-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 405 OF 2009 IN NOTICE OF MOTION NO. 1740 OF 2009 IN SUIT NO. 234 OF 1987 Gannon Dunderley Holding Pvt. Ltd. ..Appellants. Versus Sherry Motilal Nagpal & Ors. ..Respondents. Mr. Girish Godbole a/w Mr. Rajesh Patil i/b M/s. Mahesh Jain & Co., for the Appellants. Mr. Rajeev Ravi i/b M/s. Bilwala & Co. for the respondent no.3. Mr. K. L. Vyas, Court Receiver is present. Coram : P. B. Majmudar & R. V. More, JJ. Date : December 16, 2009. P. C. : 1. This appeal is directed against the judgment and order passed by the learned Single Judge in Notice of Motion No. 1740 of 2009 in Suit No. 234 of 1987. The Appellant took out the said notice of motion with a prayer that he is occupying certain portion in the building known as “Dev Ashish” at Peddar Road, Mumbai and that he is a sitting tenant and that he may be allowed to carry out certain repairs. The said application was opposed on behalf of the present respondent on the ground that even though the applicant is in possession of the premises, he is not a tenant of the suit premises. Learned Single Judge was of the view that whether the Applicant is a tenant and whether the premises require the repairs are the -: 2 :- questions to be decided only by the competent Court under the Rent Act, and therefore, this Court cannot give any relief. Being aggrieved by the said order, the Appellant has filed this appeal. 2. During the course of hearing the learned counsel for the Appellant – original Applicants placed an undertaking on record stating that the Applicant will not claim any equities whatsoever if he is permitted to carry out minor repairs or alternations in the premises. In the undertaking he has also stated that the Appellants will not carry out any structural changes or additions or modifications in the premises and he will not ask for the refund of expenses for such repairs. It is also stated that if the eviction proceedings are filed on the ground of permanent alternations, he will not take any defence that since such changes are allowed by the Court, no decree on such ground can be passed. 3. Learned counsel for the respondent submitted that the undertaking takes care about the grievances of the landlord. No doubt. the undertaking protects the rights of the landlord, in our opinion, it would be appropriate if such order is passed by the Small Causes Court which will have jurisdiction in the matter. In our opinion, in view of the undertaking of the Appellant permission to carry out such repairs is required to be granted. However, considering the fact that the question of jurisdiction is involved and having realised this aspect, the learned counsel for the Appellant has submitted that the Appellant would like to file a suit for declaration of tenancy rights before the Small Causes Court and apply for the notice of -: 3 :- motion in connection with the minor repairs and minor changes as stated in the notice of motion before this Court, we permit the present appellant to file a suit before the Small Causes Court as suggested by the learned counsel for the Respondent. 4. It will be open to the Appellant to rely upon such undertaking which is submitted before this Court. Small Causes Court is directed to dispose of the notice of motion on these lines within a period of two weeks on receipt of the Notice of Motion. A copy of the said Notice of Motion would be given to the concerned respondent in the suit well in advance. Small Causes Court can accordingly dispose of the notice of motion as per the observations made hereinabove and in accordance with the law. 5. Since the Receiver is in charge of the property, in the Small Causes Court the Receiver shall be made a party. A copy of the notice of motion shall also be given to the Receiver well in advance so that the Receiver can present himself and file his say. 6. Leave to take out proceedings against the Receiver is also granted. Leave is also granted to the Receiver to defend. 7. It is pointed out to the Court that for such repairs which are minor in nature, it is not necessary to apply for permission of the BMC. (R.V. MORE, J.) (P .B MAJMUDAR, J.)