City Civil Court Mumbai now has pecuniary jurisdiction to try matters having claim upto 10 CR.

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Questions and answers on law part 22

 Q 1:- Landlord has wrongfully dispossessed tenant from tenanted premises. Tenant has filed suit under S 6 of specific relief act for recovery of possession of tenanted premises. Whether suit is maintainable before city civil court or small cause court?

Ans: S 41 of Presidential Small cause court Act

"41. (1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes 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 the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

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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

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Is finding recorded by small cause court upheld by the high court is binding on the party before city civil court in a parallel proceeding?

 The Trial Court dealt with the orders passed by the Small Causes

Court in the declaratory suit filed by the defendants, order passed by the

Appellate Bench of the Small Causes Court and the order passed by this

Court in Writ Petition No. 3521 of 1999 filed by the original defendant

recording various findings in favour of the plaintiff herein and against the

defendants. The Trial Court, accordingly, rightly held that the original

defendant was judicially held to be just conductor of the business and

nothing more, which finding had attained the finality. In view of the fact that

various issues which were raised by the defendants in this Suit were already

concluded by the Small Causes Court and upheld by the Appellate Bench

and this Court, those submissions made by both parties were rightly not

considered by the Trial Court once again in the impugned judgment and

decree. In my view, the findings rendered by the Small Causes Court,

Appellate Bench of the Small Causes Court and this Court in respect of the

suit premises were binding on the parties in the parallel proceedings raising

similar issues.

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

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How to decide the issue of jurisdiction if the defendant takes plea before City civil court that he is a tenant in respect of suit premises?

 What is it, therefore, that the Defendants have placed on record to establish their claim of tenancy? That, as I have noted, was the only case pleaded by the Defendants: not a license, not prescription, but only a tenancy. First, Mr. Sathaye for the Respondents-Defendants submits that the City Civil Court has no power to issue a declaration of tenancy. That is correct; but in this context it is misconceived. The preliminary objection raised under CPC Section 9A does not envisage the grant of any kind of declaration. That is not the purpose or ambit of the section. In deciding a jurisdictional issue under CPC Section 9A, no declaratory decree is ever contemplated. But when a jurisdictional ouster is being tested, this cannot be done on speculation, surmise, or conjecture, and these cannot be allowed to take the place of the evidence. The Court must determine whether there is a tenancy or a license. If it finds this is established, its jurisdiction ends. It does not then go on to grant a declaration. It passes no decree. It only says that because of the nature of the juridical landlord-tenant relationship established by cogent evidence, its jurisdiction stands is ousted. In fact, the argument is self-defeating. Once the City Civil Court finds that there is a landlord-tenant or licensor-licensee relationship, it divests itself of jurisdiction. It cannot grant the declaration. Any such declaration would be a nullity for want of jurisdiction in the first place. But this does not mean that the Court is not to determine whether the jurisdiction is ousted on account of such a relationship being proved in the first place. It is not the defence taken that determines or changes the forum. The special jurisdiction of the Small Causes Court does not grant exclusive jurisdiction to try questions of title. Where a plaintiff does not admit the landlord-tenant relationship (this being the only case pleaded here), the defendant's plea cannot force the plaintiff to go to the Small Causes Court.1

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 466 of 2017

Decided On: 12.07.2017

 Arun Kumar Vs. Aktar Quershi and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: MANU/MH/3286/2017

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Whether City civil court should return plaint if there are issues relating to title to property and tenancy in the suit?

 Straightaway, therefore, the order of 'return of the plaint' cannot be sustained. This was not a case of jurisdiction relating to territorial or pecuniary limits; had it been, an order of return of the plaint was correct. It was a finding that the suit as instituted was not cognizable by the civil court at all. That had to result in a dismissal of the suit - assuming that the entire suit could be so dismissed.[2]

20. There remains the question of whether the whole suit could have been dismissed, given the frame of prayer clause (a). Here again, I believe Mr. Godbole is correct, and the Small Causes Court could not ever have granted a declaration of title Ramji Gupta & Anr. v. Gopi Krishan Agrawal & Ors., MANU/SC/0365/2013 : (2013) 9 SCC 438. Interestingly, on the issue of a title declaration, the Small Causes Court could have returned the plaint for presentation to the appropriate court, but the converse is not true. This is inter alia because Section 23 of the Provincial Small Causes Court specifically provides for a return of a plaint for determination of questions of title.[3]

22. The decision of the Division Bench of this Court in Smita Rajeev Sah v. Roop Narain Sah MANU/MH/0269/2013 : (2013) 5 Mah LJ 211 : (2013) 6 Bom CR 193 is apposite. Dr. Chandrachud J (as he then was) speaking for the Division Bench said:

1. This appeal arises from an order of a learned Single Judge dated 16 March, 2012 deciding a preliminary issue of jurisdiction.

