Nirmal Ujwal Credit Co-Operative ... vs Narendra Mohanlal Choudhary
2021 Latest Caselaw 610 Bom

FA169.18(j)                                                                                               1/9


                     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.
--------------------------------------------------------------------------------------------------------------

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.

FA169.18(j) 2/9

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

FA169.18(j) 3/9

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/plaintiff

submitted that the trial Court had committed an error in holding that the

defendant had the status of a tenant due to which the Civil Court had no

jurisdiction. He submitted that there was no intention between the parties

to create any tenancy and there was no relationship of landlord and

FA169.18(j) 4/9

tenant between them. Merely because the word "honourarium" was

mentioned in Exhibit 37 the same would not result in ouster of the

jurisdiction of the Civil Court. The occupation of the defendant was illegal

after expiry of the period of one month as stated in Exhibit 37. Though

the defendant remitted certain amounts to the plaintiff and the same were

accepted, it would not mean that the same resulted in creation of such

relationship. The suit for eviction before the Civil Court was rightly filed

and the trial Court ought to have decreed the same especially when

ownership of the plaintiff was not disputed and the defendant had been

permitted to occupy the premises only for a period of one month. He

therefore submitted that after holding that the Civil Court had jurisdiction

to decide the suit, the same be remitted to the trial Court for proper

adjudication. In support of his submissions the learned counsel placed

reliance on the decision in M/s. Technicians Studio Pvt. Ltd. Vs. Smt. Lila

Ghosh and anr. AIR 1977 SC 2425.

6. Per contra Shri M.R.Joharapurkar, learned counsel for the

respondent/defendant supported the impugned judgment. He submitted

that there was sufficient evidence on record to indicate that there was a

relationship of licensor and licensee between the parties. Referring to the

averments in paragraph 5 of the plaint, he submitted that the defendant

was described as a permissive occupier in the plaint itself and therefore

FA169.18(j) 5/9

the law as laid down by the full bench in Prabhudas Damodar Kotecha

(supra) was rightly applied by the trial Court. He further referred to the

other proceedings initiated by the defendant under Section 29 of the Act

of 1999 which were pending adjudication. Though the initial order

passed by the Court of Small Causes had not attained finality, it was clear

that the reliefs sought in the suit were beyond the jurisdiction of the Civil

Court. He also sought to rely upon the decisions in Mansukhlal Dhanraj

Jain Vs. Eknath Vithal Ogale AIR 1995 SC 1102, Natraj Studios Private

Limited Vs. Navrang Studios, AIR 1981 SC 537, Raghunath P.Singhania

Vs. Yasin T. Mavany 1998 (3) Mh. L. J. 354, Carona Limited Vs.

Sumangal Holding 2007 (4) Mh. L.J. 551 and Prabhudas Damodar

Kotecha (supra). It was thus submitted that no interference was called for

with the judgment of the trial Court.

7. On hearing the learned counsel for the parties, the following

points arise for determination :

(i) Whether the finding recorded by the trial Court that the Civil Court had no jurisdiction to try the suit is legal and proper ?

(ii) If answer to point no.(i) is in negative what order ?

8. We have referred to the pleadings in the plaint and in the

written statement. It is undisputed that the suit premises is owned by the

plaintiff and on 08.08.2007 the defendant requested the plaintiff to permit

FA169.18(j) 6/9

him to use the said premises for a period of one month on suitable

consideration (Exhibit 36). The plaintiff on 14.08.2007 (Exhibit 37)

replied to the said application and stated as under :

"With reference to above, we are pleased to inform you that Hon'ble Board decided to let out our Societies premises situated at Shree Ganesh Chambers, Mehadia Square, Dhantoli, Nagpur-12 for one (1) month and that period commencing from 16th August 2007 to 15th September 2007. Honourarium for the period has been decided Rs.15,000/- for a month apart from Electricity Charges."

