Friday, 19 February 2021

Whether the City civil court can entertain an eviction suit if the plaintiff had given suit premises to the defendant for conducting business?

  Section 41(1) of the Presidency Small Cause Courts Act would apply

only to the suit and proceedings between the licensor and licensee or

landlord and tenant relating to recovery of the possession of any immovable

property situated in Greater Bombay or relating to the recovery of license

fees or charges or rent therefor irrespective of the value of the subject matter

of the suit suits or proceedings. In my view, since the Small Causes Court

has already recorded the finding that the suit business was given by the husband of the plaintiff to the predecessor of the defendants on conducting

and there being no relationship of a landlord and tenant or licensor or

licensee, Section 41(1) of the Presidency Small Cause Courts Act, 1882

would not apply to the facts of this case. Perusal of the prayers in the plaint

and more particularly, prayer clause (a) clearly indicates that the plaintiff

had applied for declaration that the defendants were trespassers and have no

right, title or interest in the suit premises or in her business after the period

prescribed under the Conducting Agreement was over. In prayer clause (b),

the plaintiff had prayed for an order and direction against the defendants to

vacate the suit premises and its business being carried therein.

65] In my view, the reliefs sought in prayer clause (b) is incidental to the

prayer clause (a) and more particularly, would depend upon whether the

plaintiff had given the suit business to the defendants on conducting suit

business. The premises were given to the defendants for conducting the suit

business. In my view, prayer clause (b) thus, even otherwise could not be

considered as a suit for recovery of possession of the licensee premises. The

period of Conducting Agreement was admittedly over much before the date

of filing suit by the plaintiff. The alleged rights and interest claimed by the

defendants in the suit premises were already rejected by the Small Causes

Court by recording detailed findings of fact which findings have admittedly,

attained finality. The defendants thus being trespassers in respect of the suit

business and also the premises, the Suit filed by the plaintiff for various reliefs claimed in the plaint was thus maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye


CORAM : R.D. DHANUKA, J.


PRONOUNCED ON : 19th MAY 2020

Citation: 2020(6) MHLJ 86

Read full Judgment here: Click here

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