Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1641 OF 2019
CNR NO.MHCCO10092912019
IN
S.C. SUIT NO.2947 OF 2019
Junaid Salim Chaudhary ..Plaintiff
V/s
Mr.Taufiq Ahmed Khan ..Defendant
Ld. advocate Chaudhary for the plaintiff
Ld.Adv. Kamble with Adv.Shah for defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 22/11/2019
ORAL ORDER
1. This chamber summons has been tendered by the
defendant for rejection of plaint u/o 7 rule 11 of the
Civil Procedure Code and return of the plaint u/o 7
rule 10 of the Civil Procedure Code.
2. Heard.
3. Ld. Counsel for the defendant submitted that plaintiff
is alleging the relationship as licensor and licensee
between him and the defendant. In view of the
relationship of plaintiff and defendant as alleged as
that of licensor and licensee, this Court has no
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jurisdiction as per Sec.41 of the Presidency of Small
Causes Court Act. It is the contention of the
defendant that plaint does not reflect any cause of
action and therefore the plaint is required to be
rejected.
4. The plaintiff filed the reply and submitted that
chamber summons is not maintainable. The plaintiff
has rightly filed the suit u/s. 6 of the Specific Relief
Act. The plaintiff was in possession of the suit
property according to the defendant between August
2014 to April 2019. The plaintiff has been
dispossessed. The plaintiff has filed this suit for
dispossession. The present suit is maintainable.
5. At the outset, it would be proper to reproduce, sec.41
of the Small Causes Presidency Act as under:
“Notwithstanding anything contained elsewhere in
this Act[***] but subject to the provisions of sub
section (2), the Court of Small Cause shall have
jurisdiction to entertain and try all suits and
proceedings between a licensor and licensee, or a
landlord and tenant, relating to the recovery of
possession of any immovable property situated in
Greater Bombay, or relating to the recovery of any
license fee or charges or rent therefore, irrespective
of the value of the subjectmatter of such suits or
proceedings.
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6. It is apparent that as per Sec.41 of the Act, Small
Causes Court has jurisdiction to entertain and try all
the suits and proceedings between the licensor and
licensee relating to the recovery of possession of
immovable properties. Ld. Counsel for the defendant
placed reliance upon the judgment of Hon'ble Apex
Court in the case of Prabhudas Damodar Kutecha
V/s Manhabala Jeram Damodar and anr, 2013(6)
of All MR 399 SC, the Hon'ble Apex Court held that
considering sec.41 of the Presidency Small Causes
Act, Small Causes Court has exclusive jurisdiction
entertain all suits between licensor and licensee. The
issue before the Hon'ble Apex Court was that licensee
used in Sec.41(1) of the Presidency Small Causes Act
covers gratuitous licensee as well. Here in the case
the plaintiff is coming with the case by virtue of
license agreement, he entered into the suit premises
and he is the licensee of the defendant. The license
period was for 36 months starting from 26/08/2015
to 25/08/2017. After the expiry of the license, the
plaintiff continued in the premises as licensee and
has paid the license fees. It is the contention of the
plaintiff that on 10/04/2019, the defendant visited
the suit property and forcibly dispossessed and
removed the plaintiff from the use and occupation of
the suit property. Therefore the plaintiff has filed the
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suit for recovery of possession.
7. On the basis of the status of the licensee, the plaintiff
is not claiming any right. The agreement of license
or the possession as licensee is only for the
semblance of right of the plaintiff. This Court in the
inquiry u/s. 6 of the Specific Relief Act will not dwell
with the right of the plaintiff as licensee. The inquiry
u/s. 6 of the Specific Relief Act is based upon the
principle of equity. The limited inquiry is that the
plaintiff was in possession and was dispossessed from
the immovable property otherwise than in due course
of law. The status of the plaintiff as licensee for this
inquiry will not come into picture. Therefore it can
be safely said that this court has jurisdiction.
8. Ld. Counsel for the plaintiff placed reliance upon the
judgment of Hon'ble Bombay High Court in the
case of Shah Mohammed Noor Khan V/s Jan
Mohammad Vali Mohammad and ors in Rev.
Application No.1016 of 1998 decided on
19/11/2005. He also placed reliance upon the
judgment of Hon'ble Apex Court in the case of
Krishna Ram Mahale(Dead), by his Lrs. V/s
Shobha Venkat Rao reported in MANU/SC/
0278/1989.
9. I have considered the law laid down in the above
cited judgments. The position of law as enunciated
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in Prabhudas(supra) would not be applicable in the
present case. The relation of the plaintiff and
defendant as that of licensor and licensee would not
have any bearing for deciding the present suit.
Therefore, it can be safely said that this Court has
jurisdiction to try the suit. Hence, it is expedient to
pass the following order:
ORDER
1. Chamber Summons no.1641/2019 is rejected.
2. Costs in the cause.
3. Chamber Summons is disposed of accordingly.
22/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 22/11/2019
Transcribed on : 02/12/2019
Signed on : 13/12/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 12.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
22/11/2019
Judgment and order signed by P.O. 13/12/2019
Judgment/order uploaded on 13/12/2019
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