: 1 : s-2573-93-Judgment.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2573 OF 1993 1. Mrs. Rama Hariharan 2. Mr. Narayanier Hariharan 3. Mr. Hariharan Narayanan all residing at Flat No.3, Paradise Building, Plot No.289, Flank Road, Sion (East), Bombay – 400 022. 4. The Secretary The Sion Nand-Dham Co-operative Housing Society Ltd., a Society duly registered under the Maharashtra Co-operative Societies Act, 1960 situate at Nand-Dham, Plot No.270, Sion (W), Hindu Cemetary Road, Bombay – 400 022. .. Plaintiffs V/s. Mr. A. Ramesh M/s. Venkatesa Files Limited, Bangar House, 5-9-22/37, Adarsh Nagar, Hyderabad – 500 463. .. Defendant ......... Ms. Shilpa Morje i/b M.N. Morje for the plaintiffs Mr. R.M. Vasudeo for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 3rd MARCH, 2011 : 2 : s-2573-93-Judgment.sxw ORAL JUDGMENT : 1. The plaintiffs have filed this suit for a declaration that defendant is the trespasser in respect of Flat No.5, Nand-dham, Plot No.270, Sion (W), Hindu Cemetary Road, Sion, Bombay – 400 022 (hereinafter referred to as the said suit premises). The plaintiffs want possession in respect of the suit premises. Prayers are also sought regarding recovery of damages and compensation as set out in prayer clause (c). By prayer clause (d) mesne profit is sought. By prayer clause (e), an injunction is sought restraining defendant from creating third party rights and / or parting with possession in regard to the suit premises. The defendant has filed written statement contesting the suit. 2. Issues came to be framed on 11th June, 2003. On the last occasion, the matter was posted for recording of evidence. After hearing learned Counsel on both sides, I had checked up the issues and it is noticed that issue as regards jurisdiction was framed at Sr. No.3. Since issue as regards jurisdiction was framed and looking to the averments in the plaint, I indicated to the learned Counsel on both sides that it would be proper to hear the parties on the question of issue of jurisdiction and depending upon the answer to the said issues, further steps in the suit can be taken. Learned Counsel on both sides accepted : 3 : s-2573-93-Judgment.sxw that for the purposes of deciding the question of jurisdiction, plaint alone can be referred to. I have heard learned Counsel on both sides. Few facts necessary for the disposal of this issue are as under. 3. According to plaintiffs, plaintiff no.1 is the owner of the suit premises which is situate at Sion, Nand-dham Co-operative Housing Society. This co-operative society is also impleaded as plaintiff no.4. According to the plaintiffs a leave and licence agreement was entered into between plaintiff no.1 and the defendant for 11 months commencing from 1st June, 1997. This agreement was executed on 19th September, 1970. After this leave and licence agreement, another leave and licence agreement came to be executed between plaintiff no. 1 and defendant on 1st November, 1972 and that leave and licence agreement was to remain in force upto 31st August, 1974. 4. According to the plaintiffs after the expiration of the said licence, the plaintiffs had called upon the defendant to handover vacant and peaceful possession by Notice dated 21st March, 1992. Despite the said Notice, defendant did not vacate the suit premises and as such the plaintiffs had no alternative but to institute this suit and accordingly this suit came to be instituted styling the defendant as a trespasser. : 4 : s-2573-93-Judgment.sxw 5. Learned Counsel appearing on behalf of the defendant took me through the text of the plaint as well as the documents and submitted that it is the consistent case of the plaintiffs that leave and licence agreement was executed in favour of defendant and, therefore, the relations between the plaintiff no.1 and the defendant was that of licensor and licensee. Learned Counsel Mr. Vasudeo submitted that looking to the relationship, the plaintiffs ought to have instituted the suit for recovery of possession only in the Court of Small Causes Court at Bombay in accordance with the provisions of Section 41 of the Bombay Presidency Small Causes Court Act (hereinafter referred to as the said Act). Learned Counsel Mr. Vasudeo submitted that the stand of the plaintiffs that on termination of the licence, the defendant becomes the trespasser in respect of the suit premises should not be accepted. He in support of this contention relied upon the judgment in the case of Nagin Mansukhlal Dagli Vs. Haribhai Manibhai Patel, AIR 1980, Bom.123. Learned Counsel Mr. Vasudeo submitted that once the parties are related to each other as a licensor or licensee, even on the termination of the said arrangement, the licensee cannot be termed as trespasser and parties will continue to get governed by the terms of the agreement i.e. the person who had granted licence shall continue to be termed as licensor and the person in whose favour the licence is granted shall be termed as licensee and if at all the suit is to be filed for : 5 : s-2573-93-Judgment.sxw recovery of possession of the suit premises in respect of which the licence is granted, the Court will consider the parties as licensor or licensee respectively and by relevant provisions of law and process the said suit. Learned Counsel Mr. Vasudeo, therefore, submitted that the averments in the plaint clearly indicate that plaintiff no.1 had granted licence in favour of defendant and that for all times, plaintiff no.1 in particular and the defendant were related to each other as licensor or licensee qua the suit premises. Learned Counsel Mr. Vasudeo submitted that by now it, is well settled that jurisdiction of the Court has to be determined on the basis of averments in the plaint and defence put up by the defendant need not be looked into by the Court for the purposes of deciding the jurisdiction. Learned Counsel Mr. Vasudeo, therefore, submitted that looking to the averments in the plaint, this Court has no jurisdiction to try and entertain the suit as it is the suit for recovery of possession in respect of the suit premises which were granted to the defendant on the basis of leave and licence agreement. Learned Counsel Mr. Vasudeo had relied upon full bench judgment of this Court in the case Prabhudas Damodar Kotecha V/s. Smt. Manharbala Jeram Damodar and Ors. 2007(5) M.L.J. 341 and had submitted that so far as Bombay is concerned, the moment the Court comes to the conclusion that there is a relationship of licensor or licensee, this Court shall have no jurisdiction. Learned Counsel Mr. Vasudeo had, therefore, submitted : 6 : s-2573-93-Judgment.sxw that this Court has no jurisdiction to try and entertain the suit and accordingly the issue to be answered. 