1 s2311-07.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 2311 of 2007 M/s. Dipak Development Corporation .. Plaintiffs v/s. Mr.Prakash Sitaram Patkar & Ors. ..Defendants fc Mr.P.K.Dhakephalkar i/b. M/s. Harakchand & Company for the Plaintiffs. Mr.Mahendra Rathod i/b. M/s. Kishore Dalal & Company for the Defendant Nos.1 and 2 CORAM : R.Y.GANOO, J. DATED : 8th September , 2010 P.C. : 1. Plaintiffs herein are the developers and Civil Contractors by profession. Defendant No.3 is one of the landlord in regard to chawl no.153 more particularly referred to in the plaint. The defendant no.1 is tenant in respect of tenament No.1, Chawl No.153 forming part of the said property. The plaintiffs entered into agreement dated 6.8.1978 with the landlord to purchase said property with a view to develop the same. Since the defendant no.1 was occupying the tenament No.1 (for Short “Said tenament”) it became necessary for 2 s2311-07.sxw the plaintiffs to take possession of the said tenament as the plaintiffs wanted to develop the property agreed to purchase from the landlords. In order to see that the defendant no.1 is not shelterless plaintiffs entered into agreement on 26.11.1978 with defendant no.1 (for short “said Agreement”). By the said agreement the plaintiffs promised defendant no.1 that if said tenament is required to be demolished for the purpose of development of the said property, the defendant no.1 will be accommodated in temporary accommodation and after the new building is constructed defendant no.1 would be provided with a permanent accommodation in lieu of said tenament. 2. As per the said agreement dated 26.11.1978 at Exhibit B to the plaint the defendant No.1 handed over vacant and peaceful of the said tenament for development. In terms of the said agreement dated 26.11.1978 plaintiffs inducted defendant No.1 in the shop no.11 in Building No.A-2, Khajuria Nagar, Khajuria Road, Kandivali (West), Mumbai (hereinafter referred to as suit premises). The plaintiffs thereafter took up the project and completed the development and put the defendant No.1 in possession of Flat No.201, Building No.1, Khajuria Nagar, Kandivli (West), Mumbai, (hereinafter referred to as 3 s2311-07.sxw Flat No.201” ) in the newly constructed building meant for the defendant no.1 on permanent basis. It is admitted by both the sides that the defendant no.1 is in possession of the said permanent accommodation i.e. flat no.201. 3. In the plaint there are averments where the plaintiffs have pleaded that at the request of defendant no.1, defendant no.1 was permitted to stay in suit premises even after defendant no.1 was put in possession of flat no.201. According to plaintiffs after Defendant No.1 was put in possession of Flat No.201, Defendant No.1 was obliged to hand over vacant and peaceful possession of suit premises to plaintiffs. Plaintiffs are owner of the suit premises. This is not disputed by defendant no.1. The defendant no.2 is wife of defendant no.1 and she is joined as party defendant to see that all occupants of suit premises are covered by the present suit. 4. The present suit has been filed by the plaintiffs by contending that after defendant no.1 was inducted in the permanent accommodation, namely flat no.201, defendant no.1 had not right to remain in the suit premises and therefore the specific prayer for recovery of possession 4 s2311-07.sxw is found in plaint at prayer clause (a). Certain other prayers keeping in view the main prayer are also made in the plaint. 5. Plaintiffs took out Notice of Motion No.3070 of 2007. The reliefs sought in this motion are keeping in view the prayers in the suit. Defendant Nos.1 and 2 have filed affidavit in reply. Defendant Nos.1 and 2 have specifically taken the contention that looking to the averments in the plaint this court has no jurisdiction to try and entertain the suit as relationship between the plaintiffs and the defendant no.1 is that of licensor and licensee. Hence, as per the provisions of Section 9A of Civil Procedure Code, preliminary issue as regards jurisdiction has been framed. Same is as under: i) Do the defendant nos.1 and 2 prove that the relationship between the plaintiffs on the one hand and the defendant nos.1 and 2 is that of licensor and licensee and consequently, this court has no jurisdiction to try and entertain the suit? 6. It must be mentioned that defendant no.3 has been joined as formal party and he is one of the landlords in respect of the property of 5 s2311-07.sxw which defendant no.1 was the tenant and which property was subject matter of the development to be undertaken by the plaintiffs. Hence aforesaid issue is required to be determined as between the plaintiffs and defendant nos.1 and 2. (For the sake of convenience, Defendant Nos.1 and 2 shall hereinafter be referred to as Defendants) 7. Counsel on behalf of the plaintiffs as well as defendants informed the court that neither the plaintiffs nor the defendants wish to lead evidence. Accordingly, Counsels on both sides were heard for purpose of deciding the issue as framed above. 