Bombay High Court
Sandeep Singh S/O Amriksingh Jolly And ... vs Tapan S/O Nirendramohan Bhattacharjee on 1 August, 2025
2025:BHC-NAG:7667
1 6-cra-139-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO. 139 OF 2019
Sandeep Singh S/o. Amriksingh Jolly and another
Vs.
Tapan S/o. Nirendramohan Bhattacharjee
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri Masood Sharif, Advocate for applicant.
Shri R. R. Gour, Advocate for non-applicant.
CORAM :- M. W. CHANDWANI, J.
DATED :- 01.08.2025 Heard.
2. The applicants, who are defendants in RCS no. 223/2017 filed this Civil Revision Application against the order dated 05.12.2019 passed by the Trial Court below Exh. 29, thereby rejecting the application of the applicants for rejection of plaint under Order 7, Rule 11 of the Code of Civil Procedure.
3. The brief facts of the case are as under:-
The non-applicant/original plaintiff has filed a suit for permanent injunction and to protect his possession over the suit property. According to the plaint, on allegation of threat given by the applicants and apprehension of being dispossessed at the hands of the applicants, a suit came to be filed by the non-applicant. The applicants/original defendants appeared in the said RR Jaiswal 2 6-cra-139-19.odt suit and filed an application for rejection of plaint on the premise that the non-applicant claimed himself to be the licensee of one Nathan Shamuvel Wasnikar and therefore, the non-applicant claimed his title on the basis of a license. Therefore, the suit filed by the non-applicant lies before the Small Causes Court and the Civil Court has no jurisdiction to entertain the suit. The learned Judge rejected the application by passing the impugned order.
Feeling aggrieved with the dismissal of the application for rejection of plaint, the present Civil Revision Application is filed.
4. Mr. Sharif, learned counsel for the applicants/defendants vehemently submitted that the non-applicant/plaintiff has derived his title on the basis of a license from Nathan Wasnikar. Therefore, according to him, once the non-applicant claims himself to be a licensee, his suit cannot be entertained by the Civil Court and it is the Court of Small Causes that can try the suit filed by the non-applicant/plaintiff. According to him, irrespective of the fact that the applicants/defendants in the suit are a third party, the relation of licensee and licensor is present. The sum and substance of the argument of the learned counsel for the applicant is that, a person who derives his title by virtue of a license cannot file a suit before the Civil Court even against a person other than the licensor. To buttress his submission, he seeks to rely upon the decisions in the following cases :-
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i) Mansukhlal Dhanraj Jain and others Vs. Eknath Vithal Ogale [(1995) 2 SCC 665];
ii) Prabhudas Damodar Kotecha and another Vs. Smt. Manharbala Jeram Damodar and others [2007 (5) MhLJ 341];
iii) Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi [(2017) 14 SCC 373];
iv) Subhash Joshi and another Vs. Mohd. Sultan S/o. Abdul Gani and another [2006 (2) MhLJ 612] and
v) Central Warehousing Corporation, Mumbai Vs. Fortpoint Automotive Pvt. Ltd. , Mumbai [2010 (1) MhLJ 658].
5. Per contra, Mr. Gour, learned counsel appearing for the non-applicant/plaintiff supported the impugned order and submitted that jurisdiction of the Court has to be decided on the basis of the averments made in the plaint. The plaint nowhere depicts that the non-applicant/plaintiff is a licensee of the applicants/ defendants. According to him, the dispute between landlord and tenant or licensor and licensee only can be tried by the Small Causes Court. Hence, he sought rejection of the Civil Revision Application.
6. It will be relevant to refer here, Section 41 of the Presidency Small Cause Courts Act, 1882 (as amended by Maharashtra Act 24 of 1984) (for short, "the Act of 1882"), which runs as under:-
RR Jaiswal 4 6-cra-139-19.odt "S. 41. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small cause Court.-
(1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-section (2), the Court of Small Cause shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of any licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, 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 applies."
