1 ndm 909 cra.895.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 895 OF 2010 Pandurang Lotekar and ors. ... Applicants Vs. The Deccan Merchant Co-Operative Bank Limited and anr. ... Respondents -------- Ms. Shilpaja Kondalkar i/b Mr. Pankaj Thatte for the Applicants. -------- CORAM : A.S.OKA, J. DATE : 01 st December, 2010. P.C. 1 The submissions of Mr. Anturkar the learned counsel appearing for the Applicants were heard on 25 th November, 2010. However, on his request, passing of the order was postponed till today. 2 The challenge in this civil revision application is to orders passed in proceedings under Rule 97 of Order XXI of the Code of Civil Procedure (hereinafter referred to as “the said Code”). 1 st respondent is the decree holder plaintiff. The 2 nd respondent is the original defendant. A suit for possession was filed by the 1 st respondent against 2 nd respondent on the ground that the 2 nd respondent was a licensee and the licence was revoked. The suit was filed by invoking provisions of Section 41 of the Presidency Small Causes Court Act, 1882 (hereinafter referred 2 to as the said Act of 1882). In the execution of the decree for possession, the present Applicants obstructed and therefore, a notice under Rule 97 of Order XXI of the said Code was taken out by the 1 st respondent. The notice was made absolute by the learned trial Judge. Appeal preferred by the Appellants against the said order has been dismissed. Hence, the present Revision Application. 3 The case made out by the Applicants in reply to the notice was that they were in possession of the suit premises prior to 1 st February, 1973, and therefore, they were protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act of 1947”). Finding of both the Courts below is that the Applicants have failed to prove their claim. 4 The submission of the learned counsel appearing for the Applicants is that the decree passed in the suit filed by the 1 st respondent was nullity as the suit filed by the 1 st respondent was governed by Section 28 of the said Act of 1947. The learned counsel submitted that on plain reading of sub-section (1) of Section 28 of the said Act of 1947, a suit filed by licensor against the licensee will be governed by Section 28 of the said Act of 1947. He submitted that the definition of “licensee” in sub- section 4A of Section 5 of the said Act of 1947 also includes a licensee of a premises where licence is granted for non-residential purposes. He invited the attention of the Court to Section 41 of the said Act of 1882 and 3 submitted that in view of sub-section (2) thereof, jurisdiction under Section 41(1) of the said Act of 1882 could not have been invoked as the suit was governed by sub-Section (1) of Section 28 of the said Act of 1947. He, therefore, submitted that the decree passed in a suit under Section 41 of the said Act of 1882 is without jurisdiction. 5 I have given careful consideration to the submissions. Sub- section 1 of Section 28 of the said Act of 1947 reads thus: “28. Jurisdiction of courts. - [(1)] Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be withing its jurisdiction, - (a) in Greater Bombay, the Court of Small Causes, Bombay, [(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Causes Courts Act, 1887, such Court and] (b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply [or between a licensor and a licensee relating to the recovery of the licence fee or charge] and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and [subject to the 4 provisions of sub-section (2),] no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.” (underline supplied) 6 Sub-section 1 of Section 28 applies to the suit between the landlord and tenant relating to recovery of rent or possession of any property to which the said Act of 1947 is applied. Even a suit between the licensor and licensee regarding to recovery of the licence fee or charge is covered under sub-section 1 of Section 28 of the said Act of 1947. However, a suit “relating to possession of the property“ between a licensor and a licensee has been excluded from the provision of sub- section (1) of Section 28. Hence, the Court under Section 28 of the said Act of 1947 will have no jurisdiction to entertain a suit between a licensor and licensee relating to possession of the premises and therefore, the 1 st respondent invoked sub-Section 1 of Section 41 of the said Act of 1882. The learned counsel for the Petitioner submitted that the suit will be governed by the latter part of sub-section (1) of Section 28 as the suit filed by the 1 st respondent was dealing with a claim or question arising out of the said Act of 1947. It must be noted that the said Act of 1947 specifically incorporates the grounds on which a tenant can be evicted. It also provides for a remedy to the licensor of evicting a tenant where the licence is granted for residential use. But the said Act of 1947 does not provide for eviction of a licensee of a premises where the licence granted is for non-residential use. In the circumstances, there is no merit in the 5 submission that the decree is without jurisdiction. There is no merit in the revision application and the same is accordingly rejected. 7 The learned counsel appearing for the Applicants prays for continuing of ad-interim relief. It is directed that ad-interim relief will continue to operate for a period of twelve weeks from today. [ A.S.OKA, J ]