Ash - 1 - cra-486nwp6424.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO.486 OF 2010 WITH WRIT PETITION NO. 6426 OF 2010 CRA NO. 486 OF 2010 Commi. P. Mary Rajakumari & Others. .. Applicants. Vs Mrs. Luisa Rocha. .. Respondent -- WP NO. 6424 OF 2010 Commi. P. Mary Rajakumari & Others. .. Petitioners. Vs Mrs. Luisa Rocha. .. Respondent -- Mr. Chaturvedi S.K. i/by M/s. Chaturvedi & Associates for the Applicants in Revision Application and Petitioners in the Writ Petition. Shri Ralston Fernandes for the Respondent in both the matters. -- CORAM : A.S. OKA, J DATED : 22ND DECEMBER, 2010 Ash - 2 - cra-486nwp6424.10.sxw P.C. . Heard learned counsel appearing for the parties. Considering the narrow controversy involved, the counsel were put to notice that the matters are being taken up for final disposal at the admission stage. 2. The challenge in the Civil Revision Application No.486 of 2010 is to the orders dated 5th May, 2009 and 18th January, 2010 passed by the Court of Small Causes. In Writ Petition No.6426 of 2010, the challenge is also to the orders dated 7th May, 2009 and 18th January, 2010 passed by the Court of Small Causes. 3. The Respondent in both the matters is the Original Plaintiff and the Applicants in the Revision Application and the Petitioners in the Writ Petition are the Original Defendants. The Petitioners had filed a suit for eviction in respect of Shop No.1 and Shop No.2 against the persons claiming to be the tenants. In the said suit being RAE Suit No. 339/580 of 2005, the present Respondent/Plaintiff had filed an application for intervention which came to be rejected. The said suit was decreed. The Petitioners/Applicants have filed an application for execution of the decree passed in the said RAE Suit No.339/580 of 2005. Thereafter, the present suit has been filed by the Respondent claiming a declaration of the tenancy in respect of the suit premises being the Shop No.1. Ash - 3 - cra-486nwp6424.10.sxw 2. The Respondent filed an application at Exhibit 9 for temporary injunction. An application was made by the Petitioners/Applicants at Exhibit –15 in the suit filed by the Respondent in which a prayer was made for rejection of the Plaint in exercise of powers under Rule 11 of Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). 3. By an order dated 5th May, 2009, the learned Judge of the Court of Small Causes framed a preliminary issue regarding jurisdiction of the Court of Small Causes to entertain and try the suit for want of relationship of the parties as the landlord and tenant. The Petitioners/Applicants preferred a Revision Application against the said order which has been rejected by an order dated 18th January, 2010 by the Appeal Bench of the Court of Small Causes. These two orders have been impugned in the Civil Revision Application. 4. The application for temporary injunction made by the Respondent was allowed by the Trial Court by an order dated 7th May, 2009 by which the temporary injunction was granted against the Petitioners/Applicants restraining them from executing the decree passed in the suit for eviction. An appeal was preferred by the Ash - 4 - cra-486nwp6424.10.sxw Petitioners/Applicants for challenging the order of temporary injunction. The said appeal was dismissed by the Appeal Bench of the Court of Small Causes by an order dated 18th January, 2010. The order of temporary injunction has been challenged by the Petitioners by filing the Writ Petition No. 6426 of 2010. 5. Learned counsel appearing for the Applicants in the Civil Revision Application and the Petitioners in the Writ Petition invited the attention of the Court to the application made by the Petitioners at Exhibit – 15. He pointed out that what was essentially prayed by the Petitioner/Applicants was that the Plaint be rejected under Rule 11 of the Order VII of the said Code. He submitted that the Courts below have not considered the said prayer on the merits. 6. In support of the Writ Petition, he submitted that in the execution of the decree passed in the suit filed by the Petitioners, they have taken out the proceedings under Rule 97 of Order XXI of the said Code for removal of the obstruction of the Respondent. He submitted that due process of law has been thus adopted by the Petitioners and hence, there was no occasion to grant temporary injunction. Ash - 5 - cra-486nwp6424.10.sxw 7. Learned counsel appearing for the Respondents/Original Plaintiffs submitted that the Revision Application is not maintainable in law. He submitted that the suit filed by the Respondent is a substantive suit claiming declaration of tenancy. He pointed out that the injunction has been granted by the Trial Court only till the decision on the preliminary issue. He urged that the suit was maintainable in view of Rule 104 of Order XXI of the said Code. He submitted that notwithstanding the proceedings taken out by the Petitioners in execution, there was every justification for the Trial Court to pass an order of temporary injunction and, therefore, no interference is called for. 8. I have carefully considered the submissions. Turning to the Revision Application, the challenge is to the order passed by the Trial Court on an application at Exhibit – 15 in which the substantive prayer was for rejection of the Plaint. If the said application at Exhibit – 15 is to be allowed, the same will result in final disposal of the suit. In the circumstances, the Revision Application is maintainable under Section 115 of the said Code as amended with effect from 1st July, 2002. 