8. Learned Counsel appearing on behalf of the defendants in support of the point raised by him as regards the jurisdiction of this Court has taken me through paragraphs 1 as well as 12 of the plaint where the plaintiffs have termed the defendants as gratuitous licensees. According to the learned Counsel for the defendants if the plaintiffs have termed the defendants as gratuitous licensees qua the suit premises the present suit will not lie in this Court as this Court has no jurisdiction to try and entertain a suit between licensor and licensee. Learned Counsel for Defendant No.1 contended that the plaintiffs 6 s2311-07.sxw had inducted the defendants in the suit premises as and by way of an arrangement to accomodate the defendants during the time Flat No. 201 was about to be constructed and the plaintiffs had created a license in favour of the defendants in accordance with the provisions of Indian Easement Act. He submitted that the relationship between the plaintiffs and defendants will have to be termed as licensor and licensee. It was sought to be contended that if the court comes to the conclusion that the relationship between the plaintiffs and the defendants is that of licensor and licensee, then in accordance with the provisions of Section 41 sub-section 1 of the Presidency Small Causes Court Act (hereinafter referred to as said Act) irrespective of the valuation of the suit premises, the jurisdiction would vest in the Court of Small Causes at Bombay and in any case this court shall have no jurisdiction to try and entertain the suit. 9. Learned Counsel for the defendants had therefore submitted that on the basis of admission made by the plaintiffs in the plaint, the plaintiffs are bound by those admisssions and considering the averments, this court shall have no jurisdiction to try and entertain the suit and hence, it is necessary that the plaint be returned to the 7 s2311-07.sxw plaintiffs for filing in the proper court. He had therefore submitted that the issue be answered in the affirmative, 10.Learned Counsel for the plaintiffs had opposed the submission advanced by learned Counsel for the defendants. He contended that the defendants were allowed to use to suit premises in the peculiar facts and circumstances. He submitted that it is only because of that the defendants were accommodated in the suit premises during construction of the new building. According to him the relationship between the plaintiffs and defendants was not of a licensor and licensee at all, though the plaintiffs have used the word gratuitous licensee in paragraph 9. He had submitted that the term “gratuitous licensee” used by the plaintiffs should not be interpreted literally and that the court should appreciate the facts and circumstances in which the defendants were permitted to occupy the premises. He had submitted that in the first place the development agreement was with the landlord i.e. Defendant No.3 and other landlord and it is only because of said agreement an obligation was cast on the plaintiffs to accomodate the defendants in a premises till such time the new flat to be alloted to the plaintiffs is ready for occupation and that too in the 8 s2311-07.sxw event of the plaintiffs requiring demolition of the said tenament. He therefore submitted that the terms of the said agreement dated 26th November, 1978 should not be interpreted to hold that relationship between the plaintiffs and defendants is that of licensor and licensee much less gratuitous licensee. He submitted that the court should hold that the defendants have no right to remain in possession of the suit premises as the defendants are put in possession of said flat no. 201. Learned Counsel for the plaintiffs had therefore reiterated his stand that the Court has jurisdiction to try and entertain the suit and pass a decree as prayed for. 11.I have considered the rival submissions and the points involved in the matter. It is well settled that the jurisdiction of a court is to be decided on the basis of the averments in the plaint. One also will have to look into the circumstances under which the defendants were inducted in the suit premises and the circumstances as to when they were required to vacate the suit premises. It will be necessary to determine the status of the defendants at the time when they entered the suit premises and the status of the defendants at the time when the present suit came to be filed after the purpose for which defendants 9 s2311-07.sxw were permitted to reside in the suit premises has come to an end. 12.Defendant No.1 was occupying the tenement No.1 i.e. said tenament as a tenant. The plaintiffs had entered into an agreement with the landlords for the development of the property as a whole and it was an arrangement between the plaintiffs, landlord and defendant no.1 that defendant no.1 would be accommodated in a newly constructed building by way of a permanent accommodation in lieu of defendant no.1 surrending his tenancy rights and paying nominal amount of Rs. 4000/-. The plaintiffs fairly admit that sum of Rs.4000/- has been paid by Defendant No.1 and the plaintiffs state that the defendants are put in possession of flat No.201. 