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
