1 CRA-184-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.184 OF 2011 Satish Rama Nayak and ors. ..Petitioners Vs Ravindra B. Dalaya ..Respondent -- Mr.N.V.Walawalkar, Senior Advocate with Mr.P.G.Karande, for petitioners. Mr.Girish Vora, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 19 th OCTOBER, 2011 P.C.: Heard Mr.N.V.Walawalkar, learned Senior Advocate with Mr.P.G.Karande, learned Advocate for petitioners and Mr.Girish Vora, learned Advocate for the respondent. 2] The petitioners have instituted present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (for short “C.P.C.”) challenging the judgment and decree dated 3 rd 2 CRA-184-11.odt February, 2004 passed by the learned Judge of Small Causes Court at Bombay in R.A.E.No.135/281 of 1996 as also the judgment and decree dated 10 th November, 2010 passed by the Appellate Court of the Small Causes in Appeal No.342 of 2004. By these orders, the Courts below decreed the suit instituted by the respondent and passed decree of eviction on the ground of reasonable and bona fide requirement. 3] The relevant and material facts for the disposal of this Civil Revision Application are as under : The respondent instituted Short Cause Suit No.181 of 1995 in the Bombay City Civil Court, Bombay against the petitioners (hereinafter referred as “the defendants”). During the pendency of the suit, the respondent (hereinafter referred as “the plaintiff”) applied for the interim relief. 4] Upon hearing both sides, the learned Judge of the City Civil Court was of prima facie view that there exists relationship of landlord and tenant between the plaintiff and defendants and consequently, 3 CRA-184-11.odt he refused to grant ad-interim relief. The said order was challenged by preferring Appeal from Order No.161 of 1995 by the plaintiff . The said Appeal from Order was disposed of on 7 th February, 1995 as this Court did not find any case for interference at the interim stage. Subsequently, Notice of Motion was decided by the Bombay City Civil Court on 3 rd April, 1995. On the basis of the affidavit of defendant no.1 raising objection as to jurisdiction, the learned Judge of the City Civil Court framed preliminary issue under Section 9A of the C.P.C. After considering the plaint as a whole, the learned Judge of the City Civil Court came to the conclusion that the suit was essentially between the landlord and tenant. He, therefore, ordered return of plaint to the plaintiff for presentation in the appropriate Court. It is not in dispute that the said order was not challenged by either plaintiff or defendants. 5] Pursuant to the order of the City Civil Court dated 3 rd April, 1995, the plaintiff presented the suit in the Court of Small Causes. Thereafter, the plaint was amended. The plaintiff claims possession of the suit premises basically on three grounds. The first ground is that the suit premises are required by him reasonably and for bona 4 CRA-184-11.odt fide use and occupation of the family members. Secondly, the defendants erected structure of permanent nature in the suit premises. And thirdly, the defendants have changed the user of the suit premises. 6] The defendants resisted the suit by filing written statement and denied the contentions raised in the suit. It was contended that the suit is not maintainable as the suit is based on the assertions that the defendants are trespassers. The plaintiff did not accept the defendants as his tenants and, therefore, the Small Cases Court, does not have jurisdiction to entertain and try the suit. In so far as the merits are concerned, the claim of the plaintiff about requirement as also other grounds was denied. 7] The parties led evidence. On the basis of the material on record, the learned Judge of the Small Causes Court decreed the suit and held that the plaintiff has established his bonafide and reasonable requirement. The trial Court also held that greater hardship will be caused to the plaintiff if the decree of eviction is not passed. Consistent with these findings, the suit was decreed. Being 5 CRA-184-11.odt aggrieved by this decision, defendants preferred Appeal No.342 of 2004. By the judgment and decree dated 10 th October, 2010, the Appellate Bench of the Small Causes Court dismissed the Appeal. It is against these orders the defendants have preferred this Civil Revision Application. 8] In support of this petition, Mr.Walawalkar contended that the suit in the present form is not maintainable. The plaintiff has not accepted the defendants as his tenants. The Court of Small Causes is not bound by the finding recorded by the City Civil Court in the order dated 3 rd April, 1995. The Court must decide the case on the basis of the pleadings. He invited my attention to the plaint to contend that that even after return of the plaint by the City Civil Court and presentation of the plaint in the Court of Small Causes, the plaintiff did not accept the defendants as his tenants. The plaintiff continued to treat the defendants as trespassers and therefore, the Small Causes Court will have no jurisdiction to entertain and try the suit. 9] In so far as the requirement of the plaintiff is concerned, he 6 CRA-184-11.odt submitted that the said requirement is neither bona fide nor reasonable. The requirement pleaded and proved by the plaintiff is imaginary. This has to be appreciated on the backdrop of the fact that earlier, the plaintiff had instituted suit in the City Civil Court at Bombay alleging that the defendants are trespassers. After return of the plaint, the plaintiff somehow wanted to evict the defendants and therefore, made out grounds available under the Rent Act. However, in fact, the requirement pleaded is not established and therefore, the Courts below committed error in passing the impugned decree. 