Notice of Motion No.1647 of 1994,Suit No.2416 of 1994

11th December, 1997

Petitioner Counsel: Mr. GAUTAM MEHTA with Mr. DEEPAK THAKKAR i/b M/s. MAYUR NARENDRA & CO.
Respondent Counsel: Mr. D. V. MERCHANT i/b SHAH & SANGHVI

Cases Cited:
AIR 1987 Bombay 123 [Para 5]
(1976) 4 SCC 118 [Para 5]
(1991) 2 SCC 180 [Para 6]
1964 Madras LJ 783 [Para 6]
AIR 1962 SC 554 [Para 6]

JUDGMENT

JUDGMENT :- This suit has been filed by the plaintiff with the following prayers.

(a) It be declared that the defendant is a trespasser in respect of the suit premises and that the defendant has got no right, title and interest of any nature whatsoever in respect of the suit premises i.e. Flat No.L-3, Breach Candy Apartments, 12th floor, 70-C, Bhulabhai Desai Road, Bombay-400 026.

(b) for a mandatory order and decree directing the defendant to quit, vacate and hand over quite vacant and peaceful possession of the said suit premises to the plaintiff.

(c) For a mandatory order directing the defendant to pay to the plaintiff, monthly compensation/mesne profits in respect of the illegal and unauthorised use, occupation and enjoyment of the suit premises at the rate of Rs.15,000/- per month or such other rate as deem fit and proper to this Hon'ble Court from the month of June, 1991 till the date of filing of the suit and thereafter at the rate of Rs.25,000/- per month till the defendant vacates and hand over quite vacant and peaceful possession of the suit premises i.e. Flat No. L-3, Breach Candy Apartments, 12th floor, Bhulabhai Desai Road, Bombay-400 026, to the plaintiff."

The Notice of Motion has been taken out for appointment of Court Receiver, for delivery of possession of the suit flat to the Court Receiver, for payment of Rs.15,000/- per month as compensation/mesne profits for illegal and unauthorised use of the suit flat for the period June 1991 till the date of filing of the suit and for payment of Rs.25,000/- per month till the vacant possession is handed over to the plaintiff.

2. Flat No. L-3, 12th floor, Breach Candy Apartment, 70-C Bhulabhai Desai Road, Bombay-400 026, hereinafter referred to as "the suit flat" was owned by Mrs. Asha Lata Singhania, late mother of the plaintiff, hereinafter referred to as "the mother". By an agreement dated 15th April, 1968, the mother entered into a leave and licence agreement with the father of the defendant, hereinafter referred to as "the ex-licensee. The licence fee was fixed at Rs.1300/- per month. Initially the period of licence was for 11 months commencing from 15th April, 1968 and ending on 15th March, 1969. Four options of 11 months each for renewal were given to the ex-licensee. The father of the defendant had died. Thereafter the defendant has been residing in the suit flat along with his family. According to the plaintiff, the mother by a letter dated 28th June, 1972 terminated the licence. Even otherwise it is stated that the licence came to an end by efflux of time on 14th November, 1972 when the four options for renewal expired. It is specifically provided in clause 1 of the agreement that after the four options, the agreement shall stand terminated. It is further stated that this licence cannot possibly be held by the defendant as it was given for the personal use and occupation of the ex-licensee who was a Managing Director of a firm in Goa. The other terms and conditions of the agreement were that the premises will be maintained in a good and tenantable condition. He was not to part with possession of the suit flat nor to run any paying guest house during the continuance of the licence. He was to observe the rules and conditions of the co-operative society. An undertaking was given that the ex-licensee will remove his family and servants from the suit flat on the expiry of the licence. In clause 18 of the agreement it is categorically stated that the exclusive possession of the flat will remain with the mother. This clause also contains a covenant to the effect that the licensee shall not construe this agreement as granting him any interest whatsoever, of any nature, including tenancy, sub-tenancy or any right in respect of the flat. The licensee also gave an undertaking in that he shall never claim any tenancy or sub-tenancy as provided above. This clause also provides that licensee is not paying and shall also not claim that he is paying rent in respect of the flat. The licence granted is personal and as such cannot be assigned or transferred by the licensee. Inspite of the undertaking given above, the ex-licensee failed to deliver vacant possession to the mother in response to the letter dated 28th June, 1972. The mother passed away in 1990 and, therefore, the plaintiff has inherited the flat. Even the request made by the plaintiff, who is the son of the original owner, for vacating the flat has been refused by the defendant. It is claimed that the defendant is in occupation of the suit flat as a trespasser.

