1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.412 OF 1993 Bechan Mahal Maurya .. Petitioner Versus Lalchand Lautu Prajapati & Ors. .. Respondents Mr.V.T.Lulia for the petitioner. CORAM : A.S.OKA, J. DATE : 17th August 2009. ORAL JUDGMENT: . Heard learned counsel appearing for the petitioner. The petitioner is the original 2nd defendant and the 1st respondent is the plaintiff. Issue of jurisdiction of the Court of Small Causes to entertain the suit was decided by the learned Judge of the Court of Small Causes. The said issue was considered and decided by the Court of Small Causes while deciding a notice for interim relief. The learned trial Judge held that the Small Causes Court had no jurisdiction and therefore the notice was dismissed. In an appeal preferred by the 1st respondent-plaintiff, the Appellate Bench of the Court of Small Causes has interfered and has held that the trial Court had jurisdiction to entertain and try the suit and therefore the notice for interim relief was remanded to the trial Court. 2 2. The learned counsel appearing for the petitioner has invited my attention to material averments made in the plaint. The 1st respondent-original plaintiff claims to be the tenant in respect of the suit premises of the 1st defendant Shantabai. The learned counsel appearing for the petitioner pointed out that in paragraph 7 of the plaint it is asserted that in the afternoon on 15th February 1982 the petitioner (2nd defendant) and one Jokhan forcibly and under duress got the signature of the 1st respondent-plaintiff on blank stamp paper of Rs.5/- denomination. They dictated the 1st respondent to write a receipt of Rs.10,000/- in Hindi and after taking his signature on the blank stamp paper forcibly and unlawfully allowed the 1st respondent to go out of the room. The learned counsel further pointed out that the allegation of dispossession of the 1st respondent-plaintiff is against the petitioner and not against the 1st defendant landlady. Inviting my attention to the impugned order passed by the Appellate Bench he submitted that the Bench has proceeded on erroneous assumption that the petitioner acting in collusion with the 1st defendant obtained a writing on 15th February 1982. He submitted that there is no allegation of collusion against the 1st defendant landlady. He pointed out that going by the averments made in the plaint the entire cause of action for filing the suit is based on alleged forcible dispossession by the petitioner and there are no allegations made against the 1st defendant landlady. He submitted that going by 3 the averments made in the plaint, the entire cause of action arose against the present petitioner and not against the landlady and therefore in view of section 28 of the Bombay Rents, Hotel and Lodgings House (Rates) Control Act, 1947 (hereinafter referred to as the said Act) the Court of Small Causes had no jurisdiction to entertain and try the suit. He has placed reliance on decision of the Apex Court in the case of Hiralal Vallabhram Vs. Sheth Kasturbhai Lalbhai & Ors (AIR 1967 Supreme Court 1853). He submitted that the 1st respondent who is claiming to be a tenant has filed a suit against the alleged trespasser which will not be governed by section 28 of the said Act. 3. I have carefully considered the submissions. It is true that as far as allegation regarding forcibly obtaining a writing from the 1st respondent-plaintiff is concerned, the same is directed against the petitioner and one Jokhan who is not a party to the suit. As far as dispossession is concerned, allegation is that it is the petitioner who dispossessed the 1st respondent at the instance of the 1st defendant landlady acting in collusion with the 1st defendant landlady. The substantive prayer in the suit is of declaration that the tenancy rights of the 1st respondent in respect of suit premises are valid and subsisting. A mandatory injunction has been prayed for against the 1st defendant landlady enjoining her to issue rent bills in the name of the plaintiff. The other relief is for declaration that the transfer of rent 4 bills made by the 1st defendant in favour of the 2nd defendant is illegal. The last prayer is for restoration of possession. 4. As far as substantive prayer for declaration of tenancy is concerned, in view of plain language of section 28 of the said Act, only the Court referred under the provisions of section 28 of the said Act has jurisdiction to grant such a declaration. The learned counsel appearing for the petitioner has relied upon decision of the Apex Court in the case of Hiralal Vallabhram (supra). The Apex Court helds that if in a suit filed under the said Act, the Court finds that defendant is a trespasser in possession, the Court exercising limited jurisdiction under the said Act cannot pass a decree of eviction. 5. In the present case the allegation in the plaint is that the 2nd defendant acting in collusion with the 1st defendant landlady and at the instance of the 1st defendant dispossessed the 1st respondent plaintiff and thereafter inducted the 3rd defendant in the suit premises. Thus, the allegation in the plaint is that the 2nd defendant acting in collusion with 1st defendant landlady and acting at the instance of the 1st defendant dispossessed the plaintiff. The 3rd defendant is claiming through the 2nd defendant. 6. Therefore, on plain reading of averments made in the plaint, it is not possible to accept that the Court of Small Causes had no jurisdiction to entertain and decide the suit. Whether the Court of 5 Small Causes ultimately passes a decree or not, is altogether a different matter and at appropriate stage the Court of Small Causes will have to consider whether the person who is claiming to be in possession is a trespasser and whether a decree for possession can be passed against such trespasser. 7. As of today the issue of jurisdiction will have to be decided on the basis of averments made in the plaint and as the averments stand, the Appellate Court is right in holding that the Court of Small Causes had jurisdiction to entertain and try the suit. Whether relief could be granted against a particular defendant is a matter of merits of the suit which will have to be considered after the parties adduce evidence. 8. Subject to what is observed above, there is no merit in the application and the same is rejected. (A.S.OKA,J)