1997 Supreme(Bom) 48

IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
P. Vijaykumar others ..... Appellants.
Versus
V.C. Gopalkrishnan ...... Respondent.
First Appeal No. 888 of 1995, decided on 27-1-1997.
Advocates appeared :
S.R. Mishra, for appellants.
D.S. Parikh with Mrs. Pramila K. Shah, for respondent.

Headnote:Order II, Rule 2-Presidency Small Causes Courts Act, (1882), Section 41-Bombay Rents, Hotels and Lodging House Rates Control Act (1947), Section 5(4-A)-Suit was filed for possession of suit premises and mesne profit-Previous suit filed by plaintiff for a declaration that he was as tenant and defendant was in permissive possession of two rooms and had taken wrongful possession of other two rooms-Plaintiff could not have asked for relief of possession in the previous suit mesne profit-Mesne profit will be granted from the date of suit and not from the date of decree. The previous suit was filed in the Court of Small Causes by the plaintiff for a declaration that he is a tenant. He also alleged that the first appellant was is permissive possession of two rooms and he had taken a wrongful possession of the other two rooms. The question is whether on the basis of these allegations, the plaintiff could have asked for the relief of possession in the previous suit. It is well-settled that the jurisdiction of the Court is determined on the basis of the allegations in the plaintiff. When the plaintiff has come to Court claiming that the possession is only permissive or that the defendant is a trespasser, the relief of possession could not have been asked and even if asked, the Small Cause Court had no jurisdiction to grant such a relief. The jurisdiction of the Small Causes Court is attracted when the plaintiff concedes that defendant is a tenant or a licensee. It is also not disputed that the gratuitous licence is not one which is covered under Section 41 of Presidency Small Causes Courts Act, 1882. Further Court find that in the definition of licence under the Bombay Rent Act, As provided under Section 5(4-A), the licensee has been defined only as a person who is in occupation of a premises on payment of licence fee or charge. It is therefore, clear that a gratuitous licensee is not who is covered either by the Bombay Rent Act or by the Presidency Small Cause Court Act Court is also fortified in Court view by a decision of this Court in 1990 Mh LJ 1145 Vishwanath v. Gandabhai, which the learned counsel for the Respondent brought to courts notice.

       Order II, Rule 2 and Order XX, Rule 12-Presidency Small Cause Courts Act, 1882, Section 41-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 5(4A)-Suit for declaration that he was tenant and defendant was in permissive possession of two rooms and trespasser in other two rooms-Relief of possession could not have been asked for and even if asked for Small Cause Court had no jurisdiction to grant such relief-Thus subsequent suit for mesne profits and possession not barred and same admissible from date of suit.- The previous suit was filed in the Court of Small Causes by the plaintiff for a declaration that he is a tenant. He also alleged that the first appellant was in permissive possession of two rooms and he had taken wrongful possession of the other two rooms. The question is whether on the basis of these allegations, the plaintiff could have asked for the relief of possession in the previous suit. It is well-settled that the jurisdiction of the Court is determined on the basis of the allegation in the plaint. When the plaintiff has come to Court claiming that the possession is only permissible or that the defendant is a trespasser, the relief of possession could not have been asked and even if asked the Small Cause Court had no jurisdiction to grant such a relief. The jurisdiction of the Small Cause Court is attracted when the plaintiff conceded that defendant is a tenant or a licence. It is also not disputed that the gratuitous licence is not one which covered under Section 41 of the Presidency Small Causes Court Act, 1882. Further that in the definition of licence under the Bombay Rent Act. As provided under Section 5(4-A) the licensee has been defined only as a person who is in occupation of a premises on payment of licence fee or change. It is, therefore, clear that a gratuitous licensee is not one who is covered either by the Bombay Rent Act date of decree which is not sustainable in law, Even if defendants have made some payments during the pendency of the suit. That will have to be taken into consideration when inquiry is held under Order XX, Rule 12 of the Code Civil Procedure. Therefore, the direction of the trial Court that mesne profit is granted only from the date of decree has to be modified and mesne profits will have to be granted from the date of suit. At what rate plaintiff can get the mesne profits is a matter which cannot be decided at this stage and that can be decided only in a proper inquiry under Order XX, Rule 12 of the Code of CP.

       Order XX, Rule 12-Decree In Suit for possession-Proceeding of mesne profit-Held-Mesne profit granted from date of suit and not merely from date of decree.- The plaintiff has claimed mesne profits from the date of suit. In a suit for possession and when plaintiff has succeeded in getting a decree for possession the plaintiff is entitled to future mesne profits from the date of suit till the delivery of possession to be inquired under Order XX, Rule 12 of the Code of Civil Procedure. The learned trial Court by erroneous process of reasoning had granted mesne profits only from the date of decree which is not sustainable in law. Even if defendants have made some payments during the pendency of the suit that will have to be taken into consideration when inquiry is held under Order XX, Rule 12 of the Code of Civil Procedure. Therefore, the direction of the trial Court that mesne profit is granted only from the date of decree has to be modified and mesne profits will have to be granted from the date of suit. At what rate plaintiff can get the mesne profits is a matter which cannot be decided at this stage and that can be decided only in a proper inquiry under Order XX, Rule 12 of the Code of Civil Procedure.