3. An affidavit in reply has been filed wherein preliminary objection has been taken that this Court has no jurisdiction to try, entertain and dispose of the suit as the lis is between the landlord and the tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as "the Rent Act". On merits it has been pleaded that the ex-licensee was the father of the defendant, he having passed away, the rights of the ex-licensee have been inherited by the defendant. There is no valid revocation of the licence created by the agreement dated 15th April, 1968 either by the letter dated 28th June, 1972 or by efflux of time on 14th November, 1972. The ex-licensee was continuously paying the rent/licence fee to the mother. Thereafter the licence fee has been paid to the plaintiff. Since the licence was in subsistence on 1st February, 1973, the defendant is entitled to the protection of the Rent Act. All cases pertaining to the matters covered by the Rent Act have to be filed in the Small Causes Court acting as the Rent Court. That being so, it is submitted that jurisdiction of the High Court is barred under Section 41 of the Presidency Small Cause Courts Act, 1882 which was substituted by a new Chapter consisting of Sections 41 to 46 by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Maharashtra Act XIX of 1976).

4. Mr. Merchant, learned Counsel appearing for the defendant, submitted that the ex-licensee had become a deemed tenant by virtue of Section 5 (11)(c) of the Rent Act read with Section 15A. In view of the stand taken by the parties, it is necessary to frame a preliminary issue under Section 9A of the Code of Civil Procedure. The following issue is, therefore, framed.

"Whether by reason of the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882, as substituted by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Maharashtra Act XIX of 1976), this Court has jurisdiction to entertain and try the suit?."

In support of his submissions, Mr. Merchant has relied on a number of documents. According to Mr. Merchant, the letter dated 28th June, 1972 is not a notice of revocation of the licence. On a perusal of the said letter it becomes apparent that the mother had requested the ex-licensee to vacate the premises. At the end of the letter she states that presently if ex-licensee can accommodate her by sparing only one room where she can have shelter she would be grateful for the same. No mention whatsoever is made of the licence having been revoked nor it mentions that in any event the licence shall stand revoked with effect from 14th November, 1972. Thus there appears to be substance in the submission made by Mr. Merchant. During her life time the mother addressed a letter to the Co-operative Society on 19th August, 1983 in which she states that she is interested in selling of the suit flat on "as is basis" i.e. rented at Rs.1300/- per month plus water charges. Before offering the flat to strangers she wanted to give a first preference to the flat owners of the co-operative society. She had also asked for the information about the formalities which would have to be fulfilled for selling the flat. In response to this, the Co-operative Society put u a notice on the Board of the Society on 25th August, 1983 wherein it is mentioned that "the flat is at present in the occupation of a licensee on a compensation of Rs.1300/- per month plus water charges". By a letter of the same date the Co-operative Society informed the mother about the display of the notice about the sale of the flat. Information about the formalities of transacting the sale was also given. This letter also indicates that the mother had treated the defendant as a continuing licensee. By a letter dated 2nd May, 1995, the defendant had requested the Chief Accountant of the Indian Overseas Bank, Breach Candy, Bombay, to confirm the statement of account as to whether the sum shown in the said statement have been credited to the Savings Bank account of the mother of the plaintiff. This statement shows that a sum of Rs.1300/- is regularly credited to the account of the mother of the plaintiff from October, 1972 till 11th May, 1994. The aforesaid statement has been confirmed by the Chief Accountant of the Bank. The suit came to be filed in June, 1994. It thus becomes apparent that the rent/licence fee was being accepted till the very filing of the suit. Thus, on merits, prima facie, I am of the view that the licence was not revoked by either the mother or by the plaintiff. This view of mine is further reinforced from a letter written by the plaintiff on 27th November, 1993 to the defendant. In this letter it is clearly mentioned that the flat has now been transferred in his name and, therefore, defendant should draw the cheque for the compensation in his name.

