Final Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT18
IN
L. E. SUIT NO. 40 OF 2022
(CNRMHSCA30003352022)
Bai Hirabai Tata Memorial Trust, & Ors. ...Plaintiffs
Versus
1. Mr. Naozad Jal Tata & Anr. ...Defendants
Lakshmi G. Vora, …..learned Advocate for plaintiffs.
Anoop Sharma, …..learned Advocate for defendants.
Coram : P. K. Kharate,
Judge, C. R. No. 35,
Date : 21st March, 2023.
ORAL ORDER:
1. The plaintiffs have filed application under Order 23,
Rule 1 (3) of C.P.C. stating that the present suit requires to be filed
before the competent authority under Section 24 of the Maharashtra
Rent Control Act. The defendants are in occupation of the suit
premises as a licensee. Hence, the plaintiffs be allowed to withdraw
the present suit with liberty to file fresh suit before the proper forum.
2. The say filed by the defendants vide Exhibit19 stating
that the application does not satisfy the requirement of the formal
defect as mentioned in Order 23, Rule 1(3) of C.P.C. The plaintiffs
are not approached with the clean hands. The suit premises is alloted
on tenancy basis. The defendants have already filed R.A.D. Suit No.
497 of 2018. The present plaintiffs filed w.s. in the said matter and
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admitted the tenancy of the defendants. The present suit is filed by
the plaintiffs by invoking jurisdiction under 41 of Presidency Small
Cause Courts Act. The defendant has filed w.s. in the present matter
along with the application to stay the present suit. Hence, the
plaintiffs are not entitled for withdrawal of the suit under Order 26,
Rule 1(3) of C.P.C. Hence, prayed to reject the application.
3. The rejoinder is also filed by the plaintiffs vide Exhibit
20 stating that the plaintiffs have chosen wrong forum for filing of
the present suit. Moreover, the defendants have already paid monthly
compensation of Rs. 1,037/ as a licensee. The suit pertaining to the
residence premises. Hence, competent authority has jurisdiction
under Section 24 of the Maharashtra Rent control Act to deal with
the matter. All documents show that the father of defendant No. 1 as
a licensee. Moreover, by bonafide mistake in w.s. in R. A. D. it is
mentioned as tenant in stead of licensee. The suit premises is alloted
in leave and licence basis. Hence, prayed to allow the application.
4. On perusal of the application and say, it is necessary to
frame the following points. I have recorded the findings on the said
point accordingly :
5.
Sr. no. Points Findings
1 Whether the plaintiffs are entitled
for withdrawal of the suit
alongwith liberty to file the fresh
suit ?
In the affirmative
2 What order ? As per final
order.
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:: R E A S O N S ::
As to Point Nos. 1 :
6. Heard both sides at length. In the present case, I perused
entire documents filed by both the sides. The most important is that
the leave and licence agreement filed along with the plaint. On
perusal of said leave and licence agreement it clearly mentioned
about the leave and licence and licence fee in English, even though
the said documents is in Gujarati language. Moreover, in the receipt
dated 01.02.2022 is also mentioned as license fees. The suit premises
mentioned in the plaint as residential accommodation. Hence, as per
Section 24 of the Maharashtra Rent Control Act, competent authority
has jurisdiction in respect of the present suit. But defendants without
any cause objecting to the present withdrawn application stating that
the plaintiffs have admitted in R. A. D. Suit that defendants are the
tenants. It is very settled position of law that the plaintiff is master of
his case and he can choose jurisdiction of the court. Hence,
considering above factual discussions on the matter, it is necessary to
discuss the authority cited by both the parties.
7. In the present case, the advocate for the plaintiffs relied
on citation of Hon'ble Apex Court in the case of Konkan Trading
Company Vs. Suresh Govind Kamat Tarkar and ors reported in
(1986) 2 S. C. C . 124. The Hon'ble Apex Court held that there is no
warrant for taking hypertechnical rigid view which results in
denying to a person access to justice and deprive him of his legal
rights more so when it is possible to take a liberal view which
promotes the ends of justice. While granting permission under Rule
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1(3) of Order 23 CPC to withdraw suit and to file a fresh suit it is
open to a court to direct the plaintiff to pay the costs of the
defendant.
8. In the present case also on perusing of documents, it
appears that competent authority has jurisdiction in respect of
present leave and licence agreement of residential premises. Hence,
neither the court nor the defendant have right to restrain the plaintiff
from accessing the justice in the right forum. Moreover, court or
defendant have no right to deprive the plaintiffs for obtaining their
legal rights before proper forum. Hence, above citation is applicable
in the present case. Hence, it is necessary to allow the plaintiff to
withdraw the suit with liberty to file suit before proper forum. At the
most, defendant is entitled for the costs for withdrawing the suit.
9. The advocate for the plaintiffs relied on citation of
Hon'ble Apex Court in the case of Abdulla Bin Ali and Ors. Vs.
Galappa and Ors reported in AIR 1985 S.C. 577. The Hon'ble Apex
Court held that the allegations made in the plaint decide the forum.
The jurisdiction does not depend upon the defence taken by the
defendants in w.s.
10. It is no doubt that it is very settled law that the
jurisdiction is to be decided by the plaintiffs through averment in the
plaint. Moreover, in the present case, it clearly appears from the
documents that competent authority has jurisdiction. Hence,
defendant has no right to object to withdraw the suit. Hence, above
citation is applicable in the present case.
