1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 925 OF 2010 WITH CIVIL APPLICTION NO.4400 OF 2009 IN F.A.No.925/2010 1.Mrs Nalini Balkrishna, 2.Mrs Suguna Shankar Shetty, 3.Mrs Krishna Tukkaram Sheety, 4.Mrs Shambhavi Sundra Shetty, .. Appellants. Plaintiffs. Vs. 1.Ramdur Karamraj, 2.Manghuram Ramfer, .. Respondents. Defendants. Mr.Jayen Trivedi a/w Ms Sarika Mehra, for the appellants. Mr. Shashik Jain a/wMrs Naina Desai, for the respondents. CORAM : D.B.BHOSALE, J. DATED : 18/11/2010. PC: 1. Heard learned counsel for the parties. 2. This appeal is directed against the Judgment and order dated 6th July, 2009 rendered by the City Civil Court, Greater Mumbai, in S.C.Suit No.4535 of 2005, dismissing the suit instituted by the appellants for recovery of vacant and peaceful possession of a Stall Board, admeasuring approximately 1.8580 sq.mtrs, (for short, “the stall board”), allegedly fixed on the T 2 outer wall of their hotel called 'Dhananjay Hotel', along with bottom box which rests on the pavement. It is the case of the plaintiffs that the defendants are gratuitous licensee in respect of the stall board. The stall board, according to the plaintiffs, is a premises within the meaning of section 5(9) of the Maharashtra Rent Control Act, 1947. In view thereof, Mr.Trivedi, learned counsel for the appellants, at the outset, invited my attention to the Full Bench Judgment of this court in Prabhudas Damodar Kotecha and Anr Vs. Smt Manharbala Jeram Damodar and ors ( 2007(4) All M. R 651, to contend that the impugned judgment is without jurisdiction and, therefore, deserves to be set aside and that the plaint be returned for its presentation to the Small Causes Court as provided for under Order VII rule 10-A read with Section 107 of the Civil Procedure Code. He did not advance any other submission. 3. There cannot be any dispute that the City Civil Court has no jurisdiction to deal with the suit against gratuitous licensee and it is tenable only before the Presidency Small Causes Court in view of the Full Bench Judgment of this court in Prabhudas Damodar Kotecha's case. The learned counsel for the respondents, however, invited my attention to the impugned Judgment and submitted that, in the present case, merely 3 because the plaintiffs have claimed that the defendants are gratuitous licensees, at this stage of the proceedings, it is not open to the appellants/plaintiffs to pray for setting aside the impugned judgment and seek return of the plaint to the Small Causes Court for its decision on merits afresh, after having chosen to file and invited decision on merits. He submitted that the City Civil Court has allowed the parties to lead evidence and on the basis thereof has recorded its findings on merits also, which clearly show that the appellant is not a gratuitous licensee as alleged. 4. I have perused the impugned judgment so also the compilation of all relevant documents placed on record by learned counsel for the appellants. It is clear from the record so also from the findings recorded by the courts below that the plaintiffs, despite the judgment of the Full Bench in Prabhudas Damodar Kotecha's case, chose to invite decision of the City Civil Court on merits. The appellants after having failed to prove the title and/or ownership of the stall board and/or their case of gratuitous licensee against the respondents, are now seeking return of the plaint for its presentation to appropriate Court relying upon the judgment of the Full Bench. The City Civil Court, while dealing with the case on merits, in paragraphs 16 and 17 of the judgment has recorded a categoric finding that 4 the stall board cannot be termed as “premises” within the meaning of section 5(9) of the Maharashtra Rent Control Act after having found that the stall board is not integral part of Dhananjay hotel. At this stage, it would be relevant to reproduce the findings recorded by the City Civil Court in paragraphs 16 and 17 which read thus. “16. It is the case of the plaintiffs that the suit premises I.e. pan shop of stall board along with bottom box resting on pavement admeasuring 1.8580 sq.mtrs is affixed at the outer wall of the plaintiffs hotel by name Dayanand Hotel. The plaintiffs by way of present suit claim vacant and peaceful possession of the said pan stall. According to the defendants, the suit premises is a “Chattel” or a movable property and it is not permanently annexed with the hotel of the plaintiff. 17. It is pertinent to note that in cross examination PW 1 admitted that the suit premises i.e. the pan stall is situated on the footpath. P.W-1 also admitted that the pan stall is made up of wooden material. She further admitted that if the pan stall is to be removed then it can be removed from the footpath itself. From this evidence it is clear that the suit premises is a movable property made up wooden box and it is not permanently annexed to the hotel of the plaintiff. It is not the case of the plaintiffs that any part of the suit premises is inside the Dayanad Hotel. On the other hand the averments in the plaint show that the pan stall is affixed on the outer wall of the hotel of the plaintiffs. The pleadings of the plaintiffs about the manner in which the pan stall is affixed to the outer wall of their hotel Dhananjay is totally silent. In this view of the matter by no stretch of imagination can it be said that the suit premise is an integral part of the hotel of the plaintiffs. The plaintiffs have failed to establish that the suit premises is part and parcel of their hotel. Accordingly, I answer issue no.1 above in the negative.” (emphasis supplied) 5 Apart from the aforesaid findings recorded by the City Civil Court, it is pertinent to note that the appellants-plaintiffs have not claimed ownership of the stall board. As a matter of fact, the learned counsel for the appellants fairly submitted that in the pleadings they have not claimed ownership of the stall board. If the stall board is not an integral part of hotel Dhananjay and that the plaintiffs are not owners thereof, there is no question of the respondents being gratuitous licensee in respect thereof. 5. Further it is pertinent to note that there was one more round of litigation between the parties. The respondents had filed a declaratory suit seeking declaration of the tenancy right in respect of the stall board. The Small Causes Court, after having considered the entire material/evidence placed on record by the parties in the said suit and the stand of the appellants, observed that the stall board is not a premises within the meaning of section 5(9) of the Maharashtra Rent Control Act and dismissed the suit. In the said suit, on the basis of the evidence led by both the sides, in paragraph 14 the Small Causes Court has made the following observations: “Apart from that the photograph prima facie shows 6 that is mere wooden stall or wooden box and it is on parallel outside of Dhananjay Hotel. Though the plaintiff has made an attempt to depose that the Pan Stall is not affixed or annexed to the wall by nails. However, his evidence which describe the suit premises clearly goes to show that it is movable as it is not resting on the wall, but is standing on the wooden legs and is projecting on parallel and thus it appears that it is the movable property and not the premises under section 5(9) of the Maharashtra Rent Control Act.” (emphasis supplied) From the findings recorded by the Small Causes Court so also by the City Civil Court in the impugned Judgment, it is clear that the stall board is movable property and not the premises as defined by within the meaning of section 5(9) of the Maharashtra Rent Control Act. The judgment of the Small Causes Court has attained finality. It is clear that the stall board is standing on the wooden legs and is not fixed to the wall. In view of these findings, in my opinion, though the City Civil Court had no jurisdiction to decide the issue of gratuitous licensee, no useful purpose will be served by setting aside the judgment and returning the plaint for its presentation to the Small Causes Court. This will unnecessarily burden the Small Causes Court to undertake futile exercise of recording the very same findings which had been recorded in the earlier round of litigation. On merits, I am satisfied that the appellants have no case and no 7 useful purpose will be served by returning the plaint as prayed for by the learned counsel for the appellants. Hence, I am not inclined to interfere with the impugned judgment. The First Appeal is accordingly dismissed. The Civil Application also stands disposed of. (D.B.Bhosale, J.)