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

3) The appellants are the legal representatives of Mahadev Pandurang Kambekar, who was the original defendant whereas the respondent¬Shree Krishna Woolen Mills Pvt. Ltd. is the plaintiff in the Civil Suit out of which these appeal arise.      4) The dispute between the parties relates to the land bearing survey Nos.58 and 60 (re¬numbered as CTS 741,741/1 to 741/7) situated at Nahur¬ Bhandup in Bombay suburban District (hereinafter referred to as the suit land).      5) The plaintiff claims to be the lessee of the suit land whereas the defendant claims to be the owner/lessor of the suit land on the terms set out in the indenture of the lease deed dated 20.06.1958 executed between the parties.      6) A dispute arose between the parties. This led the defendant to determine the lease in question by serving a quit notice dated 19.02.1980 to the plaintiff requesting them to handover the leased premises, which was in their possession, to the defendant.      7) The plaintiff then filed a Civil Suit (No.503 of 1980) against the defendant on the original side of the Bombay High Court claiming therein the specific performance of the contract (lease deed) in relation to the suit land.      8) The suit was based essentially on clause 7 of the Lease Deed which, according to the plaintiff, enabled them to elect and exercise their right to purchase the suit land from the defendant on fulfillment of the conditions set out therein.      9) The defendant on being served filed the written statement. The defendant denied the claim and at the same time also filed his counter claim against the plaintiff seeking their eviction from the suit land and the arrears of rent.      10) The Single Judge by judgment/decree dated 24.12.1998 decreed the plaintiffs suit for specific performance of contract and directed the defendant to execute the conveyance deed in favour of the plaintiff of the suit land. The Single Judge also allowed the counter claim filed by the defendant and accordingly passed the decree for possession of the suit land and arrears of rent for three years against the plaintiff.      11) The appellants (defendant) and the respondent (plaintiff) both felt aggrieved by the judgment/decree passed by the Single Judge and filed their respective appeals before the Division Bench.      12) So far as the defendants (appellants herein) Appeal No.169/1999 was concerned, it arose out of the decree passed against him for specific performance of the contract, whereas so far as the plaintiffs (respondent herein) appeal (No.199/1999) was concerned, it arose out of the decree passed against them for possession of the suit land and arrears of rent.      13) By impugned judgment, the Division Bench allowed both the appeals. So far as appeal (169/1999) filed by the appellants (defendant) was concerned, the Division Bench set aside the judgment /decree and remanded the suit for re¬trial to the Single Judge on merits afresh in accordance with law.      14) So far as appeal (199/1999) filed by the respondent (plaintiff) was concerned, the Division Bench set aside the judgment/decree on the ground that the counter¬claim was not maintainable in view of Section 41 of the Presidency Small Cause Courts Act, 1882 ( for short called the Act 1882) . In other words, the Division Bench held that so far as counter¬claim filed by the defendant against the plaintiff is concerned, the Single Judge wrongly entertained it as it had no jurisdiction on its original jurisdiction to entertain counter¬claim of this nature in the light of the provisions of Section 41 of the Act 1882.      15) The defendant (appellants herein), i.e., lessor felt aggrieved by that part of the order of the Division Bench which resulted in dismissal of his counter¬claim and filed the present appeals by way of special leave in this Court.      16) So far as the order of the Division Bench which resulted in setting aside of the judgment/decree of the Single Judge and remanding of the suit for re¬ trial on merits is concerned, it attained finality as a result of dismissal of SLP filed by the plaintiff in this Court.

Reasoning: 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.