IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.436 of 2005. SUIT NO.436 of 2005. SUIT NO.436 of 2005. Krishna Gautam Shah ..Plaintiff versus Pankaj Shah & Anr. ..Defendants Mr.C.T.Kripalani for the Plaintiff Mr.A.J.Uniyal for the Defendant No.1 Mr.R.M.Vanoo for the Defendant No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 14th July, 2008. DATED : 14th July, 2008. DATED : 14th July, 2008. P.C. 1. Heard learned Advocates on both the sides. Present suit was filed by the plaintiffs only against the defendant No.1 claiming that the present defendant No.1 is the gratuitous licensee. Subsequently, on account of Chamber Summons taken out by the present defendant No.2, the present defendant No.2 has been joined as party defendant No.2. 2. With the assistance of the learned advocates on both sides, I have gone through the plaint and on perusal of the same it is clear that the plaintiff has approached this Court with a positive case that the defendant.No.1. is a -2- gratuitous licensee. At the time when the suit was filed in the year 2005, this Court had jurisdiction to try and entertain the suit for recovery of possession from a person who is styled as gratuitous licensee. This position in law has changed in view of the judgment in case of Prabhudas Damodar Kotecha and Anr. vs. Smt.Manharbala Jeram Damodar reported in 2007(5) Mh.L.J. 341. In view of the aforesaid judgment, the suit to recover possession from the gratuitous licensee shall lie in the Court of Small Causes. The learned advocates on both sides agree to this proposition. 3. As a result of this change in law, it is now necessary to return the plaint to the plaintiff for filing it in the proper Court as this Court has no jurisdiction to try and entertain the suit where the plaintiff approaches the Court on the ground that defendant No.1 was a gratuitous licensee and on account of termination of the said gratuitous license he has become trespasser. 4. In view of the well settled position in law, there is no need to frame formal issue and -3- that I am inclined to direct that the plaint be returned to the plaintiff for filing it to the appropriate Court. 5. By Order dated 16.3.2006 in Notice of Motion No.475 of 2005 injunction is granted against the defendant No.1 as not to part with the possession and/or create third party interest etc. Since the plaint if being returned to the plaintiff for filing it to the proper Court the aforesaid Order will have to be continued for sometime to enable him to apply before the Court in which the suit will be filed for appropriate interim relief. Hence the Order. ORDER . This Court shall have no jurisdiction to try and entertain this suit in view of the judgment in the case of Prabhudas Damodar Kotecha & Anr. vs. Manharbala Jeram Damodar reported in 2007(5) Mh.L.J.341. 2. It is hereby ordered that the plaint be returned to the plaintiff for filing it to the appropriate Court. -4- 3. The office shall return the plaint to the plaintiff on 31.7.2008. 4. Interim Order dated 16.3.2006 passed in Notice of Motion No.475 of 2005 shall run against the defendant No.1 till 25.8.2008. 5. After the plaint is returned to the plaintiff for filing it to the appropriate Court, the plaintiff shall be at liberty to apply to the Court in which the plaint will be lodged, for appropriate interim relief. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)