2. The first Appellant is the widowed daughter-in-law of the first and second Respondents. The second Appellant is the daughter of the first Appellant. The Respondents were 68 and 63 years of age respectively when the suit was instituted in 1995. The suit is for a declaration that the First Respondent is the lawful and rightful owner of flat A-51 together with a garage in a building known as Meherina, situate at Plot No. C-51, Napean Sea Road, Mumbai 400 026. The Respondents seek a declaration that the Appellants are trespassers and have no right, title or interest in the flat. Among the prayers is a prayer for possession, styled as a mandatory order and decree requiring the Appellants to remove themselves from the flat. The suit proceeds on the basis that the flat was purchased under an agreement for sale dated 11 June, 1965 by the First Respondent for a consideration of Rs. 1.80 lakhs and that the share certificate stands in the name of the First Respondent. The First Appellant and her spouse, who was the son of the Respondents, got married in 1982 and it has been stated that the Respondents permitted their son to reside with them as a member of the family. After he died in an accident on 29 October, 1994 it has been stated that the First Appellant "is now wrongfully claiming ownership/or share" in the said flat belonging to the First Respondent. For the purpose of these proceedings, it is not necessary to refer to the genesis or details of the dispute or the allegations of harassment made by the Respondents.

3. Issues were framed in the suit on 10 January, 2011. On 22 February, 2012 when the suit reached hearing, the Appellants asserted that in view of the decision of a Full Bench of this Court in Prabhudas D. Kotecha v. Manharbala J. Damodar , MANU/MH/0692/2007 : 2007 (5) Mh.L.J. (F.B.) 341 : 2007 (5) Bom. C.R. 1 the Court of Small Causes has exclusive jurisdiction to entertain and decide a suit against a gratuitous licensee. Hence, it was urged that the jurisdiction of this Court would be barred. In view of this defence, the following issue was framed as a preliminary issue:

"Whether this Court's inherent jurisdiction is barred".

The learned Single Judge has answered the preliminary issue by holding that the jurisdiction of this Court is not barred.

4. Counsel appearing on behalf of the Appellants submits that: (i) If the Appellants were to seek to establish a right to the premises, they would undoubtedly have to file a suit in the competent civil court; but in the present case, if the plaint is read in its entirety, it would be apparent that what the Respondents seek is possession of the premises from the Appellants; (ii) A suit for possession even against a gratuitous licensee is maintainable only before the Small Causes Court in view of the judgment of the Full Bench in Prabhudas D. Kotecha's case (supra); and (iii) In any case, even before the Small Causes Court, where a suit for eviction is filed, the question of title would have to be determined.

5. On the other hand, it was contended on behalf of the Respondents that: (i) A suit for a declaration under section 34 of the Specific Relief Act, 1963 would lie before this Court. The Respondents are required to seek such a declaration since the Appellants have asserted a claim and interest in respect of the premises on the ground that it is H.U.F. property; (ii) Once the Appellants have sought to interfere with or deny the title of the First Respondent in respect of the residential flat, the Respondents would necessarily have to seek and have sought a declaration before this Court on title and consequent to that, a decree for possession; (iii) The Small Causes Court would have no jurisdiction to adjudicate upon a question of title in view of the provisions of section 19(s) of the Presidency Small Causes Courts Act, 1882. Moreover, section 45 stipulates that nothing contained in Chapter VII (which would include section 41) shall be deemed to bar a party to a suit in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property.

