Zenobia R Poonawala & Ors v. Dr. Rustom Farhad Ginwalla & Ors

-CRA388-2024.DOCJUDGMENT:-1.By this revision application the applicants, originaldefendant Nos.1 and 2, assail the legality and correctness of anorder dated 29th May, 2024 passed by the learned Judge, CityCivil Court, Greater Bombay, whereby the Notice of MotionNo.1117/2023 in SC Suit No.2905/2022 for the rejection of theplaint under the provisions of Order VII Rule 11 of the Code ofCivil Procedure, 1908 (“the Code”), came to be dismissed. 2.Though there is a chequered history of multi-prongedlitigation between the parties before the different forums, thebackground facts necessary for the determination of thisrevision application can be summarized as under:2.1For the sake of clarity and convenience, the parties arehereinafter referred to in the capacity in which they are arrayedin SC Suit No.2905/2022 before the City Civil Court. 2.2Dr. Rustom Ginwalla (R1/P1) is the brother of applicantNo.1/D1.2.3R11/P11 and Rashna Ginwalla are the sisters of P1 andD1. Applicant No.2/D2 is the husband of D1.2/31SSP -CRA388-2024.DOCRutton Manor, comprising ground plus four storey structurewith terrace and two garages, and having 10 flats, situated atGarden Road, Apollo Reclamation, Colaba (“the suit building”) isat the heart of the controversy. Pervin Ginwalla, the late motherof P1 and D1 was the original lessee of the premises, over whichRutton Manor stands. After the demise of Pervin Ginwalla, itseems, disputes have arisen between the parties.2.4P1 claims, after Pervin’s demise, Farhad Ginwalla, the latefather of P1, P11 and D1, became a co-owner of the suit buildingalongwith D1. Late Farhad had a 55% share and D1 had therest 45% share therein.2.5The defendant No.1, on the other hand, contends, she isthe sole surviving joint tenant of the head lessor, Mumbai PortTrust (“MbPT”) and undisputed sole landlord of the suitbuilding.2.6In the wake of the disputes, D1 has filed a suit before theCourt of Small Causes, Mumbai, for eviction of P1, from thethree flats in the suit building. D1 had also instituted a civilsuit, being SC Suit No.2927/2015, before the City Civil Court,Mumbai, seeking certain reliefs, qua P1 in relation to the suitbuilding.3/31SSP -CRA388-2024.DOC2.7Late Farhad allegedly executed a duly stamped andregistered Gift Deed dated 11th October, 2017, inter alia,transferring his 45% and 10% interest in the suit building, andthe leasehold rights in the underlying land in favour of P1 andRashna Ginwalla. Thus, P1 claims with effect from 11th October,2017, P1 ceased to be a tenant of the flats in the suit buildingand became a co-owner of the suit building.2.8P1 and others instituted a suit, being Suit No.790/2018,before the High Court alleging harassment and nuisance by theapplicants. Certain interim reliefs were granted in the said suitby a learned Single Judge. An appeal preferred by the D1thereagainst came to be dismissed.2.9D1 also instituted a suit, being Suit No.405/2023, beforethe High Court against against P1 and others in respect of thesuit building asserting, inter alia, that the tenancies in favour ofP1, P11 and Rashna Ginwalla (D3 therein) were null and void-ab-initio, and P1, P11 and others were trespassers.2.10Asserting that the plaintiffs, including P1, are theoccupants of the suit building and taking umbrage at allegedillegal conduct, nuisance, obstruction and other acts andomissions on the part of the defendants, the plaintiffs instituted4/31SSP -CRA388-2024.DOCthe instant suit i.e. Suit No.2905/2022 before the City CivilCourt purportedly espousing their civil rights as occupants ofthe suit building. 2.11 The substance of the claim of the plaintiffs is that, inorder to exert pressure upon the plaintiffs to give in to theunlawful demands of the defendants, the latter have resorted tovarious illegal acts including causing obstruction in the use ofthe lift, repairs and upkeep of the building and the commonfacilities and amenities. Alleging various acts of commission andomission, the plaintiffs have prayed for permanent injunction torestrain the defendants, their servants and agents from in anymanner obstructing the use of the lift in the suit building by theplaintiffs, their family members, guest servants, agents and anyperson claiming under the plaintiffs; from obstructing theplaintiffs from installing CCTV cameras in or around therespective premises and in the suit building; from in anymanner preventing the peaceful ingress and egress of theplaintiffs, their family members etc. to and from the suitbuilding, from