SM 1 ao.1052.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1052 OF 2005 Prakshchandra G. Gupta and another ....Appellants Versus Shivprakash Chettiar ....Respondent ____________ Shri. Paresh Madkaikar for the Appellants. Shri. P. S. Dani for the Respondent. CORAM: J. H. BHATIA, J. DATED : 6 TH JULY, 2011. P.C.: The Plaintiffs/Appellants filed a Short Cause suit No. 3261 of 1999 before the City Civil Court, Greater Mumbai for mandatory injunction requiring the Defendant to remove himself from the suit premises bearing No. 3 1/1 situated at CTS No. 395 of village Kirol, Taluka- Kurla. According to the Plaintiffs, the Defendant, being co-employee with the Plaintiffs. They had allowed the Defendant on his request to carry on electrical repairing works from the shop of the Plaintiffs on payment of certain remuneration, while possession of the shop was always with the Plaintiffs. After the permission to do such work from the shop was revoked by the Plaintiffs, the Defendant persisted to carry on that work from the said premises. The Defendant filed written statement and contended that he was a tenant in the suit SM 2 ao.1052.05 premises. The Trial Court, by the judgment dated 15 th September, 2005 held that the Defendant was neither a tenant nor a trespasser and as he was a licensee, the suit between himself and the Plaintiffs would not be tenable before the City Civil Court, but such a suit could be filed in the Court of Small Causes. With this finding, the Trial Court directed to return the plaint to the Plaintiffs for presentation before the appropriate Court. That order is challenged in the present Appeal. 2. The learned Counsel for the Plaintiffs has pointed out that long before, the parties were called upon to lead evidence, preliminary issue was framed as to whether the City Civil Court has jurisdiction or not, as objection to jurisdiction was taken by the Defendant. On the preliminary issue, by an order dated 29 th September, 2001, the learned Judge, City Civil Court had given clear finding that the suit was within jurisdiction of the City Civil Court. That finding on the preliminary issue was never challenged by the Defendant and had become final. After that, the parties went the Trial of the suit on the basis of their respective pleadings. At the time of trial of the suit, there were no issue about jurisdiction of the City Civil Court. Inspite of this, the learned Judge, by the impugned order gave a finding that it had no jurisdiction. In fact, this was inconsistent with the earlier finding given on 29 th September, 2001, which had become final. The SM 3 ao.1052.05 learned Judge could not have given the such inconsistent finding at the end of the trail. 3. It also appears that the learned Judge, while passing the impugned order was under impression that the suit is filed by the Plaintiffs for recovery of possession of the suit premises. In fact, on perusal of the papers of the plaint, it appears that there was no prayer for recovery of possession. It is a suit simplicitor for mandatory injunction for removal of the Defendant, who being co- employee, was allowed to carry on repairing works from the premises where the Plaintiffs were running their business. Therefore, it is clear that the learned Trial Court, while passing the impugned order completely mislead himself and committed serious error in passing the impugned order to return the plaint to the Plaintiffs. 4. For the aforesaid reasons, the Appeal is allowed. The impugned order is set aside. Special Civil Suit No. 3261 of 1999 is, hereby remanded back to the Trial Court for disposal as per law on its own merits. As the suit itself is of 12 years, the Trial Court shall expedite the hearing and disposed of the suit within three months. (J. H. BHATIA, J.)