1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.2751 of 1990 Dharam Singh .. .. .. Petitioner v/s. Goodearth Co-operative Housing Society Ltd. & ors. .. .. .. Respondents Mr.Ashwin Shety with Mr.Asmit Sali i/by M/s.Khaitan & Jayakar for Petitioner. Mr.Anilkumar Patil for Res.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 13th January, 2010 ORAL ORDER : 1.In the premises of the 1st Respondent-Society, Respondent No.2, as a member, was in possession of flat No.4 in building No.5A. The Society filed a dispute before the Deputy Registrar of Co-operative Societies, Bombay, for recovery of possession of the tenement, recovery of dues and mesne profit from Respondent No.2 herein. She was stated to be a persistent defaulter. The Petitioner herein was also sued as Opponent No.2 in the dispute as the person illegally and unauthorisedly inducted by Respondent No.2 herein in the suit 2 premises. The Society sued for eviction of both of them and for other incidental reliefs. The Petitioner as well as Respondent No.2 filed their respective Written Statements. Respondent No.2 has not agitated the dispute despite the Written Statement filed by her. She had since expired. Her heirs have not been brought on record in this Petition. The Petition has abated as against Respondent No.2. She is accordingly deleted. She did not contest the dispute despite filing her Written Statement. 2.The Petitioner s case was much the same. He also filed his Written Statement. He did not prosecute his defence thereafter. He remained absent at the time of the hearing of the dispute. Issues were framed by the Court since the Written Statement was filed. The issue of maintainability of the dispute upon the jurisdiction of that Court to try it, was the first issue. Evidence of a Managing Committee member was recorded. A judgment was passed by the Co-operative Court No.1 at Bombay, directing both the Petitioner as well as Respondent No.2 herein to hand over possession to the Society, to pay the arrears as well as compensation and costs. They were restrained from transferring the premises of the Society to any third party and an Award came to be passed in terms of that judgment on 9.3.1989. The Petitioner herein filed an Appeal before 3 the Co-operative Appellate Court. He contended that the Court had no jurisdiction as he was a monthly tenant of Respondent No.2. He further contended that only the Small Causes Court has jurisdiction under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act), as it then was. The Co- operative Appellate Court, by its judgment dated 21.5.1990, which is impugned in this Writ Petition, dismissed the Appeal. 3.The Petitioner has contended that the order is illegal, on the ground that it has not considered the issue raised by the Petitioner that the Small Causes Court had jurisdiction and in view of the fact that the Petitioner was a lawful tenant. The Co-operative Court had raised an issue with regard to its own jurisdiction under the Maharashtra Co-operative Societies Act, 1960 (MCS Act), since it required its own member to be evicted and applied for the relief of possession of its premises upon defaults of the member and possession from the Petitioner upon his unlawful occupation. In the Written Statement filed by the Petitioner, the Petitioner has averred about his occupation in two rooms of the suit premises. The occupation is not under any written licence. The Petitioner has not shown payment of any rent, licence fee or compensation to Respondent No.2 herein, whose licensee, and later 4 his tenant, he claimed to be. The Petitioner s possession before the relevant date being 1.2.1973 was not substantiated as averred by the Petitioner. His claim that he came to be in occupation from August 1970 itself remained unsubstantiated. The Petitioner has not shown in the Written Statement how he came to be in possession from August 1970 since he has not produced any licence executed in his favour. Under the provisions of Section 15-A of the Bombay Rent Act, the Petitioner had to show that he was a licensee of flat No.4 on 1.2.1973, which itself was not shown. Consequently, the contention on behalf of the Petitioner that an issue should have been framed about the jurisdiction of the Court under Section 28 of the Bombay Rent Act did not arise. 4.Issues are required to be framed upon material facts stated or denied. The mere averment that the Court has no jurisdiction cannot be allowed. It is settled law that the jurisdiction of the Court is dependent upon what is stated in the Plaint. It was for the Petitioner to prove that he was a licensee of Respondent No.2 herein on 1.2.1973. The jurisdiction of the Co-operative Court in the dispute is not ousted. Consequently, the judgment of the Co-operative Court and the Award passed therein cannot be successfully challenged. The Co-operative Appellate Court has 5 considered this aspect and dismissed the Appeal, rejecting the contention that the Co-operative Court had no jurisdiction to try the dispute as vague. 5.The Petitioner s Advocate has relied upon a judgment of the Apex Court in the case of Sanwarmal Kerjiwal vs. Vishwa Cooperative Housing Society Ltd. & ors., (1990) 2 Supreme Court Cases 288, in which considering the non-obstante clauses in the MCS Act, 1960 and the Bombay Rent Act, 1947, it has been held that in view of the special provisions of the Bombay Rent Act, the provisions of the Societies Act would have to give way. True as it is, the judgment would have been applicable to the case of the Petitioner, if the Petitioner had produced at least prima facie a leave and licence agreement subsisting on 1.2.1973, which fact could have then been considered by the Co-operative Court. In the absence of absolutely any evidence whatsoever to show the licence granted to the Petitioner, the provisions of the Bombay Rent Act could not be invoked and the Petitioner s contention is rightly seen to be wholly perverse. 6.The Advocate on behalf of the Petitioner contended that an issue with regard to the jurisdiction of the Court under Section 28 of the Bombay Rent Act should have been framed as held in the Full Bench judgment in the 6 case of Aziz Ahmed Khan vs. I.A. Patel, AIR 1974 Andhra Pradesh 1. In that case the contention with regard to jurisdiction of the Court in view of the absence of money-lender s licence under the A.P. Money Lenders Act was raised. Hence it was held that that issue should have been framed. In this case, the Co-operative Court has framed the issue of jurisdiction along with the maintainability of the dispute. It was for the Petitioner to show on facts his licence subsisting on 1.2.1973, which had not been shown and hence the jurisdiction, otherwise vested in the Co-operative Court, could not be divested in view of the Petitioner s case, if any, under Section 15-A of the Bombay Rent Act. 7.It is not known why the Advocate for the Petitioner has also relied upon a judgment in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel, AIR 1980 Bombay 123 holding that character of licence applies also to a licensee. Since the Petitioner has not shown his licence, he cannot be taken to be a licensee at all. 8.Consequently, the impugned order is not seen to suffer from any irregularity and neither is it without jurisdiction. The Co-operative Court as well as the Co-operative Appellate Court have rightly assumed the 7 jurisdiction. The Writ Petition is dismissed. Rule is discharged accordingly. 9.There shall be no order as to costs. (SMT.ROSHAN DALVI, J.)