:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. SUIT NO. 3618 OF 1997 Arvind N. Khanna ..Plaintiff Vs. 1. Joginder Kapoor and ors. ..Defendants Mr. Sanjay Jain i/by L.C. Tolat and Co. for plaintiff. None for the defendants. CORAM: S.C. DHARMADHIKARI, J. CORAM: S.C. DHARMADHIKARI, J. CORAM: S.C. DHARMADHIKARI, J. Date : December 11, 2008. Date : December 11, 2008. Date : December 11, 2008. P.C.: P.C.: P.C.: 1. This suit was placed before me for ex parte decree, but it was adjourned from time to time to enable the plaintiff’s Advocate to satisfy the court as to how this court has jurisdiction to entertain and try the suit. 2. The Advocate sought time and later on :2: contended that the plaint allegations determine the jurisdiction of this court. The plaint allegations demonstrate that the plaintiff is proceeding against the defendants on the basis that they are trespassers in the suit premises. This is a suit for possession on title and, therefore, this court has the jurisdiction to entertain and try the suit. My attention is invited to the averments in the plaint and relevant provisions of the Bombay Rent Control Act and Maharashtra Rent Control Act. My attention is also invited to the Presidency Small Cause Courts Act, 1882 and more particularly Section 41 thereof. In support of the contentions, the plaintiff’s Advocate has relied upon the judgment of this court in the case of E. Leslie and Co. vs. Vaividhya Print Crafts and ors. [2008(6) Mh.L.J. 410] [2008(6) Mh.L.J. 410] [2008(6) Mh.L.J. 410]. 3. The learned Advocate for the plaintiff submitted that the defendants had appeared through an Advocate, but not filed Written Statement. I have framed the following issue of jurisdiction of this court as a preliminary issue and called upon the plaintiff to satisfy me as to how this court has :3: jurisdiction to entertain and try the suit. Issue Finding Issue Finding Issue Finding (i) Does the Plaintiff proves Negative. For that this Court has jurisdiction the reasons to entertain and try this suit? hereinbelow. (ii)What order? See the final order. Reasons 4. The learned Advocate for the plaintiff submits that the plaint allegations alone are decisive. It is contended that the above mentioned enactments do not take within their ambit a case or suit where eviction or dispossession of a rank trespasser is sought from the immovable properties. It is contended that the law is well settled in as much as a Civil Court has jurisdiction to entertain and try the suit for possession against a trespasser and the court must not proceed on the basis that the defence raised will oust its jurisdiction. In other words, it is for the defendant to satisfy the court as to what is the right, title and interest in his favour which enables :4: him to continue in possession. It is for him to prove that he is either a tenant or licensee so as to oust the jurisdiction of the Civil Court and confer it exclusively on the Special Court to try the suit. In the absence of any such pleading and proof, this court must proceed to accept the case of the plaintiff as set out in the plaint and decree the suit accordingly. 5. It is not possible to accept this contention for more than one reason. The plaint proceeds on the basis that defendant no.1 approached the plaintiff who is the owner of the suit premises and requested the plaintiff to permit the defendant nos.1 and 2 to occupy a portion of the suit premises. This is clear from the relevant and material facts set out in para 3 of the plaint. Although, a reference is made in some places to a table place, ultimately in the plaint itself it is stated that the defendant nos.1 and 2 were permitted to enter upon the premises and use part thereof. The plaintiff has set out the arrangement that is arrived at between defendant nos.1 and 2 and the plaintiff. Subsequently, it is contended that defendant nos.3 and 4 have been inducted by the :5: defendant nos.1 and 2 without any authority or permission from the plaintiff. Thus, the plaint averments and more particularly para 3 and 4 would go to show that the plaintiff inducted defendant nos.1 and 2 into the premises or portion thereof, which is more particularly described in the Annexure to the plaint. This arrangement is arrived at in 1990 on the own showing of the plaintiff. This is not a case where the plaintiff is pleading an arrangement which would not partake a character as is contemplated by the above referred statutory enactments. The nature of arrangement is pleaded and it is stated that the agreement was also to pay a monthly sum which has been paid uptil the time set out in the plaint. 6. In a Full Bench decision in the case of Prabhudas Damodar Kotecha and anr. vs. Smt.Manharbala Jeram Damodar and ors. [2007 (5) [2007 (5) [2007 (5) Mh.L.J. 341] Mh.L.J. 341] Mh.L.J. 341], this court has taken a view that a suit for possession against any defendant/person who has been inducted as a gratuitous licensee would not be maintainable in this court on its Original Side or City Civil Court but would have to be filed in the :6: Presidency Small Cause Court, Bombay. Therefore, that judgment must apply to the facts and circumstances of the present case, more particularly considering the allegations and averments made in the plaint. I have not taken anything, other than these allegations and averments, into consideration. On their own showing, they point out an Arrangement or an Agreement under which the first and the second defendants were inducted into the suit premises and the relief of possession is sought not only against them but against defendant nos.3 and 4 also. 7. A faint attempt was made to satisfy the court that the Full Bench decision would not apply because in this case relief is sought against defendant nos.3 and 4 and that part of relief can definitely be granted by ordinary civil court. It is not possible to agree with this contention. A Binding decision cannot be brushed aside in the manner suggested by the learned counsel. It is not, as if, the exclusive court or Special Court who loose its jurisdiction merely because relief of possession against defendant nos.1 and 2 is sought and in addition the eviction of :7: person inducted by him. Therefore, the Special Court/Court of exclusive jurisdiction would, on being satisfied by the plaintiff, direct the defendants, including defendant nos.3 and 4 to hand over vacant and peaceful possession of the premises to the plaintiff. It would not loose control or authority so also its power to grant this relief merely because the plaintiff sues defendant nos.1 and 2 who are persons inducted by him and also seeks relief of eviction/ handing over of possession against defendant nos.3 and 4. 8. It is, in such circumstances, and in the light of the clear pronouncement of the Full Bench of this Court that I am unable to uphold the argument of the learned counsel appearing for the plaintiff that this court has jurisdiction to entertain and try the suit. 9. Reliance placed upon a decision rendered by the Single Judge of this court (Supra) is of no assistance. In the peculiar facts of that case, the court held that a Civil Court would have jurisdiction. The principle laid down and applied therein is of :8: universal application. However, on a close reading of this judgment, it is clear that this court ultimately dismissed the suit as it found that the defendants had proved that they had right, title and authority to occupy the suit premises. That apart, the attention of the learned Single Judge was not invited to the Full Bench decision of this court. For all these reasons, the said judgment is distinguishable on facts. 10. In the result, I conclude that this court has no jurisdiction to entertain and try the suit and answer the preliminary issue against the plaintiff, in the above manner. 11. At this stage the learned counsel appearing for the plaintiff makes an oral application for return of plaint and contends that Order VII Rule 10A of C.P.C. so also the inherent powers of this court would enable it to direct return of plaint to the plaintiff’s Advocate for presentation to the court specified under the Presidency Small Cause Courts Act, 1882. :9: 12. Considering that I have applied the ruling of the Full Bench of this court and the plaint allegations have also been taken into account, it would be just and fair and proper, so also in the interest of justice, to permit the plaintiff to collect the plaint and present it to the competent court. The Registry to return the plaint to the plaintiff’s Advocate for presentation to the competent court. At the request of the plaintiff’s Advocate, the plaint is returned to him for presentation by the plaintiff to the Presidency Small Cause Court, Mumbai. 13. Order accordingly. In the peculiar facts of this case, there will be no order as to costs. (S.C. Dharmadhikari, J.) (S.C. Dharmadhikari, J.) (S.C. Dharmadhikari, J.)