in any manner preventing the access, use andenjoyment of the common terrace and common areas of the suitbuilding, and from in any manner obstructing the access to the5/31SSP -CRA388-2024.DOCmeter room, water tanks, lift room, pump room, etc. and repairsand maintenance thereof.2.12 In the said suit, applicant No.1/D1 took out a Notice ofMotion for rejection of the plaint, contending inter alia that theCity Civil Court has no jurisdiction to entertain, try and decidethe suit as the issues that arise for determination have theirgenesis in the relationship of landlord and tenant between theparties and, thus, the Court of Small Causes, at Mumbai hasthe exclusive subject matter jurisdiction. D1, in her capacity asthe landlord, has instituted eviction suits before the Court ofSmall Causes against plaintiff Nos.1, 4, 7, 8, 9 and 10. Whereasplaintiff Nos.2, 3, 5, 6, 10 and 11 have no legal right to occupythe portions of the suit building. Thus, the suit, at the instanceof plaintiff Nos.2, 3, 5, 6, 10 and 11, was not maintainable.Since the eviction suits are sub-judice before the Court of SmallCauses at Mumbai, while deciding those suits, the Court ofSmall Causes can also pass consequential orders.2.13 The respondents – plaintiffs resisted the Notice of Motion.The substance of the resistance was that the instant suit doesnot pertain to any tenancy rights nor it pertains to recovery ofpossession of the leased premises or rent thereof. On the6/31SSP -CRA388-2024.DOCcontrary, the instant suit essentially represents a tortious claimfor nuisance and harassment at the hands of defendant Nos.1and 2. Moreover, D1 has herself disowned the jural relationshipof the landlord and tenant and, thus, the Civil Court has theplenary and residuary jurisdiction, to entertain, try and decidethe suit. 2.14 After appraisal of the averments in the plaint, documentsannexed thereto and the material on record and hearing theparties, the learned Judge, City Civil Court was persuaded todismiss the Notice of Motion. It was observed inter alia that, D1was prima facie putting hindrances in the utilization of thebasic amenities by the occupants and, thus, the suit would notfall within the exclusive jurisdiction of the Court of SmallCauses at Mumbai as the plaintiffs were not seeking the relief ofinjunction to protect their possession over the suit premises butasserting their rights as occupants and seeking relief to ensureuninterrupted use of the basic amenities. The conditions whichwere necessary for conferring exclusive jurisdiction on the Courtof Small Causes were not fulfilled. Therefore, the Civil Court wasnot precluded from exercising the jurisdiction. 3.Being aggrieved, D1 and D2 have preferred this revision.7/31SSP -CRA388-2024.DOC4.I have heard Mr. Amrut Joshi, the learned Counsel for theapplicants – defendants, and Mr. Sameer Pandit, the learnedCounsel for respondent No.1 – plaintiff, at some length. Thelearned Counsel for the parties, took the Court through thepleadings and material on record, including the orders passedby the Courts in the proceedings between the parties and thepleadings/affidavits of the parties in the other proceedings todemonstrate the position the parties have taken in regard to thejural relationship between the parties. 5.Mr. Joshi, the learned Counsel for the applicants, wouldsubmit that, incontrovertibly, the eviction suits instituted by D1in the capacity of the landlady are pending before the Court ofSmall Causes against plaintiff Nos.1, 4, 7, 8, 9 and 10. Therelationship of landlord and tenant between defendant No.1 andplaintiff Nos.1, 4, 7, 8, 9 and 10 can, thus, hardly be contested.Plaintiff No.3 is a maid servant. Plaintiff No.11 is a resident ofUSA. 6.Mr. Joshi would, thus, urge that in the face of almostadmitted jural relationship between the parties, the suit of thepresent nature is expressly barred by the provisions containedin Section 33 of the Maharashtra Rent Control Act, 1999 (“the8/31SSP -CRA388-2024.DOCRent Act, 1999”), which confers exclusive jurisdiction in BrihanMumbai on the Court of Small Causes, Mumbai, to entertainand try any suit or proceeding between a landlord and a tenantrelating to recovery of rent or possession of any premises and todecide any application under the said Act, and bars thejurisdiction of the other Courts to entertain any such suitproceeding or application or to deal with such claim or question.7.Mr. Joshi would further urge that, the plaintiffs assertionthat they are espousing their rights as occupants of the suitbuilding is but an instance of clever drafting. The plaintiffsagainst whom the suits are sub-judice before the Court of SmallCauses at Mumbai have deliberately suppressed the fact thateviction suits have been instituted against them before theCourt of Small Causes. 