5. In support of his submission that this Court has no jurisdiction, Mr. Merchant has relied upon a Division Bench judgment of this Court in the case of Nagin M. Dagli Vs. Haribhai M. Patel (AIR 1980 Bombay 123). Mr. Mehta appearing for the plaintiff has argued that this Court has jurisdiction to entertain and decide this suit. It is submitted by him that the interim reliefs as prayed for in the Notice of Motion have to be granted in order to protect the suit property. He relies on certain affidavits filed by an Estate agent and a prospective buyer stating therein that the defendant had tried to negotiate for the sale of the suit flat. This averment, however, has been denied in the affidavit in support. Thus, in my opinion, no reliance can be placed on those affidavits. In fact in paragraph 28 of the affidavit in reply it has been categorically stated that the plaintiff had offered a sum of Rs.75 lakhs to the defendant for vacating the flat so that he can sell the same at a much higher consideration in the region of Rs. One crore fifty lakhs to Rs. One crore seventy five lakhs. It is further submitted by Mr. Mehta that the provisions of Section 5 (11)(c) of the Rent Act would not be applicable to the facts and circumstances of the present case. In order to get protection of the Rent Act, there must either be a contractual tenancy or the tenancy must be created by operation of statute. It is submitted that either of these conditions are satisfied in the facts of this case. It is further submitted that the protection under Section 15A of the Rent Act is also not applicable as Section 11 (bb) deals only with subsisting licence. Merely because the defendant is in possession is not sufficient. It is submitted that this plea of the plaintiff cannot be rebutted by the defendant as is evident from the fact that contractual tenancy is not even pleaded in the affidavit in reply. Thus, it is submitted that there can be no protection given to the defendant under the Rent Act. Mr. Mehta further submits that if the defendants were serious about the submissions that they are deemed tenants then surely they would have filed a suit for a declaration to the effect that they are tenants or deemed tenants by virtue of Section 15A of the Rent Act. This suit, according to the plaintiff, has not been filed as the defendants are well aware of the provisions of Section 28 of the Rent Act. By virtue of this section, the Small Causes Court will have jurisdiction to entertain and try suits or proceedings between landlords and tenants relating to recovery of rent or possession of any premises to which the provisions of the Section apply. This Section would only apply between a licensor and a licensee relating to the recovery of the licence fee or charge. In other words, the claim is based on a licence. Then proceedings with regard to possession would not lie before the Small Causes Court. Therefore, no plea has been raised in the affidavit in reply with regard to tenancy. It can otherwise also not be raised in view of the negative covenant which is contained in clause 18 of the agreement. I am unable to agree with the submissions of Mr. Mehta as if the section is to be interpreted in the manner suggested then it would result in deleting the worde " and to decide any application made under this Act and to deal with any claim or question arising out of this Act or of any of its provisions". This provision, in my view, is sufficient to clothe the Small Cause Court with the jurisdiction to decide cases even pertaining to possession under the Rent Act. If Section 28 is read with Section 41 of the Presidency Small Cause Courts Act, there is no manner of doubt that the Small Causes Court will have jurisdiction to entertain and decide the rights of the parties as to whether or not they are licensees or tenants or whether they are entitled to the protection of the Rent Act or not. Mr. Mehta thereafter submits that the conduct of the defendant is such that the interim relief has to be granted to the plaintiff. For this submission he relies on a letter written by the ex-licensee to the mother dated 5th April, 1980 but a perusal of this letter shows that the ex-licensee had clearly claimed that he is a tenant in the suit premises. It was also emphatically claimed that he was paying Rs.1300/- as rent. Yet no proceedings were taken by the mother. As noticed above, the suit has been filed in 1994. From all this, I am prima facie of the view that the mother in fact had accepted the ex-licensee as licensee of the premises. She had also accepted that there is no revocation of the licence. Mr. Mehta thereafter relied on a judgment of the Supreme Court reported in (1976) 4 SCC 118 (D. H.Maniar Vs. Waman Laxman Kudav) to submit that once the licence has been revoked then the acceptance of payment of 'licence money' or 'rent' would not remove the effect of revocation. In that case the Supreme Court was considering a situation where the licence had come to an end by efflux of time. The application had been filed by the owner (Appellant in the Supreme Court) in the Small Causes Court under Section 41 against the tenant licensee (Respondent in the Supreme Court) to compel him to quit and deliver up the possession of the premises in question. The Small Causes Court made an order in favour of the owner under Section 43 of the Small Cause Courts Act. The tenant filed a revision in the High Court and the same was allowed and it was held that the licence was continuing on 1st February, 1973 and, therefore, the landlord could not seek possession except under the Rent Act. In these circumstances the Supreme Court considered the effect of revocation of licence either by termination or by efflux of time. Therefore, it was observed that acceptance or otherwise of the rent/licence fee would not efface the effect of the revocation of the licence. It was also held that for a person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue occupation of the premises. Such a person by no stretch of imagination can be called a licensee. Thus it was held that if the respondent therein was not a licensee under a subsisting agreement in occupation of the premises on 1st Feb. 1973 he could not take shelter under Section 15A of the Rent Act. Thus the order of the High Court was set aside and the order of the Small Causes Court was restored. In view of the above observations Mr. Mehta submits that this Court will have jurisdiction to entertain the suit as the defendant cannot seek the protection of the Rent Act. I am unable to agree with the submission of Mr. Mehta as the judgment proceeds on the basis and a finding of fact which was recorded by the Small Causes Court to the effect that the licence had been revoked. The Small Causes Court had entertained the suit and given a finding that the licence had been revoked. The issue had been decided as a preliminary issue. Single Judge of the Small Causes Court held on 30-6-72 that the Respondent was not a tenant. Two Judges of the Small Causes Court in appeal on 11-12-1972 confirmed this finding by a reasoned order. The Writ application filed by the tenant was dismissed on 3-7-73. Herein the plea raised by Mr. Mehta is that if a similar suit was to be filed by the plaintiff in the Small Causes Court the same would not be entertained. This proposition was not under the consideration of the Supreme Court. No arguments whatsoever were addressed on the point that the Small Causes Court had no jurisdiction nor that the High Court alone had the jurisdiction. The whole judgment proceeds on the basis that a finding of fact has been recorded by the Small Causes Court. A reading of paragraph 10 of the judgment of the Supreme Court shows that the Supreme Court was of the view that the finding recorded by the trial Judge could not be interfered by the High Court in its revisional jurisdiction. It is also mentioned, however, that even the finding recorded by the High Court is based on gross errors of law and fact. I am unable to agree with the submission of Mr. Mehta when he states that since the Supreme Court has held that once a licence is revoked the protection of the Rent Act is not available, it would clearly lead to the conclusion that the Small Cause Court will have no jurisdiction. In fact, the position is quite to the contrary. That is perhaps why the issue of jurisdiction was not even raised. After the amendment of clause 12 of the Letters Patent of the High Court, the Small Causes Court has jurisdiction in suits for recovery of possession where the provisions of the Rent Act are not applicable. It is for this reason that the High Court had restored the order passed by the Small Causes Court. It had been held by the single Judge of the Small Causes Court, confirmed by the two Judges of the Small Causes Court and the High Court in the writ application, that the Respondent was not a tenant. Clearly, therefore, it was only the Small Causes Court which had the jurisdiction. If the position had been otherwise, then the order of the Small Causes Court would not have been restored in that case. Both the orders of the High Court in revision and the order of the Small Causes Court would have been set aside. The order of the High Court would have been set aside on the ground that the High Court erred in exercising its revisional jurisdiction. The order of the Small Causes Court would have been set aside on the ground that the Small Causes Court had no jurisdiction whatsoever to entertain the suit. I am unable to read any such finding in the judgment of the Supreme Court. Thus, in my view the aforesaid judgment is of no assistance to the plaintiff.