6. Learned Counsel Ms. Morje appearing on behalf of the plaintiffs submitted that on account of termination of the leave and licence agreement, defendant would be a trespasser and therefore this Court has jurisdiction to try and entertain the suit. 7. Learned Counsel Mr. Vasudeo appearing on behalf of the defendant had submitted that by order dated 14th June, 1996 passed in Notice of Motion No.1858 of 1993, defendant was restrained from creating third party rights and / or parting with possession till the disposal of this suit and defendant was directed to deposit in this Court a sum of Rs.1,500/- per month by way of compensation w.e.f. 1st January, 1995. Learned Counsel Mr. Vasudeo submitted that the defendant has paid compensation @ Rs.1,500/- upto 31st March, 2011. 8. I have considered the rival submissions. I have perused the text of the plaint and the two leave and licence agreements mentioned aforesaid. It is noted that evidence also has been recorded in the suit. However, it is not necessary for this Court to scrutinize the said evidence as in my view, the averments in the plaint are absolutely clear : 7 : s-2573-93-Judgment.sxw and sufficient to ascertain the jurisdiction of the Court. It is also not necessary to go through the evidence as the averments in the suit can be considered by the Court for the purposes of deciding the jurisdiction of this Court. 9. The plaintiffs have positively asserted in the plaint that the defendant was inducted in the suit premises as a licensee. The stand taken by the plaintiffs that upon termination of the arrangement between plaintiff no.1 and the defendant regarding the licence, the defendant becomes the trespasser cannot be accepted in view of the judgment of Nagin Mansukhlal Dagli Vs. Haribhai Manibhai Patel, AIR 1980, Bom.123. As such despite termination of the arrangement between the plaintiff no.1 and the defendant, the plaintiff no.1 and defendant shall got governed by what may be referred to as licensor or licensee respectively. In view of the judgment delivered by this Court by full bench in the case of Prabhudas D. Kotecha (Supra) a suit between a licensor or licensee for recovery of possession and for recovery of compensation will lie to the Court of Small Causes in Bombay. Consequently, this Court has no jurisdiction to try and entertain the suit. 10. In my view, for the reasons mentioned aforesaid, this Court shall : 8 : s-2573-93-Judgment.sxw have jurisdiction to try and entertain the suit and the plaint will have to be returned to the plaintiffs for filing it to the proper Court. Accordingly, issue as regards jurisdiction is answered in the affirmative. Appropriate orders as regards return of the plaint shall be passed hereunder. 11. Since the defendant was directed to deposit in this Court a sum of Rs.1,500/- per month and since the plaint is being returned to the plaintiffs for filing it to the proper Court, I am of the view that for the month of April and May, 2011, the defendant can be directed to deposit a sum of Rs.1,500/- per month as per the order dated 14th June, 1996 which is presently running against the defendant. Once this suit is filed in the appropriate Court pursuant to this order, it will be open for the plaintiffs to apply to that Court for appropriate interim relief including directions to the defendant to deposit a particular amount in the Court. So far as the interim arrangement is concerned, for some time the defendant will have to be restrained from creating third party rights and / or parting with possession so that once the plaintiffs institute the suit in the proper Court, the plaintiffs would be able to make the application to the said Court for appropriate interim reliefs. 12. In view of the above following order is passed. : 9 : s-2573-93-Judgment.sxw ORDER (i) Issue no.3 as regards jurisdiction is answered in the affirmative. Consequently this Court shall have no jurisdiction to try and entertain the suit. (ii) It is hereby ordered that the plaint be returned to the plaintiffs for filing it in the proper Court. (iii) 20th April, 2011 is the date fixed for return of the plaint to the plaintiffs. Upon receipt of the plaint as above, the plaintiffs shall file the plaint in the proper Court. (iv) Till 15th June, 2011 defendant is restrained from creating third party rights and / or parting with possession in regard to the suit premises. (v) The defendant is directed to deposit in this Court a sum of Rs. 1,500/- for the month of April, 2011 and May, 2011 in accordance with the order dated 14th June, 1996. (vi) The plaintiffs would be permitted to withdraw this amount as per order dated 14th June, 1996. As of today, the Court is unable to know as to whether any amount which has been deposited by the defendant up till now has been withdrawn. If the plaintiffs do not withdraw the amount lying in the account of this Suit in this Court till 30th July, 2011, office shall repay the said amount to the defendant without security or guarantee. If the amount/s : 10 : s-2573-93-Judgment.sxw deposited by the defendant are invested in a Nationalized Bank, Office shall redeem the said amount/s along with accrued interest and pay it to the plaintiffs or to the defendant, as the case may be i.e. to say if the plaintiffs wish to withdraw the said amount, it will be paid to the plaintiffs. If the plaintiffs do not withdraw the said amount, it be paid to the defendant. (vii) The plaintiffs are at liberty to apply for appropriate interim reliefs in the Court in which the plaint would be lodged so as to protect their interest. (viii) Needless to mention that on filing the plaint in the appropriate Court, the said Court shall take up the suit for trial denovo keeping in view contentions raised by the plaintiffs and defendant respectively. (R.Y.GANOO, J.)