9. The prayer made by the Petitioners in the application at Exhibit – 15 was two fold. The substantive prayer was for rejection of the Plaint under Rule 11 of Order VII of the said Code. The learned Ash - 6 - cra-486nwp6424.10.sxw counsel appearing for the Petitioners stated that he is not pressing the second prayer, at this stage. 10. Perusal of the order passed by the Trial Court on 5th May, 2009 shows that the following issue has been framed. “Do defendants prove that this Court has no jurisdiction to entertain and try the suit for want of relations between the parties as landlord and tenant? 11. It is settled law that the issue of jurisdiction of the Court of Small Causes has to be decided on the basis of the averments made in the Plaint and the issue whether there is a landlord/tenant relationship has to be decided only after the parties adduce evidence. Therefore, there was no occasion for the Trial Court to frame an issue as a preliminary issue which is based on the existence of the landlord/tenant relationship. Therefore, such issue could not have been framed at this stage. As pointed out by the learned counsel appearing for the Revision Applicants, the substantive prayer in the application at Exhibit – 15 was for rejection of the Plaint. The settled law is that such a prayer can be made at any Ash - 7 - cra-486nwp6424.10.sxw stage of the suit. The said prayer has not been considered on merits by both the Courts. 12. It is true that in the application at Exhibit – 15, there are averments made challenging the jurisdiction of the Court of Small Causes. However, considering the order of this Court on the application for injunction, the occasion for invoking Section 9A of the said Code will not arise. Therefore, as far as the Civil Revision Application is concerned, the impugned order will have to be set aside with a direction to the Trial Court to decide the prayer for rejection of the Plaint on merits. 13. Now tuning to the Writ Petition, the prayer made by the Respondents in the application at Exhibit – 9 was for restraining the Petitioners from executing the decree passed in the suit for eviction. The apprehension expressed is that though the Respondent is in possession of the Shop No.1 which is the subject matter of the said decree, the Respondent not being a party to the suit in which the decree for eviction has been passed, will be dispossessed in execution of the decree. It is not in dispute that in the execution application filed by the Petitioners, an obstructionists notice under Rule 97 of Order XXI of the said Code has been taken out for removal of the obstruction of the Respondent. It is Ash - 8 - cra-486nwp6424.10.sxw thus obvious that unless the obstructionists notice is decided in favour of the Petitioners/Applicants, they are not entitled to dispossess the Respondent on the basis of the decree for possession. As the proceeding under Rule 97 of Order XXI of the said Code has been taken out by the Petitioners/Applicants, an adjudication will have to be made in accordance with the Rule 98 read with Rule 101 of the Order XXI of the said Code and the order made by the Executing Court will be subject to an appeal in view of Rule 103 of Order XXI of the said Code. It must be noted that the contention of the learned counsel appearing for the Respondent is that in view of Rule 104 of Order XXI of the said Code, the execution will be subject to the present suit. However, the said contention will have to be kept open as the order of injunction is being set aside at this stage only on the ground that the proceedings have been filed by the Petitioners for dispossessing the Respondent. As the obstructionists notice has been already taken out by the Petitioners/Applicants, it is obvious that, as of today, the injunction as prayed in the application at Exhibit – 9 need not be granted. All contentions of the parties will be naturally gone into in accordance with law while deciding the obstructionists notice taken out by the Petitioners. Only on the ground that the notice under Rule 97 of Order XXI of the said Code has been taken out, the order of injunction will have to be interfered with. Ash - 9 - cra-486nwp6424.10.sxw 14. Hence, I pass the following order : - C.R.A. NO. 486 OF 2010 (i) The impugned orders in Civil Revision Application No. 486 of 2010 are quashed and set aside. (ii) The Trial Court is directed to decide the prayer (a) in the application at Exhibit – 15 in accordance with law. There is no order passed as regards the prayer (b) as the said prayer is not pressed at this stage. (iii) It is made clear that all the contentions of the parties on merits of the prayer for rejection of the Plaint are expressly kept open. (iv) The Civil Revision Application is allowed in above terms. Ash - 10 - cra-486nwp6424.10.sxw WRIT PETITION NO. 6426 OF 2010 (iv) The orders impugned in Writ Petition No. 6426 of 2010 are quashed and set aside only on the ground that the Petitioners have taken out the proceedings under Rule 97 of Order XXI of the Code of Civil Procedure, 1908 for removal of the obstruction of the Respondent. (v) It is obvious that all the contentions of the parties on merits will be gone into in the said proceedings. (vi) Accordingly, the application at Exhibit – 9 stands rejected only on the aforesaid ground. (vii) The Writ Petition is allowed in above terms. (viiA) There will be no orders as to costs. JUDGE