1 APP 118 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.118 OF 2010 IN NOTICE OF MOTION NO.2603 OF 2008 IN SUIT NO.2908 OF 2006 Dinyan D. Daruwalla ..... Appellant V/s. Dr.Zenobai Pervez Dumasia ..... Respondent Mr.Girish Rao i/by M/s.Lex Consultus, for the appellant. Ms.Geeta Shastri, for the respondent. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 17TH SEPTEMBER, 2010 P.C. 1. By way of this appeal, appellant has challenged the order passed by the learned Single Judge in Notice of Motion No.2603 of 2008. The appellant is the original defendant of the said suit. The suit has been filed by the respondent for getting the decree for possession on the ground that the defendant is a trespasser and he has no right to continue with the possession of the suit premises. In the said suit, the appellant has filed a written statement and has taken a point of tenancy, stating that he is not a trespasser and is a tenant. During the pendency of the suit, the appellant has filed Notice of Motion No.2603 of 2008 asking the Court to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure on the 2 APP 118 of 2010 ground that the suit is not maintainable before the regular Court since he has taken a point of tenancy. The learned Single Judge found that the point of jurisdiction is required to be decided as per the averments made in the suit. It was accordingly found that no case is made out for rejecting the plaint under Order VII Rule 11 of Code of Civil Procedure. It has been found that cause of action in the suit and particularly paras 3 and 4 makes it clear that the status of defendant is described as a trespasser. In our view, the learned Single Judge has rightly held that the plaint cannot be rejected under Order VII Rule 11 of C.P.C., as the Jurisdiction is to be decided on the basis of the averments made in the plaint. 2. The learned counsel for the appellant submitted that he has already filed a substantive suit before the Court of Small Causes for a declaration him as a tenant in the suit property. The learned counsel for the appellant states that as and when the issues are framed, he would request the learned Single Judge to decide the point of tenancy as a preliminary issue. If any such application is made by the appellant, the learned Single Judge may decide the same in accordance with law and on its own merits. Needless to say that the suit filed before the Small Causes Court is required to be decided on its own merits and as per the evidence and the observations made in this order will have no bearing so far as the suit is concerned. 3 APP 118 of 2010 3. We accordingly do not find any infirmity in the order passed by the learned Single Judge. The appeal is accordingly dismissed. No costs. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )