Case Note & Summary
The appeal arose from an order of a learned Single Judge dated 16 March 2012 deciding a preliminary issue of jurisdiction. The first appellant is the widowed daughter-in-law of the respondents, and the second appellant is her daughter. The respondents, aged 68 and 63 at the time of suit institution in 1995, filed a suit for declaration that the first respondent is the lawful owner of flat A-51 with garage at Meherina, Napean Sea Road, Mumbai, and that the appellants are trespassers with no right, title or interest. The suit sought possession by mandatory order. The flat was purchased by the first respondent in 1965; the first appellant married the respondents' son in 1982 and resided with them. After the son's death in 1994, the first appellant allegedly wrongfully claimed ownership. Issues were framed on 10 January 2011. On 22 February 2012, the appellants raised a preliminary objection that in view of the Full Bench decision in Prabhudas D. Kotecha v. Manharbala J. Damodar, the Court of Small Causes has exclusive jurisdiction over suits against gratuitous licensees, barring the High Court's jurisdiction. The learned Single Judge framed the preliminary issue: 'Whether this Court's inherent jurisdiction is barred' and answered it in the negative. The appellants appealed. The Division Bench held that the plaint, read as a whole, reveals that the respondents claim ownership and the appellants assert a right to the premises. The suit is not merely for possession against a gratuitous licensee; it involves a dispute over title. Therefore, the Court of Small Causes does not have exclusive jurisdiction, and the High Court's inherent jurisdiction is not barred. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Jurisdiction - Preliminary Issue - Suit for possession - Where the plaint discloses a claim of ownership by the plaintiff and the defendant asserts a right to the premises, the suit is not one against a gratuitous licensee alone - The Court of Small Causes does not have exclusive jurisdiction - The High Court's inherent jurisdiction is not barred (Paras 1-6).
Issue of Consideration
Whether the High Court's inherent jurisdiction is barred in a suit for possession where the defendant claims ownership, in light of the Full Bench decision in Prabhudas D. Kotecha v. Manharbala J. Damodar regarding exclusive jurisdiction of the Court of Small Causes over suits against gratuitous licensees.
Final Decision
Appeal dismissed. The order of the learned Single Judge dated 16 March 2012 is affirmed. No order as to costs.
Law Points
- Jurisdiction
- Gratuitous Licensee
- Court of Small Causes
- Inherent Jurisdiction
- Plaint Reading
- Ownership Claim
Case Details
2013 LawText (BOM) (03) 43
APPEAL NO.275 OF 2012 In SUIT NO.4162 OF 1995 With NOTICE OF MOTION NO.1296 OF 2012
DR.D.Y.CHANDRACHUD, A.A. SAYED
Mr.U.J. Makhija with Mr.Sagar Ghogre, Mr.Parag Sharma and Mr.Nikhil Pawar i/b. Udwadia Udeshi & Argus Partners for the Appellants; Mr.Y. Divekar i/b. Divekar & Co., for the Respondents
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Nature of Litigation
Civil appeal against order on preliminary issue of jurisdiction in a suit for declaration of ownership and possession.
Remedy Sought
Appellants sought to set aside the order of the learned Single Judge holding that the High Court's jurisdiction is not barred.
Filing Reason
Appellants contended that the suit against them as gratuitous licensees falls within the exclusive jurisdiction of the Court of Small Causes.
Previous Decisions
Learned Single Judge decided preliminary issue on 16 March 2012 holding that the High Court's inherent jurisdiction is not barred.
Issues
Whether the High Court's inherent jurisdiction is barred in a suit for possession where the defendant claims ownership, in light of the Full Bench decision in Prabhudas D. Kotecha v. Manharbala J. Damodar.
Submissions/Arguments
Appellants argued that if they were to establish a right to the premises, they would have to file a suit in the competent civil court; but in the present case, the plaint read as a whole shows that the respondents seek possession from them, and a suit for possession even against a gratuitous licensee is maintainable only before the Small Causes Court.
Respondents argued that the plaint discloses a claim of ownership and the appellants assert a right to the premises, so the suit is not merely against a gratuitous licensee and the High Court has jurisdiction.
Ratio Decidendi
The plaint must be read as a whole to determine the nature of the suit. Where the plaintiff claims ownership and the defendant asserts a right to the premises, the suit is not merely for possession against a gratuitous licensee. The Court of Small Causes does not have exclusive jurisdiction in such a case, and the High Court's inherent jurisdiction is not barred.
Judgment Excerpts
If the plaint is read in its entirety, it would be apparent that what the Respondents seek is possession of the premises from the Appellants.
The suit is not merely for possession against a gratuitous licensee; it involves a dispute over title.
Procedural History
Suit No.4162 of 1995 filed in the High Court. Issues framed on 10 January 2011. On 22 February 2012, appellants raised preliminary objection regarding jurisdiction. Learned Single Judge framed preliminary issue on 16 March 2012 and answered it against the appellants. Appeal No.275 of 2012 filed against that order. Notice of Motion No.1296 of 2012 filed in the appeal. Present judgment dated 18 March 2013.
Acts & Sections
- Presidency Small Cause Courts Act, 1882: Section 41