8.In any event, Mr. Joshi would submit, even the claim ofthe plaintiffs that, they were deprived of the essential servicesand amenities and, therefore, they were seeking injunctivereliefs before the Civil Court also does not insulate the suitbefore the City Civil Court from the bar envisaged by Section 33of the Rent Act, 1999. Laying emphasis on the provisionscontained in Section 29 of the Rent Act, 1999, Mr. Joshi urged9/31SSP -CRA388-2024.DOCthat, even a dispute in regard to the withholding of essentialsupply or service is required to be agitated before the Court ofSmall Causes at Mumbai.9.Mr. Joshi further submitted that, the plaintiffs have notonly acknowledged the relationship of landlord and tenant buthave also sought reliefs from the Court of Small Causes in thepending proceedings in the said capacity. Attention of the Courtwas invited to the written statement filed on behalf of plaintiffNos.8 and 9 herein in RAE Suit No.714/2021, whereincategorical admissions are made regarding the jural relationshipbetween the parties. In RAE Suit No.70/2015, plaintiff No.1 hadsought permission to deposit rent. Reliance was also placed onthe tenancy agreement executed by plaintiff No.4 and plaintiffNo.7; who had also applied for the permission to deposit therent in the Court of Small Causes. In the face of the aforesaidmaterial, Mr. Joshi would urge that, the suit before the CityCivil Court was expressly barred by the provisions contained inSection 33 of the Maharashtra Rent Control Act. 10.To buttress the aforesaid submission, as regards thegeneral principles which govern the exercise of power to rejectthe plaint under the provisions of Order VII Rule 11, Mr. Joshi10/31SSP -CRA388-2024.DOCplaced reliance on a number of judgments including thedecisions of the Supreme Court in the cases of Popat andKotecha Property vs. State Bank of India Staff Association1, T.Arivandandam vs. T. V. Satyapal and another2, Rajendra Bajoriaothers vs. Hemant Kumar Jalan and others3 and a judgment ofthe learned Single Judge of this Court of JVPD Sterling CHSL(Regd.) and others vs. Kamla Landmarc Builders and others4. 11.To fortify the submission that, a party who does notapproach the Court with clean hands and suppresses materialfacts to gain an advantage over the adversary, is not entitled tobe heard at all, Mr. Joshi placed reliance on the judgment in thecase of S. P. Chengalvaraya Naidu vs. Jagannath (dead) by LRs.5.12.On the point of exclusive jurisdiction conferred on theCourt of Small Causes under the provisions of Section 33 of theRent Act, 1999, Mr. Joshi placed reliance on the judgment of theSupreme Court in the case of Banatwala and Company vs. LifeInsurance Corporation of India and another6, wherein it was,inter alia, enunciated that an application for restoration of1(2005) 7 Supreme Court Cases 510. 2(1977) 4 Supreme Court Cases 4673(2022) 12 Supreme Court Cases 641.42019 SCC OnLine Bom 6792.5(1994) 1 SCC 1.6(2011) 13 Supreme Court Cases 446.11/31SSP -CRA388-2024.DOCessential supplies and services when necessary shall bemaintainable under the Rent Act, 1999, and a Division Benchjudgment of this Court in the case of Nirmal Ujwal Credit Co-operative Society Ltd. vs. Narendra Mohanlal Choudhary andanother7. In the latter case, it was enunciated that theprovisions of Section 29 of the Rent Act, 1999 are in the natureof a Code in itself in the matter of any essential supply orservices, and remedy has been provided thereunder to a tenantwhenever such essential supply or service enjoyed by him is cutoff or withheld. 13.On the aspect of the determination of the question ofexclusive jurisdiction in the context of the provisions containedin Section 28 of the Bombay Rents, Hotel and Lodging HouseRates Control Act, 1947, reliance was placed on the judgment inthe case of Natraj Studios (P) Ltd. vs. Navrang Studios andanother8. 14.In contrast to this, Mr. Pandit, learned Counsel for theRespondent No.1, would submit that the bar of subject matterjurisdiction, sought to be pressed into service by the Applicants,is wholly misconceived, and, even non-existant in the72022 SCC OnLine Bom 1637.8(1981) 1 Supreme Court Cases 523.12/31SSP -CRA388-2024.DOCcontemplation of the Applicants as well. Mr. Pandit assiduouslysubmitted that the instant suit raises a tortious claim ofnuisance and harassment qua the Defendants, plain andsimple. The plaint nowhere refers to the jural relationship oflandlord and tenant between the parties. Neither the Plaintiffsseek to protect their possession over the respective portions ofthe suit building in their capacity as tenants, nor the suitrelates to recovery of rent or any other matter covered by theprovisions contained in Section 33 of the Maharashtra RentControl Act, 1949. 