Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft N/M in SU no.1135-20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON NOTICE OF MOTION FILED BY THE DEFENDANT
IN
SUIT NO. 1135 OF 2020
(CNR no. MHCC010035282020)
Mr. Bhakaram Khojaram Bishnoi
Age : 52 years, Occupation : Business
Residing at 39/41, Pranakuter Building,
4th Floor, Room No.403,
4th Kumbharwada, Mumbai04.
]
]
]
]
]... Plaintiff
Versus
Mr. Kiran Shivaji Sunka
Age : 60 years, Occupation – Business
Residing at 22A/3625, Abhydaya Nagar,
Prayas Coop. Hsg. Society Ltd., Tank Road,
Kala Chowki, Mumbai400003.
]
]
]
]
] Defendant
Appearances:
Ld. Advocate Mr. Anand J. Jadhav for the Plaintiff.
Ld. Advocate Mr. Anil S. Kharatmol for Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 20th March, 2021.
O R A L O R D E R
1. By instant application under Order VII Rule 11 of The Code
of Civil Procedure, 1908, the defendant has prayed that the plaint shall
be rejected for non disclosure of cause of action and on the ground that
the suit appears from the statement in the plaint to be barred by Section
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41(1) of Presidency Small Causes Court Act, 1882 r/w Section 28 of
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Ld.
Advocate for the defendant is placing reliance upon judgment of Hon'ble
Apex Court Mansukhlal Dhanraj Jain & others Vs Eknath Vithal Ogale
[AIR 1995 SC 1102] to support his arguments.
2. At this stage, it will not be apt to look into the defence on
merits for deciding the instant Notice of Motion about jurisdiction of City
Civil Court to entertain the suit. Jurisdiction of the Court has to be
decided at this stage on the averments of plaint demurrer taking them to
be true.
3. After going through the plaint, it is evident that it is a suit for
recovery of possession of an immovable property under Section 6 of
Specific Relief Act, 1963. The plaint allegations depict that the plaintiff
was in peaceful possession of the suit premises till 19th June, 2019 and he
was dispossessed illegally by breaking open his lock. It is claimed in the
plaint that initially the plaintiff was licensee of the defendant tenant in
respect of suit premises for 11 months from 07.07.2005 and continued to
be in possession of the suit premises till 19.06.2020. In that context, the
instant Notice of Motion is filed by the defendant claiming that this is a
suit between licensor and licensee relating to recovery of possession of
the suit premises and the same is triable by Small Causes Court, Bombay
under Section 41(1) of The Small Causes Court Act and not by City Civil
Court. Ld. Advocate for the defendant is relying upon ratio of Mansukhlal
Jain's case (supra). In that matter Hon'ble Apex Court explained the
import of the phrase “relating to recovery of possession” in Section 41(1)
that the said words are of wide import and can take in their sweep any
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3 Draft N/M in SU no.1135-20
suit in which the grievance is made that the defendant licensor is
threatening to illegally recover possession from the plaintiff licensee.
After perusal of the facts of the two cases therein, the plaintiff/ licensee
was in possession of the suit premises and the defendant/ licensor was
trying to dispossess him forcefully. In that factual background it was hled
that the suit for injunction restraining licensor from effecting forcible
recovery of possession from licensee was triable only by Small Causes
Court and not City Civil Court. In the present suit, the plaintiff claims
that the defendant/licensor has forcefully obtained possession of the suit
premises and therefore, the instant suit is for recovery of possession
under Section 6 of Specific Relief Act, 1963. In the above judgment,
Hon'ble Apex Court has also dealt with the above situation which is
factual matrix of this case in paragraph no. 19. The said paragraph no. 19
is as under :
19. Analogy drawn by Sawant, J. from cases under Section 6 of the Specific
Relief Act, 1963, on the clear averments in the plaints in present cases is
also not apposite. It is trite to say that Section 6 of the Specific Relief Act
gives a summary remedy to the plaintiff to seek restoration of possession
from the defendant within six months of illegal recovery of possession by
the defendant, without referring to the title of the plaintiff and defendant.
It is purely a possessory suit wherein status of the party is irrelevant. In
such type of suits the plaintiff is not required to prove his title or a superior
right to possession as compared to the illegally dispossessed within a period
of six months prior to the date of the suit. Once the plaintiff proves this
case, he becomes entitled to succeed and can get status quo ante and
restoration of possession of the suit premises through the assistance of the
Court, In given cases, even injunction suits purely based on previous
peaceful possession and subsequent threatened dispossession may stand on
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an entirely different footing and might not attract the sweep of Section
41(1) of the Small Causes Courts Act or for that matter Section 28 of the
Bombay Rent Act. But the present suits are not of that type. They are suits
clearly based on the allegation that the plaintiffs are licensees on monetory
considerations and they apprehend to be dispossessed, not in accordance
with law, at the hands of defendantlicensor's. Such suits as we have
discussed earlier, clearly attract the applicability of Section 41 of the Small
Causes Courts Act as both the conditions for its applicability, namely, that
they are suits between licensees and licensor and they relate to recovery of
possession of immovable properties situated in Greater Bombay are
complied with. Consequently, the conclusion is inevitable that the aforesaid
suits as filed by the appellants were not cognizable by the City Civil Court,
Bombay and they could be entertained only by the Small Causes Court,
Bombay, and fall within the exclusive jurisdiction of the latter Court.
4. The instant suit is purely a possessory suit wherein status of
the party is irrelevant. As held in above case, in such suit the plaintiff is
not required to prove his title or a superior right to possession as
compared to the defendant and has only to show that he was in
possession of the suit premises and he was illegally dispossessed within a
period of six months prior to the date of the suit. In view of above
discussion, the present suit does not attract the sweep of Section 41(1) of
The Small Causes Court Act or for that matter, Section 28 of the Bombay
Rent Act. Therefore, City Civil Court has jurisdiction to entertain the suit.
Resultantly, Notice of Motion is liable to be dismissed and following
order:
ORDER
1. Draft Notice of Motion is dismissed.
2. The defendant is directed to register the Notice of Motion for
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statistical purpose.
3. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 20.03.2021. City Civil Court, Gr. Mumbai.
Dictated on : 20.03.2021
Transcribed on : 20.03.2021
Signed by HHJ on : 20.03.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.03.2021 at 5.26 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
20/03/2021
JUDGMENT/ORDER signed by
P.O. on
20/03/2021
JUDGMENT/ORDER uploaded
on
20/03/2021
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