1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2477 OF 1996 M/s.Deepti Air Systems & Fabricators Pvt.Ltd. ...Petitioner vs. P.V.Venkatesh & Ors. ...Respondents Mr.M.P.Vashi for the petitioner Mr.Mohankumar for respondent Nos.1(a) and 1(b). CORAM :A.S.OKA,J. DATE : SEPTEMBER 16, 2009 JUDGMENT : 1 Heard the learned counsel for the petitioner and the learned counsel for respondent nos.1a and 1b. The petitioner is the original plaintiff. The first respondent is the original first defendant. A suit was filed by the petitioner against the first respondent for declaration that the petitioner is the tenant in respect of the suit premises. The suit was filed in the court of Small Causes at Bombay. Written statement was filed by the first respondent (since deceased) contending that the petitioner was never inducted as a tenant and the possession of the petitioner was purely a permissive possession. It was contended by the first respondent that the trial court has no jurisdiction to entertain the suit. A notice for interim relief was taken out by the petitioner in the said suit. The said notice was dismissed by the Small Causes Court. An appeal was preferred before the Appeal Bench of the court of Small Causes Court. By Judgment and Order dated 29 th April 1993, the order passed by the court of Small Causes was set aside and the Appeal Bench of Court of Small Causes 2 directed that the issue of jurisdiction of the court of Small Causes shall be framed and shall be tried as a preliminary issue in view of mandate 9A of the Code of Civil Procedure,1908. Accordingly, the issue was framed. The learned Judge of the Small Causes Court by order dated 19 th October 1993 held that the court of Small Causes Court has no jurisdiction to entertain the suit as the suit was not between a tenant and landlord or between a licensee and a licensor. Therefore, plaint was ordered to be returned for presentation to the appropriate court. An appeal was preferred against the said order by the petitioner and the appeal has been dismissed. 2 The learned counsel for the petitioner stated that the petitioner is not pressing the petition against the second respondent. The learned counsel for the petitioner submitted that the issue of jurisdiction ought to have been decided on the basis of the averments made in the plaint. The courts below have committed an error by considering the defence of the first respondent (original first defendant). He submitted that the issue whether the petitioner is a tenant of the first respondent or not could not have been decided while deciding the preliminary issue of jurisdiction. 3 The learned counsel for the legal representatives of the first respondent submitted that enough opportunities were granted by the trial court to the petitioner to adduce evidence. The petitioner has not adduced any evidence to show existence of relationship as a tenant and landlord. He submitted that as plea of tenancy was not proved by the petitioner, the courts below have rightly held that the court of Small Causes has no jurisdiction. He submitted that no interference is 3 called for in view of concurrent findings of fact recorded by the courts below. The learned counsel for the legal representative of the first respondent pointed out that in the year 2004, a suit for injunction was filed by the petitioner. He pointed out that the said suit has been dismissed. He pointed out that the First Appeal against the decree passed by the City Civil Court is pending. He pointed out that as a result of breach committed by the petitioner, interim order in the First Appeal has been vacated. He stated that in view of filing of the subsequent suit, it is not necessary to entertain this writ petition. 4 I have carefully considered the submissions. The petitioner filed a suit alleging that he is a tenant in respect of the suit premises of the first respondent. Under section 28 of the Bombay Hotel Rent and Lodging House Rates (Control) Act,1947, the court of Small Causes at Bombay has exclusive jurisdiction to entertain and try suits or proceeding between landlord and tenant relating to recovery of rent or possession of the premises to which the provisions of the said Act of 1947 are applicable. It is a settled law that even a suit for declaration of tenancy filed by a tenant against the person claiming to be a landlord is governed by section 28 of the said Act of 1947. 5 The issue of jurisdiction of the court of Small Causes was required to be decided on the basis of the averments made in the plaint. Perusal of the plaint shows that the petitioner has come out with a clear case that the original first respondent has let out the suit premises to the petitioner. A reference has been made to the alleged terms and conditions of tenancy. It is alleged that the petitioner is a lawful tenant of the 4 first respondent (first defendant). 6 As stated earlier, the issue of jurisdiction can be considered only on the basis of the averments made in the plaint. The issue whether the court of Small Causes has jurisdiction and the issue whether the petitioner is the tenant of the first respondent are totally different and distinct issues. While deciding the issue of jurisdiction in such a case, naturally the defence of the defendant is irrelevant. The courts below have completely misunderstood the scope of adjudication of the issue as regards the jurisdiction. Whether the petitioner is a tenant of the respondent in the suit premises or not is a question to be decided on merits of the suit and not at the stage when the issue of jurisdiction of the court of Small Causes is to be decided. The trial court has passed an order returning the plaint. The said order is completely misconceived. If the petitioner was to accept the said order and present plaint in the ordinary civil court, the ordinary civil court could not have entertained the said suit in as much as the exclusive jurisdiction to try such a suit for declaration of tenancy has been conferred on the court of Small Causes at Bombay under section 28 of the said Act Act. 7 In the circumstances, the entire approach of the courts below is completely erroneous. The averments made in the plaint are very clear. The petitioner claims that the first respondent inducted him as a tenant and the petitioner was in possession on the date of institution of the suit. It is alleged that for creating tenancy in favour of the petitioner, certain deposit was taken by the first respondent. Monthly rent was fixed at the rate of Rs.5,000/- per month. As the averments in the plaint stand, the court of Small Causes at Bombay has 5 jurisdiction to entertain and try the suit between the petitioner and the first respondent. It is obvious that the suit was not maintainable against the second respondent. 8 The courts below could not have decided the issue whether the petitioner was a tenant while deciding the issue of jurisdiction. The said issue will have to be decided only after the other issues are framed and parties lead evidence. The subsequent filing of the suit simplicitor for injunction is not relevant for deciding this petition on merits as the said suit was simplicitor for injunction. Whether the petitioner is the tenant of the first respondent is a question to be decided after the parties adduce evidence on the merits of the suit. 9 In the circumstances, petition must succeed. Hence, I pass the following order : i) Impugned orders are quashed and set aside and the suit is restored to the court of Small Causes. ii)It is made clear that the issue whether the petitioner is the tenant in respect of the suit premises of the first respondent is expressly kept open and the said question will have to be decided at the time of final hearing of the suit. iii)It is made clear that the suit stands dismissed as against the second defendant. iv)The petitioner will implead the legal representatives of the first defendant (respondent Nos.1a and 1b) as party defendants to the suit. Amendment shall be carried out by the petitioner within a period of four weeks from the date on which the writ of this Judgment is received by the trial court. 6 v) Hearing of the suit is expedited. The parties Nos.1(a) and 1(b) are directed to appear before the trial court on 12 th November 2009. vi)Rule is made absolute in above terms. JUDGE