15.Inviting attention of the Court to the averments in theplaint and the frame of the suit, Mr. Pandit submitted that, it issettled position in law that the jurisdiction is required to beinitially determined on the basis of the averments in the plaintand not the defence raised by the Defendants. Support wassought to be drawn from the observations of the Supreme Courtin the case of Natraj Studios (P) Ltd. (supra), on which reliancewas placed by Mr. Joshi. 16.To bolster up the submission that, the plaint in thepresent form does not set up the landlord tenant relationshipand, therefore, the provisions contained in Section 33 of the13/31SSP -CRA388-2024.DOCMaharashtra Rent Control Act, are not attracted, Mr. Panditplaced reliance on the judgment of the Supreme Court in thecase of Mansukhlal Dhanraj Jain and Ors. V/s. Eknath VithalOgale9. 17.Mr. Pandit further submitted that, in the case at hand, theDefendant No.1 has not only categorically denied the tenancy ofthe Plaintiff No.1 and others, but has also instituted a suitbefore the High Court, being Civil Suit No.405 of 2023,asserting that those tenancies are null and void ab-initio.Plaintiff No.1 is alleged to be a trespasser and a decree forpossession in respect of the properties in the possession ofPlaintiff No.1 is sought. Therefore, the Defendant No.1 can notagain turn around and contend that the City Civil Court’sjurisdiction is barred and the Court of Small Causes has theexclusive jurisdiction. To this end, a very strong reliance wasplaced by Mr. Pandit on the decision of the Supreme Court inthe case of Abdulla Bin Ali and Ors. V/s. Calappa and Ors.10. 18.In the facts of the case at hand, Mr. Pandit would urge,the Plaintiff No.1, post execution of the gift deed by late Farhad,has consistently asserted co-ownership over the subject building9 (1995) 2 SCC 66510 (1985) 2 SCC 5414/31SSP -CRA388-2024.DOCsince October 2017. Conversely, Defendant No.1 has not onlychallenged the said gift deed, but even questioned the tenanciesgranted by late Farhad in favour of Plaintiff No.1 and others,during Farhad’s life time, as fraudulent. To add to this, on theown showing of Defendant No.1, Plaintiff Nos.2, 3, 5, 6 and 10are not the tenants of the portions of the suit building in theirrespective occupation. Thus, no jural relationship of landlordand tenant exists between Defendant No.1 and Plaintiff Nos.2, 3,5, 6 and 10. Consequently, it cannot be said that the rightssought to be espoused by those Plaintiffs in the capacity of theoccupants of the suit building fall within the exclusivejurisdiction of the Court of Small Causes. 19.As a sequitur of the aforesaid submissions, Mr. Panditwould urge that, if a cause of action survives against even one ofthe Defendants or against some of the properties, then the suitmust proceed for trial. 20.The question of bar of jurisdiction of the ordinary CivilCourts is often raised under Order VII Rule 11(d) of the Code,where the special enactment deals with the subject matter ofthe suit directly, collaterally or even remotely. The starting pointof inquiry, however, firmly rests in a well ingrained principle15/31SSP -CRA388-2024.DOCthat the Civil Court has, in a sense, omnipresent and plenaryjurisdiction to decide all suits of civil nature, unless theircognizance is expressly or impliedly bar. An inference ofexclusion of the Civil Court’s jurisdiction is not to be readilydrawn. Where a bar of jurisdiction on account of conferment ofexclusive jurisdiction on a Court / Tribunal under a specialenactment, like, the Maharashtra Rent Control Act, 1999, isurged, the inquiry as to whether the subject matter of the lisbefore the Civil Court falls within the exclusive province of thejurisdiction of the Court/Tribunal created thereunder, becomesnecessary. 