TMI Blog1993 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten statement. The learned trial Judge has also rightly decided the issue as a preliminary issue under section 9-A of the Code of Civil Procedure. 3. A reading of paragraphs 1, 2 3 of the plaint and paragraph 8 of the affidavit in rejoinder filed by the plaintiff dated 23rd June, 1993 leaves no doubt that the plaintiff has essentially claimed himself to be the tenant of the 3 open plots in question along with the structures standing thereon and has complained of threat to his possession thereof. He apprehends that the defendant may cause his dispossession illegally. In paragraph 1 of the plaint the plaintiff has averred that the defendant is the present owner of the property. He has then referred to the rent receipts which were issued to plaintiffs' late father by previous owners. He has stated that his father was a monthly tenant. In the said paragraph he has made the following averments : The plaintiff will rely on the other rent receipts when produced at the time of hearing. The fact remains that the plaintiff's late father Behramji Shapoor Irani was the monthly tenant in respect of the said 3 open plots of land in the said property No. 45-C at Lamington Road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and its case seems to be that only the open cabins were let out to the plaintiff's late father. 5. After filing the suit, immediately the plaintiff had taken out a notice of motion for interim relief. The respondent filed written statement which was relied upon by way of affidavit in reply for the purpose of the motion. The plaintiff then filed his rejoinder. The Roznama of the Court unfortunately does not show that the learned trial Judge had made any minute framing the issue which he tried as a preliminary issue. The Roznama also does not show that any of the parties desired to adduce evidence or that such a prayer was refused. The judgment of the trial Court, however, makes it abundantly clear that the issue of jurisdiction as raised in the written statement was heard by the learned trial Judge as a preliminary issue under section 9-A of the Code of Civil Procedure at the hearing of the notice of motion. Both the parties were represented and from the judgment it appears that the contention. Surged before the learned Judge were duly considered by him. Now in paragraph 2 of the written statement, the respondent-defendant has stated thus : .....this Hon'ble Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance having regard to ground (b) of the appeal memo in which, after stating the general principle as to how the preliminary issue is required to be decided, no grievance is found to be made that such an opportunity was sought and was refused nor it is indicated as to what type of evidence the plaintiff had in mind to adduce. I, therefore, find it difficult to accept the submission of Mr. Irani that the learned trial Judge has not tried or decided the issue in accordance with the law. 8. Next submission of Mr. Irani is that one of the allegations made by the plaintiff in the plaint is that there was a design to deprive the plaintiff of alternative accommodation inasmuch as the property appears to have been acquired by MHADA and therefore in that respect at least jurisdiction is not barred. The learned trial Judge has noted this pleading but has not commented upon it in the course of his discussion in the judgment. However, it is not possible to find fault with the impugned order on this ground because it has not been pleaded by the plaintiff that he had approached MHADA for alternate accommodation or it has been refused to him either by MHADA or by the respondent by denying his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en plots of land and the learned trial Judge has not considered whether Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (i.e. Bombay Rent Act) was applicable to these plots. He submitted that the instrument of lease as well as the rent receipts issued to the late father of the plaintiff by the then owners are silent about the purpose for which the plots were let out to him. According to the learned Counsel, a grave irregularity has been committed by the learned trial Judge while passing the impugned order by ignoring this aspect of the matter. 11. Part II of the Bombay Rent Act starts with section 6. That section provides that in areas specified in Schedule I, this Part shall apply to premises let or given on licence for residence, education, business trade or storage. There is no dispute that the suit plots of land are covered by Schedule I. Question is whether these were let out for a purpose falling under section 6(1) of the Rent Act. In that connection, it is stated by the plaintiff himself in the plaint in paragraph 1 that his late father, who was a tenant, had been using the plots for parking motor vehicles and carrying out repairs, and other o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of the section. He further held that the same interpretation must squarely apply while determining the ambit of expression `relating to recovery of possession' in section 41 of the Presidency Small Cause Courts Act. The learned Judge held that it could not be said that section 19(i) of the Presidency Small Cause Courts Act prescribes that Small Cause Court shall have no jurisdiction to entertain suits to obtain an injunction, and therefore, suit for injunction simpliciter cannot be filed in that Court under section 41 of the Act as section 41 opens with a non-abstante clause and therefore a suit even for an injunction can only be instituted in the Court of Small Causes in accordance with section 41 of the Act. The learned Judge also held that the Court which is entitled to entertain the suit can certainly pass consequential orders which may be necessary. It was also held that the Court of Small Causes would have jurisdiction to grant relief of injunction in proper cases where it fell within its jurisdiction and that the mere fact that the suit is for injunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the plaintiff in lieu of his tenancy over the suit plots if the property is to be developed and in the event of refusal, plaintiff's remedy against MHADA would lie in the City Civil Court. Apart from what I have already stated earlier, since that question is not before me, I do not express any opinion on that aspect. Suffice it to say that any remedy if available to the plaintiff in accordance with the law apart from the one in the present suit is not dealt with in this order. 15. In the result, the order passed by the learned Judge of the City Civil Court for return of the plaint is affirmed and the appeal is dismissed. However, since the learned Judge of the Court below had deferred the return of the plaint for some time and has directed the parties to maintain status quo in the meanwhile, I direct that the order returning the plaint shall not be given effect to till 6th September, 1993 and the parties are directed to maintain status quo until that date. The plaintiff will be at liberty to seek interim relief from the Court of Small Causes after the plaint is lodged in that Court after it is returned to the plaintiff. In that event, the plaintiff shall give advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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