ash 1 cra-1094.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.1094 OF 2010 Shri Vivek Dattatray Shinde & Ors. .. Applicants. Vs Smt. Draupadi Shankarrao Astagaonkar & Ors. .. Respondents -- Shri Vishal Kanade i/by Shri Sanjay Gawde for the Applicants. Shri Sanskar Marathe for Respondents. -- CORAM : A.S. OKA, J DATED : 11TH NOVEMBER, 2011 P.C. . Heard learned counsel appearing for the Applicants. The Applicants are the original Defendants and the Respondents are the original Plaintiffs. 2. The Respondents filed a suit in the Court of Small Causes at Pune seeking possession of the suit premises. The description of the suit premises is in Paragraph 1 of the Plaint. It is contended that the Respondents are monthly tenants of the Applicants in respect of the suit premises of the Applicants. It is alleged by the Respondents that when they were out of station, the Applicant Nos.1 and 4 forcibly dispossessed them. Therefore, a prayer was made in the suit for ash 2 cra-1094.10 restoration of the possession. An application for temporary injunction was made in the said suit. A reply was filed by the Applicants to the application for temporary injunction. An Application was made by the Applicants for framing a preliminary issue of jurisdiction in accordance with Section 9A of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code”). By the impugned order, the Trial Court rejected the said Application and has held that the suit was maintainable in the Court of Small Causes and the Civil Court had no jurisdiction to entertain and try the suit. 3. The learned counsel appearing for the Revision Applicants submitted that what was before the Trial Court was an Application at Exhibit-16 in which only a limited prayer was made for framing a preliminary issue of jurisdiction. He submitted that in view of the mandate of Section 9A of the said Code, it was the duty of the Trial Court to frame the preliminary issue and to keep the suit for hearing on the said preliminary issue. He submitted that while deciding the said Application, instead of framing the issue of jurisdiction, the Trial Court had purported to decide the issue itself. He submitted that it is the specific case of the Applicants that the Respondents were never the tenants in respect of the suit premises. He submitted that as the Trial Court has decided the issue of jurisdiction by passing the impugned order without giving an opportunity of leading the evidence to the ash 3 cra-1094.10 Applicants, the impugned order is illegal and deserves to be quashed and set aside. He submitted that the Applicants were desirous of adducing evidence on the issue whether the Respondents are not tenants. 4. I have considered the submissions. It is true that only prayer in the application at Exhibit-16 is that an issue of jurisdiction of the Small Causes Court be framed and decided as a preliminary issue. The submissions made by the learned counsel appearing for the Applicants have been noted by the Trial Court in Paragraph 3 of its judgment. Relevant portion of the paragraph 3 of the said judgment reads thus:- “3.....It is urged that if a person is dispossessed without his consent of the immovable property, then in that situation, he can claim the relief under Sec.6 of the Specific Relief Act and he cannot file the suit after the expiry of 6 months from the date of dispossession. It is urged also on behalf of the defendant that such a suit needs to be filed in the civil court and not in Small Causes Court and therefore this court has got no jurisdiction to entertain, try and decide the suit and under Sec.33 of Maharashtra Rent Control Act, the landlord can file the suit against the tenant for the recovery of possession but such suit cannot be filed by the tenants against the landlords. Therefore, it is requested that this court be declared that it has no jurisdiction to entertain, try and decide the present suit and it be dismissed as not maintainable. In support of his contention, the learned advocate for the defendant has relied upon the case of Smt. Faijulbee Hajee – V/s- Yad Ali Aamir ash 4 cra-1094.10 Shaikh Ansari, reported in AIR 1984 Bom. 290. The Hon’ble Bombay High Court has held that suit for recovery of possession under Sec.6 of the Specific Relief Act, based on allegation of dispossession, it continues to be within the jurisdiction of civil court despite the fact that parties may happen to be fulfilling character of a landlord or tenant or a licensor or licensee.” ( Emphasis added ) 5. What is recorded in the Paragraph 3 of the impugned judgment and order shows that at the time of hearing of the Application at Exhibit-16, the Applicants have made submissions on merits of the issue of jurisdiction and that is how the Trial Court has gone into the merits of the issue of jurisdiction. After having argued the issue of jurisdiction on merits and after having invited the Court to consider the contentions on merits, now the Applicants cannot urge before this Court that without giving an opportunity of adducing the evidence, the Trial Court has erroneously decided the issue of jurisdiction. 6. Apart from what is held above, interference cannot be made with the impugned order even for some other reason. The Respondents invoked Section 33 of the Maharashtra Rent Control Act, 1999. Under Section 33 of the said Act, exclusive jurisdiction to entertain and try a suit between the landlord and tenant relating to possession of the premises is conferred on the Court of Small Causes as far as the city of Pune is concerned. The words “relating to recovery of ash 5 cra-1094.10 rent or possession” have been liberally interpreted by this Court and the Apex Court in a suit filed by a tenant against landlord. There cannot be any dispute that a suit filed by a tenant against landlord for restoration of possession of the tenanted premises to which the provisions of the said Act are applicable will be maintainable under Section 33 of the said Act. 7. In such a case, for deciding the issue of jurisdiction of a Special Court under Section 33 of the said Act, only the averments made in the Plaint are required to be seen and not the defence in the Written Statement. If the averments made in the Plaint in a suit between landlord and tenant show that the existence of the landlord tenant relationship is pleaded, the Court of Small Causes gets jurisdiction to entertain and try the suit. As far as the legal position is concerned, the same has been laid down by the Full Bench of this Court in the case of Dattatraya Krishna Jangam Vs Jairam Ganesh Gore (A.F.O.D. No.434 of 1963 ) decided by this Court on 4th September, 1964. Paragraph 5 of the said decision reads thus:- “5. The position therefore is that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant ash 6 cra-1094.10 between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the Special Court will depend on the decision of the Court on that issue. Similarly if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit.” 8. The legal position is that though on the basis of the averments made in the Plaint, the Court of Small Causes will have jurisdiction to decide the suit, if the relationship is disputed by the Defendants, then the Small Causes Court will have to frame the issue as regards the existence of relationship as the tenant and landlord and/or the landlord and the tenant. The continuance of the suit in the Small Causes Court will depend on the decision of the Court on that issue. If on the evidence in the present case, the Respondents fail to establish that they were the tenants in respect of the suit premises, their suit bound to be thrown out on merits by the Court of Small Causes. 9. Suffice it to say that the Trial Court is right in holding that on plain reading of the averments made in the Plaint, the Small Causes Court has jurisdiction to entertain the suit. It is obvious that by the ash 7 cra-1094.10 impugned order, the issue whether the Respondents are the tenants of the Applicants has not been decided and the said issue will have to be decided after the parties adduce evidence. 10. Subject to what is observed above, no case is made out for interference. The Revision Application is accordingly dismissed with no orders as to costs. ( A.S. OKA, J )