ALONG v. Nakhuda Mohamed Ali Rogay

Mr. Prem S Gidwani for the Petitioners in all the Petitions. Mr. G R Mishra for the Respondent in all the Petitions. CORAM : R. M. SAVANT, J. 13th August 2012 DATE : P.C. 1 The above Petitions raise an identical issue and are therefore heard together. The issue in question is whether the City Civil Court would have jurisdiction to try the suit in question. The Respondent herein in his capacity as the Trustee of Fatmabai Binte Nakhuda Mohamed Amin Rogay Religious and Charitable Trust has filed the suits in question being S.C.Suit Nos.1821 to 1825 of 2010. The substantive relief sought in the said suits is as regards the declaration that the the Defendants in all the said suits are the trespassers and the other relief sought is that the Defendants, their agents, servants etc. be directed to pay compensation for the illegal and unauthorized 1 of 4 wp-4615.12ors use of the suit premises from the date of the filing of the suits till the date of actual handing over of the possession of the suit premises to the Plaintiff.

It has been averred by the Plaintiff in the plaint that the building in question is fully occupied by various tenants and one Abdul Karim Jusab Ladakh (Writ Petition No.4614 of 2012) was the monthly tenant in respect of the residential premises bearing Room No.24. The Defendants in the suits in question are the same, but the tenants and the room numbers are different. The dimension of tenanted premises, contractual rent exclusive of permitted increase and property tax etc are mentioned in the suits in question. 2 The Plaintiff filed an application for interim reliefs. The Defendants filed their affidavit in reply to the said application, and having regard to the averments made in the plaint, the Defendants applied for a preliminary issue of jurisdiction of the City Civil Court to be framed under Section 9A of the Code of Civil Procedure. The Plaintiff had filed his affidavit in reply pointing out as to how the City Civil Court has jurisdiction and as to why the provisions of the Maharashtra Rent Control Act, 1999 are not applicable.

The trial Court decided the said issue and as indicated above, by the impugned order dated 17/12/2011 has held that it has jurisdiction. The trial Court relied upon a judgment of a learned Single Judge of this Court, reported in 2005(2) Mh. L.J. 67 in the matter of Kusumkant T Nagda v/s Mariam Bi wd/o Ibrahim. Excerpt from Para 7 of the said judgment has been reproduced in the 2 of 4 wp-4615.12ors impugned order. It has been held by the the learned Single Judge of this Court that the issue as to whether a person is a trespasser can be decided only by the City Civil Court and not by the Small Causes Court. This Court, therefore, set aside the order of return of plaint in the said proceedings. The learned Single Judge had placed reliance on a judgment of a learned Single Judge of this Court, reportred in 1990 Mh.L.J. 1145 in the matter of Vishwanath Sawant v/s Gangabhai, wherein the learned Single Judge has held that in case of a declaration that person is a trespasser, the Small Causes Court does not have jurisidction.

3 The learned counsel appearing for the Petitioners, relying upon the averments made in the plaint and the notices, would contend that unless the steps are taken by the Plaintiff against the tenants of each of the premises, the suits filed in the City Civil Court for a declaration that the occupant is a trespasser are not maintainable. The learned counsel for the Respondent i.e. the original Plaintiff would rely upon an order dated 29 th June 2012 passed by this Court in Writ Petition No.2342 of 2012 and companion Petitions. By the said order, the Petitions raising an identical issue were dismissed and the jurisdiction of the Bombay City Civil Court was confirmed. 4 In the instant suits the reliefs sought have been adverted to in the earlier part of the order. The main substantive relief sought is as regards 3 of 4 wp-4615.12ors declaration of the defendants in each of the suits as trespassers.

There is no issue as regards the creation of any illegal subtenancy etc. In view thereof, the trial Court has rightly relied upon the judgment in Kusumkant T. Nagda’s case (supra). In the light of the order dated 29th June 2012 passed in Writ Petition No.2342 of 2012 and companion Petitions, there is no merit in the above Petitions. No case for interdiction in the writ jurisdiction of this Court is therefore made out. The above Writ Petitions are accordingly dismissed. [R.M.SAVANT, J] 4 of 4