FAIJULBEE HAJEEL Vs. YADALI AMIR SHAIKH ANSARI

JUDGEMENT

(1.) The facts involved in this petition are few and the point of law that arises for our determination is also a simple one. Though this civil revision application which could have been in the normal course disposed of by the Single Judge it has found its way before the Division Bench because it was thought that a judgment of a Single Judge of this Court requires a second look in the context of the amendment of section 41 of the Presidency Small Causes Courts Act, 1882, hereinafter referred to as "The Small Causes Court Act". That judgment is delivered by D.N. Mehta, J., on 5/6 February, 1981 while disposing of the Notice of Motion No. 1310 of 1980 (Chamanlal Dutta v. Jharna Ghosh) on the file of this Court. One would have normally thought that the point which arose in this petition has been settled finally as far as this Court is concerned by the judgment of the Division Bench of this Court in (Shiavax C. Cambata v. Sunderdas Ebij) 52 Bom.L.R. 381. However, in view of the large scale amendment that was made by the Bombay Legislature by substituting a new chapter, being Chapter VII in place of the Original Chapter VII of the Small Causes Courts Act, the question has to be considered afresh.

(2.) The respondent filed a suit, being S.C. Suit No. 6099 of 1982, in the City Civil Court at Bombay against the petitioners for recovery of possession of a room in a hut situated in Modi Compound, Ghodapdeo in Bombay. The respondent specifically alleged that he was at all material times in possession of the said room, hereinafter referred to as "the suit premises" and the petitioners dispossessed him of the suit premises on 21st October, 1982. The dispossession took place, according to the respondent otherwise than in accordance with law and, therefore, the respondent was constrained to file the aforesaid suit under section 6 of the Specific Relief Act. The suit was filed on 28th October, 1982. After narrating the circumstances in which he came in possession on 21st October, 1982. He also specifically averred that the dispossession took place otherwise than in accordance with law and thereafter in paragraph 11 of his plaint he has mentioned as follows :---

(3.) The petitioners resisted the suit by contending, among other things, that the suit filed by the respondent in the City Civil Court at Bombay was not maintainable in view of the provision contained in section 41 of the Small Causes Courts Act. According to the petitioners, under the said provisions namely section 41 of the Small Causes Courts Act, a suit between a tenant and a landlord relating to the recovery of possession of any immoveable property situated in Greater Bombay must be filed in the Court of Small Causes which alone had jurisdiction to entertain and try such a suit, Since, according to the petitioners, the respondent has alleged in his plaint that he was in possession of the suit premises as the tenant and that the petitioners who are the landlords had dispossessed him, the suit is essentially one between the tenant and the landlord and it is also one relating to the recovery of possession of immoveable property. In view of this fact, said the petitioners, the suit of the respondent could not be entertained by the City Civil Court at Bombay. It could only be entertained and tried by the Court of Small Causes at Bombay. The petitioners also denied the fact of dispossession; indeed they went to the extent of contending that the respondent was not in possession of the suit premises at all.