( 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 USJ SUIT NO.795 OF 2006 SUIT NO.795 OF 2006 SUIT NO.795 OF 2006 Somnath Arora ..Plaintiff V/s. Satish Arora & Anr. ..Defendants ...... Mr. Pankaj Kowli i/by M/s. Ashwinkumar & Co. for the plaintiff Mr. Snehal Shah i/by Narayanan and Narayanan for defendants ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 25th February, 2009 DATED : 25th February, 2009 DATED : 25th February, 2009 P.C.: P.C.: P.C.: 1. The plaintiff has instituted this suit for recovery of possession in respect of suit premises from the defendants on the ground that the conducting agreement dated 1st December, 1994 has come to an end and that the defendant No.1 has no right to occupy the suit premises after the conducting agreement has come ( 2 ) to an end. On record, one finds defendant No.2 M/s. Recap Sportswear Co. Counsel for defendant No.1 upon instructions makes a statement that for some time, the possession of the suit premises was with defendant No.2 and as of today the possession of the suit premises is with defendant No.1. 2. Learned Counsel for defendant No.1 contended that though the agreement between the plaintiffs and defendant No.1 is conducting agreement, it is an agreement of leave and licence and, therefore, the Court should interpret the said document and if the Court comes to the conclusion that the relationship between the plaintiff and defendant No.1 was that of a licensor and licensee, this Court has no jurisdiction to try and entertain this suit as the suit between licensor and licensee for recovery of possession would lie in the Court of Small Causes Court at Bombay in view of the Judgment in the case of Prabhudas Damodar Prabhudas Damodar Prabhudas Damodar Kotecha & Anr. V/s. Manharbala Jeram Damodar, 2007 Kotecha & Anr. V/s. Manharbala Jeram Damodar, 2007 Kotecha & Anr. V/s. Manharbala Jeram Damodar, 2007 (5) Bom.C.R.1 & Ors. (5) Bom.C.R.1 & Ors. (5) Bom.C.R.1 & Ors. 3. Considering the aforesaid submission, I have heard counsel for both the sides and perused the agreement dated 1st December, 1994 for the purposes of deciding whether the said agreement will have to be permitted as a conducting agreement or the said ( 3 ) agreement is a leave and licence agreement. 4. The law on this point is very much settled in as much as the nomenclature given to a particular agreement will not govern the nature of the transaction and the Court is required to consider document as a whole, interpret each and every clause and try to arrive at relationship between the parties. by considering the agreement. I am inclined to observe that the agreement dated 1st December, 1994 will have to be termed as agreement of leave and licence by which the plaintiff had put defendant No.1 in possession of the suit premises as licensee. The reasons are as under. 5. The plaintiff was said to be carrying business in the name of M/s.Khushiram Silk Mills (HUF), a proprietary firm and he inducted defendant No.1 in the suit premises and permitted defendant No.1 to carry on his business namely M/s. Bhagwati Dyeing. In a typical conducting agreement a person who is inducted as a conductor is allowed to run the business which is run by the person who execute the conducting agreement in favour of the conductor. The nature of the business and the name of the business cannot be changed. Municipal Licence to run the said business continues to stand in the name of the person who gives ( 4 ) the premises in favour of the conductor. Normally, in conducting agreement,the articles and belongings required to run the business are owned by the person who wants to give his business on conducting and all these articles remain with the conductor and the conductor is permitted to run the business. In the present case, the conductor is permitted to install his own machinery as per clauses 23 and 24. These two clauses are contrary to a typical conducting agreement, by which business is allowed to be conducted by the conductor. Looking to the agreement as a whole, I am inclined to observe that the agreement dated 1st December, 1994 cannot be styled as a typical conducting agreement. In my view, the said agreement will have to be styled as an agreement, by which defendant No.1 is in the premises as the licensee of the plaintiff. 5. Once the relationship between the plaintiff and defendant No.1 is held to be that of licensor or licensee, the suit for recovery of the possession of the suit premises in Bombay would lie in the Court of Small Causes at Bombay in view of the Judgment referred to above in case of Prabhudas Damodar Kotecha Prabhudas Damodar Kotecha Prabhudas Damodar Kotecha V/s. Manharbala Jeram Damodar & Ors. 2007(5), V/s. Manharbala Jeram Damodar & Ors. 2007(5), V/s. Manharbala Jeram Damodar & Ors. 2007(5), Bom.C.R.1. Bom.C.R.1. Bom.C.R.1. If this is so, this Court has no jurisdiction to try and entertain the present suit ( 5 ) and, therefore, the plaint will have to be returned to the plaintiff for filing to the proper Court i.e. Small Causes Court at Bombay. 6. In view of the above, I am inclined to return the plaint to the plaintiff for filing it to the proper Court i.e. Small Causes Court, Bombay. As Counsel of both the sides admit that as of today an order of status-quo is prevailing, needless to mention that this order of status-quo will continue for some more time to enable the plaintiff to institute the suit in proper Court and then apply for appropriate relief in the Court in which the suit will be filed. For the reasons mentioned aforesaid, I pass following order. ORDER ORDER ORDER (i) I hereby hold that agreement dated 1st December, 1994 is an agreement by which plaintiff has created licence in favour of defendant No.1 (ii) In view of the aforesaid finding, this Court has no jurisdiction to try and entertain the suit and the plaint will have to be returned to the plaintiff for filing it in the proper Court. It is hereby ordered that the plaint be returned to the plaintiff ( 6 ) for filing to the proper Court i.e. Court of Small Causes at Bombay. (iii) 23rd March, 2009 is the date fixed for return of plaint to the plaintiff. Prothonotary and Senior Master shall return the plaint to the plaintiff accordingly. (iv) The order of the status-quo which is prevailing as of today shall continue to bind both the parties till 30th April, 2009 so that the plaintiff can apply to the appropriate Court for appropriate relief after plaint is lodged in the said Court. After the aforesaid order is passed, learned Counsel for the plaintiff states that he has instructions as not to challenge this order. In view of this, the plaint be returned for filing it in the Court of Small Causes at Bombay. The plaintiff shall lodge the plaint in the Court of Small Causes at Bombay on or before 31st March, 2009. The Principal Judge of the Court of Small Causes shall assign the suit to the proper Court. The plaintiff and defendant No.1 shall appear in the said Court on 9th April, 2009. v) In view of the aforesaid order, Notice of Motion No.872 of 2006 does not survive and is disposed of with no order as to costs. ( 7 ) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)