1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8034 OF 2005 Shri Amritlal Chetai Dhobi. ..Petitioner. V/s. Shri Pancham Badlu Dhobi & Anr. ..Respondents. Mr.Ashutosh Kandeparkar i/b. M/s.AMK Legal for petitioner. Mr.Clive D’Souza for Respondent Nos. 1(a) to 1(g). CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. In my opinion, no fault can be found with the conclusion reached by the Trial Court that in the present case, the only option for the Trial Court was to return the plaint, to be presented before the appropriate Court. That conclusion has been reached on the finding recorded by the Trial Court on the basis of averments in the plaint. The plaint asserts that the Petitioner was in exclusive occupation of water tank which according to the Petitioner is in the nature of premises within the meaning of Rent Act. The Court below has rejected that argument on 2 the finding that water tank cannot be treated as premises within the meaning of provisions of Rent Act. It is not pleaded in the plaint, as presented by the Petitioner that alongwith the water tank the Petitioner also had right to enjoy any other land or premises. 3. Going by the averments in the plaint, no fault can be found with the conclusion reached by the Trial Court that the description of the property given by the Petitioner/Plaintiff, by no standards, would qualify the definition of "premises" given in the Rent Act. As this opinion is unassailable, no fault can be found with the ultimate order passed by the Trial Court of returning plaint to the Petitioner, to be presented before the appropriate Court. 4. To get over this position, Counsel for the Petitioner had argued that it was always open to the Petitioner to amend the plaint in such a way so as to give description of the property, which would qualify the definition of the term "premises" given in the Rent Act. 5. This argument is on some assumption and 3 hypothesis. The question that needs to be addressed by me in this Petition is whether there is any infirm view taken by the Court below. As aforesaid, on the basis of material before the Trial Court, the view recorded by the trial Court is correct view and no interference in exercise of writ jurisdiction is warranted. 6. Besides the above said finding, the Trial Court has also recorded the fact that admittedly the water tank which is subject matter of the suit filed by the Petitioner was no more in existence. As the said property was no more in existence, the question of Petitioner/Plaintiff claiming any subsisting tenancy right therein would not arise at all, having regard to the exposition of the Apex Court reported in JT 2001(1) S.C.1996. JT 2001(1) S.C.1996. JT 2001(1) S.C.1996. Even that legal position is well established. It would necessarily follow that the relief of possession claimed by the Petitioner/Plaintiff could not have been considered or granted by the Rent Court. the Rent Court has rightly ordered the return of plaint, to be presented before the appropriate Court. 7. Hence, this Petition is dismissed with liberty to the Petitioner to act upon the order 4 passed by the Trial Court of return of plaint within four weeks from today. 8. At this stage, Counsel for the Petitioner submits that instead, the Court may consider Petitioner’s application for permission to withdraw the suit and to present the same before some other Court. It is not possible to accede to this request as that was not the relief claimed before the Court below nor the ground for grant of such permission is made out. 9. Accordingly, Petition is rejected. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)