6. Mr. Mehta thereafter relied upon another judgment of the Supreme Court reported in (1991) 2 SCC page 180 (Puran Singh Sahni Vs. Sundari Bhagwandas Kripalani and Ors.) In this case the Supreme Court has held that a licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass. It passes no interest and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property. The definition in the Rent Act includes any person in occupation under a subsisting agreement for licence given for a licence fee or charge of any premises or part thereof in a building vesting in or leased to a Co-operative Housing Society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960. It is also held that to determine whether or not a licence has been created or tenancy has been created the issue has to be determined on the interpretation of the agreement. The test of exclusive possession, though of significance, is not decisive. The intention of the parties in making the agreement is to determine the issue as to whether a lease or licence has been created. It is submitted by Mr. Mehta that looking at the agreement it clearly shows that only a licence had been created which was personal to the ex-licensee. Exclusive possession of the suit premises was never given to him. He had in fact entered into a negative covenant to the effect that he will not claim tenancy rights. This argument of Mr. Mehta would have been of some assistance but for the coming into operation of the Rent Act with effect from 1st February, 1973. Even Mr. Mehta had earlier submitted that in order to take advantage of the Rent Act there ought to be either a contractual or a statutory tenancy. Applying the same logic it would appear that there is no legal bar which can prevent the defendant from claiming that there is a statutory right created in his favour by virtue of the coming into operation of the amendment on 1st February, 1973. It has been noticed above that although the so called notice f termination was given on 28th June, 1972 and the licence was to expire by efflux of time on 14th November, 1972, yet the suit has not been filed until June, 1994. Apart from this, payment has been accepted right upto May, 1994 by the mother before her death and by the plaintiff after her death. To overcome this hurdle Mr. Mehta has relied upon another judgment of the Supreme Court reported in 1964 Madras Law Journal 783. (Mrs. M. N. Clubwala Vs. Fida Hussain Saheb). This was a case pertaining to the grant of licence to stall holders in a private market. Each stall holder could use the stall only during a stated period every day subject to several other conditions. The right which the stall owners had was to the exclusive use of the stall during stated hours and nothing more. Thus it was stated that the intention of the parties was to bring into existence merely a licence and not a lease and the use of the word rent was used loosely for fee payable every day in the agreement. It has been held by the Supreme Court that generally to determine the relationship of the parties, the agreement has to be interpreted. However, if the agreement is vague then the surrounding circumstances can also be looked at. In those circumstances the Supreme Court examined the effect of the word 'receipt of rent' as to whether or not this amounts to changing the relationship from that of a licence to that of a leaseholder. After examining all the facts it was held that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent was used loosely for fee. Thus it is submitted by Mr. Mehta that merely because money has been received by the plaintiff or his mother would not change the situation that the licence granted in favour of the deceased father of the defendant has been revoked or has come to an end by efflux of time. As noticed above the Supreme Court was dealing with a case where casual licences have been granted to stall holders to exercise some rights during a specified period of time. In the present case, the Court is concerned with the occupation of the suit flat by the defendant through his father since the year 1968. Even accepting that the use of the word "rent" in the receipts issued by the mother would not lead to a conclusion that there was a tenancy, it would prima facie lead to a conclusion that there was a licence under the Rent Act. Thus this judgment will also not aid Mr. Mehta in his submission. Mr. Mehta thereafter relies on another judgment of the Supreme Court reported in AIR 1962 S.C. 554. It is submitted that the mere use of the word "rent" in receipt would not be conclusive of the relationship of landlord and tenant. The question must depend upon whether or not there was a relationship of landlord and tenant in the sense that there is a transfer of interest by the landlord in favour of the tenant. As observed above, it really would make no difference as to whether the defendant is a deemed tenant or a protected licensee as the effect under the Rent Act would be the same. Thus, this decision would be of no assistance also to Mr. Mehta.