21.Relevant part of Section 33 of the Act, 1999 reads asunder : “33. Jurisdiction of courts (1)Notwithstanding anything contained in, any lawfor the time being in force, but subject to theprovisions of Chapter VIII, and notwithstanding thatby reason of the amount of the claim or for any otherreason, the suit or proceeding would not, but for thisprovision, be within its jurisdiction, - (a)in Brihan Mumbai, the Court of Small Causes,Mumbai, 16/31SSP -CRA388-2024.DOC(b)in any area for which a Court of Small Causes isestablished under the provincial Small CausesCourts Act, 1897 such Court, and, (c)elsewhere, the Court of the Civil Judge (juniorDivision) having jurisdiction in the area in which thepremises are situate or, if there is no such CivilJudge, the Court of the Civil Judge (Senior Division)having ordinary jurisdiction, shall have jurisdictionto entertain and try any suit or proceeding between alandlord and a tenant relating to the recovery of rentor possession of any premises and to decide anyapplication made under this Act (other than theapplications which are to be decided by the StateGovernment or an officer authorized by it or theCompetent Authority); and subject to the provisionsof sub-section (2), no other court shall havejurisdiction to entertain any such suit, proceeding orapplication or to deal with such claim or question.” 22.Section 41 of the Presidency of Small Causes Act, 1882which also confers exclusive jurisdiction on the Court of SmallCauses, reads as under : “41.suits or proceedings between licensors andlicensees or landlords and tenants for recovery ofpossession of immovable property and licence fees orrent, except to those to which other Acts apply to liein Small Cause Court. - (1) Notwithstandinganything contained elsewhere in this Act, butsubject to the provisions fo sub-section (2), the17/31SSP -CRA388-2024.DOCCourt of Small Causes shall have jurisdiction toentertain and try all suits and proceedings betweena licensor and licensee, or a landlord and tenant,relating to the recovery of possession of anyimmovable property situated in Greater Bombay, orrelating to the recovery of any licence fee or chargesor rent therefor, irrespective of the value of thesubject-matter of such suits or proceedings. (2)Nothing contained in sub-section (1) shall apply tosuits or proceedings for the recovery of possession ofany immovable property, or of licence fee or chargesof rent thereof, to which the provisions of theBombay Rents, Hotel and Lodging House RatesControl Act, 1947, the Bombay Government Premises(Eviction) Act, 1955, the Bombay MunicipalCorporation Act, the Maharashtra Housing and AreaDevelopment Act, 1976 or any other law for the timebeing in force apply.”23.Evidently, both Section 33 of the Act, 1999 and Section 41of the Act, 1882 begin with non-obstante clauses. Consequently,the jurisdiction of the other Courts, which they would otherwisehave, would stand ousted if the conditions stipulated in Section33 of the Act, 1999 read with Section 41 of the Act, 1882 aresatisfied. On a plain reading of the aforesaid provisions, thefollowing conditions need to be satisfied before the ouster of thejurisdiction of the ordinary civil court can be sustained: 18/31SSP -CRA388-2024.DOC (a) suit or proceeding must be between the landlord andthe tenant or the licensor and the licensee, as the case may be; (b) the suit or proceeding must relate to recovery of rent orpossession of any premises; or (c) suit or proceeding is in relation to any application madeunder the Maharashtra Rent Control Act, 1999. If the aforesaid conditions are satisfied, the latter part ofSection 33 precludes the other Courts from entertaining anysuch suit, proceeding or application or to deal with such claimor question. 24.In the case of Mansukhlal Dhanraj Jain (supra), theSupreme Court expounded that the phrase ‘relating to recoveryof possession’ as found in Section 41(1) of the Small CausesCourts Act, is comprehensive in nature and takes in its sweepall types of suits and proceedings which are concerned with therecovery of possession of suit property from the licensee and,therefore, suits for permanent injunction restraining thedefendant from effecting forcible recovery of such possessionfrom the licensee – plaintiff would squarely be covered by thewide sweep of the said phrase. It was further enunciated that19/31SSP -CRA388-2024.DOCthe nature of the suits as contemplated by Section 41(1) of theSmall Causes Courts Act, 1882 and Section 28 of the BombayRent Act, 1999, is the same, namely, it should be the suitrelating to the recovery of possession of premises. Interpretingthe phrase ‘relating to recovery of possession’ as found inSection 28 of the Bombay Rent Act, the Supreme Court in thecase of Babulal Bhuramal V/s. Nandram Shivram11 held that asuit for declaration that one of the Plaintiffs was the tenant ofthe defendant landlord and the other plaintiffs were his sub-tenants and they were entitled to be protected from evictionsquarely falls within the exclusive jurisdiction of the SmallCauses Court, Bombay under Section 28 of the Bombay RentAct and jurisdiction of the City Civil Court for entertaining sucha suit is excluded. 