Case Note & Summary
The petitioner, Deepak Dhansing Patil, was the original defendant in a suit filed by the respondents, Girish Damodar Deo and Nitin Damodar Deo, in the Court of Small Causes at Pune. The respondents sought a declaration that the petitioner was a gratuitous licensee and sought termination and revocation of his license. The petitioner filed an application for dismissal of the suit on the ground that the Court of Small Causes lacked jurisdiction, as a suit against a gratuitous licensee lies only before a Civil Court under Section 41 of the Presidency Small Causes Courts Act, 1882. The trial court rejected the application, holding that the question of jurisdiction involved a mixed question of law and fact requiring evidence. The petitioner challenged this order by way of a writ petition before the Bombay High Court. The High Court, relying on the Division Bench judgment in Ramesh D. Mehra v. Indravati D. Mehra (2001 (4) Bom.C.R. 417), held that the issue of jurisdiction is one of law alone, especially when the plaint itself describes the defendant as a gratuitous licensee. The court further observed that under Order 14 Rule 2 of the Code of Civil Procedure, 1908, an issue involving a question of law alone can be decided as a preliminary issue without requiring evidence. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and directed the trial court to decide the issue of jurisdiction as a preliminary issue.
Headnote
A) Civil Procedure - Jurisdiction - Determination by Plaint Averments - Jurisdiction must be determined based on averments in the plaint - The respondents-plaintiffs described the petitioner as a gratuitous licensee, which is a question of law alone - The trial court erred in treating it as a mixed question of law and fact requiring evidence (Paras 3-4).
B) Small Causes Court - Gratuitous Licensee - Section 41 Presidency Small Causes Courts Act, 1882 - Suit against a gratuitous licensee lies only before a Civil Court and not the Court of Small Causes - Relying on Ramesh D. Mehra v. Indravati D. Mehra (2001 (4) Bom.C.R. 417), the court held that the issue of jurisdiction is one of law alone (Paras 3-4).
C) Civil Procedure - Preliminary Issue - Order 14 Rule 2 CPC - Where an issue involves a decision on a question of law alone, it can be tried as a preliminary issue without requiring evidence - The court found that the jurisdiction issue could be decided as a preliminary issue without miscarriage of justice (Para 4).
Issue of Consideration
Whether the Court of Small Causes has jurisdiction to entertain a suit for eviction of a gratuitous licensee.
Final Decision
The High Court allowed the writ petition, set aside the impugned order, and directed the trial court to decide the issue of jurisdiction as a preliminary issue.
Law Points
- Jurisdiction determined by plaint averments
- Suit against gratuitous licensee lies only before Civil Court
- Section 41 Presidency Small Causes Courts Act
- 1882
- Order 14 Rule 2 CPC
Case Details
2005 LawText (BOM) (05) 3
Writ Petition No.3790 of 2004
Ms Revati Mohite-Dere for the petitioner, Mr. R.G. Ketkar for the respondents
Shri Deepak Dhansing Patil
Shri Girish Damodar Deo and Shri Nitin Damodar Deo
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Nature of Litigation
Writ petition challenging order rejecting application for dismissal of suit on ground of jurisdiction
Remedy Sought
Petitioner sought dismissal of the suit for want of jurisdiction of the Court of Small Causes
Filing Reason
The respondents-plaintiffs filed a suit in the Court of Small Causes at Pune seeking declaration that the petitioner is a gratuitous licensee and for termination of license
Previous Decisions
The trial court rejected the petitioner's application for dismissal of the suit on the ground that the question of jurisdiction involves a mixed question of law and fact requiring evidence
Issues
Whether the Court of Small Causes has jurisdiction to entertain a suit for eviction of a gratuitous licensee?
Whether the issue of jurisdiction can be decided as a preliminary issue under Order 14 Rule 2 CPC?
Submissions/Arguments
Petitioner argued that as per settled law, a suit against a gratuitous licensee lies only before a Civil Court and not the Court of Small Causes under Section 41 of the Presidency Small Causes Courts Act, 1882.
Respondents contended that the question of jurisdiction involves a mixed question of law and fact requiring evidence.
Ratio Decidendi
The jurisdiction of a court must be determined based on the averments in the plaint. Where the plaint describes the defendant as a gratuitous licensee, the suit against such a licensee lies only before a Civil Court and not the Court of Small Causes under Section 41 of the Presidency Small Causes Courts Act, 1882. The issue of jurisdiction, being a question of law alone, can be decided as a preliminary issue under Order 14 Rule 2 CPC without requiring evidence.
Judgment Excerpts
It is a settled law vide Ramesh D. Mehra v. Indravati D. Mehra (2001 (4) Bom.C.R. 417) that a suit against a gratuitous licensee will lie only before a Civil Court and not the Court of Small Causes in view of section 41 of the Presidency Small Causes Courts Act, 1882.
Having regard to the settled position in law that the question of jurisdiction must be determined in accordance with the averments in the plaint, the petitioner having been described as a gratuitous licensee, it is not possible to appreciate the reasoning of the trial Court that the question of jurisdiction involves a mixed question of law and fact and, therefore, evidence is necessary to determine the said facts.
Procedural History
The respondents filed a suit in the Court of Small Causes at Pune seeking declaration that the petitioner is a gratuitous licensee and for termination of license. The petitioner filed an application for dismissal of the suit on the ground of lack of jurisdiction. The trial court rejected the application. The petitioner challenged the order by way of a writ petition before the Bombay High Court.
Acts & Sections
- Presidency Small Causes Courts Act, 1882: Section 41
- Code of Civil Procedure, 1908: Order 14 Rule 2