7. On the other hand, the submissions made by Mr. Merchant are squarely covered by the Division Bench judgment of this Court in Nagin's case (supra). The very arguments raised by Mr. Mehta were advanced in the said case. The issue framed in the present case is identical to the issue raised therein. Therein the plaintiff was a monthly tenant of a flat on the ground floor of a building belonging to a Co-operative Society. Therein, by an agreement dated June 20, 1968 the plaintiff granted to the defendant leave and licence to occupy the said flat upon terms and conditions contained in the said agreement. This licence was for a period of 11 months and the licence fee was Rs.400/-. Therein also by clause 14 of the agreement, the defendant covenanted that on the termination of the licence he would remove himself quietly and peacefully along with his family members and his servants and agents and their furnitures and fixtures and would give vacant possession of the said premises to the plaintiff. However, after the expiry of the period of agreement licence was renewed for another 11 months upon the same terms and conditions. The second agreement expired by efflux of time on 31st May, 1970. On 14th April, 1978 the plaintiff through his advocates called upon the defendant to remove himself from the flat. By his advocates reply dated 17th May, 1978 the defendant alleged that before the expiry of the second agreement in or about Jan. 1970 an oral agreement was arrived at between the parties under which it was agreed that the defendant would continue as a licensee for so long as he desired. Thus it was claimed that the defendant was a subsisting licensee on 1st February, 1973 and, therefore, had the protection of the Rent Act. The plaintiff filed a suit with identical prayers as made in the present suit. After filing the suit the plaintiff took out Notice of Motion for appointment of Receiver and injunction as in the present case. Similar issue about the jurisdiction of the High Court having been raised before the learned Single Judge. The matter was referred to Division Bench. The preliminary issue as stated in the present case was framed and it has been categorically decided that in such circumstances it is only the Small Causes Court which will have jurisdiction and the High Court will have no jurisdiction. Most of the submissions made by Mr. Mehta were also made by Mr. Sanghvi appearing for the plaintiffs therein. With regard to Section 41 of the Presidency Small Cause Courts Act, the submission that the High Court has concurrent jurisdiction with City Civil Court and Small Causes Court was negatived by holding that the argument of Mr. Sanghavi overlooks two very important statutory provisions viz. the amendment to clause 12 of the Letters patent of this Court and Section 3 of the Bombay City civil Court Act, 1948. It has been held that in view of the amendment to clause 12 of the Letters Patent it is now not open to any party to contend that where the suit is cognizable either by the Bombay City Civil Court or the Bombay Presidency Small Causes Court, this High Court would have concurrent jurisdiction to try such suit. The next point urged by Mr. Sanghavi has also been urged by Mr. Mehta to the effect that Section 41 in terms applies to a licensor and a licensee and does not refer to the case of persons who once held the relationship of licensor and licensee but such relationship had come to an end either by efflux of time or by the termination of the licence. This submission was negatived with the observations that the first point to be noted is that the Section applies not only suit between licensors and licensee but also between landlords and tenants in cases where the Rent Act does not apply. Section does not refer to only one category of suits but to several categories. These categories were thereafter enumerated as:

