1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 38 OF 2008 (Abdul Rahim Abdul Gaffar vs. Ganeral Manager, MSRTC & Anr. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 20, 2008. Heard Shri Mirza, Advocate for the appellant – plaintiff and Shri Mehadia, learned counsel for the respondents. The challenge is to the order dated 27.3.2008 delivered by the Joint Civil Judge, Senior Division, Yavatmal, returning the plaint to the appellant – plaintiff mentioning that the return is under Order 7, Rule 11 of Civil Procedure Code, because the claim is cognizable only by Competent Authority functioning under Bombay Government Premises (Eviction) Act, 1955, (hereinafter referred to as the 1955 Act). The Court has also pointed out Section 8A thereof. Shri Mirza, learned counsel contends that the prayers made by him in the plaint cannot be claimed by the appellant – plaintiff before the Competent Authority and in view of Section 9 of 2 Civil Procedure Code, the suit was cognizable by Civil Court only. By way of abundant precaution, he states that at the most, prayer “D” may have some bearing upon jurisdiction available to Competent Authority and the appellant – plaintiff is ready and willing to withdraw said prayer if permission is given to him to re-agitate the same issue before the Competent Authority as and when occasion arises. Shri Mehadia, learned counsel states that all prayers are cognizable only by the Competent Authority because said issues can be raised in defence by the present appellant in appropriate proceedings under Section 4 or Section 8 before the said authority as and when occasion arises. He states that the impugned order though mentions order 7, Rule 11 of CPC, it is passed under Order 7, Rule 10 of CPC and it is perfectly justified and warrants no interference. I have perused the plaint as filed and also the provisions of the 1955 Act. It is apparent that the prayer clauses A, B, C, E & F as contained in plaint cannot be asked by the present appellant – plaintiff before the Competent Authority and he will not be entitled to any relief of either injunction or damages as sought for therein, from the Competent Authority even if he raises those issues in defence. 3 Similarly, he will not be in a position to claim refund of licence fee already paid by him in terms of agreement between the parties, to the respondents. In the circumstances, I find that the Court below was not justified in holding that the entire suit was not cognizable by it. However, insofar as prayer “D” is concerned, the two letters mentioned in the said prayer clause and calling upon the appellant to pay arrears of licence fee, seeking declaration of it as illegal, as sought for is therefore unwarranted at this stage. No action for recovery has been initiated by the respondents and as and when occasion arises, the present appellant – plaintiff can raise appropriate defence in relation to those letters before said authority. In view of the arguments made by the appellant, the appellant – plaintiff is permitted to withdraw prayer clause “D” from his plaint subject to the liberty to the plaintiff to raise that ground in defence before the Competent Authority as and when the occasion arises. The necessary amendment be carried out before the trial Court after the present order is received by said Court within a further period of one week thereof. In view of these observations, the impugned order dated 27.3.2008 is partly 4 unsustainable. The same is accordingly partly quashed and set aside. Special Civil Suit No. 19 of 2008 is restored back to the file of Joint Civil Judge, Senior Division, Yavatmal, for adjudication on merits, subject to the appellant – plaintiff deleting prayer clause “D” from the said plaint as already mentioned above. Appeal Against Order is thus partly allowed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.