E. Suit No.304/353 of 1983. In view of the orders passed by the Court of Small Causes at Bombay, the said plaint came to be returned to the plaintiff and the plaintiff instituted this suit in this court in view of the law which was then prevailing. This suit is pending since then. 2. During the pendency of the suit, original defendant Durgaprasad Khandelwal has expired and his heirs 4 in numbers are on record. In the circumstances mentioned aforesaid, as of today, the suit is filed by the plaintiffs against the present defendants so as to seek recovery of possession of the suit premises contending therein that the gratuitous license was granted to the original defendant and now to the heirs of the original defendant has come to an end and that the plaintiff is entitled to the suit premises. : 3 : 3. In view of the full bench judgement of this court in the case of Prabhudas Damodar Kotecha & Anr. v/s. Prabhudas Damodar Kotecha & Anr. v/s. Prabhudas Damodar Kotecha & Anr. v/s. Manharbala Jeram Damodar & Ors. reported in 2007 (5) Manharbala Jeram Damodar & Ors. reported in 2007 (5) Manharbala Jeram Damodar & Ors. reported in 2007 (5) Bom.C.R.1, Bom.C.R.1, Bom.C.R.1, this court shall have no jurisdiction to try and entertain the suit where the plaintiff seeks recovery of possession of the suit premises on the ground that the defendants are a gratuitous licensees in regard to suit premises. Hence, this plaint will have to be returned to the plaintiff for filing it in the proper court. 4. Learned Advocate Mr.Dave could not indicate to the court precise nature of interim relief running against the defendants. Hence, I am inclined to pass an order to protect the interest of the plaintiff by passing a suitable order, insofar as running of interim relief is concerned. For the reasons mentioned aforesaid, I pass the following order :- O R D E R O R D E R O R D E R i) In view of the the judgement of this court in the case of Prabhudas Damodar Kotecha & Anr. Prabhudas Damodar Kotecha & Anr. Prabhudas Damodar Kotecha & Anr. v/s. Manharbala Jeram Damodar & Ors. reported in v/s. Manharbala Jeram Damodar & Ors. reported in v/s. Manharbala Jeram Damodar & Ors. reported in 2007 (5) Bom.C.R.1, 2007 (5) Bom.C.R.1, 2007 (5) Bom.C.R.1, this court shall have no : 4 : jurisdiction to try and entertain this suit as the suit is between the licensor and a licensees in regard to the premises situate at Bombay and the defendants are occupying the suit premises as a gratuitous licensees. ii) It is hereby ordered that the plaint be returned to the plaintiff for filing it to the proper court. iii) 29.8.2008 is the date fixed for returning of the plaint to the plaintiff. Office is directed to return the plaint to the plaintiff on 29.8.2008. iv) If any interim relief is running against the defendants, the same shall continue to run against the defendants till 30.9.2008. v) If the plaintiff lodges the plaint in the appropriate court, she will be at liberty to apply to the said court for interim reliefs afresh. 6. Suit stands disposed off in the above terms. : 5 : (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)