25.The propositions of law, as evincible from the phraseologyof Section 33 of the Maharashtra Rent Control Act, 1999 readwith Section 41 of the Small Causes Courts Act, are quite clear.The application of the aforesaid propositions to the concretecases in myriad fact-situations, however, at times presentsdifficulties. The decision of the Supreme Court in the case ofNatraj Studios (P) Ltd. (supra), illuminates the path. The11 AIR 1958 SC 67720/31SSP -CRA388-2024.DOCapproach to be adopted by the Courts in different situationswhere a party asserts or disputes the jural relationship oflandlord and tenant was elucidated by the Supreme Court, asunder : “18.Thus exclusive jurisdiction is given to theCourt of Small Causes and jurisdiction is denied toother Courts (1) to entertain and try any suit orproceeding between a landlord and a tenant relatingto recovery of rent or possession of any premises, (2)to try any suit or proceeding between a licensor anda licensee relating to the recovery of licence fee orcharge, (3) to decide any application made under theAct and, (4) to deal with any claim or question arisingout of the Act or any of its provisions. Exclusivejurisdiction to entertain and try certain suits, todecide certain applications or to deal with certainclaims or questions does not necessarily meanexclusive jurisdiction to decide jurisdictional factsalso. Jurisdictional facts have necessarily to bedecided by the Court where the jurisdictionalquestion falls to be decided, and the question mayfall for decision before the Court of exclusivejurisdiction or before the Court or ordinaryjurisdiction. A person claiming to be a landlord maysue his alleged tenant for possession of a building ongrounds specified in the Rent Act. Such a suit willhave to be brought in the Court of Small Causes,which has been made the Court of exclusivejurisdiction. In such a suit, the defendant may deny21/31SSP -CRA388-2024.DOCthe tenancy but the denial by the defendant will notoust the jurisdiction of Court of Small Causes. Ifultimately the Court finds that the defendant is not atenant the suit will fail for that reason. If the suit isinstituted in the ordinary Civil Court instead of theCourt of Small Causes the plaint will have to bereturned irrespective of the plea of the defendant.Conversely a person claiming to be the owner of abuilding and alleging the defendant to be atrespasser will have to institute the suit, on theplaint allegations, in the ordinary Civil Court only. Insuch a suit the defendant may raise the plea that heis a tenant and not a trespasser. The defendant's pleawill not straightaway oust the jurisdiction of theordinary Civil Court but if ultimately the plea of thedefendant is accepted the suit must fail on thatground. So the question whether there is relationshipof landlord and tenant between the parties or suchother jurisdictional questions may have to bedetermined by the Court where it falls fordetermination-be it the Court of Small Causes or theordinary Civil Court. If the jurisdictional question isdecided in favour of the Court of exclusivejurisdiction the suit or proceeding before theordinary Civil Court must cease to the extent itsjurisdiction is ousted. (emphasis supplied) 26.The Supreme Court has enunciated in clear and explicitterms that the jurisdictional facts are necessarily to be decided22/31SSP -CRA388-2024.DOCby the Court, where the jurisdictional question crops up forconsideration and such question may arise for decision beforethe Court of exclusive jurisdiction, or the ordinary Civil Court.If the jurisdictional question is eventually decided in favour ofthe Court of exclusive jurisdiction, a suit or proceeding beforethe ordinary court must terminate to the extent its jurisdictionis ousted. 