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.2118 of 2005. SUIT NO.2118 of 2005. SUIT NO.2118 of 2005. Smt. Pankaja B. Bhatt ..Plaintiff versus Bhavesh J. Bhatt ..Defendant Mr.R.D.Dave i/b. N.N.Vaishnawa for the Plaintiff Ms.N.V.Parekh for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 9th July, 2008. DATED : 9th July, 2008. DATED : 9th July, 2008. P.C. 1. The plaintiff instituted the suit against the defendant so as to seek mandatory order against the defendant by which the plaintiff wants that the defendant should hand over the possession of the suit flat to the plaintiff. Certain other reliefs are also asked with regard to the amount of Rs.40,000/-. The plaintiff proceeded on the footing that the premises in question namely flat No.205 situated at Sukhsagar, N.S.Patkar Marg, Mumbai 400 007, hereafter referred to as the suit premises was put in possession of the defendant on license and without consideration i.e. what is commonly referred to as "gratuitous licensee". -2- 2. The advocates of both the sides indicated to this Court that the suit was originally filed in the Court of Small Causes, thereafter it was transferred to this Court on the ground that the license in favour of the defendant was gratuitous license. It is common ground that as a result of the judgment of this Court in the case of Prabhudas D. Kotecha & Another vs. Manharbala Jeram Damodar & Ors. reported in 2007(5) MLJ 341 the suit between the licensor and the licensee whether license for consideration or gratuitous license would lie in the Court of Small Causes. Hence this Court shall have no jurisdiction to try and entertain this suit. In view of this plaint in this suit will have to be returned to the plaintiff for filing it in the Court of Small Causes, Bombay. Appropriate Order shall be passed herein. Since the defendant before this Court is already represented by an advocate, I am inclined to direct the plaintiff and defendant to remain present before the learned Chief Judge of the Small Causes Court at Bombay on a specific day so that the learned Chief Judge of the Court of Small Causes shall pass appropriate orders assigning the said suit to an appropriate Court . This is being done -3- to save time. 3. The learned advocate for the plaintiff drew my attention to the Order dated 16.8.2006 passed by this Court in Motion No.2700 of 2006. By the said order dated 16.8.2006 the defendant is prohibited from making any alteration or addition in the suit premises. Said Notice of Motion 2700 is pending. Now, that the plaint being returned to the plaintiff for filing it in the Court of Small Causes, the Order dated 16.8.2006 will have to be continued for some time and that liberty will have to be given to the plaintiff to take out a fresh Notice of Motion before the concerned Judge of the Court of Small Causes for appropriate interim relief. Keeping in view the above discussion, I pass the following order: ORDER 1. This Court has no jurisdiction to try and entertain this suit. The plaint is hereby ordered to be returned to the plaintiff for filing it to the proper Court i.e. the Court of Small Causes. -4- 2. Office to return the plaint to the plaintiff on 28.7.2008. The plaintiff shall lodge the plaint in the Court of Small Causes on or before 6.8.2008. The plaintiff and the defendant shall appear before the learned Chief Judge of the Court of Small Causes, Bombay on 13.8.2008 at 11.00 a.m. On that day the learned Chief Judge, Court of Small Causes shall pass an appropriate order assigning the plaint to the appropriate Court and thereafter the parties to attend to the said suit as per the directions issued by the appropriate Court. The Order dated 16.8.2006 passed against the defendant directing the defendant that the defendant shall not make any alteration or any addition to the suit premises shall continue to operate against the defendant till 1.9.2008. The plaintiff is at liberty to take out appropriate proceeding for interim relief as he may deem fit and proper. 3. Upon assignment of the suit to the learned Judge of the Court of Small Causes, the said learned Judge of Small Causes shall attend to the suit in accordance with the provisions of law. -5- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)