11. The learned advocate for the defendants relied on
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citation of Hon'ble Apex Court in the case of Anil Kumar Singh Vs.
Vijay Pal Singh and Ors reported in (2018) 12 S. C. C. 584. The
Hon'ble Apex Court held that when plaintiff files an application under
Order 23, Rule 1(1) to withdraw suit, whether in full or part, he is
always at liberty to do so and in such case, defendant has no right to
raise any objection to such prayer being made by plaintiff except to
ask for payment of costs to him by plaintiff as provided in subrule
(4) of Order 23, Rule 1. However, when plaintiff applies for
withdrawal of suit along with a prayer to grant him permission to file
a fresh suit on same subject matter as provided in Rule 1(3) of Order
23, defendant can object to such prayer made by plaintiff and in such
event it is for court to decide as to whether permission to seek
withdrawal of suit should be granted to plaintiff and, if so, on what
terms as provided in Rule 1(3) of Order 23.
12. On perusal of above citation, it appears that defendant
has only remedy to ask for payment of costs if plaintiffs filed
application to withdraw the suit. In the present case also, the
plaintiffs case is based on leave and licence of residential premises.
Hence, the court must grant to allow the plaintiff to withdraw the
suit with liberty to file fresh suit. Hence, above citation is applicable
but, in favour of the plaintiffs' case.
13. The learned advocate for the defendants relied on
citation of Hon'ble Apex Court in the case of K. S. Bhoopathy and
ors Vs. Kokila and ors reported in (2000) 5 S.C.C. 458. The
Hon'ble Apex Court held that before granting permission for
withdrawal of the suit, the court is duty bound to satisfy itself that
proper ground exists for granting such permission.
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14. In the present case on perusal of leave and licence
agreement in respect of residential premises and licence fee receipt, it
clearly appears that competent authority has jurisdiction as per
Section 24 of the Maharashtra Rent Control Act. Hence, court is
satisfied about the permission to withdraw the suit.
15. The learned advocate for the defendants relied on
citation of Hon'ble Andhra Pradesh High Court in the case of
Somalraju Vs. Samathu Sivaji Ganesh and Anr reported in AIR
2009 Andhra Pradesh 12. The Hon'ble Andhra Pradesh High Court
held that the formal defect must be specified.
16. In the present case, I have already stated that leave and
licence agreement of residential premises is one of the type of formal
defect. Hence, it is necessary to allow the application of the plaintiff
to withdraw the suit.
17. The learned advocate for the defendants relied on
citation of Hon'ble Bombay High Court in the case of Mohd. Rafique
Mohd. Hussain Tinwala Vs. M/s. S.S. Enterprises and ors.
reported in 2019(4) ALL MR 169. The Hon'ble High Court held that
that arbitration proceedings cannot be considered as a suit for
purpose of granting liberty to file fresh suit.
18. In the present case, the plaintiffs are specifically filed the
suit as per the Section 41 of the Presidency Small Cause Courts Act
considering the leave and licence agreement. It is no doubt that
present court has jurisdiction in respect of commercial leave and
licence agreement of suit premises. Other side competent authority
under Section 24 of the Maharashtra Rent Control Act has
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jurisdiction in respect of the leave and licence agreement of
residential premises. Hence, many parties and also advocates
confused in respect of the residential and commercial premises
mentioned in the leave and licence agreement. Hence, they may
either wrongly filed the suit in the Small Cause Court or before the
competent authority. Hence, considering the facts of the present case,
above citation is not applicable.
19. The learned advocate for the defendants relied on
citation of Hon'ble Bombay High Court in the case of Rajaram
Jairam Raut Vs. Baliram Laxman Raut reported in
2006(Supp.)Bom. C.R. 718. The Hon'ble Bombay High Court held
that if the defects to be cured by amendment in the plaint then court
should not allow to withdraw the suit.
20. But in the present case considering the averment and
documents on record, present court has no jurisdiction. The said fact
cannot be cured by amendment. Hence, above citation is not
applicable in the present case.
21. The Hon'ble Bombay High Court held in Dayanand s/o.
Vishwanathrao Kadam Vs. Pratibha w/o Dayanand Kadam
reported in 2007(3) Mah LR 539 and in Mario Shaw Vs. Martin
Fernandes and another reported in 1996 (1) Mh LJ 564. The
Hon'ble High Court held that the application under Order 23, Rule 1
& 3 cannot be granted partly. It is either to be granted as a whole or
rejected as a whole. There cannot be order of permission to withdraw
but denial of liberty to file fresh suit on the same subject matter or
same cause of action.
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22. It is no doubt that if court allow to plaintiff to withdraw
the suit subject to costs and as per argument of advocate of
defendant if denied to file the fresh suit then it will be like to deliver
the justice by one hand and take away the justice by other hand.
Hence, considering the above citation, the plaintiff is also grant
liberty to file suit before competent authority. Hence, considering
above discussions, I have recorded the finding on point no. 1 in the
affirmative and pass the following order.
: O R D E R :
1. The application Exhibit 18 is allowed.
2. The plaintiffs are at liberty to withdraw the suit
with liberty to file fresh suit before the proper
forum.
3. Further order passed below Exhibit 1 in respect of
costs.
(Dictated and pronounced in Open Court.)
Bandra Mumbai. ( P. K. Kharate )
Date : 21.03.2023 Judge, C. R. No.35
Order dictated on : 21.03.2023
Order checked & signed on : 21.03.2023
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