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IN THE HIGH COURT OF BOMBAY
M.L. Pendse, J.
Eknath Vithal Ogale .... Petitioner.
Versus
Mansukhlal Dhanraj Jain.... Respondent.
Civil Revision Application No. 212 of 1985, decided on 7-12-1987.
Advocates appeared :
N.B. Shah with H.C. Veljee, for petitioner.
K.K. Vyas with B.N. Vaishnava and N.J. Devshrayee, for respondents.
It is now well settled that in order to determine which court has jurisdiction to try the suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for, whatever may be the form of the relief claimed. If on the fair reading of the plaint, it becomes apparent that the plaintiff has alleged the relationship of a licensor and licensee and the relief claimed in substance relates to recovery of possession, then it is the special Court alone that will have jurisdiction to decide the suit. The plain reading of the plaint leaves no manner of doubt that the plaintiffs approached the City Civil Court with a clear case that the of occupation of the suit premises was on the strength of an irrevocable leave and licence granted by the defendants. The plaintiff claim that they are in settled possession of the shop and the defendant has no right to disturb their quiet and peaceful enjoyment and possession of the premises except by due profess of law. In other words, the plaintiffs sought permanent injunction on the basis that their induction in the shop premises and continuance thereof was lawful and valid. The plaintiffs approached the Court on the basis of relationship of licensor and licence between the plaintiffs and the defendant though the relief sought was only for a perpetual injunction, it is obvious that such relief could be granted only on the basis that the plaintiffs have subsisting right to remain in occupation. The existence of subsisting right would depend upon determination of the claim of the plaintiffs that an irrevocable leave and licence was granted in their favour.
In judgment of the Court the suits instituted under Section 6 of the Specific Relief Act cannot be equated with the suits for injunction simpliciter Section 5 of the Specific Relief Act prescribes that the person entitled to the possession of specific immoveable property may recovery it in the manner provided by the Code of Civil Procedure, 1908, and that by institution of suit in a proper forum. Chapter VII of the Specific Relief Act deals with subject of injunction and Section 38 (1) of the Act provides that the perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In suit for injunction simpliciter, the City Civil Court has to determine whether the defendant has committed a breach of obligation existing in favour of the plaintiff and to ascertain that fact the Court must find out whether the relationship of licensor and licence existed between the parties and whether the initial injunction of the plaintiff in the shop premises was under the authority of law. It is, therefore, not correct to suggest that a suit for injunction simpliciter does not involve any inquiry into the status of the plaintiff. The contention that the suit under Section 6 of the Specific Relief Act is maintainable in the City Civil Court after the tenant is forcibly dispossessed by the landlord and on the same analogy the suit for injuction simpliciter before such forcible dispossession should entertained by the City Civil Court cannot be accepted. In the suit instituted under Section 6 of the Specific Relief Act the plaintiff does not claim recovery of possession in his capacity as a licensee and the issue of relationship between the licensor and licensee is wholly immaterial, but in the suit for injunction simpliciter relief can be granted provided such a relationship existed.
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.
4. The Revision Application was placed for hearing before Mr. Justice Sawant and Mr. Justice Guttal. Mr. Sawant held that neither section 28 of the Bombay Rent Act nor section 41 of the presidency Small Cause Court Act bars the jurisdiction of Bombay City Civil Court to entertain the suit which is for injunction simpliciter. Mr. Justice Guttal on the other hand held that as the plaintiffs claims to be in exclusive possession on the basis of relationships of licensor and licensee and sought injunction to protect the possession, the Bombay City Civil court had no jurisdiction having regard to the provisions of section 41 of the Presidency Small Cause Act In view of the difference the Revision application is now posted before me.
It is now well settled that in order to determine which Court has jurisdiction to try the suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for, whatever may be the form of
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