1 901 cra.292.11 w wp.152.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 292 OF 2011 ALONGWITH WRIT PETITION NO. 152 OF 2011 Namdeo Shripati Shinde and others. ... Applicants / Petitioners Versus Sanjay Ganpat Renuse and another. ... Respondents ----- Mr. P.B.Shah for the Applicants / Petitioners. Mr. Madhav Jamdar for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 25 th November, 2011. ORAL JUDGMENT: 1 These two matters are ordered to be heard together. 2 The parties are hereinafter referred to with reference to their status before the trial Court. 3 The Plaintiffs filed a suit in the Court of Small Causes at Pune. The suit property subject matter of the suit is the land more particularly described in paragraph No.1 of the plaint. It is alleged that 2 901 cra.292.11 w wp.152.11 by the agreement of tenancy dated 11 th September, 2009, the Defendants have let out the suit land to the Plaintiffs on terms and conditions set out in the said agreement of lease. It is alleged that on the basis of the said agreement, the Plaintiffs have paid necessary amount to the Defendants. It is alleged that the period of tenancy of the Plaintiffs was for a period of twenty years. It is contended that on the basis of the said agreement, the Plaintiffs were put in possession and the construction of a building on the suit land has been carried out by the Plaintiffs. Reference has been made to the correspondence between the parties. It is alleged that a demand was made by the Defendants for enhancement in the rent amount. The suit is filed for perpetual injunction restraining the Defendants from interfering with the possession of the Plaintiffs over the suit land. 4 In the said suit, an application was made by the Defendants for framing a preliminary issue of jurisdiction of the Court of Small Causes to entertain the suit. The preliminary issue was answered by the Court of Small Causes by holding that the Court of 3 901 cra.292.11 w wp.152.11 Small Causes has jurisdiction to entertain the suit in view of Section 33 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act of 1999). The present revision application has been preferred by the Defendants for challenging the said order. 5 In the suit, the Plaintiffs had applied for temporary injunction restraining the Defendants from disturbing their possession over the suit property and from preventing them from carrying on any construction. The trial Court partly allowed the application for temporary injunction by restraining the Defendants from interfering with the possession of the Plaintiffs. The trial Court clarified that the construction which may be carried out by the Plaintiffs will be subject to final outcome of the suit. Appeals were preferred by both the parties against the said order. The appeal preferred by the Plaintiffs was partly allowed and the appeal preferred by the Defendants was dismissed. The District Court restrained the Defendants from objecting to the request of the Plaintiffs for fresh electricity connection in their name from the concerned authority. 4 901 cra.292.11 w wp.152.11 6 The learned counsel appearing for the Defendants in support of the revision application submitted that what was let out to the Plaintiffs was an open land and therefore, in view of the definition of the premises under Sub-Section (9) of Section 7 of the said Act of 1999, the provisions of the said Act of 1999 will have no application. He invited attention of the Court to paragraph No.1 of the plaint as well as the agreement of lease relied upon by the Plaintiffs in support of the contention that the Court of Small Causes has no jurisdiction to entertain the suit. It was contended that there was no relationship of landlord and tenant between the Defendants and the Plaintiffs. The learned counsel appearing for the original Plaintiffs supported the impugned judgment and order by relying upon Section 26 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “the said Act of 1887). He has produced for perusal of the Court a copy of the notification dated 3 rd December, 1919 by which it was declared that the local jurisdiction of the Court of Small Causes at Pune shall comprise of the limits of Talukas of Pune and Haveli. He 5 901 cra.292.11 w wp.152.11 pointed out that the suit property is situated in Taluka Haveli, District Pune. 7 The learned counsel appearing for the Defendants in support of the writ petition submitted that as the Court of Small Causes has no jurisdiction to entertain the suit, the order of temporary injunction will have to be set aside. He made a grievance regarding modification made by the Appellate Court to the order of the trial Court as regards the electricity connection. 