NISHITA MHATRE, J.

( 1 ) THIS Appeal from Order has been filed against the order of the trial Court returning the plaint to the plaintiff, the appellant herein, under Order 7 Rule Id of the Coda of Civil Procedure for presenting the some before the proper Court. The trial Court has held that the suit was hot maintainable and the jurisdiction to decide the issues raised was only with Small Causes court Uunder section 28 of the Bombay Rant Act.

( 2 ) THE suil has been filed for the following reliefs: (a) that the Hon. bie Court be pleased to declare the Defendant and. hen family members as the trespassers in respect of structure admeasuring 6. 75 metres X 1. 6 metres equivalent to 10. 8 sq. metres equivalent to 108 sq. ft. or thereabouts, so made unauthorisedly in the compouno of Nagda Niketan, situated, lying and oeing at Hansoti Road, Cama lane, Ghatkopar, Bcmbay 400 086; (5) That defendant, her family members be directed by an order and decree to remove themselves alongwith all other goods, things and articles from the suit property cr any portion thereof and to hand over the vacant, quiet and peaceful. possession of the same to the Plaintiff; (c) that this Honble Court be further pleased to direct The Defendant by an order and decree, to pay a sum of rs. 24,000/- being tne arrears of mesne profit for the last 10 years unauthorised use and occupation of suit structure as per particulars of claim, exhibit. "b" hereto; and to further pay a sum of Rs,200/- per month as mesne ; profit from the date of filing of suit till defendant ha ids over peaceful pnysical and vacant possession to the Plaintiff; (d/ pancing the rearing and final disposal of the suit, one uefencant, her family members, agents, persons claiming through her be restrained by an order and injunction from not to further encroach upon suit property or any portion thereof arc/or also from inducting any third party and/or also from inducting any third party and/or parting with possession, encumbering, alienating and/or doing any act, deed or thing so as to jeopardise and plaintiffs right, title and interest in respect of suit property and cauaing nuiaanca and annoyance to other occupants of suit property; (e) Interim and ad-interim reliefs in terms of prayers (c) and (d) above; (f) Cost of suit be provided for ; (g) any other further reliefs be granted which this Honble Court deems fit and proper in the circumstances.

( 3 ) IT appears that a Notice of Motion was filed for interim relief by the appellant (the original plaintiff ). A defense was taken by the respondent i. e. , the original defendant; that the City Civil Court nas no jurisdiction to entertain ths suit and that. the preliminary issue regarding Jurisalction be decided first uncer section 9a of the CPC. It appears that without decioing this issue regarding jurisdiction, the trial Court disposed of tne Notice of lotion By passing certain orders. Admittedly, the respondent has not raised any objection for this procedure being followed.

( 4 ) AFTER the pleadings werg complete, the trial court framed various issues inducing the first issue "does the defendantprove that the jurisdiction of this court is barred by Section 26 of Bombay Rent Control Act and by Small Causes Courts Act?/". This issue has been decided in the affirmative after the evidence was led on all issues and arguments were concluded. The trial court has on the basis of the evidence led befcre it come to the conclusion that this was a dispute between the landlord and his tenant and assuming the defendant was a trespasser, it was a dispute which could be decided only by the Small Causes Court as laid down under the provisions of Section 28 of the Bombay Rent act. According, all other issues were not answered and the complaint was returned for presentation in the proper Court.

( 5 ) ON behalf of the appellant; Mr. thorat submits that the issue regarding jurisdiction could have been tried as a preliminary issue under section 9a, before the No