VASHDEV PRAKASH Vs. VIMAL PREMCHAND HINDUJA MRS

JUDGEMENT

(1.) This appeal assails the dismissal of a Motion taken out by the plaintiff/Appellant for an injunction to restrain the Respondents/Defendants from interfering with his alleged possession and enjoyment over the part of the premises described in para 1 of the plaint.

(2.) Plaintiff, which is described as a partnership registered under the Partnership Act, but is in reality partner Prakash Hinduja instituted the suit out of which this appeal arises, on 28th November, 1984. Briefly, the case of the plaintiff was that it had its place of business at the suit premises where from was carried on business as an importer, Shroff and Financier. Defendants 1 and 2 were members of a co-operative Housing society which owned building "Neelkanth". They and defendants 3 to 5 also were carrying on the same business as the plaintiff in the suit premises. Plaintiff came on the scene in 1966 when the premises were owned by one S. Mathuradas. The licence fee was being paid by the plaintiff to a firm known as M/s. Gangadas Ramdas comprising Defendant 3 and Fetehchand Gangadas (since deceased). The monthly licence fees of Rs. 118.75 ps. continued to be paid upto March 1982. Thereafter, defendant 3 stopped accepting the plaintiffs compensation, making the unacceptable demand that the same be paid in cash and that too without any receipt. The arrears were remitted twice by money order but defendant 3 declined to accept the same. Just before the institution of the suit, Prakash Hinduja noticed attempted alterations of the premises by defendants 2 to 5. The contemplated alteration was designed to exclude plaintiff from the suit premises. A permanent injunction was claimed to restrain the defendants from doing anything which would interfere with plaintiffs access to and use of the suit premises for carrying on business as of yore. Alongside the institution of the suit, a Motion was taken out to obtain an interim injunction. Upon a request made by the plaintiff a Commissioner was appointed and that officer on 1 December, 1984 submitted a report. What is of importance in that report, is, the Commissioner noticing the existence of the equipment of a telephone numbered 298780 which admittedly stands in the name of the plaintiff firm. A box and a cushion admittedly belonging to Prakash Hinduja were lying outside the suit premises. As to how they came there need not detain me, for the appeal can be disposed of on the limited ground of lack of jurisdiction. The learned Judge hearing the Motion dismissed the same and almost all the findings recorded by him go against the plaintiff. I make it clear that I have serious doubts about the correctness of certain findings reached by the learned Judge. This is made clear, last the Court having jurisdiction when approached, allows it itself to be swayed by the findings recorded by the learned Judge whose order is impugned in the present appeal. For the purposes of the appeal before me the short question is whether the City Civil Court where the suit has been instituted and the Motion heard, had jurisdiction to decide the suit and the Motion ? My finding is in the negative and I dismiss the appeal for the reasons given below :---

(3.) Reading the plaint, it is clear that the plaintiff claims to be in possession as a licensee and apprehending the dispossession otherwise than in accordance with law, has solicited the relief of a prohibitory injunction to prevent the defendants from talking the law into their own hands to accomplish the object of dispossessing plaintiff from the premises. Can a case of this nature where the relief claimed is that of an injunction be entertained by the City Civil Court? That Court is for the purposes of Greater Bombay the ordinary Civil Court. There are statutes which clearly exclude the jurisdiction of an ordinary Civil Court to entertain suits of this nature. These are Presidency Small Cause Courts Act, 1882 (PSCC Act) and the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 (Rent Act). Mr. Ketkar for the appellant submitted that section 28 of the Rent Act did not apply because that section did not govern cases "relating to recovery of possession" as between a licensor and licensee. If that be the case, section 41 of the PSCC Act is attracted. This section applies to all such actions for "relating to recovery of possession" as between a licensor and licensee or a landlord and tenant not governed by the statutes mentioned in sub section (2) of section 41. In sub-section (2), the statues mentioned are the Rent Act, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force. Mr. Ketkar tried to avail of section 38 of the Specific Relief Act, 1963 as being a suit falling within the expression "any other law for the time being in force" appearing in section 41(2) of PSCC Act. It is not possible to agree with this submission. This is for the reason that section 41(2) of the PSCC Act attracts suits or proceedings "for the recovery of possession of any immovable property and not like section 41(1) which embraces suits "relating to the recovery of possession of any immovable property". The words used in sub-section (1) of section 41 would cover suits under section 38 of the Specific Relief Act. Turning to authorities, the matter is no longer open to doubt. A similar question arose in Civil Revision Application No. 212 of 1985. The said CRA was referred to a Division Bench by His Lordship Chief Justice K. Madhava Reddy by an order dated September 20, 1985. When the matter came up before the Division Bench consisting of Sawant and Guttal, JJ., there was difference of opinion between them. In accordance with the rules of business the matter was referred to a third Judge, who happened to be Pendse, J. Pendse, J., agreed with the view of Guttal, J., and held that the jurisdiction of the Court of Small Causes would not be ousted merely because an injunction had been claimed, where, in other respects, the claim could be said to be a suit or proceeding "relating to recovery of possession". Pendse, J., observed---