6. A reading of the plaint in the suit instituted by the Respondents would indicate that they seek first and foremost a declaration of title to the residential flat as vesting in the First Respondent in view of the fact that the flat was purchased by him on 11 June, 1965 for a consideration of Rs. 1.80 lakhs. According to the Respondents, the deceased spouse of the First Appellant was a young child when the residential flat was purchased. The declaration has been sought in view of the fact that it has been averred in paragraph 3(d) of the plaint that the First Appellant is claiming ownership and/or a share in the residential flat. The suit is a declaratory suit within the meaning of section 34 of the Specific Relief Act, 1963. Under the proviso to section 34, no Court shall make any declaration where the Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The Respondents claim that they are entitled to possession and seek a mandatory injunction calling upon the Appellants to remove themselves from the residential flat.

7. The objection of the Appellants to the jurisdiction of this Court is founded on the provisions of section 41 of the Presidency Small Causes Courts Act, 1882 under which notwithstanding anything contained elsewhere in the Act but subject to the provisions of sub-section (2), the Court of Small Causes 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 the licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings. The Full Bench has held in Kotecha that this would cover a suit against a gratuitous licensee. Section 41 forms a part of Chapter VII of the Act of 1882. Section 45, however, stipulates as follows:-

"45. Nothing contained in this Chapter shall be deemed to bar a party to a suit, appeal or proceeding mentioned therein in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property."

Consequently, notwithstanding anything contained in any other provisions of that Chapter, including section 41, there is no bar to a party to a suit in which a question of title to any immovable property arises from suing in a competent court to establish his title to such property. Apart from this, section 19(s) of the Act of 1882 specifically stipulates that the Small Causes Court shall have no jurisdiction inter alia in suits for declaratory decrees. From these provisions, it is clear that a suit seeking a declaration of title and in consequence a decree for possession of the nature that has been sought would be maintainable before this Court and the jurisdiction would not be barred by the provisions of section 41 of the Presidency Small Causes Courts Act, 1882. The question of title cannot be decided by the Court of Small Causes. Whether the First Respondent has an absolute right of ownership as claimed is an issue which has to be decided in the suit before this Court in which a declaration of title is sought. The view of the learned Single Judge cannot, therefore, be held to be in error.

(Emphasis added)

23. The present case differs from Smita Rajeev Sah only in this particular, viz., that there is an admission of a gratuitous license, and there is a finding of the existence of a tenancy. Consequently, the relief of possession vis-à-vis a tenant could not be granted by the City Civil Court. However, the question of declaration of title and ownership is not one that the Small Causes Court could ever grant. Even if the title is admitted, a decree on admission could only be granted by the City Civil Court and never the Small Causes Court. The provisions of Section 45 of the Presidency Small Causes Court would bar the Small Causes Court from ever issuing any such declaration.

24. For this reason, prayers (a) and (b) of the suit can only be within the remit of the City Civil Court. Only prayer clause (c), seeking a decree of possession against the defendants would be outside the jurisdiction of the City Civil Court and within the exclusive jurisdiction of the Small Causes Court, now that there is a finding, after evidence, of the existence of a tenancy in favour of those defendants against whom the decree of possession in sought.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 291 of 2014 in Suit No. 6319 of 2005

Decided On: 31.07.2017

M.S. Shetty Vs.  Anoop Vyas 

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation:  MANU/MH/4533/2017 

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Whether suit for specific performance of contract is tenable before small causes court?

In the case of (ING Vysya Bank Ltd. v. Modern India Ltd.), MANU/MH/0066/2008 : 2008 (2) Bom. C.R. 255 the learned single Judge of this Court considered an application in section 9 of the Arbitration and Conciliation Act, 1996 for granting interim relief to a licensee against the licensor from terminating his license and taking over possession. In that case also the licensee claimed to be in possession of the licensed premises which was later renewable and consequently the right of extension/renewal of the license was claimed under the agreement. The respondent claimed that the application was essentially for specific performance of the agreement which relief could not be granted by the Court of Small Causes at Bombay under section 19(h) of the Act.

The Court considered that the substance and essence of the suit as required to be seen, to look to the kernel and not the chaff and to see the jural relationship between the parties upon the nature of the cause of action and the character of the reliefs. The Court also observed that in a suit relating to recovery of possession some of the reliefs may be structured around a claim for specific performance. If the theme and the foundation relate to recovery of possession such a relief could not be seen an isolation. Consequently the Civil Court's jurisdiction would have to be considered upon seeing the substance of the suit. The Court further observed that the basis to protect the possession against the dispossession in a preexisting relationship was important to consider and if that relationship was between the licensor and licensee (as also landlord and tenant or lessor and lessee) then the substance of the claim would be to protect the possession against recovery which would be a suit relating to possession. Hence it is observed in para 17 of the judgment that only a suit for specific performance simplicitor would not be covered. But if the suit was not for specific performance but essentially for continuation of the existing leasehold right it would be covered by the aforesaid legislation.

