EKNATH VITHAL OGALE Vs. MANSUKHLAL DHANRAJ JAIN

JUDGEMENT

(1.) This Revision application is placed before me in accordance with the directions given by the learned Chief Justice on August 31, 1987 in view of the difference between Mr. Justice Sawant and Mr. Justice Guttal on the questions as to whether the suit instituted by the respondents in the City Civil Court, Bombay was maintainable.

(2.) The plaintiffs instituted Suit No. 1290 of 1984 in the City Civil Court on February 28, 1984 claiming that since December 1974 the plaintiffs are in possession of shop No. 4, Meghji Vallabhdas Trust Building, Dadar, Bombay. The defendant is tenant of shop premises. The plaintiffs claim that plaintiff No. 1 paid to defendant Rs. 18,500/- and the defendant handed over the premises under an irrevocable leave and licence. The plaintiffs asserted that it was agreed that plaintiffs No. 1 would pay to the defendant or the landlords of the premises the amount of monthly rent. According to the plaintiffs, the rent payable by the defendant to the landlords was Rs. 13.30 per month. The plaintiffs claim that an amount of over Rs. 20,000/- was spent for carrying out improvements in the premises. It is claimed that the defendant failed to pass any receipts inspite of demand; but on the other hand on February 27, 1984 the defendant demanded monthly charges at the rate of Rs. 200/- per month instead of Rs. 13.30. The plaintiffs claim that when the demand was turned down the defendant threatened to physically throw out the plaintiffs from the premises. The plaintiffs, therefore, approached the Court and the relief sought was a permanent injunction restraining the defendant from disturbing the plaintiffs peaceful enjoyment and possession of the suit shop.

(3.) The plaintiffs took out Notice of Motion for a temporary injunction pending the suit. The defendant appeared before the learned Judge and raised the preliminary objection to the jurisdiction of the Court to entertain and try the suit. The defendant claimed that the relief was sought by the plaintiffs relating to the possession of the shop on the strength of alleged licence granted by the defendant and such a suit could be tried only by the Court of Small Causes in exercise of powers under section 41 of the Presidency Small Causes Court Act, 1882. The preliminary objection was turned down by the judge of the City Civil Court by order dated December 21, 1984 and the defendant preferred the present Revision application to this Court. The petition was placed for hearing before Chief Justice K. Madhava Reddy, and by judgement dated September 20, 1985 the petition was referred to the Division Bench, as the learned Judge felt that the suit was for injunction simpliciter which does not involve any inquiry into the status of the plaintiffs and therefore can be entertained by the City Civil Court. The learned Judge referred the petition to Division Bench as there were earlier decisions which according to the learned Judge required reconsideration.