27.Applying these principles to the facts of the case at hand,first and foremost, since the Defendants are seeking rejection ofthe plaint on the ground of bar of jurisdiction, the plaint isrequired to be read as a whole in a meaningful and notformalistic manner. (T. Arivandandam vs. T. V. Satyapal andanother (supra). If an illusion of a cause of action is created orthe exclusive jurisdiction of the Court of Small Causes is soughtto be side-stepped by resorting to clever drafting, then it is theduty of the Court to nip such an effort in the bud. 28.If, on the aforesaid anvil, the tenor of the plaint isconsidered, it appears that the Plaintiffs have instituted theinstant suit in the capacity of the occupants of the suitbuilding. Plaintiff No.1 has nowhere asserted tenancy rights. Incontrast, there is reference to the Plaintiff No.1’s claim of23/31SSP -CRA388-2024.DOCownership. The allegations in the plaint revolve around theobstruction in the use of the lift, access to common terrace andresistance to activities aimed at repairs, upkeep of the buildingand maintenance of cleanliness and hygiene in the suitpremises. The Plaintiffs thus seek injunctive reliefs to abate thealleged obstruction, annoyance and hindrances. 29.From the tenor of the plaint, it becomes abundantly clearthat the suit nowhere involves the claim of either recovery ofpossession or protection of the possession of the Plaintiffs overthe respective portions of the suit building as the occupantsthereof, much less as tenants. Nor the suit relates to recoveryof rent or charges. 30.The thrust of the submission of Mr. Joshi was that, thereliefs claimed in the suit fall within the ambit of the provisionscontained in Section 29 of the Maharashtra Rent Control Act,1999, which, in the first part, proscribes withholding ofessential supply or services enjoyed by the tenant, and, in thesecond part, provides a remedy for the restoration of suchsupply or services. Such a claim, according to Mr. Joshi, wouldclearly fall within the exclusive jurisdiction of the Court of SmallCauses as that would take shape of an application under the24/31SSP -CRA388-2024.DOCprovisions of the Rent Act, 1999. A very strong reliance wasplaced by Mr. Joshi on the judgments in the cases of Banatwalaand Company (supra) and Nirmal Ujwal Credit Co-operativeSociety Ltd. (supra).31. In the case of Nirmal Ujwal Credit Co-operative SocietyLtd. (supra), a Division Bench of this Court was confronted withthe question, whether a revision application under Section 34(4)of the Maharashtra Rent Control Act, 1999, would bemaintainable against an order passed on an application underSection 29(2) of the said Act. Respondent No.1 therein, hadinitiated the proceedings with the contention that the action ofthe Appellant of withholding electricity supply to the lift and thepremises let out to the tenant was unjust and without anysufficient cause. In that context, after adverting to theprovisions contained in Section 29(2) of the Act, the DivisionBench observed that the provisions of Section 29 are in thenature of a Code in itself in the matter of any essential supply orservice. The same includes supply of water, electricity, lights inpassages and staircases, lifts and conservancy or sanitaryservice. The provisions recognize the right of a tenant to enjoyessential supply and service of the aforesaid amenities which25/31SSP -CRA388-2024.DOCare basic in nature which a tenant is entitled to enjoy in respectof the premises let to him. Remedy has also been provided to atenant whenever such essential supply or service enjoyed byhim is cut off or withheld. 32.In the case of Banatwala and Company (supra), theSupreme Court considered the question of maintainability of anapplication before the Court of Small Causes, Mumbai, forrestoration of the lift services under Section 29 of the said Act,where the premises in question was governed by the PublicPremises (Eviction of the Unauthorized Occupants) Act, 1971.The Supreme Court held that, the public premises are notspecifically exempted from the applicability of the MRC Act.That being so, there was no reason to hold that the remediesunder Section 29 of the Rent Act, 1999 would not be available tothe tenants of the public premises, though for the purposes ofeviction of unauthorized occupants and recovery of arrears ofrent, the proceedings will lie only under the Public Premises Act,1971.33.There can be no quarrel with the aforesaid propositions.However, the question of the jurisdiction of the City Civil Courtdoes not hinge merely upon the nature of the relief claimed by26/31SSP -CRA388-2024.DOCthe Plaintiffs in the suit, even if some of the reliefs may partakethe character of preservation and continuous availability /supply of the essential services. As enunciated in the case ofMansukhlal Dhanraj Jain (supra), the primary requirement isthat the suit or proceeding must be between the landlord andtenant or the licensee and the licensor. If this jural relationshipis clearly demonstrated, then the nature of the reliefs claimed inthe suit or proceeding becomes relevant. 