ash 1 wp-2145.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2145 OF 2011 Abdul Majid All Khan. .. Petitioner Vs Smt. Mahajabeen Anjum Ali Sayed & Ors. .. Respondents -- Shri Anil Singh i/by M/s. Uraizee & Law Associates for the Petitioner. Shri Sanjay Jain and Ms Sarika Mehra i/by L.J. Law for Respondents. -- CORAM : A.S. OKA, J DATED : 14TH DECEMBER, 2011 P.C. . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2. This Petition arises out of a suit filed by the Petitioner for declaration and injunction. The declaration claimed was that the Petitioner was a tenant of the Respondents. 3. The Trial Court dismissed the suit by holding that the Petitioner has failed to prove that he is a tenant in respect of the suit premises. The Trial Court recorded a finding that the Court of Small Causes at Mumbai had no jurisdiction to entertain and try the suit. On the contention of the first Respondent that the Petitioner was merely a ash 2 wp-2145.11 conductor of the hotel business in the suit premises, the Trial Court ruled against the first Respondent. An Appeal was preferred by the Petitioner. The Appeal has been dismissed by the Appeal Bench of the Court of Small Causes. The Appellate Court held that the Trial Court had jurisdiction to entertain the suit. The Appellate Court held that the Petitioner has failed to prove that he was a tenant. The Appellate Court accepted the case of the first Respondent that the Petitioner was merely a Conductor of the hotel business in the suit premises. 4. The learned counsel appearing for the Petitioner submitted that apart from merits, the Trial Court recorded a finding that the Court had no jurisdiction to entertain the suit. He submitted that the Trial Court ought to have returned the plaint for presentation to the proper Court. He submitted that though the Respondent did not challenge the finding of the Trial Court on the issue of jurisdiction, the Appellate Court has illegally reversed the said finding. He has also pointed out that the adverse finding recorded by the Trial Court against the first Respondent on the Issue No.5 has been reversed by the Appellate Court though there was no challenge to the said finding by the Respondent. He submitted that the finding of the Appellate Court on both the aforesaid issues is illegal. He pointed out the amendment carried out to the Plaint. He submitted that by the amendment, it was pointed out that the Municipal Corporation was the owner of the suit structure. ash 3 wp-2145.11 5. I have carefully considered the submissions. Perusal of the Plaint shows that the same proceeds on the footing that the Petitioner was a tenant in respect of the suit structure and that the Respondents are the landlords of the Petitioner. A substantive relief claimed in the suit is of a declaration of the tenancy. The suit was filed in the Court of Small Causes Court by invoking Section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ( hereinafter referred to as “the said Act of 1947”). The said Court has exclusive jurisdiction to try the suits between the landlords and tenant relating to recovery of possession of the tenanted premises. It is well settled that the issue of jurisdiction of the Special Court under Section 28 of the said Act of 1947 is required to be decided only on the basis of the averments made in the Plaint. For deciding the issue of jurisdiction, the averments made in the Written Statement cannot be looked into. Once it is found that the averments made in the Plaint proceed on the footing that there is a landlord-tenant relationship between the parties, the Court gets jurisdiction to decide the suit. If on trial, the Plaintiff fails to prove the said relationship, the Court has no option but to dismiss the suit. At that stage, no occasion arises for returning the Plaint as the suit is properly instituted in the competent Special Court contemplated by Section 28 of the said Act of 1947. ash 4 wp-2145.11 6. It is true that in the present case, the Trial Court recorded a finding that the said Court had no jurisdiction. In view of the averments made in the Plaint, the Court of Small Causes had jurisdiction to entertain the suit as the Small Causes Court was the only forum competent to try and entertain the suit. The erroneous finding recorded by the Trial Court on the issue of jurisdiction has been corrected by the Appellate Court obviously in exercise of power under Rule 33 of Order XLI of the Code of Civil Procedure, 1908. 6. The finding of the Courts below and in particular the Appellate Court is that the Petitioner himself destroyed his case by stating in the cross-examination that the Respondents were not his landlords. In view of this admission, the Courts below and in particular the Appellate Court held that the Petitioner has failed to prove that he is the tenant of the Respondents in respect of the suit premises. It is true that there was no substantive challenge to the finding recorded by the Trial Court on the Issue No.5. But on plain reading of the admission of the Petitioner, the suit must fail as the Petitioner failed to establish the tenant and landlord relationship between him and the Respondents. Accordingly, both the Courts below have dismissed the suit. Hence, no case is made out for interference in the jurisdiction of this Court under Article 227 of the Constitution of India. The Petition is rejected. ash 5 wp-2145.11 7. The learned counsel appearing for the Petitioner prays for continuation of the ad-interim relief granted on 15th March, 2011. The learned counsel appearing for the Respondents opposes the said prayer. It is directed that the ad-interim relief granted on 15th March, 2011 will continue to operate for a period of eight weeks from today. ( A.S. OKA, J )