MP 1 WP9625_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9625 OF 2010 Mr. Christopher Marquis ... Petitioner Versus Mr. Maurice Fernandes and others ... Respondents Mr. Anil A. Jakatdar for Petitioner. Mr. Rajesh Singh for Respondent Nos. 1 to 3. CORAM : B.R. GAVAI, J. WEDNESDAY, APRIL 06, 2011 P. C. : By way of present petition, the petitioner challenges the order dated 22nd October 2010 vide which the preliminary issue of jurisdiction has been answered by the learned City Civil Court in favour of the plaintiffs. 2. The respondent Nos. 1 to 3 have filed the suit for declaration and injunction. 3. The parties are inter se related to each other. The suit property originally belongs to one Mary Julie Fernandes. The said Mary Julie Fernandes has seven children. Out of them, John Fernandes was an unmarried person. Under the will executed by the deceased Mary Julie Fernandes, according to the petitioner, the suit property was bequeathed to John Fernandes. According to the petitioner, the suit property was given to the present petitioner by the deceased John Fernandes by virtue of the tenancy agreement executed on 1st July 1997. The said John MP 2 WP9625_10 Fernandes expired on 14th April 2007. The plaintiffs who were the brothers and sisters of the deceased John Fernandes have filed the suit being Short Cause Suit No. 2114 of 2010. It is the contention of the plaintiffs that the flat No. 13 on the first floor of the building known as ‘Marius’ was retained by the deceased Mary Julie Fernandes, as family premises for her family members. It is the contention of the plaintiffs that the Mary Julie Fernandes passed away, and on her death, all her legal heirs are having the right and interest in the suit property. It is their case that out of the legal heirs, only the deceased John Fernandes occupied the said flat. It is also the case of the plaintiffs that apart from the John Fernandes, other members also stayed in that flat, from time to time, as per their convenience. It is their case that the defendant No. 1 also came to occupy the said flat as a member of the family but now he was trying to claim the said flat No. 13 to the exclusion of other heirs of the said Mary Julie Fernandes. In this background, the plaintiffs have claimed for a declaration that the plaintiffs and defendants are all legal heirs and representatives of Mary Julie Fernandes and have joint and equal rights in flat No. 13. The plaintiffs have also prayed for a permanent injunction restraining the defendant No. 1 from obstructing or interfering the plaintiffs, from jointly and severally occupying the said flat No. 13. An injunction is sought against the defendant No. 1 from creating third party rights in the property. On being summoned to reply to the notice of motion taken out by the plaintiffs for temporary injunction, a reply came to be filed by the present petitioner. The petitioner insisted for framing a preliminary issue regarding the jurisdiction of the learned City Civil Court to entertain the suit. The said issue was framed as “whether this court has jurisdiction to try and entertain the suit?”. By the impugned order, the said issue is answered in the affirmative. Hence, the present petition. MP 3 WP9625_10 4. Mr. Jakatdar, the learned Counsel for the petitioner submits that the learned Trial Court has erred in passing the order impugned. He submits that from the record, it will be clear that the petitioner is the tenant of the deceased John Fernandes, and as such, it is only the Small Causes Court which has exclusive jurisdiction to entertain the said suit. It is submitted that the City Civil Court has no jurisdiction to entertain the suit between the landlord and the tenant. He further submits that the perusal of plaint would reveal that an issue of succession is involved, and as such, on this count also, the City Civil Court has no jurisdiction. 5. Mr. Singh, the learned Counsel for Respondents vehemently opposes the petition. 6. By now it is the settled position of law that, for determining the issue of jurisdiction, the court can only look in the averments made into the plaint. The perusal of the plaint would reveal that it is the specific case of the plaintiffs that the deceased Mary Julie Fernandes was residing in the said flat and that the said flat was to be used by all the members of the family. It is their specific case that though deceased John Fernandes was residing there, other members were also residing as per their convenience. It is also the case of the plaintiffs that the defendant No. 1 also entered the said premises as a member of the family, and subsequently, made an attempt to assert his exclusive right to the said flat. In this background, the claim for an injunction has been made by the plaintiffs. 7. It can clearly be seen that there is no element of tenancy that is involved in the suit in question. Merely because the petitioner claims to be a tenant, cannot oust the jurisdiction of the City Civil Court. As MP 4 WP9625_10 stated above, for determining the issue of jurisdiction, only the averments made in the plaint can be looked into. From the perusal of the averments in the plaint, it cannot be said that any material irregularity has been committed by the learned Trial Court in passing the order impugned. In that view of the matter, no case is made out for interference. Rejected. 8. Liberty to convert the writ petition into civil revision application. Necessary steps to be taken during the course of the day. (B.R. GAVAI, J)