7. The law on the subject has evolved via precedents of this Court as well as of the Hon'ble Supreme Court. Way back in the year 1995, the Supreme Court in the case of Mansukhlal Dhanraj Jain (supra) and subsequently in Vaishali Abhimanyu Joshi (supra) has interpreted the phrase 'relating to recovery of possession' and held that a suit for permanent injunction restraining the respondent from effecting forcible recovery of such possession of the licensee would be squarely covered by a wide sweep of the said phrase. This view has been consistently followed in various decisions of this Court as well as the Hon'ble Supreme Court. The said observation has been made in para no. 16 of the judgment in the case RR Jaiswal 5 6-cra-139-19.odt of Mansukhlal Dhanraj Jain (supra), which is reproduced hereunder:-
"16. It is, therefore, obvious that the phrase 'relating to recovery of possession' as found in Section 41(1) of the Small Causes Court Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee plaintiff would squarely be covered by the wide sweep of the said phrase, Consequently in the light of the averments in the plaints under consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits could lie within the exclusive jurisdiction of Small Causes Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits."
8. In the case of Prabhudas Damodar Kotecha (supra), the Full Bench of this Court has held that even a gratuitous license is covered under the definition of licensor and licensee and therefore, the suit between a licensor and a gratuitous licensee is also triable by the Small Causes Court and the Civil Court has no jurisdiction. The relevant para no. 62 of the decision, is reproduced as under:-
"62. Thus, looking at the controversy raised in these petitions from all points of view, we answer the questions formulated by us as follows : The expression "licensee" used in Section 41(1) of PSCC Act does not derive its meaning from the expression "licensee" as used in Sub-section (4A) of Section 5 of the Rent Act. The expression licensee used in Section 41(1) is a term of wider import so as to mean and include a "gratuitous licensee" also. In view of this, we hold that a suit by a licensor against a gratuitous licensee is tenable before the Presidency Small Cause Court under Section 41 of PSCC Act."
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9. Lastly, the decision in the case of Central Warehousing Corporation, Mumbai (supra) has been relied upon by the learned counsel for the applicants wherein, the Full Bench of this Court has held that sub- Section (1) and (2) of Section 41 of the Act of 1882 will prevail upon the Arbitration and Conciliation Act, 1996 and even if the license agreement carries an Arbitration clause, the exclusive jurisdiction of the Small Causes Court under Section 41 of the Act of 1982 will not be ousted.
10. Thus, from the various consistent precedents and the settled law it can be carved out that, if the suit is between a landlord and tenant; a licensor and licensee or even a gratuitous licensee for restraining the licensor from dispossessing the licensee/tenant, it would lie before the Small Causes Court.
11. Here the non-applicant/plaintiff has come up with a case that as his father has been inducted in the premises by Nathan Wasnikar and since then, he is enjoying the possession of the suit property even after the death of his father. Para no. 4 of the plaint depicts that since the last two months, the applicants/defendants are threatening the non-applicant/plaintiff to vacate the suit premises. On enquiry by the non-applicant/plaintiff regarding the authority to get the suit premises vacant, no documents of title or right of the applicants/ defendants over the suit property has been shown to him.
RR Jaiswal 7 6-cra-139-19.odt Apprehending dispossession at the hands of the applicants/defendants, the suit came to be filed.
12. The Trial Court has held that on a bare perusal of the statements made in the plaint, the suit does not appear to be between a licensor and licensee and therefore, rejected the application for rejection of the plaint. As stated above, for claiming ouster of jurisdiction of the Civil Court, it is to be established from the averments made in the plaint that the suit is between landlord/licensor and tenant/licensee and it is either for recovery of possession or for restraining the landlord/licensor from disturbing possession of the tenant/licensee. It is also one of the cardinal principles of law that while deciding the jurisdiction of the Court, the averments made in the plaint are to be considered.
13. With the assistance of the both the learned counsels for the parties, I have gone through the plaint. Nowhere in the plaint has the non-applicant/plaintiff claimed that the applicants/defendants are licensors. Therefore, the findings recorded by the Trial Court cannot be faulted with. I am not in agreement with the argument advanced by Mr. Sharif, learned counsel for the applicants that even the suit against a third party by a person who derives the title as a licensee is to be tried by the Small Causes Court. Therefore, the application fails and hence, it is dismissed.
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14. At this stage, the learned counsel for the applicants submits that the interim order is operating in favour of the applicants, whereby the proceedings before the Trial Court have been stayed and requested that it shall be continued for a further period of four weeks to take recourse against this order.
15. It is to be noted that since 2019 the matter has been stayed and the Trial Court could not proceed in the matter in wake of the stay granted by this Court. Hence, I do not find that the case warrants further stay on the proceedings before the Trial Court. Therefore, the request of the learned counsel for the applicants is refused.
(M. W. CHANDWANI, J.) RR Jaiswal