1 24-cra527-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO.527 OF 2011 WITH CIVIL APPLICATION NO.371 OF 2011 Bandu Dhondiba Patil (Since deceased through his LR’s) Alka Bandu Patil & Ors. .. Applicants V/s. Sunil Vikram Kulludi & Ors. .. Respondents ..... Mr. S. G. Deshmukh i/b. Mr. Suraj S. Kudalkar for the applicants. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 28, 2011. P.C.: Heard the learned counsel appearing for the applicants. The challenge in this Revision Application under Section 115 of the Code of Civil Procedure, 1908 is to the Judgment and decree for eviction passed by the learned Judge of the Court of Small Causes which has been confirmed in Appeal. 2. The respondents-plaintiffs filed a suit for recovery of suit property being open land ademasuring 800 square feet bearing CTS No.223 situated at Andheri, Mumbai which is more particularly described in the plaint. The case made out by the respondents-plaintiffs is that the original defendant (predecessor of the applicants) was the monthly tenant in respect of the suit property. Reliance is placed on Consent Terms dated 2 24-cra527-11 14th February, 1997 filed in the suit pending in the City Civil Court. The respondents contended that the protection of the Maharashtra Rent Control Act, 1999 is not available to the tenancy in respect of an open land and hence a notice of termination of tenancy was issued on 21st December, 2004 which was replied by the original defendant. The suit was contested by the original defendant by filing a written statement. 3. The learned Judge of the Court of Small Causes held that the tenancy of the original defendant was lawfully terminated. One of the contentions raised by the applicants before the trial Court was that the predecessor of the applicants was also the tenant in respect of the structure on the suit property. The said contention was negatived by the learned Judge of the Small Causes Court on the basis of Consent Terms filed in the City Civil Court in a suit between the predecessor in title of the respondents and the original defendant. The trial Court proceeded to pass a decree for possession. The Appeal preferred by the applicants against the decree of eviction has been dismissed by the learned Judge of the Court of Small Causes. 4. The first submission of the learned counsel appearing for the applicants is that the suit was not maintainable before the Court of Small Causes under the Presidency Small Causes Courts 3 24-cra527-11 Act, 1882 (hereinafter referred to as the “said Act of 1882”). The contention is that in view of Sub Section 2 of Section 41 of the said Act of 1882, the jurisdiction of the Court of Small Causes has been ousted. It is submitted that as the finding of the Courts below is that the provisions of the Maharashtra Rent Control Act, 1999 are not applicable, the suit was not competent in the Court of Small Causes. 5. The concurrent findings of fact recorded by both the Courts below are that the suit property is an open land. Reference has been made to the Consent Terms filed in the City Civil Court in a suit between the predecessor in title of the respondents and the original defendant. In Clause (1) of the Consent Terms it was set out that the original defendant was the monthly tenant in respect of the open land. Therefore, the Courts below have rightly held that the tenancy was in respect of the open land and not the structure thereon. In view of the definition of premises under Sub Section 9 of Section 5 of the Maharashtra Rent Control Act, 1999 which excludes open land from its purview, the Courts below have held that the provisions of the said Act 1999 were not applicable. 6. Section 41 of the Presidency Small Causes Courts Act, 1882 as amended read thus: 4 24-cra527-11 “(1) Notwithstanding anything contained elsewhere in this Act[****] but subject to the provisions of sub- section (2), the Courts of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between the licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the the value of the subject matter of such suits or proceedings. (2) Nothing contained in sub-section (2) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act [the Maharashtra Housing and Area Development Act, 1976 or any other law for the time being in force, apply.]” 7. In the present case, the provisions of the said Act of 1999 are not applicable to the suit property. Sub section 1 of Section 41 confers exclusive jurisdiction on the Court of Small Causes to entertain and try all suits between the landlord and the tenant relating to recovery of possession of an immovable property situated in Greater Bombay. Hence, the Court of Small Causes had jurisdiction to entertain and try the suit under Section 41 of the said Act of 1882. There is no error in the view taken by the Courts below. Revision Application is rejected. 8. Civil Application No. 371 of 2011 does not survive and the same is disposed of. 5 24-cra527-11 9. On prayer made by the learned counsel appearing for the applicants, it is directed that decree for possession shall not be executed for a period of 12 weeks from today subject to condition that the applicants shall maintain status-quo in respect of the suit property. (A.S.OKA, J.)