IMPORTANT POINT
Suits between licensor and licensee or between landlord and tenant including suits after determination of lease are cognizable by Courts of Small Causes u/s 41.

JUDGMENT :

Abhay Manohar Sapre, J.

1. These appeals are directed against the final judgment and order dated 19.07.2007 passed by the High Court of Judicature at Bombay in Appeal No.169 of 1999 in Suit No.503 of 1980 and in Appeal No.199 of 1999 in Suit No.503 of 1980 whereby the Division Bench of the High Court allowed both the appeals filed by the appellants herein (defendant) and the respondent (plaintiff) herein respectively.

2. In order to appreciate the controversy involved in these appeals which lies in a narrow compass, it is necessary to set out the relevant facts hereinbelow.

3. The appellants are the legal representatives of Mahadev Pandurang Kambekar, who was the original defendant whereas the respondent-Shree Krishna Woolen Mills Pvt. Ltd. is the plaintiff in the Civil Suit out of which these appeal arise.

4. The dispute between the parties relates to the land bearing survey Nos.58 and 60 (renumbered as CTS 741, 741/1 to 741/7) situated at Nahur Bhandup in Bombay suburban District (hereinafter referred to as “the suit land”).

5. The plaintiff claims to be the lessee of the suit land whereas the defendant claims to be the owner/lessor of the suit land on the terms set out in the indenture of the lease deed dated 20.06.1958 executed between the parties.

6. A dispute arose between the parties. This led the defendant to determine the lease in question by serving a quit notice dated 19.02.1980 to the plaintiff requesting them to handover the leased premises, which was in their possession, to the defendant.

7. The plaintiff then filed a Civil Suit (No.503 of 1980) against the defendant on the original side of the Bombay High Court claiming therein the specific performance of the contract (lease deed) in relation to the suit land.

8. The suit was based essentially on clause 7 of the Lease Deed which, according to the plaintiff, enabled them to elect and exercise their right to purchase the suit land from the defendant on fulfillment of the conditions set out therein.

9. The defendant on being served filed the written statement. The defendant denied the claim and at the same time also filed his counter claim against the plaintiff seeking their eviction from the suit land and the arrears of rent.

10. The Single Judge by judgment/decree dated 24.12.1998 decreed the plaintiff’s suit for specific performance of contract and directed the defendant to execute the conveyance deed in favour of the plaintiff of the suit land. The Single Judge also allowed the counter claim filed by the defendant and accordingly passed the decree for possession of the suit land and arrears of rent for three years against the plaintiff.

11. The appellants (defendant) and the respondent (plaintiff) both felt aggrieved by the judgment/decree passed by the Single Judge and filed their respective appeals before the Division Bench.

12. So far as the defendant's (appellants herein) Appeal No.169/1999 was concerned, it arose out of the decree passed against him for specific performance of the contract, whereas so far as the plaintiff's (respondent herein) appeal (No.199/1999) was concerned, it arose out of the decree passed against them for possession of the suit land and arrears of rent.

13. By impugned judgment, the Division Bench allowed both the appeals. So far as appeal (169/1999) filed by the appellants (defendant) was concerned, the Division Bench set aside the judgment/decree and remanded the suit for retrial to the Single Judge on merits afresh in accordance with law.

14. So far as appeal (199/1999) filed by the respondent (plaintiff) was concerned, the Division Bench set aside the judgment/decree on the ground that the counterclaim was not maintainable in view of Section 41 of the Presidency Small Cause Courts Act, 1882 (for short called “the Act 1882”) . In other words, the Division Bench held that so far as counterclaim filed by the defendant against the plaintiff is concerned, the Single Judge wrongly entertained it as it had no jurisdiction on its original j