The Court noted that one of the reliefs was the execution of fresh leave and license agreement upon the declaration sought and not a bare relief of specific performance. Consequently it held that the Civil Court would be barred from trying such a suit.

IN THE HIGH COURT OF BOMBAY

Chamber Summons (L) No. 1075 of 2015 in Suit No. 1930 of 2002

Decided On: 26.06.2015

 Manilal & Sons Bombay Forigings Ltd. Vs. Manilal & Sons

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2016 Bom RC183.

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Whether civil court can decide issue as regards who was tenant after death of original tenant?

Thus, after demise of original tenant, first question from the averments in the plaint arises as to who is tenant under the Maharashtra Rent Control Act after death of Mathuraprasad Yadav (original tenant) when according to plaint itself, Mathuraprasad Yadav left legal heirs as mentioned in gynecology in paragraph 4 of the plaint, the question arose as to who derived tenancy as under the Maharashtra Rent Control Act 1999, legal heirs must agree as to who shall inherit tenancy from the original tenant as "tenant" within the meaning of the Act would be liable to tender rent to the landlord. In default of agreement between the legal heirs, the question can be decided by the Special court under the Maharashtra Rent Control Act, 1999.

12. The averments in the present case also indicate that the plaintiff was claiming as one of the co-tenants. In other words, the question as to who is tenant, is not yet determined by the Special court under the Maharashtra Rent Control Act, 1999. Thus, the question raised regarding relinquishment of tenancy rights was incidental and consequential relief which is close from the main relief as to who is tenant under the Maharashtra Rent Control Act, 1999. For all these reasons, it must be concluded, that the impugned judgment and order is not sustainable as the City Civil court had no jurisdiction to decide the question of tenancy which is required to be exclusively dealt with and decided under the Maharashtra Rent Control Act, 1999. In respect of the suit premises governed by the said Act, there was a clear bar of Section 33 read with Section 7(15) Clause (d) of Maharashtra Rent Control Act for City Civil court to entertain the suit.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 2 of 2013 with Civil Application No. 3849 of 2012 in First Appeal No. 2 of 2013

Decided On: 23.10.2013

 M/s. Sanyam Realtors Private Limited Vs. Shyamji Bhagirathi Yadav and Lalchand Purushottam Yadav

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2014(1) MHLJ 244,2014(1) AIR Bom R 98,2014(3) ALLMR 889

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Whether licensee eviction suit can be converted in to tenant eviction suit at mumbai ?

To my mind, the plea raised by the defendant is a meaningless plea for more than one reasons. Firstly, it is futile contention now to contend that the suit will have to be filed in two different courts. A licensee is equally entitled to protection under the Rent Act as a tenant. The fact that the defendant would be a licensee governed by the amended definition of the word "tenant" and especially a "deemed tenant" or a 'protected licensee" within the meaning of the Rent Act has not been disputed and cannot be disputed. If this is the position, then a suit against such deemed tenant or protected licensee has got to be filed in the same Court in which the suit against tenant can be filed. As a matter of fact the alternative contention based on the plea of license raised by the plaintiff's is of no consequence whatsoever; because even assuming that the defendant was inducted on the premises only as a licensee, still the protection that he gets from the Court is the same. The Court in which suit against a protected licensee can be filed is the same Court in which the suit against a tenant can be filed. The learned Judge who will be hearing the suit will be the same one, irrespective of the question whether the suit is filed against a licensee or against a tenant. The plea that there is some jurisdictional defect as regards the entertainment of the suit is, therefore, meaningless on the face of it. The revision application is, therefore, liable to be dismissed on this short ground itself.
IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 755 of 1982

Decided On: 21.03.1984

 Kamruddin Shabuddin Tamboli Vs. Allauddin Fattemohamed Malik and Ors.

Hon'ble Judges/Coram:
S.G. Manohar, J.

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