1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1631 OF 2009 Shri V.P.Jape ..Petitioner. V/s. Shri S.B.Phadnis ..Respondent. Mr.P.S.Dani i/b. Mr.R.M.Pethe for Petitioner. Mr.A.P.Vanarse for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Vanarase waives notice for Respondent. As short question is involved, Petition is taken up for final disposal forthwith by consent. 3. This Writ Petition under Article 227 of the Constitution of the India takes exception to the Judgment and Order passed by the District Judge dated 4th December, 2008 below Exh. 21 in Civil Appeal No.553 of 2006. By the said application, the Petitioner requested the Appellate Court to frame point of issue as to whether relationship between the 2 Petitioner and Respondent was that of licensee and licensor as contended by him. If the said issue was to be answered in favour of the Petitioner, the Court would naturally have to address the consequential issue about jurisdiction of the rent court to entertain suit for possession against the Petitioner who was only the licensee. The Appellate Court has found that such plea is taken in the Written Statement by the Petitioner is not in dispute. The Appellate Court however, rejected the Petitioner’s application merely on the ground that the Petitioner had ample opportunity to raise such ground before the trial Court itself. This opinion clearly overlooks the position emerging from the record that the Petitioner did raise the said issue in the Written Statement itself and also in the arguments canvassed before the Trial Court in that behalf which however, were negatived by the Trial Court. Appropriateness of that stand therefore, will now have to be addressed by the Appellate Court in the Appeal preferred by the Petitioner. 4. In the circumstances, impugned Judgment and order is overturned and instead the Application preferred by the Petitioner Exh. 21 is allowed by directing the Appellate Court following additional to 3 frame two points in issue for its consideration: 1) Whether the defendant proves that the relationship between the parties was that of licensor and licensee ? 2) If yes, Whether the Rent Court has jurisdiction to entertain suit filed by the Plaintiff for possession on the assertion that the relationship between the parties was that of landlord and tenant ? 5. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)