1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5004 OF 2000 Smt.Ratnaprabha Jaiwant Shirsat ...Petitioner vs. Uday Gopinath Mane ...Respondent Mr.P.N.Karlekar i/b Mr.R.R.Arolkar for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 JUDGMENT : 1 Heard learned counsel for the petitioner. Though the writ petition was adjourned from time to time, none appeared for the respondent. 2 With a view to appreciate the submissions made by the learned counsel for the petitioner it may be necessary to refer to the facts of the case in brief. 3 The petitioner filed a suit against the respondent in the City Civil Court at Bombay. In the suit, it is contended that the petitioner is the only legal representative of one Atmaram Govind Shetye who was carrying on business of Pan bidi and Tobacco in the suit premises described in paragraph 1 of the plaint. The case of the petitioner is that the said Atmaram was tenant in the suit premises. The case made out in the plaint is that one Rajaram was appointed by the plaintiff to conduct a business in the suit premises under the agreement dated 1 st December 1970. After demise of the said Rajaram, his son (original 1 st defendant) approached the plaintiff and requested the plaintiff to allow him to 2 conduct the business. The case made out in the plaint is that from October 1993, the 1 st defendant parted with possession of the suit premises in favour of the respondent (original 2 nd defendant). The allegation in the plaint is that the respondent is illegally residing in the rear portion of the suit premises. A specific case made out in the suit is that the respondent is a trespasser in the suit premises. The prayer for declaration was added by amendment that the respondent is the trespasser in respect of the suit premises and decree for possession along with business therein was prayed for. 4 It appears that in the said suit filed by the petitioner, an objection was raised by the respondent under section 9-A of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) as regards the jurisdiction. Accordingly, a preliminary issue was framed by the trial Court. By Judgment and Order dated 15 th February 2000, the learned trial Judge held that the suit was not maintainable by holding that the City Civil Court had no jurisdiction. By the impugned order, the plaint was ordered to be returned to the petitioner for presentation to the proper Court. A review petition was filed by the petitioner seeking review of the said order. By the impugned order dated 21 st July 2000, the learned trial Judge disposed of the review petition by recording a further finding that it is the Court of Small Causes which has jurisdiction to decide the suit. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the order passed on the review petition. 5 The learned counsel for the petitioner submitted that on plain reading of the averments made in the 3 plaint, the case made out therein is that the respondent is a trespasser in respect of the suit premises. He pointed out that it is never the case of the petitioner that the present respondent is a conductor of the business. He submitted that without considering the averments made in the plaint, the trial Court has committed an error by passing the order of return of plaint. He submitted that the trial Court misread the plaint by observing that the suit is essentially filed for seeking a protection of section 5 (11) (c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). He invited my attention to the order passed on the review petition. He submitted that the findings recorded thereon are perverse. 6 I have carefully considered the submissions. It must be noted here that under section 9-A of the said Code, only an issue of jurisdiction of the Court can be tried as a preliminary issue and the issue of maintainability cannot be decided under section 9-A of the said Code. So far as issue of jurisdiction is concerned, law is well settled. In the case of Abdulla Bin Ali and others vs. Galappa and others (AIR 1985 SC 577), the Apex Court has held that the allegations made in the plaint decide the forum and that the decision of the issue of jurisdiction does not depend upon the defence taken by the defendant. 7 Therefore, it will be necessary to peruse the averments made in the plaint. In paragraph 1 it is stated that the petitioner is the only legal representative of the said Atmaram who was the tenant in respect of the suit premises. The specific pleading in the plaint is that the original 1 st defendant parted with 4 possession of the suit premises in favour of the present respondent and the respondent started using the suit premises. Paragraph 6-A contains the specific averment that the respondent is a trespasser in the suit premises. Prayer (a-1) seeks declaration that the respondent is a trespasser. Prayer (a-2) shows that the petitioner has sought decree for possession of both suit premises as well as the business. It is not the case of the petitioner that the respondent is the conductor of the business. The suit is not essentially for possession of the business, but the suit is filed for possession of the suit premises from a person who is alleged to be a trespasser. If the suit was filed against the conductor of the business for possession of the business and incidentally for the possession of the business premises, perhaps in view of section 19-D of the Presidency Small Causes Court Act,1882, the jurisdiction will be vested in the Court of Small Causes. The plaint proceeds on the footing that the respondent is the trespasser in the suit premises. 8 Perusal of the order of return of the plaint passed by the trial Court shows that a finding is recorded therein that the suit is filed for claiming protection under section 5(11) (c) of the said Act. The said finding is based on misreading of the plaint. I have perused the impugned order passed on the review petition. While deciding the review petition, the learned Judge after noting averment made in the plaint that the respondent is a trespasser has observed that, an averment has been made that the respondent may place the petitioner s valuable tenancy rights in jeopardy. Perusal of the order suggests that the Court has not held that the suit is maintainable in the Court of Small Causes under provisions of the the Presidency Small 5 Causes Court Act,1882. The trial Court seems to be under an impression that the suit is governed by section 28 of the said Act. The issue of jurisdiction was decided without looking to the averments made in the plaint and without ascertaining the nature of the relief claimed by the petitioner. In fact, this was a case where there was a clear error apparent on the face of the record warranting interference in Review Petition with the earlier order of return of plaint. 9 The issue of jurisdiction has to be determined on the basis of averments made in the plaint. Whether the respondent is a trespasser or not is the issue to be decided after the parties adduced evidence on merits of the suit. Hence, the petition must succeed. 10 Hence, I pass the following order : i) Rule is made absolute in terms of prayer clause (a). ii)The issue of jurisdiction is answered in favour of the petitioner by holding that the City Civil Court has jurisdiction to entertain and try the suit. All other issues including the issue of rights claimed by the by the parties in the suit are expressly kept open. iii)Hearing of the suit is expedited. The trial Court is directed to conclude the hearing and decide the suit as expeditiously as possible and preferably before the end of year 2010. JUDGE