KISHAN ARJUNDAS MOTWANI Vs. KESHAV GURDINOMAL MAKHIJA

JUDGEMENT

(1.) This appeal is directed against the order dated 13th February, 1981 passed by the learned 2nd Additional Principal Judge, City Civil Court, Bombay, in S.C. Suit No. 842 of 1974 directing the plaint to be returned for presentation to proper Court on the ground that the Court had no jurisdiction to decide the suit.

(2.) The case of the appellant plaintiff is that the alongwith his brother is the sub-tenant of an office room on 4th floor, Nanabhoy Mansion, Sir Phirozeshah Mehta Road, Bombay-400 001. The sub-tenancy rights in the said premises were originally allotted to the plaintiffs father by the Custodian of Evacuee Property. The plaintiffs father expired on 9th July, 1967. A space which is enclosed in a corner of the room by a low wooden partition was originally used by the plaintiff and his father. The respondent-defendant was permitted to the use thereof as licensee for 11 months under the Agreement Ex.A annexed to the plaint on his agreeing to pay monthly compensation of Rs. 250/-. The plaintiff further averred that the defendant, after the expiry of the period of the licence, failed to remove himself and his belongings from the suit premises and thus occupied the same as a trespasser. The plaintiff by his notice dated 20th August, 1973 called upon the defendant to remove himself from the suit premises, but the defendant did not comply with the notice. The defendant replied the notice by his Advocates letter dated 24th September, 1973. The plaintiff further averred that the defendant failed to pay compensation from 1st April, 1973 at the rate of Rs. 250/- per month and the plaintiff was entitled to recover from the defendant a sum of Rs. 2,250/- as compensation up to 31st December, 1973 and future compensation, after holding an inquiry as per Order XII, Rule 20, C.P.C. from the date of filing of the suit till possession. The plaintiff further averred that the suit premises being situated at Bombay and the whole cause of action having arisen at Bombay, the City Civil Court had jurisdiction to entertain the suit. With these averments the plaintiff claimed the following reliefs, the remaining reliefs not being relevant for the decision of this appeal:

(3.) The respondent-defendant by his written statement dated 10th April, 1974 opposed the claim of the appellant-plaintiff. The defendant inter alia contended that the City Civil Court had not jurisdiction to entertain and try the suit, as it was between a landlord and a tenant and at any rate between a landlord and a deemed tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973 hereinafter referred to as "the said Amendment Act"), and therefore, the only Court that had exclusive jurisdiction to entertain and try the suit was the Court of Small Causes at Bombay. He further submitted that the plaintiff filed the suit on the basis of the Agreement of Leave and Licence dated 6th May, 1972 which expired in the normal course on or above 8th April, 1983, so that as on 1st February, 1973 even according to the said Agreement of Leave and Licence the licence of the defendant was subsisting so that under the provisions of the said Amendment Act the defendant must be deemed to be a tenant of the plaintiff and the suit was exclusively triable by the Court of Small Causes at Bombay. The defendant also submitted that the suit really was for possession of the suit premises and, therefore, the plaintiff should have paid the Court-fees, treating the suit for possession of the suit premises. He submitted that the suit was not properly valued for the purpose of Court-fees and proper Court-fees were not paid. He submitted that the relations between the plaintiff and the defendant were as of landlord and tenant and, therefore, the Court of Small Causes at Bombay had the exclusive jurisdiction to entertain and try any dispute between landlord and tenant, and the suit as framed was liable to be dismissed.