SHAMSHAD MEHBOOB ALI Vs. MOHAMED MEHBOOB ALI

JUDGEMENT

(1.) Heard learned counsel for the parties. They agree that the Appeal from Order and the Writ Petition can be disposed of by a common order.

(2.) The challenge in the Appeal is to the order dated 29 August 2016, by which, the learned Trial Judge has directed the appellants (defendants) to remove themselves and to refrain from entering into the suit premises pending disposal of the suit. In the Writ Petition, the challenge is to the order dated 29 August 2016, by which, the learned Trial Judge has dismissed the appellants' notice of motion for framing of preliminary issue under section 9A of the CPC.

(3.) Mr. Thorat, learned counsel for the appellants - petitioners has submitted that the suit as instituted by the respondents was not maintainable as the reliefs in the plaint were undervalued. Mr. Thorat also submits that the suit was basically to seek eviction of gratuitous licensees and therefore, under the provisions of the Presidency Small Causes Court Act, 1882, such a suit was not maintainable before the City Civil Court, Mumbai, but, ought to have been filed before the Small Causes Court in Mumbai. Mr. Thorat submits that the moment the defendants raised preliminary objections to the maintainability of the suit at the time of hearing of an application for interim relief, the learned Trial Judge had no option but to frame such preliminary issue and thereafter decide whether it has jurisdiction in the matter. Mr. Thorat has placed reliance upon the decisions in case of Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai (Dead) through L.Rs. and Ors., AIR 2015 SC 2006, Prabhudas Damodar Kotecha and Anr. vs. Manharbala Jeram Damodar and Ors., 2007 (5) Bom. C.R. 1 and John Francis Anthony Gonsalves and Anr. vs. Colin M. Rebello, 2014 (2) ALL MR 651, in support of his submissions.