ARUN V SUBHEDAR Vs. SHYAMCHARAN BHAGWATI PRASAD TIWARI

JUDGEMENT

(1.) RULE, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the respondents waives service. By consent of Counsel and at their request taken up for hearing and final disposal.

(2.) THE first respondent instituted a declaratory suit, RAD Suit No. 918 of 2000 before the Court of Small Causes for a declaration and injunction. The suit was instituted in respect of an open space admeasuring 10' x 10', described as being next to Shop Nos. 8 and 9, abutting on N. S. Road, Pandurang Niwas, mulund (West), Mumbai. According to the first respondent, the suit premises were let out to him in the year 1965-66 on a monthly rent of Rs. 162/ -. The suit was instituted on an apprehension that the petitioner, the original defendant, was attempting to get the premises vacated by recourse to unlawful means. An application for interim relief was moved before the trial Court. By an order dated 7th March 2001, the learned trial Judge discharged the interim notice and declined to grant interim relief on the ground, inter alia that the premises consisted of open land. The learned trial Judge held that as a result of the definition of the expression "premises" in section 7 (9) of the Maharashtra Rent control Act, 2000, purely open land, not being appurtenant to a building or a part of a building given on rent, would not attract the provisions of the Act. The order of the trial Judge was affirmed in appeal by the Appellate Bench of the Court of small Causes on 31st June, 2002. Thereafter, it is common ground that the petitioner applied before the Court of Small Causes for withdrawal of the suit on 27th November, 2002 with liberty to institute a fresh suit on the same cause of action. Such liberty was granted and accordingly the suit was dismissed as withdrawn. Thereafter, the first respondent instituted a suit before the City Civil court. In the said suit, a preliminary issue was framed on the question as to whether the suit would be maintainable in the City Civil Court. The petitioner had raised an objection to the jurisdiction of the City Civil Court claiming that ex-facie the averment in paragraph 1 of the Plaint was that there was a relationship of landlord and tenant between the parties. Accordingly, it was alleged that the City Civil Court will have no jurisdiction. The objection was overruled by the City Civil Court in an order dated 17th June, 2005 which is impugned in these proceedings.

(3.) ON behalf of the petitioner it has been submitted that in the earlier suit which was filed in the Court of Small Causes, the application for interim relief was refused by the learned trial Judge and one of the grounds of refusal was that the Maharashtra Rent Control Act, 2000, did not cover an open space of land which was not appurtenant to a structure which had been let out. However, it was submitted by Counsel that the inapplicability of the provisions of the maharashtra Rent Control Act, 2000, would not mean that the suit was not a suit falling in the description contained in section 41 of the Presidency Small Cause courts Act, 1882. In view of the settled position in law, it was submitted that the presidency Small Causes Court would have exclusive jurisdiction to try a suit of the nature reflected in section 41 of the Act of 1882. It was his case that a bare perusal of the Plaint would indicate that this is a suit between a landlord and tenant relating to the recovery of possession of immovable property situated in greater Bombay and in view thereof, the suit was maintainable with reference to the provisions of section 41 and ought to have been presented only before that court.