Bombay High Court
Mrs. Shahida Sharriff vs Amanullah on 29 November, 2013
Bench: Anoop V. Mohta
1 AO.1369-2010
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1369 OF 2010
WITH
CIVIL APPLICATION NO.1690 OF 2010
WITH
CIVIL APPLICATION NO. 355 OF 2012
1.Mrs. Shahida Sharriff
Age 46 years old
2.Ms. Yasmin Hashmatullah
Age 42 years old
3.Mrs. Fabiha Ahmed
Age 40 years old
4.Mrs. Nahida Uraziee
Age 37 years old
5.Ms.Shabana Hashmatullah
Age 34 years old
All residing at 6 Crescent House,
27, S.B. Singh Road, Mumbai-400011 ..Appellants.
( Org. Defendants )
V/s.
1.Amanullah s/o Hasmatullah
Salamatullah, Age 35 years old
2.Mrs. Shama Amanullah
Age 27 years old
Both residing at 6 Crescent House,
27, S.B. Singh Road, Mumbai-400011 ..Respondents.
(Org. Defendants)
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2 AO.1369-2010
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Mr. Faran M. Khan h/f Mr. Simil Purohit i/b
M/s Khaitan & Co., for the Appellants.
Mr. Ruben A. Fernandes for Respondents.
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Coram: Anoop V. Mohta, J.
Judgment Reserved on:12 November 2013
Judgment Pronounced on: 29 November 2013
JUDGMENT:
Heard the learned Counsel appearing for the parties.
2 The Appellants-Original Plaintiffs have challenged order
dated 15 October 2013 passed by the learned Judge of City Civil
Court, Greater Mumbai, thereby returned the plaint for its
presentation in the Small Causes Court, Mumbai by invoking the
Order 7 Rule 10(2) of the Code of Civil Procedure, 1908 (CPC).
3 The Appellants are the sisters and Respondent No.2 is the
wife of Respondent No.1. The Suit was filed in the year 2010 before
the City Civil Court at Mumbai for declaration that the Respondents
should not disturb the joint possession of the Appellants along with
Respondents in the suit premises. The Suit was not for recovery of
possession and/or relating to the recovery and/or rent and/or
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3 AO.1369-2010
licence fee. There was no relationship of landlord and licensor
and/or licensee between the parties. All the legal heirs of the
deceased-tenant (the father of Defendant No.1 and the Plaintiffs).
The Plaintiffs therefore claiming equal rights and interest in the
tenanted premises.
4 The landlord is not party to the suit. There is no bar to
file such suit and to entertain the same by the City Civil Court. The
Court ultimately will pass final order, in accordance with law. We
are, at this stage, concerned with the impugned order of return of
the plaint. The learned Judge, in my view, is wrong in passing the
impugned order merely because the subject matter is tenanted
premises and claim therein. There is nothing on record to show that
the landlord has accepted and/or declared and/or treated Defendant
No.1 as the legal tenant of the premises. The prayer is only for the
entitlement and interest in the joint possession on the basis of
relationship. This, in my view, do not fall within the scope and the
ambit of Section 28 of the Bombay Rents, Hotels and Lodging House
Rates Control Act, 1947, now Section 33 of Maharashtra Rent
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4 AO.1369-2010
Control Act. Section 41 of the Presidency Small Causes Courts Act,
1882, therefore, may not be invoked at this stage of the proceedings
in such fashion.
5 The private rights or disputes between the legal heirs of
the of the deceased tenant, and specifically when the landlord is not
party and/or involved, the Small Causes Court has no jurisdiction.
The City Civil Court, at least, is not debarred from dealing with the
suit so filed. The declaration even if any as prayed, in no way dis-
entitles and/or prevents the landlord to take appropriate steps
and/or decision in this regard.
6 The declaration is not to treat them as the statutory
tenants, but is for the right and interest in the tenanted property of
the deceased-father between the legal heirs. The Suit if filed by the
landlord, the situation would be different to deal with if there is
dispute with regard to the tenancy right. But at this stage in the
present facts and circumstances and the prayers so raised, the
decision that Small Causes Court has jurisdiction is incorrect.
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7 Both the parties have cited various judgments in support
of their rival contentions. The learned Judge has also read and
referred the same.
8 I have, in judgment in Arun Bhaskar Adarkar Vs. Mrs.
Mina Srinivasan Krishnan & Anr.1 observed as under:
"11 Any proceedings, even if any, initiated by the
Defendants for claiming tenancy rights over the suit
property cannot decide the jurisdiction of this Court.
The tagging of the Suit is not a issue. Both the parties
have been making allegations and counter allegations of
trespassing against each others and claiming rights
accordingly over the flat. The Court will decide it after
due trial. The Suit is not between the landlord and
tenant/ licensor or licensee. The same is not initiated by
the landlord. The landlord is not a party to this
proceeding, initiated by the heirs of the deceased tenant
to protect their respective rights and the possession. It
nowhere related to the recovery of rent or possession of
the tenanted premises.
9 For the above reasons, the impugned Order dated
15.10.2013 is set aside. The Appeal from Order is allowed. The
plaint/suit is restored to file. The same to be considered by the Trial
Court in accordance with law.
1 2012(3) ALL MR 879, 2012(3) DCR 17, 2012(3) AIR Bom.Repo. 516
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6 AO.1369-2010
10 Appeal from Order, so also both the Civil Applications are
disposed of. No costs.
(ANOOP V. MOHTA, J.)
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