8 I have carefully considered the submissions. It is well settled position of law that the issue of jurisdiction is required to be decided on the basis of the averments made in the plaint. The averments made in the plaint show that the Plaintiffs are relying upon the agreement of lease dated 11 th Separately, 2009 executed by the Plaintiffs which has been duly registered. The suit property has been described in paragraph No.1 of the plaint as a land. The user of the suit property is set out in paragraph No.3 of the plaint. In paragraph 6 901 cra.292.11 w wp.152.11 No.3 of the plaint, it is contended that after the Plaintiffs were put in possession, they have constructed a building. Going by the averments made in the plaint, it appears that the subject matter of the tenancy is land and not the structure thereon. The averments made in the plaint indicate that under the agreement of tenancy, an authority was conferred on the Plaintiffs to construct structures and to use it for a particular purpose. Therefore, there is a substance in the submissions of the learned counsel appearing for the Defendants that in view of the provisions of Sub-Section (9) of Section 7 of the said Act of 1999, the said Act of 1999 will not apply as the suit property is an open land. However, at this stage, a reference will have to be made to Section 26 of the said Act of 1887 as amended by the Maharashtra Act XXIV of 1984. Section 26 of the said Act of 1887 reads thus: “26. The suit or proceedings between licensors and licensees or landlord and tenants for recovery of possession of immovable property and license fee or rent, except those to which other Acts apply to lie in Court of Small Causes. (1) Notwithstanding anything contained elsewhere in this Act, but subject to Provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suit and proceedings between a licensors and 7 901 cra.292.11 w wp.152.11 licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes or relating to recovery of license fee or charges or rent therefore, irrespective of the value of the subject-matter of such suit or proceedings. (2) Nothing contained in sub-section (1) shall apply to suits or proceedings for recovery of possession of any immovable property or of license fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Bombay Government Premises (Eviction) Act, 1955 or the Bombay Provincial Municipal Corporation Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, apply.” 9 Sub-Section (1) of Section 26 confers exclusive jurisdiction on the Court of Small Causes to entertain and try all the suits and proceedings between the licensors and licensees or landlord and tenants relating to recovery of possession of any immovable property situated in the area within the local limits of jurisdiction of the Court of Small Causes. Sub-Section (2) clarifies that Sub-Section (1) will have no application in case of a suit or proceedings under the Rent Control Act. Therefore, even if the said Act of 1999 is not applicable, in view of 8 901 cra.292.11 w wp.152.11 Sub-Section (1) of Section 26, the Court of Small Causes has exclusive jurisdiction to entertain the suit between the landlord and tenant relating to the possession of the immovable property. 10 It will be necessary to make a reference to the decision of this Court in the case of Subhash Stnarayan Joshi & Anr. Vs. Mohd. Sultan Abdul Gani & Anr [2006 (Supp.) Bom.C.R. 605]. This Court held that the Court of Small Causes has jurisdiction to entertain and try the suit between the landlord and tenant and to grant permanent injunction. Reference has been made to non-obstante clause in Sub- Section (1) of Section 26. As observed by this Court, the words “relating to recovery of possession of any immovable property” used in may local enactments have been already interpreted to mean that a suit for permanent injunction filed by the tenant against the landlord restraining the landlord from forcibly taking over the possession of the property subject matter of tenancy will be a suit relating to recovery of possession. Therefore, though the reasons recorded by the trial Court while deciding the issue of jurisdiction may not be correct, but the 9 901 cra.292.11 w wp.152.11 ultimate conclusion of the trial Court is correct that the Court of Small Causes has jurisdiction to entertain and try the suit. Therefore, the issue of jurisdiction has been correctly decided on the basis of the averments made in the plaint. However, the issue of landlord – tenant relationship remains open which will have to be decided on evidence. 11 Now turning to the writ petition, the prima-facie finding of the Courts below is that the Plaintiffs are in possession. The Courts below have recorded a prima-facie finding regarding existence of the tenancy agreement. The effect of the order of injunction granted by the trial Court as modified by the Appellate Court is that the possession of the Plaintiffs has been protected. The order of the trial Court also records that the construction which may be carried out by the Plaintiffs will be subject to final outcome of the suit. As far as the relief granted regarding electricity connection is concerned, it is obvious that even if the Plaintiffs obtain electricity connection, it will not create any equity in their favour. As the Plaintiffs are in possession, for dispossessing the Plaintiffs, the Defendants will have to adopt due 10 901 cra.292.11 w wp.152.11 process of law. It will have to be clarified that notwithstanding the grant of injunction by the Courts below, it is always open for the Defendants to follow due process of law for evicting the Plaintiffs. Subject to this clarification, there is no reason to interfere with the impugned orders subject matter of challenge in the writ petition and the civil revision application. 12 Hence, I pass the following order: i. Civil Revision Application No.292 of 2011 is dismissed with no order as to costs ; ii. Subject to what is observed above, Writ Petition No.152 of 2011 is dismissed. There will be no order as to costs. [ A.S.OKA, J ]