(1) suits between a licensor and licensee relating to the possession of any immovable property situated in Greater Bombay.

(2) Suits between a landlord and tenant relating to the possession of and immovable property situated in Greater Bombay.

(3) suits relating to the recovery of the licence fee or charges in respect of such immovable property, and

(4) suits relating to the recovery of rent in respect of such property.

Thereafter it has been observed that if a licensor and landlord wants to recover possession of his property, his right to do so arises only on the termination of the licence or the tenancy, as the case may be, or upon the licence of the tenancy determining by efflux of time subject to the provisions of Rent Act. Thus it is held that any suit which is filed after the termination of the tenancy of the licensee cannot be treated as not a case pertaining to the licensor or licensee. Mr. Mehta has again repeated the argument of Mr. Sanghavi to the effect that present is not a suit claiming a decree for possession but is merely seeking a declaration that the defendant is a trespasser and for mandatory injunction against the defendants to forthwith remove himself from the flat. This argument of Mr. Sanghavi was also rejected. The Division Bench observed that realising full well that the proper relief to pray for would be a decree or order for possession but at the same time being desirous of bringing the suit in this Court and simultaneously not wishing the suit to suffer from a technical defect, draftsman of the plaint has in the said prayer sought to protect the plaintiff by using the phraseology "that the defendant be ordered and decreed by a mandatory order or injunction..." Thus it has been held that what is really prayed for is decree for possession. Looking at the real substance of the suit it was held that it leaves no manner of doubt that it is a suit between persons for recovery of possession which would lie only in the Small Causes Court. Thereafter the submission that when damages are claimed the suit would not lie in the Small Causes Court has also been rejected. It has been held that Section 41 of the Small Causes Court speaks of "all suits and proceedings between a licensor and a licensee or a landlord and a tenant relating to the recovery of possession of any immovable property situated in Greater Bombay". It was stressed that the wording in Section 41 is "Suits relating to the recovery of possession and not "suits for possession". Thereafter contrasting the provisions of Order XX Rule 12 and Section 41 it is held that phrase relating to the possession is wider than the phrase 'suits for possession'. In view of the above it was held that the High Court has no jurisdiction. In view of the clear enunciation of law by the Division Bench as quoted above, it has to be held that this Court has no jurisdiction to entertain and try the plaintiffs suit. The issue is accordingly decided in the negative. In view of the above the Notice of Motion is hereby dismissed.

8. In the result, under Rule 283 of the Rules of the Bombay High Court (O.S.), 1980, it is ordered that the plaint be returned to the plaintiff to be presented in the Presidency Small Causes Court at Bombay. The plaintiff to pay costs to the defendant. Costs Rs.2,000/-.

9. At this stage Mr. Mehta has prayed for stay of the operation of this order for a period of six weeks. Mr. Merchant has opposed the request. I am of the view that either way it is not going to make any difference. Since the order has been passed to return the pliant it is for the plaintiff to file the suit in the Small Causes Court as and when he desires. On the other hand if the order is not stayed the defendant will not get any further rights. Thus the operation of the order is stayed for a period of 8 weeks to enable the plaintiff to take out appropriate proceedings.

Notice of Motion dismissed