CAUSEWAY CHEMIST Vs. ABDUL KADIR MOHAMED HUSSAIN KASKAR

JUDGEMENT

(1.) AN interesting question of jurisdiction arises in this appeal.

(2.) APPELLANT is the lesses of premises described as shop No. 3 and under an agreement dated 2-6-1955 (Ex. A), respondent was permitted to put up a wooden cupboard upon a portion of the said premises. The cupboard was to be used for storage, display and sale of hosiery and ready-made garments. The cupboard had a bulb for illumination of its contents. The consideration payable to appellant was Rs. 65/- per month inclusive or electricity charges. By notice dt. 2-11-1972 appellant claimed to have revoked the licence and called upon respondent to remove the cupboard. Respondent by reply dated 28-11-1972 set up the plea of being a tenant-the alleged tenancy being protested under the Bombay Rent Act. Faced with this reply, appellant filed a suit in the Civil Court seeking injunctions-mandatory and prohibitory. The first was that defendant remove the cupboard from shop No. 3 and the second that he do not refix the cupboard to the shop or any part thereof. Respondent in his written statement raised various defences including the plea that the suit was not within the jurisdiction of the Civil Court. Appellant instead of claiming possession as it was bound to had sought a mandatory injunction. This was seeking possession and clever drafting could not conceal the attempted circumvention of the exclusive jurisdiction vested in the Small Causes Court. To this, appellants reply was that the cupboard was a chattel, that the permitted affixation thereof to the shop did not create an interest in the shop, that there was neither a lease nor a licence vis-a-vis immovable property and that the reliefs claimed were the ones solicitable and solely within the jurisdiction of Civil Court. A preliminary issue relating to jurisdiction was framed. The same having been answered against the appellant, it questions the finding in this appeal.

(3.) A proper understanding of the point for decision requires the mention of the relevant parts of Ex. A and the plaint. The preface to Ex. A speaks of the document having its origin in a request of the licensee addressed to the licensor to be allowed to "use and occupy. . . a portion of the shop". The purpose is specified as "installation therein a cupboard for exhibiting therein hosiery and ready-made clothes and for effecting the sales of the said articles". Clause 1 speaks of the licensor allowing the licensee a licence to occupy "only a portion of the shop". The object of the permitted occupation is given out to be "installing therein a cupboard". The uses to which the installed cupboard will be put to are "exhibiting hosiery and ready made garments for effecting sale of the said articles" Clause 2 reserves to the licensor the "use of the remaining portion of Shop No 3". The third clause enjoins the licensee to pay compensation and electricity charges aggregating Rs. 65/- p. m. for "use and occupation of the said portion". Clause 4 binds the licensee to pay increased compensation proprate if there be an enhancement of the property taxes pursuant to his "using and occupying the said portion for purposes aforesaid". Clause 7 says that the agreement does not in any way confer a tenancy upon the licensee. Clause 8 absolves the licensor of "any loss or damage which may be caused by pilferage or loss" to the licensee. The goods of the licensee in the cupboard were to be there "solely at the risk of the licensee". The plaint which is the sole basis for ascertaining jurisdiction at the stage at which the suit was, has now to be looked into. Para 2 speaks of respondent having been permitted to put a wooden cupboard upon a portion of the shop". Para 6 describes the refusal of the respondent to remove the wooden cupboard attached to the wail and he trellis of appellants shop as an "act of trespass upon plaintiffs shop". The reliefs sought are a mandatory injunction to respondent "to remove his wooden cupboard from the portion of the plaintiffs shop" and a prohibitory injunction from putting up the said cupboard or any other cupboard "on the said portion of the plaintiffs said ship".