Advocates:
['PRAKASH D RANDIVE', 'FOR/PFOR/P', 'ASHWINI S KATHANE', 'BHUSHAN DAFLE', 'FOR/P', 'MANISH RAJENDRA JOHARAPURKAR FOR/R-SOLE']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

FIRST APPEAL NO.169/2018

Nirmal Ujwal Credit Co-operative Society

Limited, Nagpur (Multi-State), a Society

under the Multi State Co-operative Societies

Act, 2002, having its registered office at

193, Nandanwan Main Road, Nagpur,

through its President/Secretary

… Appellant

-versus-

Narendra Mohanlal Choudhary,

Aged about 53 years, Occupation Business,

R/o.43 Telangkhedi Layout, Ramnagar,

Nagpur and having place of business

at 17, Yashwant Stadium, Dhantoli,

Nagpur.

..Respondent

Shri Bhushan Dafle, Advocate for appellant/plaintiff.

Shri M.R.Johrapurkar, Advocate for respondent/defendant.

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CORAM : A. S. CHANDURKAR AND N. B. SURYAWANSHI JJ.

DATED : 12.01.2021

Judgment : (Per A.S.Chandurkar, J.)

Dismissal of Special Civil Suit No.1155/2011 wherein eviction

of the defendant was sought along with prayer for damages/mesne profits

from September 2007 on the ground that the Civil Court had no

jurisdiction to try the said suit in view of the decision of the full bench of

this Court in Prabhudas Damodar Kotecha & anr. Vs. Manharbala Jeram

Damodar & ors. 2007 (5) Mh.L.J. 341 is the subject matter of challenge in

this appeal filed under Section 96 of the Code of Civil Procedure, 1908.

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2.

As per the plaint averments it has been pleaded by the plaintiff

which is a co-operative society through its President that the premises

admeasuring 5329.68 square feet was permitted to be occupied by the

defendant in view of his communication dated 08.08.2007 seeking

permission to do so for a period of one month. The plaintiff permitted the

defendant to occupy the said premises for a period of one month from

16.08.2007 to 15.09.2007 on honourarium of Rs.15,000/- apart from

electricity charges. It is the case of the plaintiff that there was no

intention to create any relationship of landlord and tenant between the

parties and the phraseology used in various communications issued to the

defendant do not indicate such intention. The defendant was treated as a

permissive occupier of the premises in question and if the rent was to be

charged the same would have been much higher than the amount of

honourarium prescribed. The defendant did not vacate the suit premises

on expiry of one month and thereafter was paying sum of Rs. 7,000/- per

month which according to the plaintiff was towards reimbursement of the

expenses for maintenance of the premises. Despite various requests made

to the defendant, he failed to vacate the premises. In view thereof and in

that backdrop, an application filed by the defendant under Section 29 of

the Maharashtra Rent Control Act, 1999 (for short, ‘the Act of 1999’

)

seeking restoration of essential services withheld by the plaintiff, the

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present suit came to be filed on 03.09.2011. It was prayed that a decree

for eviction be passed against the defendant and vacant and peaceful

possession be handed over to the plaintiff. Monetary decree for

Rs.2,29,17,624/- was also prayed for.

3.

In the written statement at Exhibit 20 the claim as made by the

plaintiff was denied. It was pleaded that merely because the defendant

had initiated proceedings against the plaintiff before the Court of Small

Causes the suit for eviction was filed by way of counter blast. It was

further pleaded that the Civil Court had no jurisdiction to try the suit

especially when the occupation of the defendant was as a tenant.

4.

The parties have led evidence before the trial Court. Amongst

other issues, an issue as to jurisdiction of the Civil Court to try the suit was

framed and the trial Court held that it had no jurisdiction to try the same.

On that premise, the suit came to be dismissed. Being aggrieved the

plaintiff has come up in appeal.

5.

Shri Bhushan Dafle, learned counsel for the appellant/plaintif