10] On the other hand, Mr.Vora supported the impugned orders. He submited that perusal of the plaint and in particular, amended plaint from paragraph 8B onwards indicates that the suit is essentially between the landlord and tenants. The order passed by the City Civil Court was not challenged by the defendants. This is particularly when the defendants filed affidavit raising preliminary issue about maintainability of the suit instituted in the City Civil Court. On the basis of the affidavit dated 6 th March, 1995, filed by the defendants, the City Civil Court framed preliminary issue and after considering the averments made in the plaint, came to the conclusion that the suit 7 CRA-184-11.odt is between landlord and tenant. It is, therefore, not open to defendants now to contend that the Small Causes Court has no jurisdiction to entertain and try the suit. 11] As far as the grounds available under the Rent Act is concerned, he submitted that the plaintiff has led evidence and established that the requirement pleaded is both reasonable as also bona fide. The Courts below, after appreciating the material on record, came to the conclusion that the plaintiff has established his requirement as reasonable and bonafide as also greater hardship would be caused to the plaintiff in the event of not passing decree. He, therefore, submitted that this is not a fit case for interference at the hands of this Court. 12] I have considered rival submissions made by the learned counsel for the parties. In paragraph 15 of the order dated 3 rd April, 1995, the learned Judge of the City Civil Court observed as under : “.............. In my view, reading the plaint as a whole, it becomes clear that the suit is by landlord plaintiff against the heirs of the deceased tenant. The 8 CRA-184-11.odt substantive relief of possession is in respect of the premises governed by the provisions of the Rent Act. The prayer for declaration that the defendants have no right, title and interest is not a substantive relief but a consequential one and hence, only the plaintiff has placed the said relief next to the substantive relief of possession.” In paragraph 16, the learned Judge of the City Civil Court came to the conclusion that the suit is between landlord and tenants relating to recovery of possession of the premises. 13] In so far as the submissions made by Mr.Walawalkar that the Small Causes Court has not independently considered the issue of jurisdiction is concerned, in my opinion, there is no substance. In paragraph 17, the Appellate Bench not only considered the order passed by the City Civil Court but in detail examined the averments in the plaint and came to the conclusion that the suit is between the landlord and tenants. The Appellate Bench considered the plaint and in particular, paragraph 10(c) as also paragraph 13 wherein, the plaintiff valued the suit at Rs.1800/- being annual rack rent for the relief of possession. The Court fee paid is for the suit filed for 9 CRA-184-11.odt eviction. The Appellate Bench on the basis of the order of the City Civil Court and also on the basis of the averments made in the plaint, came to the conclusion that the Small Causes Court has jurisdiction to entertain and try the suit. I, therefore, do not find any substance in the contention raised by Mr.Walawalkar. 14] In so far as the ground of bona fide requirement is concerned, the Courts below, after appreciating the material on record, came to the conclusion that the plaintiff has established his need as reasonable and bona fide. The Courts below also came to the conclusion that the greater hardship would be caused to the plaintiff in the event of refusal of passing the decree of eviction. I do not find that the Courts below committed any error touching the aspect of jurisdiction. It cannot be said that the Courts below have exercised the jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested in them. It also cannot be said that the Courts below have acted in the exercise of their jurisdiction either illegally or with material irregularity. No such case is made out under Section 115 of C.P.C. I do not find this to be a fit case for interference. Hence, the petition fails and the same is dismissed. 10 CRA-184-11.odt 15] At the request of Mr.Walawalkar, the decree of eviction shall not be executed for a period of eight weeks, subject to the petitioners filing usual undertaking in this Court on or before 14 th November, 2011. [R.G.KETKAR, J.]