1 s2939-91 jud.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 2939 of 1991 M/s. Swastic Surfactants Ltd., a company registered under the Companies Act, 1958 and having its office at Industry Manor, 442 A, Marathe Marg, Prabhadevi, Bombay 400 026 .. Plaintiffs v/s. 1(a) Mrs. Aarti Banerjee of Bombay Indian Inhabitant, res. at Flat No.34A, Bank Stand Co-operative Housing Society Ltd., Ploat No,197C, Cane Road, Bandra, Bombay 400 050 1(b) Mr.Gautam Banerjee of Bombay Indian Inhabitant, residing at Flat No.34A, Bank Stand Co-operative Housing Society Ltd. Plot No.177C, Cane Road, Bandra, Bombay 400 050 1(c) Mr.Kaustav Banerjee, presently having his address at 6889, Balti Road, Goleta C.A. 93117 U.S.A. ..Defendants Mr.Shailesh Shah , Ms. Lata Bachani i/b. I.R.Joshi & Co. for the Plaintiffs. Ms.Armin Waandrewala i/b. P. Mehta & Mithi & Compnay for the Defendant Nos.1A and 1B. 2 s2939-91 jud.sxw CORAM : R.Y.GANOO, J. DATED : 4th February, 2011 ORAL JUDGMENT : 1. The plaintiff herein had filed this suit against Mr.G.C.Banerjee for recovery of possession in regard to the premises, more particularly set out in prayer clause (a) of the plaint. On account of death of said G.C.Banerjee, his heirs have been brought on record and that is how in all three persons are joined as defendants in their capacity as heirs. 2. On the last occasion, looking to the averments in the plaint, I had framed preliminary issue as follows: “Whether this Court has jurisdiction to try and entertain the suit?” 3. Soon after framing of the issue, hearing was provided. Needless to mention that looking to the nature of the issue and the fact that jurisdiction of this court was required to be decided on the basis of the averments of the plaint, none of the parties pressed for leading evidence. Thereafter arguments were heard and matter was posted today for passing order. 3 s2939-91 jud.sxw 4. Predecessor in title of the plaintiffs were owners of the suit flat and such predecessor in title had good relations with the company by name M/s. Decom Marketing Limited. The plaint indicates that the officers of said Decom Marketing Limited requested the predecessor in title of the plaintiffs to accomodate their employee and allow said employee to occupy the suit premises without payment of compensation. That is to say said employee was to occupy the suit premises on the basis of Gratuitous License. Plaint indicates that the predecessor in title of the plaint granted Gratuitous License in favour of the original defendant Mr. G.C.Banerjee. Said event took place in the year 1983. 5. According to the plaintiffs, in the year 1989-90, Management of the present plaintiffs decided to discontinue the arrangement as regards residence of said Mr. Banerjee in the suit premises and that is how the Gratuitous License was terminated and the present suit came to be filed in the year 1991. 6. By now it is well settled that for the purpose of determining as to which court shall have jurisdiction, averments in the plaint are 4 s2939-91 jud.sxw required to be seen. No reference to the defence put up by the defendant is required to be gone into. 7. On consideration of the entire plaint, it is apparent that the original defendant was allowed to reside and enjoy the suit premises on the basis of Gratuitous License which came to be created in our about 1983. It is the case of the plaintiffs that on account of termination of the said Gratuitous License the original defendant and now the present defendants are tresspassers. In so far as this aspect is concerned, by now it is well settled that if at the time of inducting a person in the possession of premises certain relationship existed, after termination of the said arrangement the said person cannot be termed as tresspasser and for the purpose of deciding the jurisdiction of the court relationship on the basis of which parties transacted between themselves is required to be seen. This will mean that even at the time of filing of the suit the plaintiffs and the original defendant will have to be termed as licensor and licensee respectively and the kind of license granted in favour of the original defendant will have to be termed as Gratuitous License. With this observation I now turn to the question as regards the jurisdiction of this court. This court in the 5 s2939-91 jud.sxw case of Prabhudas Damodar Kotecha and another vs. Smt. Manharbala Jeram Damodar and Ors. reported in 2007(5) Mh.L.J. 341 has observed that the suit for recovery of possession from the Gratuitous licensee shall be governed by the provisions of Presidency Small Causes Court Act and particular Section 41 and in the said judgment it is observed that such suit shall lie in the court of small causes. In view of the observation of the learned Full Bench in the aforesaid case, I hold that this court shall have no jurisdiction to try and entertain the suit. 8. In view of the aforesaid finding this plaint will have to be returned to the plaintiff for filing it in the appropriate court. 9. Counsels on both sides indicated to the court that during the pendency of this suit Receiver was appointed by order dated 15.12.1993 and the original defendant and now the present defendants are occupying the suit premises as agent of the Court Receiver. Now that the plaint is being returned to the plaintiffs for filing it to the appropriate court, the arrangement of appointment of Court Receiver and possession of the defendants as agent of the 6 s2939-91 jud.sxw Court Receiver will have to be continued for some time so that after the plaint is lodged in the appropriate court, the plaintiffs would be able to move the appropriate court to protect their interest as regards question of possession. In view of above, following order is passed in the suit. ORDER i) Having observed that this court has no jurisdiction to try and entertain the present suit it is hereby ordered that the plaint be returned to the plaintiffs for filing it to the appropriate court. ii) 15th March, 2011 is the date fixed for returning of the plaint to the plaintiffs. Accordingly, Prothonotary & Senior Master shall return the plaint to the plaintiffs or their Advocate on 15th March, 2011. iii) The Order dated 15th December, 1993 appointing Court Receiver and present situation, namely present defendants occupying the suit premises as Agent of the Court Receiver shall continue to operate till 15th April, 2011. After the plaint is lodged in the appropriate court the plaintiffs will be free to move the said court for 7 s2939-91 jud.sxw appropriate interim order in order to protect their interest. Presently, defendants are paying the interim royalty of Rs.15,000/- (Rupees Fifteen Thousand Only) per month. It is common ground that the said royalty is being paid punctually. It is hereby ordered that the defendants shall continue to pay royalty as per the present arrangement till the month of April 2011 or subject to any other order that may be passed or whichever is earlier. iv) Notice of Motion of Motion No.154 of 2010 taken out by the plaintiffs and the Notice of Motion No.369 of 2010 taken out by the defendants do not survive now on account of the order of return of the plaint. They are disposed of with no order as to costs. v) After 15.4.2011 parties should move their court as regards discharge of Court Receiver. [R.Y.GANOO, J.]