1 cra715 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.715 OF 2009 Dr.Premkumar S/o C.P.Nanda ...Applicant vs. Netra Prakash K. Bhog ...Respondent Mr.Madhav Jamdar for the applicant Mr.Abhijeet Desai for the respondent CORAM : A.S.OKA,J. DATE : NOVEMBER 18, 2011 P.C.: 1 Heard the learned counsel for the revision applicant and the learned counsel for the respondent. The revision applicant is the defendant in the suit filed by the respondent. The suit is pending in the Court of Small Causes at Pune. An application was made by the petitioner under Rule 11 of Order VII of the Code of Civil Procedure,1908 praying for rejection of the plaint. Reliance was placed on the provisions of Provincial Small Causes Court Act and in particular section 15 thereof for contending that the suit being the one for mandatory injunction, the same was not maintainable in the Court of Small Causes. By the impugned order, the said application has been rejected. 2 The learned counsel for the revision applicant submitted that the substantive prayer in the suit is for mandatory injunction and therefore, the Court of Small Causes had no jurisdiction to entertain the 2 cra715 said suit. He submitted that the averment made in the plaint is that the revision applicant is a trespasser. He submitted that even on that ground, the suit will not lie in the Court of Small Causes. 3 I have carefully considered the submissions. As far as second submission is concerned, in paragraph 10 of the plaint there is a specific pleading that the applicant was a gratuitous licensee of the respondent. As far as issue of jurisdiction of Court of Small Causes is concerned, the same will have to be determined only on the basis of averments made in the plaint and the defence in written statement cannot be considered. The averments made in the plaint clearly show that same proceed on the footing that the revision applicant was a gratuitous licensee. The suit filed by the licensor against a gratuitous licensee for possession will be maintainable in the Court of Small Causes. However, if on evidence it is established that the applicant was not the gratuitous licensee, the Court of Small Causes is bound to throw out the suit. 4 As far as the first contention is concerned, as observed by the Trial Court, the plaint has to be read as a whole. It is true that the suit is described as the suit for injunction. As rightly observed by the Trial Court, essentially the suit is for recovery of possession of the suit premises and therefore, the prayer in mandatory form is sought in prayer clause (b). The Trial Court has already kept the issue of valuation open. 3 cra715 5 Reading the plaint as a whole and considering the averments made in the plaint, no fault can be found with the approach of the Trial Court when it held that the Small Causes Court had jurisdiction to entertain the suit. It is obvious that the issue whether the revision applicant was a gratuitous licensee remains open to be decided on evidence. 6 Subject to what is observed above, revision application is rejected. JUDGE