13.It is seen that the plaintiffs entered into said agreement with Defendant No.1 to grant to Defendant No.1 temporary alternate accommodation on reading of the entire record as also the stand of the plaintiffs as well as the defendants, it is clear that the plaintiffs allotted to defendant no.1 the suit premises on the basis of said agreement. It is equally true that no compensation was charged by the plaintiffs to the defendants to reside in the suit premises. When 10 s2311-07.sxw defendant no.1 was inducted in the suit premies, it was agreed between plaintiffs and defendants as per said agreement that upon the plaintiffs putting defendant no.1 in possession of permanent accommodation. Defendants will have to vacate the suit prmises. It is clear that the defendant no.1 was permitted to occupy the suit premises in lieu of Defendant No.1 surrendering the tenanted premises and allowing the plaintiffs to demolish the same in expectation of getting permanent accommodation. Hence, relationship between the plaintiffs and defendants will have to be termed as licensor and licensee for consideration. Looking to the terms of the said agreement, Defendant No.1 was permtited to occupy suit premises for consideration. 14.The plaintiffs have filed this suit for recovery of the suit premises which were allowed to be used by defendant no.1 and his family members as per said agreement. This will mean that the requirements of Section 41(1) of the said Act are fulfilled in all respects. The Supreme Court in the case of Mansukhlal Dhanraj Jain and Ors. Vs. Eknath Vithal Ogale reported in 1995 (3) Bom.C.R. 250 has laid down that dispute between the licensor and 11 s2311-07.sxw licensee in regard to the nature of suits covered under Section 41(1) will lie in Bombay to the Court of Small Causes at Bombay. In my view, the facts and circumstances of the present case are fully covered by the judgment in the case of Mansukhlal Dhanraj Jain as mentioned aforesaid. 15.The plaintiffs approached this Court with a case that defendant no.1 was inducted in the suit premises as a gratuitous licensee. I have indicated that it is not possible for this Court to treat relationship between the plaintiffs and defendant no.1 as covered by term “gratuitous licensee”. Even if the stand of the plaintiffs that defendant no.1 is a gratuitous licensee is accepted for the sake of discussion, still this court shall have no jurisdiction in view of the judgment of this Court in case of Prabhudas Damodar Kotecha & Anr. V/s. Smt. Manharbala Jeram Damodar & Ors. reported in 2007(4) All M.R. 651. The Full Bench of this Court in the aforesaid judgment has clearly observed that the suit for recovery of possession of the premises at Bombay will lie in the Court of Small Causes where the licence created was a gratuitous licence. 12 s2311-07.sxw 16. In view of the aforesaid discussion, I am inclined to accept the submission of the learned Counsel for the defendants that this Court has no jurisdiction to try and entertain the suit. 17. For the reasons mentioned aforesaid, the issue as mentioned aforesaid is answered in the affirmative and in favour of the defendants. 18. In view of the answer to the issue in the affirmative, this court shall have no jurisdiction and the plaint will have to be returned to the plaintiffs for filing in the appropriate court. 19. It is clarified that the plaintiffs observations and the issue has been decided on the basis of averments made in the plaint and this court has not concerned itself with the defences which have been put up by the defendant nos.1 and 2 while deciding the aforesaid issue. 20. Learned Counsels on both sides informed the court that plaintiffs had taken out Notice of Motion NO.3070 of 2007 so as to restrain the defendants from creating third party rights and/or parting 13 s2311-07.sxw with possession in regard to the suit premises and for certain other reliefs. Learned Counsels on both sides also informed the court that by an order passed by this Court at ad-interim stage of Notice of Motion, the defendants have been restrained from creating third party rights and/or parting with possession in regard to the suit premises. Now, that I have observed that this Court has no jurisdiction to try and entertain the suit, plaint is being returned to plaintiffs for filing it in proper court. For filing appropriate proceedings before the appropriate court, the plaintiffs have to lodge the plaint in proper court and the plaintiffs will have to apply for appropriate interim reliefs in the proper court. In such a situation it is necessary that ad- interim relief running against the defendants be continued for some time. Hence defendant nos.1 and 2 are restrained from creating third party rights and/or parting with possession in regard to the suit premises for the limited period. 21. For the reasons mentioned aforesaid, following order is passed. ORDER i) It is hereby held that the relationship between the plaintiffs and 14 s2311-07.sxw defendant no.1 is that of a licensor and licensee. This Court shall have no jurisdiction to try and entertain the suit. The plaint be returned to the plaintiffs for filing it in proper court. ii) 18th October, 2010 is the date fixed for return of the plaint to the plaintiffs. Office to return the plaint accordingly. iii) Till 30th November, 2010, defendant nos.1 and 2 and their agents, servants are restrained from creating third party rights and/or parting with possession in regard to the suit premises. iv) There shall be no order as to costs in view of the aforesaid order. v). Notice of Motion No.3070 of 2007 stands disposed of in view of above order with no order as to costs. [R.Y.GANOO, J.]