IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.542 OF 2006 WITH NOTICE OF MOTION NO.3417 OF 2006 IN SUIT NO.542 OF 2006 Rameshchandra Dharmadas & Ors. ..... Plaintiffs V/s. Maheshbhai Janardhan Acharya .... Defendant Mr.P.A.Savant i/by Munir Merchant, for the plaintiff. Mr.V.J.Mehta i/by Divyakant Mehta Associates, for the defendant. CORAM: R.Y.GANOO, J. DATED: 14th JANUARY, 2009. P.C. 1. This suit is filed by the plaintiffs being the trustees of a trust Chaturbhuj Jivandas Religious and Charitable Trust, against the defendant for recovery of suit premises, consisting of two rooms more particularly set out in the plaint. The plaintiffs have also sought mesne profits in terms of prayer Clause (b). In the plaint at Para No.3, there is a specific averment that the plaintiffs had allowed the defendants to occupy the suit premises consisting of two rooms free of charge under leave, license and permission of the plaintiffs. 2. This averment clearly goes to show plaintiffs claim that the 2 defendant was inducted in the suit premises without payment of any compensation. In the case of Prabhudas Damodar Kotecha & Anr., V/s. Manoharbala Jeram Damodar & Ors., 2007(5) Bom.C.R. 1 , it is observed that in Mumbai a suit to have possession of suit premises based on gratuitous licence will lie in the Court of Small Causes at Bombay. It is equally well settled that the averments in the plaint will decide the jurisdiction of the Court. Considering the above judgment and the averments in the plaint as they stand this Court shall have no jurisdiction to try and entertain this suit and the plaint will have to be returned to the plaintiffs for filing in the proper court. Hence, the order. ORDER 1. It is hereby ordered that this Court has no jurisdiction to try and entertain the present suit. 2. It is hereby ordered that the plaint be returned to the plaintiffs for filing it in the proper Court. 16-02-2009 is the date fixed for returning the plaint to the plaintiffs. The Prothonotary & Senior Master shall return the plaint to the plaintiffs accordingly. 3. My attention was drawn by the learned counsel for the plaintiffs that as of today, interim relief in favour of the plaintiffs is granted 3 and the defendants are restrained from disposing of, alienating or creating third party rights in respect of suit premises. Since the plaint is being returned to the plaintiffs, this interim relief which is running against the defendants will have to be continued for some time to enable the plaintiffs to move for appropriate interim relief in the Court in which the plaint will be lodged. Accordingly, interim relief which is presently running against the defendants in terms of prayer clause (b) of Notice of motion No.3417 of 2006 shall run against the defendants till 17-03-2009. The plaintiffs are at liberty to apply for appropriate interim reliefs in the Court in which the plaint would be lodged. It is clarified that this Court has not expressed any opinion in any manner whatsoever on the merits of the matter. ( R.Y.GANOO, J.)