1 CRA No.1063/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1063 of 2010 Sarbatidevi Deviprasad Deora ... Applicant versus Sumitra Makhanlal Deora ... Respondent ... Mr. Vaibhav Mehta i/b Vaibhav Mehta & Associates for the applicant Mr.Anil Agarwal for the respondent. CORAM : D.G. KARNIK, J DATED : 10th January 2011. P.C. 1. This revision application is directed against the judgment and order dated 16 October 2010 passed by a two Judges Bench of the Small Causes Court dismissing the revision application filed by the applicant and thereby confirming the order of a Single Judge of the Small Causes Court holding that he had jurisdiction to entertain and try the suit. 2 CRA No.1063/10 2. Late husband of the applicant and husband of the respondent were brothers. Respondent initially filed a suit (Suit no.2560/09) on the original side of this Court for possession of the suit premises on the ground that husband of the applicant was a licencee and on expiration of the licence he and on his death the applicant had no right to occupy the suit premises. It appears that the jurisdiction of this Court to entertain and try the suit was objected to. By an order dated 5 November 2009, this Court directed return of the plaint to the respondent for presentation to the competent court. Accordingly, the respondent took back the plaint and filed it in the Small Causes Court, in Bombay. Then again an objection was raised to the jurisdiction of the Small Causes Court to entertain and try the suit. Preliminary issue was framed by the Small Causes Court regarding its jurisdiction to entertain and try the suit and was decided in favour of the respondent. Aggrieved by the order, applicant filed a revision application bearing Revision Petition No. 312 of 2010 before the two Judges Bench of the Small Causes Court. By an order dated 16 October 2010, that revision has been 3 CRA No.1063/10 dismissed. That order is challenged in this revision application. 3. In my view, revision application deserves to be dismissed for the reasons indicated below. 4. This is a second revision application application directed against an order passed in revision by a two Judges Bench of the Small Causes Court. In my view, the second revision application against the order passed in revision itself is not maintainable. Assuming however, that a second revision is maintainable still I am of the view that this revision should not be entertained. The applicant cannot blow hot and cold. Firstly, an objection was raised to the jurisdiction of this Court the plaint was directed to be returned for presentation to a proper court. Again, the contention cannot be raised that this court alone has a jurisdiction to entertain and try the suit as such contention is barred by principle of estoppal. Thirdly, even on merits, in my view, the Small Causes Court has the jurisdiction to entertain and try the suit. As held by a Full Bench of this Court in the case of Prabhudas 4 CRA No.1063/10 Damodar Kotecha & Anr. Vs. Smt.Manharbala Jeram Demodar & Ors, 2007(4) All MR 651, the suit against gratuitous licencee would lie in the Small Causes Court only. Learned counsel for the applicant submitted that case of the respondent is not of gratuitous licence but is of an illegal occupation and the suit against the illegal occupant, a trespasser cannot be filed in the Small Causes Court. He invited my attention to the prayer clause which reads: “decree for possession be passed against the applicant as she is in illegal occupation thereof”. The plaint must be read as a whole. The plaint recites that applicant’s husband was a licencee and on his death, the applicant continued in occupation and her occupation is illegal. Thus, the suit is essentially for possession of a premises from an heir of a licencee and merely because the word “illegal occupation” is used, the jurisdiction of the Small Causes Court cannot be ousted. There is no merit in the revision application. 4. Civil Revision Application is rejected summarily. (D.G.KARNIK, J)