1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1072 /2009 (Suraj wd/o John Nikolas & others VERSUS Ku.Clara Sabustian Nikolas) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anil S. Kilor, counsel for the petitioners. Mrs. S.P. Deshpande, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 23, 2009. Heard the learned counsel for the parties. By this petition, the petitioners impugn the order passed by the 8th Joint Civil Judge (Junior Division), Nagpur on 31.01.2009 rejecting an application filed by the petitioners/defendants for permission to amend the written statement. It is submitted on behalf of the petitioners that the petitioners/original defendants desired to amend the written statement to raise the point of jurisdiction as it was the case of the plaintiffs that the defendants were the gratuitous licensees. The learned counsel for the petitioners submitted that the petitioners were seeking permission to amend the written statement as, on the basis of the pleadings in the plaint, it was clear that it was only the Small Causes 2 Court, which had jurisdiction over the matter in question. The learned counsel for the petitioners then submitted that the trial Court was not justified in holding that the proposed amendment would change the nature of the suit. The learned counsel for the petitioners relied on the decisions reported in 2007(5) Mh.L.J. 341, 1998 (2) Mh.L.J. 597 and AIR 1995 SC 1102 to substantiate his submission that a Court of Small Causes has jurisdiction to entertain and try a suit filed by a licensor for the ejectment of a gratuitous licensee. Mrs. S.P. Deshpande, the learned counsel for the respondent, supported the impugned order dated 31.01.2009 and submitted that the trial Court rightly held by considering the pleadings of the petitioners in the written statement that the proposed amendment did change the nature of the suit and the said amendment application could not have been allowed. The learned counsel for the respondent sought for the dismissal of the petition. I have considered the submissions made on behalf of the parties and perused the pleadings as also the impugned order dated 31.01.2009. It is necessary to note that the plaintiff had pleaded in paragraph 3 of the plaint that the defendant no.1 was allowed to occupy the suit premises as a caretaker in the year 1993 and defendant nos.2 and 3, 3 being the son and daughter of the defendant no.1, had also started residing with defendant no.1. The plaintiff then pleaded that the occupation of the defendants in the suit property was that of licensee and was permissive in nature. It was then pleaded that the plaintiff did not charge a single pie towards the use and occupation of the suit property. The plaintiff also pleaded that though the license of the defendants was terminated/revoked, the defendants did not vacate the premises and, therefore, a declaration was sought that the license/permission granted to the defendants stood revoked and the occupation of the defendants over the suit property was that of trespassers. It is, however, necessary to note that the defendants did not admit these facts in the written statement and it is categorically pleaded by the defendants in the written statement that all the defendants were staying in the suit premises for more than fifteen years as the owners of the suit property. It was pleaded by the defendants that they regularly paid the municipal taxes, the corporation taxes and since 1987, the plaintiff had orally relinquished her right over the suit property in favour of the defendants. According to the defendants, there was, therefore, no question of the plaintiff having any objection to the occupation of the defendants over the suit premises. In 4 view of the oral relinquishment of right and title over the suit property in the year 1987, according to the defendants, there was no question of asking any occupation charges from the defendants. It is in this background, on considering the pleadings of the defendants in the written statement, that the trial Court rejected the application for amendment by the impugned order dated 31.01.2009. The trial Court was of the view that the defendants having denied the licensor – licensee relationship and having claimed the title in themselves, could not have sought the amendment to the written statement by raising a plea that the Court did not have jurisdiction as it was a dispute between the licensor and the licensee. The Court rightly held that the case of the defendants in the written statement spoke about their ownership over the suit property by adverse possession and by relinquishment of the right of the plaintiff over the same, and in such circumstances, the proposed amendment did change the nature of the defence. In the face of the pleadings of the defendants in the written statement, the trial Court rightly held that the amendment application was liable to be rejected and it was not for the defendants to contend that the matter should be tried only by the Small Causes Court when the 5 defendants had denied the relationship between the parties and had claimed absolute ownership over the property in question. The Small Causes Court could not have had the jurisdiction to decide the issue of title of the defendants over the suit property. The submission made on behalf of the petitioners that for determining the jurisdiction of the Court only the pleadings in the plaint need to be considered, cannot come to the rescue of the petitioners in this case as the petitioners had categorically pleaded in the written statement that they were the owners of the suit property and the defendants could not have turned round and stated that the Court did not have jurisdiction to decide the suit for eviction between a licensor and a licensee. The judgments reported in 2007(5) Mh.L.J. 341, 1998 (2) Mh.L.J. 597 and AIR 1995 SC 1102 and relied on by the counsel for the petitioners are totally inapplicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE