Case: MAHADEV P KAMBEKAR(D) TR.LRS Vs. SHREE KRISHNA WOOLEN MILLS PVT. LTD

true that Section 41 of the Small Cause Courts Act deals with such suits between the licensee and licensor while Section 28 of the Bombay Rent Act deals with suits between landlord and tenant. But the nature of such suits as contemplated by both these sections is the same, namely, it should be the suit relating to the recovery of possession of premises. Interpreting the phrase relating to recovery of possession as found in Section 28 of the Bombay Rent Act, a Bench of three learned Judges of this Court in the case of Babulal Bhuramal v. Nandram Shivram6 held that a suit for declaration that one of the plaintiffs was the tenant of the defendant landlord and the other plaintiffs were his sub¬ tenants and they were entitled to be protected from eviction squarely falls within the exclusive jurisdiction of the Small Cause Court, Bombay under Section 28 of the Bombay Rent Act and jurisdiction of the City Civil Court for entertaining such a suit is excluded. Imam, J. speaking for the three¬ Judge Bench in that case observed at page 374 of the report as under: The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act. Such a claim was one which arose out of the Act or any of its provisions. The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs. The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had lawfully sublet the same to the second and third plaintiffs. The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act. 25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable. 26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court. 27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant. 28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act. 29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay. 30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said. 31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues. 32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court. 33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.