WP. 10669-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 10669 OF 2009 R. B. K. Prajapati & Ors. ...Petitioners Vs. Ramkripal Ramchandra Yadav & Ors. ...Respondents *** Mr. S. R. Rajguru, for the Petitioners. Mrs. Swati Gautam, for the Respondents. *** CORAM: V. M. KANADE J. DATE : JULY 12, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioners and the respondents. Petitioners are the original defendant Nos. 2 to 4 and respondent Nos. 1 & 2 are the original plaintiffs. The petitioners are aggrieved by an order passed by the lower appellate court dated 11-9-2009. By the said order, the Appellate Bench of the Small Causes Court set aside the order of the trial Court and held that suit filed by respondent Nos. 1 and 2 is not maintainable and allowed the appeal. 2. Brief facts are as under- . Respondent Nos. 1 and 2 who are original plaintiffs have WP. 10669-09 - 2 - filed a suit for simplicitor injunction against the petitioners/defendants, restraining them from disturbing their possession without following due process of law. In the said suit, written-statement was filed by defendant Nos. 1 ans 2/ petitioners herein, in which it is inter alia contended that suit was not maintainable in the Small Causes Court . A Preliminary issue was framed under Section 9A of the Code of Civil Procedure and the trial Court came to the conclusion that the Small Causes Court did not have jurisdiction to try and decide the suit. Against this order, an appeal which was preferred by respondent Nos. 1 and 2, was allowed. Learned counsel appearing on behalf of the petitioners submitted that suit premises were open vacant land below the stair-case and there is no relationship of landlord and tenant between the plaintiffs and defendant Nos. 2 and 3 who are petitioners herein and therefore, the suit was not maintainable. Reliance was placed on the judgment of the learned Single Judge of this Court, in the case of – Rafiuddin Nuruddin Musalman, Petitioner vs. Abduyl Karim Abdul Rehman & Ors., Respondents1. 3. On the other hand, learned counsel appearing on behalf of respondent Nos. 1 and 2 submitted that the suit was filed for simplicitor 1 2005(4) Mh.L.J. 646. WP. 10669-09 - 3 - injunction. It was alleged that the plaintiff was tenant of defendant No.1 and that defendant No.1 in collusion with defendant Nos. 2 and 3 were trying to disturb their possession and therefore, it is submitted that the said suit was maintainable. 4. After having heard the counsel for the parties at length, in my view, no case is made out for interference with the impugned order of the lower appellate court. The ratio of the judgment on which reliance is placed by the learned counsel for the petitioners does not apply to the facts of the present case. It is settled position in law that while deciding the issue of jurisdiction of the court, the averments which are made by the plaint have to be taken into consideration and not the averments made by the defendants in the written-statement. In the plaint, there is a specific averment that defendant No.1 is a tenant of defendant Nos. 2 to 4 and they are trying to disturb the possession. That being the position, the lower appellate court has rightly held that suit in Small Causes Court was maintainable. Hence, no case is made out for interference with the impugned judgment and order passed by the lower appellate court. Consequently, Civil Writ Petition is dismissed. [ V. M. KANADE J.]