Final Order 1

Order Details: Other
Pdf Text: 01.02.2019
SU 131/19 @
NM 279/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Ex.2 Adv. Mithilesh Mishra filed V/n for Defendant t.o.r.
Adv. Redekar for Plaintiff present.
Ex.3 Affidavit of service filed by Adv for Plaintiff t.o.r.
Order below Exh.1.
Plaintiffs have filed present suit claiming relief of permanent injunction restraining
defendants, their agents, servants, hire lings and their representatives from
interfering with, disturbing the use, occupation and peaceful possession of the
Plaintiffs in respect of suit premises in any manner whatsoever and/or dispossessing
the Plaintiffs from the suit premises viz 70/70-A, Shop no.1, Hind Tej building,
D.S.Road, Dadar(E), Mumbai without following due process of law. It is the
contention of Plaintiffs that they are in occupation and use of suit premises as
Licensee of the Defendants. Defendant no.1 filed reply to Notice of Motion and
therein raised issue of jurisdiction of this Court to entertain and try the suit as it is
dispute between Landlord and tenant. At the time of hearing of Notice of Motion,
counsel for both the parties consented to return the plaint to the Plaintiffs for
presenting it before appropriate forum. Adv for Defendants has also placed reliance
upon authority in the case of Mansukhlal Dhanraj Jain and Ors. V/s. Eknath Vitthal
Ugale with Vasudeo Prakash V/s. Vimla Premchand Hinduja and Ors. AIR 1995 SC
1102 in support of submission for return of plaint to the Plaintiffs for presenting the
same to Court of competent jurisdiction. It is clear that Plaintiffs are claiming that
they are Licensee of Defendants in respect of suit premises while Defendants
contended that there is dispute between Landlord and tenant. In both eventualities in
view of Sec.41(1) of the Presidency Small Causes Court Act, 1882, Small Causes
Court has jurisdiction to entertain and try suit of present nature. For this I take
support of the cited authority wherein injunction suit was filed by the Plaintiff
claiming the right to possess the suit premises as Licensee,against defendants
alleged Licensor, who is said to be threatening to disturb the possession of the
Plaintiff Licensee, without following due procedure of law. Hon'ble Apex Court
held that suit filed by the appellants Plaintiffs were not cognizable by City Civil
Court, Bombay and they could be entertain only by the Small Causes Court,
Bombay and fall within the exclusive jurisdiction of the later Court. In view of
above legal position considering that this Court has no jurisdiction to entertain and
try suit of present nature, it is necessary to return the plaint to the Plaintiffs to
present the same before the Court of competent jurisdiction in view of order 7 Rule
10 of C.P.C. Therefore I hereby ordered to return plaint to the Plaintiffs for
presenting the same to the Court of competent jurisdiction. Registrar(Civil) to
comply.
The Plaintiffs are directed to present the plaint within the period of two weeks from
the date of return of plaint to them.
Order below NM No.279/19.
This NM has been filed in present suit. I have passed order to return the plaint to the
Plaintiffs for presenting the same before the Court of competent jurisdiction.
Therefore, NM stands disposed off. It be removed from the board.
Record of suit be sent to Board department for compliance.
Judge
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