: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.336 OF 2007 OF MOTION NO.336 OF 2007 OF MOTION NO.336 OF 2007 IN IN IN SUIT SUIT SUIT NO.2974 OF 2005 NO.2974 OF 2005 NO.2974 OF 2005 Mancherji Jamshedji Cama & Ors. .. Plaintiffs. Versus Viraf G. Ichhaporia .. Defendant. Mr.Cyrus Ardeshir with Mr.S.U.Uttamchandani i/b.Pardiwala & Co. for the plaintiffs. Mr.Suraj Kudalkar i/b.N.D.Rao for the defendants. CORAM CORAM CORAM : R.Y. GANOO, J. : R.Y. GANOO, J. : R.Y. GANOO, J. DATE DATE DATE : 21st July, 2008. : 21st July, 2008. : 21st July, 2008. ORAL ORAL ORAL JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. The present Motion is taken out by the defendant with a prayer that the plaint be rejected in accordance with the provisions of Order 70, Rule 11 of the Code of Civil Procedure. 2. Two grounds are taken up in support of the Motion. First is the relation between the plaintiffs and defendant, is in the nature of service tenancy and there is no cause of action made out. Second ground relates to the institution of suit without obtaining permission from the Charity Commissioner as is said to be required under Section 50 of the Bombay Public Trust Act. 3. I have heard learned Advocates appearing on behalf : 2 : of both the sides. 4. The plaintiffs have instituted the present suit against the defendant so as to seek possession of the suit premises, more particularly, set out in para 3 of the plaint. The plaintiffs have contended in para 2 of the plaint that as and by way of terms of employment between the plaintiffs on one hand and the defendant on the other, the suit premises were put in possession of the defendant as service occupier without payment of any charges. If this is the averment in the plaint, it can be safely observed that the defendant can be styled as a gratuitous licensee. 5. In view of the judgement of this Court in the case of Prabhudas Damodar Kotecha & Anr. v/s. Manharbala Prabhudas Damodar Kotecha & Anr. v/s. Manharbala Prabhudas Damodar Kotecha & Anr. v/s. Manharbala Jeram Jeram Jeram Damodar reported in 2007(5) Bom.C.R.1, Damodar reported in 2007(5) Bom.C.R.1, Damodar reported in 2007(5) Bom.C.R.1, in a suit for recovery of possession, this court shall have no jurisdiction to try and entertain a suit where the defendant was inducted in possession of the premises as a gratuitous licensee. In view of this, this court shall have no jurisdiction to try and entertain the present suit and the plaint will have to be returned to the plaintiff for filing it in the appropriate court. With this, the first contention of the defendant that the plaint be rejected, cannot be accepted. : 3 : 6. Since the plaint is being returned to the plaintiffs for filing it in the appropriate court, the second contention on the basis of which it was sought to be prayed that the plaint be rejected, namely, instituting the suit without the permission of the Charity Commissioner need not be gone into and if the plaint is lodged in the appropriate court, it will be open for the defendants to raise said contention in the suit in that court. 7. In view of the aforesaid discussion, I pass the following order :- O R D E R R D E R R D E R a) In view of the judgement of this Court in the case of Prabhudas Damodar Kotecha & Anr. Prabhudas Damodar Kotecha & Anr. Prabhudas Damodar Kotecha & Anr. (supra), (supra), (supra), this Court shall have no jurisdiction to try and entertain the suit. It is hereby ordered that the plaint be returned to the plaintiffs for filing it in the appropriate court. The date for return of the plaint is fixed as 5.8.2008. Office shall return the plaint to the plaintiffs accordingly. b) This Court is informed that by the order dated 27.10.2005, Court Receiver, High Court, : 4 : Bombay was appointed in regard to the suit premises. Now that the plaint is being returned to the plaintiffs for filing it in the appropriate Court, the said order will have to be continued for some time to enable the plaintiffs to move the Court in which the plaint would be lodged for appropriate interim reliefs. Accordingly, it is hereby ordered that the order of appointment of the court receiver shall continue to operate in the present case till 15.9.2008. c) After the plaint is lodged in the appropriate Court, plaintiffs will be at liberty to apply for appropriate interim reliefs. d) It is clarified that this Court has not expressed any views on the stand taken by defendant as regards institution of the suit without obtaining permission from the Charity Commissioner. It will be open for the defendants to raise that contention before the Court in which the plaint would be lodged. 8. Notice of motion stands disposed off in the above terms with no order as to costs. (R.Y.GANOO, (R.Y.GANOO, (R.Y.GANOO, J.) J.) J.)