1 F.A..No.731 of 2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 731 OF 2002 Nandkishor Takhatram Vyas, Age - 33 years, Occu. Business Resident of M.H. No.210/2, Navi Peth, Jalgaon, Tal. & Dist. Jalgaon (Through General Power of Attorney) Satyanarayan Gopaldas Khatod, Age 47 years, Occu.Agri, Business R/o 22 Shri Hari Nagar, Ganesh Colony, Area, Jalgaon ..APPELLANT (Orig. Defendant) VERSUS Ramchandra Chaganlal Joshi, Age 41 years, Occu.Service Resident of Municipal House No.210/2, Navi Peth, Jalgaon, Tq. & Dist. Jalgaon ..RESPONDENT (Orig.Plaintiff) Mr A.G. Talhar, Advocate for the appellant; Mr V.J. Dixit, Senior Advocate with Mr L.V. Sangit,Advocate for the respondent CORAM : MRS MRIDULA BHATKAR, J. DATE : 20th September, 2011 ORAL JUDGMENT : 2 F.A..No.731 of 2002 Appellant/original defendant has filed this appeal challenging the judgment and decree dated 7.5.2002, passed by the Civil Judge Senior Division at Jalgaon in Special Civil Suit No.355 of 1998. Respondent/original plaintiff had filed a suit for possession and recovery of arrears of occupancy charges against the present appellant. 2. The facts in brief giving rise to the present appeal are as follows :- Respondent/original plaintiff and the appellant/defendant had entered into an agreement on 16.1.1994 in respect of the suit premises. By way of this agreement respondent/plaintiff gave licence to the appellant/defendant to run a mess for a period of eleven months. The appellant started running a mess under the name and title of "Satkar Gujrati Bhojnalaya". A licence fee of Rs.3,000/- per month was agreed between the parties. Respondent/plaintiff filed a suit bearing No.271 of 1994 against the appellant for recovery of arrears of the licence fee. Said suit was decreed on 8.6.1998. Appellant challenged the said judgment and order in Appeal No.130 of 1998, which was allowed and the appellant this is how continued his stay and possession of the suit premises till then. Respondent thereafter filed Special Civil Suit No.355 of 1998 for recovery of money and possession. Appellant contested the suit by filing written statement. However, suit was decreed on 7.5.2002. Being aggrieved by the said judgment and decree, this appeal is filed by the appellant. 3 F.A..No.731 of 2002 3. Learned Counsel for the appellant submits that in appeal a short issue of jurisdiction is involved and the appellant restricts the appeal to that extent only. Learned Counsel submitted that Civil Court has no jurisdiction to try and decide the Special Civil Suit as the relationship between the plaintiff and defendant was of landlord and tenant and the Trial Court has erred in trying the suit. Learned Counsel pointed out that although the Trial Judge has referred to the objection of the jurisdiction raised by the appellant in the judgment, the Judge has not discussed the issue and has left the issue undecided. Learned Counsel submitted that the Civil Court has no jurisdiction to try the suit between the licensor and licensee as the jurisdiction of the Civil Court is ousted by section 31-I of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. 4. Learned Senior Counsel for the respondent while opposing the appeal argued that no landlord - tenant relationship exists between the appellant and respondent as the agreement to run the mess was based on the licence. He argued that the respondent/plaintiff used to receive the licence fee, which cannot be considered as a rent and the suit was filed for simpliciter possession and recovery of money. Learned Counsel further submitted that section 31-I of the Act cannot be attracted in view of the scheme of part II-A of the Act. 5. On the above backdrop, point for determination in the instant 4 F.A..No.731 of 2002 appeal is :- Whether Civil Court had no jurisdiction to try and decide Special Civil Suit No.355 of 1998 in view of bar under section 31-I of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 ? Ans : In Negative Section 31-I of the Act puts a bar on the jurisdiction of the Civil Court. However, the bar is in respect of a class of cases which are the matters to be tried before the competent authority who is empowered under the Act to decide the matters by summary procedure. Under part II-A of the Act a certain class of cases are covered. To understand the nature of such class and the matters, section 31-C is to be looked into, which reads thus :- "31C. For the purposes of this Part, "landlord" means a landlord who is - (a) a member of the armed forces of the Union or a scientist or a successor in interest, referred to in section 13A1; or (b) a person who has given premises on licence for residence, referred to in section 13A2." Section 31C (a) refers to the persons as "landlord" who are members of the armed forces of the Union or a Scientist. Under section 31C (b) a person can be landlord who is referred to in section 13A (2) of the Act. 5 F.A..No.731 of 2002 Section 13A (2) of the Act says that "a licensee in possession or occupation of the premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence. " Considering the facts of present case, it is necessary to see, whether section 31C of the Act can be applied to the plaintiff and defendant. The agreement dated 16.1.1994 was admittedly to run the mess for which Rs. 3,000/- licence fee was charged. Admittedly, the said licence on its expiry of eleven months was not renewed at any time. Thus, no relationship of landlord and tenant exists between the parties. Moreover, it is pointed out that earlier the appellant/defendant has filed application No.4 of 1995 in the Court for fixation of standard rent. The said application was rejected by the Court on 4.6.1998. 6. Plaintiff, the owner of the premises, is not a person from the armed forces. The scheme of part II-A of the Act was enacted in the interest of the persons in the armed forces to enable them to recover the possession of their premises when they come back from their distant place of posting. Section 31C (b) of the Act also cannot be attracted as the premises was not given on licence for the purpose of residence, which is contemplated under section 13A2 of the Act. Therefore, I am of the view that Civil Court i.e. the Trial Court is competent to try and decide the present suit for possession and recovery 6 F.A..No.731 of 2002 of money. The judgment and decree passed by the Trial Court is confirmed. Appeal is, therefore, dismissed with no order as to costs. In the light of this, Civil Application No.300 of 2008 does not survive and is accordingly disposed of. ( MRS MRIDULA BHATKAR, J.) amj/fa731.02