It is also not in dispute that after 15.09.2007 the defendant did

not vacate the suit premises and there was some litigation between the

parties at the behest of the defendant before the Small Causes Court

(Exhibit 55). The record further indicates that from time to time the

defendant was remitting the amount of Rs.7,000/- per month to the

plaintiff-society as consideration for occupying the suit premises which

was accepted by the society without demur. This has been averred in

paragraph 6 of the plaint and admitted by PW 1 to be correct. Though

said witness sought to justify this payment as being reimbursement of

maintenance charges he also admitted that there was no evidence of such

maintenance being carried out. There are further documents on record

indicating payment of electricity bills and property tax by the defendant in

lieu of such demand being made from the plaintiff.

From this material on record it is clear that the premises were

FA169.18(j) 7/9

initially "let out" as stated in Exhibit 37 by the society to the defendant.

After the period of one month, the occupation of the defendant continued

and in paragraph 5 of the plaint the defendant has been described as a

"permissive occupier". It is in this backdrop the question of jurisdiction

would have to be considered and decided.

9. The provisions of Section 7(5) of the Act of 1999, Section 26 of

the Provincial Small Cause Courts Act, 1887 and Section 52 of the

Easements Act, 1882 are material. The question as to whether a suit by a

licensor against a gratuitous licensee is maintainable before the Small

Causes Court or whether it could be filed before the Civil Court has been

considered by the full bench in Prabhudas Damodar Kotecha (supra).

While answering that question it was held by the full bench that the

expression "licensee" used in Section 41 (1) of the Presidency Small

Causes Courts Act 1882 (for short, 'the Act of 1882') does not derive its

meaning from the expression "licensee" as used in Section 5(4-A) of the

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for

short, 'the Act of 1947') as was then operating. It was held thereafter that

a suit by a licensor even against a gratuitous licensee would lie before

Presidency Small Causes Court under Section 41 of the Act of 1882.

In Mansukhlal Dhanraj Jain (supra) the Hon'ble Supreme

Court considered the provisions of Section 28(1) of the Act of 1947 and

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held that on the pleading that the plaintiffs therein who claimed to be

licensees on monetary consideration and who apprehended dispossession

would be able to move the Small Causes Court for necessary reliefs.

10. We find that aforesaid law which binds this Court clearly

answers the question of jurisdiction against the plaintiff. As stated above,

the occupation of the defendant has been described by the plaintiff itself

as a "permissive occupier" in paragraph 5 of the plaint. Admittedly

consideration was exchanged between the parties in lieu of the

defendant's occupation which fact is also averred in paragraph 6 of the

plaint. The payment of electricity bills and property taxes has also been

made by the defendant. Notice to vacate the premises was given for the

first time on 02.05.2011 (Exhibit 38). In the light of this material on

record, it is found that the trial Court rightly answered issue no.3 in the

negative to hold that the jurisdiction of the Civil Court stood ousted. The

decision relied upon by the learned counsel for the appellant/plaintiff in

M/s. Technicians Studio Pvt. Ltd. (supra) does not assist the case of the

plaintiff and as held therein the aspect of relationship between the parties

has to be determined on the basis of facts of each case. In view thereof

the conclusion recorded by the trial Court is upheld. Point no.(i) as

framed is answered accordingly. It is therefore not necessary to answer

Point No.(ii).

FA169.18(j) 9/9

11. As a result of this discussion, the judgment of the trial Court in

Special Civil Suit No. 1155/2011 is maintained. The First Appeal stands

dismissed leaving the parties to bear their own costs.

It is clarified that we have not examined the respective

contentions of the parties on the substantive reliefs sought in the suit and

the finding recorded by the trial Court against issue no.3 stands upheld.

Observations in this judgment are made only to determine the question of

jurisdiction. The plaintiff is free to take such steps as are permissible in

law for pursuing the prayers made in the suit.

                       JUDGE                         JUDGE




Andurkar..