1 ao967.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 967 of 2011 Jehangir Ratanshaw Cooper, deceased 2. Smt. Roda Jahangir Cooper, deceased 3. Ratan Jahangir Cooper for self and through LR of 1 and 2. ...Appellant v/s. Mehra Ratanshaw Cooper deceased through Nariman Ratanshaw Cooper deceased 1(b) Homi Ratanshaw Cooper & anr. ...Respondents Mr. Palekar i/b. R.B. Jaiswal for the appellant. Mr. Niranjan Pandit i/b. Hemant Sethi for the respondents. CORAM: R.M. BORDE, J. 21st September, 2011 PC: Notice of Motion taken out by the defendant bearing No. 2629/2010 in S.C. Suit No. 2788/1993 has been turned down by the Judge of the City Civil Court in view of order passed on 18th January, 2011 and the said order is subjected to challenge in this Appeal from Order. 2. The original defendant no.3 has requested the Court to frame an additional issue as to whether the suit by ‘Gratuitous licensee’ is maintainable 2 ao967.11.sxw in this Court and requested to try the same as a preliminary one. The application tendered by the defendant no.3 has been turned down by the trial Court for the reasons recorded in the order. It is not disputed that as claimed by the plaintiff in the plaint, the defendant no.3 is gratuitous licensee permitted to reside in the suit premises whereas the defendant no.3 claims that he has been inducted as a tenant in respect of the suit premises. The plaintiff and defendant are blood relations and they are brothers inter se. 3. The moot question would be as to whether the defendant no.3 can also claim his entitlement as shareholder in the property and can also be permitted to raise the issue of tenancy. However, the trial Court has not gone into this aspect of the matter presumably because the point was not pressed. The application has been turned down mainly on the ground that a previous application making a similar request was also turned down. The trial Court has framed issues and the plaintiff has tendered his affidavit of evidence in the matter. Rule-2 of Order 14 mandates, “notwithstanding that the case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule 2 pronounce judgment on all issues.” The rule is that all the issues shall be decided simultaneously, however, subject to exception of sub-rule (2). In the instant matter, a similar prayer was made by the defendant no.3 extending a request in Short Cause Suit No. 2788/1993 and this Court by an order dated 25th August, 1995 has turned down the request. It is observed in paragraph 5 of the Judgment as under: “ The advocate for the defendants tried to distinguish these judgments on the ground that the defendants were not claiming through their mother but had independent right to occupy the premises as a tenant. In my opinion that is altogether a different question because the plaintiff has come up before the Court with a case that, it is 3 ao967.11.sxw because of her permission, that the defendants could occupy the suit premises. If this is so then admittedly there is no contractual relationship between the parties and this is a case of mere licence not creating any interest in the property to which it relates. The licence granted in favour of the defendants is purely personal and gratuitous and, therefore, relying upon the aforesaid two judgments of the Hon’ble High Court, I hold that the objection raised by the defendants is without any substance, it is, therefore, rejected and it is ordered that this Court has jurisdiction to try the suit.” 4. A similar request was made by the defendant no.3 by tendering an application, copy of which is annexed at page-47. However, the request made by the concerned defendant has been turned down by the Court in view of the order passed on 4th February, 2008. It is also to be taken note of that the suit is presented in 1993 and is prescribed for recording of evidence. This Court while disposing of C.A. (st) No. 17636/2010 with AO(St) No. 9501/2010 had issued directions to the trial Court to expeditiously dispose of Suit No. 2788/1993. In these circumstances, the trial Court was justified in refusing to consider the application tendered by defendant no.3 for trial of the added issue as a preliminary one. Even otherwise as per the mandate of Order 14 Rule-2 of the Code of Civil Procedure, the Court is obliged to consider and pronounce judgment on all the issues. In view of the peculiar facts and circumstances of this case, no interference is called for in the Appeal from Order, the same being devoid of merits. 5. The Appeal from Order, therefore, stands dismissed. 4 ao967.11.sxw 6. In view of disposal of Appeal from Order, pending civil application do not survive and stands disposed of. (R.M.BORDE, J)