JUDGMENT- M.G. CHAUDHARI, J.:---Heard at length.

The learned Judge of the City Civil Court, Bombay, has by the impugned order dated 6th July, 1993 directed the plaint to be returned to the appellant - plaintiff after holding that the City Civil Court has no jurisdiction to entertain, try and decide the suit. Feeling aggrieved with that order, the appellant - plaintiff has preferred this appeal. (The appellant is hereafter referred to as the plaintiff and the respondents are referred to as the defendant).

2. The learned trial Judge was right in following the principle that the allegations made in the plaint decide the forum to entertain and try the suit. See (Abdulla v. Galappa others)1, A.I.R. 1985 S.C. 577. It is also laid down in this ruling that the jurisdiction does not depend upon the defence taken by the defendants in the written 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, Bombay - 400 008, in the said compound known as Ganjanwala Compound and the said 3 open plots were always in possession, use and enjoyment of the plaintiff's late father as a tenant on which open plots of land motor vehicles used to be parked and repairs and other operations to all kinds of motor vehicles were carried on and even till today it is being carried on by the plaintiff himself." (Emphasis supplied).

In paragraph 2 the plaintiff avers that it appears that the defendant now wants to develop the suit property which appears to have been acquired by the Maharashtra Housing and Area Development Authority (MHADA) for removing the old tenants and occupiers after giving them alternate accommodation. In paragraph 3, the plaintiff has stated thus:

"The plaintiff was helpless as the police authorities were themselves conniving at this illegal act on the part of the defendant and going to the length of even giving protection to it and the plaintiff being in exclusive possession of his land as such monthly tenant is put to threat of action and hence in this helpless situation the plaintiff has no other alternative but to approach this Hon'ble Court to obtain necessary urgent orders of injunction against the defendant." (Underline Supplied).

In paragraph 8 of the rejoinder, the plaintiff has stated thus:

".....I say that not only Gala Nos. 1 and 2 but even the said open plots have been used in common with the business of Irani Transport Service which is having its transport office at Bhandari Street of which the plaintiff's late father Behramji Shapurji Irani was the proprietor and carrying on business and having all the licences in respect of the said business and even the open plots have also been used in connection therewith." (Underlines supplied).

4. The case with which the plaintiff came to the Court thus clearly was on the footing that he is the tenant in possession of the suit plots of which the defendant is the present owner. Although

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