BHAGA GUJASING PAWAR Vs. SHRILEKHA SITARAM GAVIT

JUDGEMENT

(1.) HEARD the learned Counsel apparing on behalf of the appellant and the learned Counsel appearing on behalf of the respondent.

(2.) THE appellant- original plaintiff is challenging the order passed by the civil Judge, Senior Division, Nasik, dated 9th July, 2001 whereby it held that the Civil Court has no jurisdiction to entertain the suit as filed by the plaintiff-appellant herein. The trial Court, therefore, directed that the plaint be returned to the plaintiff for proper presentation to the appropriate authority having jurisdiction under the Bombay Rent Act.

(3.) THE brief facts giving rise to the present appeal from order are as under : the plaintiff filed the suit in the Court of Civil Judge, Senior Division, nasik being Special Civil Suit No. 216 of 1995, praying for possession of the suit premises from defendant No. 1 and for damages and mesne profit The case of the appellant-original plaintiff was that he and respondent No. 2-original defendant No. 2 were friends. He was owner of the residential flat bearing No. F-7, admeasuring 542 square feets, situate at Labdhi Apartments, shingada Talao, Nasik, (for short hereinafter referred to as "the suit property" ). It is the case of the plaintiff that he is a Doctor and is working as a medical Officer in the Nasik Municipal Corporation Hospital and that he was allotted a staff quarter by the Corporation, therefore, he was staying in the said Corporation quarter. Respondent Nos. 1 85 2 are husband and wife and respondent No. 2 is a Doctor, and is also working in Nasik Corporation Hospital as a Medical Officer. The plaintiff knew respondent No. 2 for quite sometime. Respondent No, 2 was in need of some premises and therefore on the request being made by respondent No. 2, the appellant allotted the suit property on leave and licence basis. It was agree that respondent No. 2 will pay rs. 500/ - per month towards the licence fees. It was further specifically averred in the plaint that the relations between respondent Nos. 1 and 2 become strained and the petitions were filed by respondent Nos. 1 and 2 against each other in the Court and Police Station and in view of the strained relations, respondent No. 2 left the suit property and started residing in Nishiganda Co-operative Society and he surrendered the rights under the licence in respect of the suit property in favour of the plaintiff. Though, it was further claimed that respondent No. 2 had left the suit property, respondent No. 1 continued to stay therein. In paragraph No. 5 of the plaint, it was averred by the plaintiff that there are no contractual relationship between the plaintiff and respondent No. 2. It was further averred that too, there was no statutory relation between the plaintiff and respondent No. 1 quay the suit property. It was further averred in the plaint that respondent No. 1 was rank trespasser. It was further averred that defendant No. 1 did not have any independent right in respect of the suit property and after the surrender of the licence by respondent No. 2, she had no right to continue to stay in the suit property. 3-A. Respondent No. 1 filed the written statement and claimed that she was the tenant of the suit property. Even in the reply given to the notice which was sent by the plaintiff/appellant herein, she has claimed that she is a tenant in the suit property. Respondent No. 2 filed the separate written statement and supported the claim of the plaintiff. Respondent No. 1 also raised issue regarding the maintainablity of the suit and it was her case that the suit was barred by section 28 of the Bombay Rent Act and the Civil court has no jurisdiction to entertain the said suit. Trial Court framed various issues. The relevant issues for the purposes of deciding this appeal from order are Issue Nos. 5, 7 and 8, which are reproduced hereinbelow :