34.In the case at hand, on the aspect of the jural relationshipbetween the parties, by and large, there is no quarrel over thecharacter of the few of the parties to the suit. Neither theApplicant No.2-Defendant No.2 claims to be a landlord, nor theApplicants asserted that the Respondent Nos. 2, 3, 5, 6 and 10-Plaintiff Nos. 2, 3, 5, 6 and 10 are the tenants. On the contrary,the applicants contend that they are illegal occupants.Consequently, the question of existence of jural relationship oflandlord and tenant qua the aforesaid parties does not arise atall.35.Secondly, from the perusal of the previous proceedingsbetween the parties and the orders passed therein, it becomesexplicitly clear that the Applicant No.1/Defendant No.1 has, in27/31SSP -CRA388-2024.DOCthe pleadings, disowned the relationship of landlord and tenantin regard to the few of other Plaintiffs, which was sought to beasserted in the instant Notice of Motion. In the Plaint in suit No.405 of 2023 instituted by the Applicant No.1-Defendant No.1before this Court, Defendant No.1 claimed that the tenanciesallegedly created in favour of Plaintiff Nos. 1 and 11 werefraudulent and plaintiff No.1, 11 and Rashna (D3 therein) wherethe trespassers. Defendant No.1 had inter alia sought the reliefsthat the tenancies in favour of plaintiff Nos.1 and 11, havingbeen created by fraud and misrepresentation, were void ab-initio; the plaintiff Nos.1, 11 and Sushila Landge (P3 herein)were the trespassers and for delivery of vacant possession of theportions of the suit building in the occupation of theabovenumbered Plaintiffs and other Defendants therein. 36.In view of the aforesaid stand of the Defendant No.1,coupled with the assertions of the right by the Plaintiff No.1 as aco-owner of the suit building and the institution of theproceedings by Defendant No.1 as well as the Plaintiffs beforethe ordinary civil court, merely because the Defendant No.1 hasinstituted eviction suit before the Court of Small Causes foreviction of few of the Plaintiffs, the jurisdiction of the civil Court28/31SSP -CRA388-2024.DOCcannot be said to be ousted. A party cannot be permitted toapprobate and reprobate. 37.In the case of Abdulla Bin Ali and Ors. (supra), on whichreliance was placed by Mr. Pandit, the Supreme Courtenunciated that, when the Defendants therein denied the title ofthe Plaintiffs and the tenancy, the Plaintiffs filed a suit treatingthem to be trespassers and the suit was not on the basis ofrelationship of landlord and tenant between the parties, and onthe denial of the tenancy and the title of the Plaintiffs –Appellants, the latter filed a suit treating the Defendants thereinto be trespassers and the suit against the trespassers would lieonly in the Civil Court and not in the revenue Court. Thus, inthe light of the denial of the tenancy by the Defendants, the suitwas cognizable by the Civil Court. 38.In the case at hand, the Defendant No.1 has not onlydenied the tenancy of the Plaintiff No.1 and others, butinstituted proceedings before the Civil Court seeking suchdeclaration. Thus, it would be impermissible for the Defendantsto take a somersault and seek rejection of the plaint on theground that the suit of the present nature would fall within theexclusive jurisdiction of the Court of Small Causes, at Mumbai.29/31SSP -CRA388-2024.DOC39.Though Mr.Pandit canvassed submissions premised on theapplicability of the principle of res-judicata, in view of the orderspassed by this Court in Suit No.790 of 2018 and Appeal No.437of 2018 filed by the Defendants, challenging the interim orderpassed therein, yet, in the context of the limited nature of theinquiry, this Court refrains from delving deep into the saidaspect of the matter. Suffice to note that, this Court hasexercised jurisdiction as the ordinary civil Court in the contextof the disputes over the use of the portions of the suit buildingand the alleged infringement of the privacy rights of theoccupants of the suit building. 40.For the foregoing reasons, this Court does not find anyjustifiable reason to interfere with the order passed by thelearned Judge, city Civil Court as there is neither anyjurisdictional error, patent legal infirmity or material irregularityin the impugned order. Thus, the Civil Revision Applicationdeserves to be dismissed. 41.Hence, the following order: : O R D E R :(i)Civil Revision Application stands dismissed.30/31SSP -CRA388-2024.DOC(ii)In view of the dismissal of the Civil Revision Application,IA No.10681 of 2024 also stands disposed. [N. J. JAMADAR, J.]31/31SSP