CHAMANLAL DUTTA Vs. JHARNA GHOSH

JUDGEMENT

(1.) The plaintiff has taken out this Notice of Motion dated the 19th of September, 1980 praying for the appointment of the Court receiver, High Court, as the suit premises i.e. Flat No. 202, Venus Appartments, 20th floor Twin Star Co-operative Housing Society Ltd., Cuff Prande, Colaba, Bombay-5. The plaintiffs has further prayed for an Interim Order restraining the defendants from entering into or remaining upon or occupying the said premises in the Venus Apartments. The plaintiff has also prayed for the appointment of a Commissioners to take an inventory of the articles lying in the said premises in the Venus Apartments.

(2.) During the course of the arguments, Shri Mehta, learned Counsel for defendant No. 1 and Shri Thakkar, learned Counsel for defendants 2 and 3 raised an objection with regard to the jurisdiction of this Court to entertain the suit. According to learned Counsel, in view of the provisions of section 41 of the Presidency Small Causes Courts Act, 1881 this Court cannot entertain this suit. I am, therefore, required to frame the issue of jurisdiction as a preliminary issue, pursuant to the provisions of section 9-A of the Civil Procedure Code and to try the same. Section 9-A(1) of the Civil Procedure Code provided :---

(3.) Shri Thakkar, pointed out that under the provisions of amended section 41 of the Presidency Small Causes Courts Act, 1882 which was substituted for the original by the Maharashtra Act (XIX) of 1976, all suits and proceedings between a licensor and licensee and a landlord and a tenant relating to the licence fee or charges or rent therefore were triable exclusively by the Court of Small Causes. Shri Thakkar pointed out that the provisions of section 41(1) were pari materia with the provisions of section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act") save and except that in section 28 it was only in case a claim or question arose out of the Rent Act, in which case the suit was triable exclusively by the Court of Small Causes. However, under section 41 of the Presidency Small Causes Courts Act, no such reservation was made. Shri Thakkar, therefore, contended that the provisions of section 41 were wider in their implication then the provisions of section 28 of the Rent Act. The plaint wherein the plaintiff claimed to be a tenant of the defendants. The relevant passage relied upon by Shri Thakkar is the following :---