{"id":83475,"date":"1979-02-08T00:00:00","date_gmt":"1979-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nagin-mansukhlal-dagli-vs-haribhai-manibhai-patel-on-8-february-1979"},"modified":"2017-07-08T17:02:33","modified_gmt":"2017-07-08T11:32:33","slug":"nagin-mansukhlal-dagli-vs-haribhai-manibhai-patel-on-8-february-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nagin-mansukhlal-dagli-vs-haribhai-manibhai-patel-on-8-february-1979","title":{"rendered":"Nagin Mansukhlal Dagli vs Haribhai Manibhai Patel on 8 February, 1979"},"content":{"rendered":"
Bombay High Court<\/div>\n
Nagin Mansukhlal Dagli vs Haribhai Manibhai Patel on 8 February, 1979<\/div>\n
Equivalent citations: AIR 1980 Bom 123<\/div>\n
Author: Madon<\/div>\n
Bench: Deshmukh, Madon<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Madon, J.<\/p>\n
 1. The question with respect to this Court’s jurisdiction to entertain and try this suit filed on the Original Side has been referred to a Division Bench by a learned single Judge of this High Court and now comes before us for our determination.\n<\/p>\n
 2. The Plaintiff is the monthly tenant of a flat on the ground floor of a building belonging to Ashok Nagar Cooperative Housing Society Limited situate at 10th North-South Road, Juhu-Vile Parle Development Scheme, Bombay-400056. 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. The said licence was for a period of all months commencing from June 15, 1968, and the licence fee mentioned therein was a sum of Rs. 400 per month. By clause 14 of the said agreement the Defendant covenanted that , on the termination of the said licence he would remove himself quietly and peacefully along with his family members and his servants and agents and their furniture and fixtures and would give vacant possession of the said premises to the Plaintiff. On the expiry of the period of the said agreement a fresh agreement was arrived at between the Plaintiff and the Defendant on July 4, 1969 under which the said licence was renewed for a further period of 11 months from July 1, 1969 upon the same terms and conditions, except that the monthly licence fee was reduced to Rs. 375. The said second agreement expired by efflux of time on May 31, 1970.\n<\/p>\n
 3. On April 14, 1978 the Plaintiff through his advocates called upon the Defendant to remove himself from the said flat. By his advocates’ reply dated May 17, 1978 the Defendant alleged that before the expiry of the said second agreement in or about January 1970 an oral agreement was arrived at between the Plaintiff and the Defendant under which it was agreed that the Defendant would continue as a licensee for so long as he desired and that the said licensee was subsisting on February 1, 1973, on which date by reason of the amendment of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by Mah. Act XVII of 1973, the Defendant became a protected licensee within the meaning of the said Act.\n<\/p>\n
 4. The Plaintiff thereupon filed the present Suit. After setting out the said two agreements the Plaintiff averred as follows:\n<\/p>\n
  “The Plaintiff says and submits that leave and licence granted to the Defendant came to an end by efflux of time as stated hereinabove. The Plaintiff, therefore, says and submits that the Defendant’s occupation of the said premises since then has been and is wrongful and illegal, and is that of a trespasser….The Plaintiff says and submits that he is entitled to recover vacant possession of the said fiat from the Defendant as the Defendant has ne right of any nature whatsover to remain in use and occupation of the same.”\n<\/p>\n
 Prayer   (a) of the Plaint is for a declaration that the     Defendant was  a trespasser upon and in respect of the said flat and that he has no right, title or interest to remain or continue to remain in use and occupation or possession thereof. Prayer (b) of the Plaint is for a mandatory injunction to direct the Defendant to forthwith remove himself, his servants and agents, together with his belongings, from the said flat and to hand over vacant and peaceful possession of the said flat to the Plaintiff. Prayer (c) of the Plaint is for a sum of Rs. 35,625 claimed by way of damages from June 1, 1970 till the date of the filing of the Suit at the rate of Rs. 375 per month. Prayer (d) of the Plaint is for a sum of Rs. 375 per month or such other sum as the Court may think fit by way of future mesne profits or damages or compensation for wrongful use and occupation of the said fiat from the date of the filing of the Suit till vacant and peaceful possession of the said flat is handed over to the Plaintiff.\n<\/p>\n
 5.    After   the   filing  of  the   Suit,     the Plaintiff took   out   a   notice   of    motion, being Notice of Motion No. 711 of 1978, for    the      appointment    of   an     interim receiver   and   for   an   interim  injunction. In his  affidavit in    reply    to    the    said Notice   of   Motion   the   Defendant   inter alia   contended   that   by  reason   of   Section 41 of the Presidency Small   Cause Courts Act.   1882,   as   substituted by   the   Presidency     Small      Cause     Courts     (Maha-rashtra   Amendment)      Act,   1975   (Mah. Act XIX of 1976), the Presidency Small Cause  Court  at  Bombay had  been conferred     exclusive      jurisdiction   to     try suits   between   a     licensor   and   licensee relating to the     possession  of   an    immovable      property     situate   in   Greater Bombay,  and,  therefore, this Court had no   jurisdiction   to   entertain   or   try this Suit.   In  view  of the provisions of Section   9-A   inserted in   the   Code   of Civil Procedure,   1908   by   Mah.   Act   XXV of 1970,      Bharucha,   J.,   before   whom   this Notice of  Motion   reached   hearing,     decided to try this question  as a preliminary   issue.      Subsequently   he   referred this   question   to   a Division   Bench    for determination.   When   this   matter   came before,   us,   we accordingly  framed    the necessary   issue with     respect    to     this question   and   tried   it as   a   preliminary issue.   This issue  is:\n<\/p>\n
  “Whether by reason of the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882, as substituted by the Presidency Small Cause<\/p>\n
Courts (Maharashtra Amendment) Act, 1975 (Mah. Act XIX of 1976), this Court has jurisdiction to entertain and try the Suit?”\n<\/p>\n
 6. By the said Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Mah. Act XIX of 1976), Chapter VII of the Presidency Small Cause Courts Act, 1882, was substituted by a new Chapter consisting of Sections 41 to 46. We are concerned in this matter with Section 41 as so substituted. The said Section 41 provides as follows:\n<\/p>\n
 “41. Suits or Proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Act apply to lis in Small Cause Court <\/p>\n
 (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.\n<\/p>\n
 (2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force, applies.” The said Amending Act came into force on July 1, 1677.\n<\/p>\n
 7. In support of the plaintiff’s case that this Court has jurisdiction to entertain and try the Suit, Mr. San-ghavi, learned Counsel for the plaintiff, submitted that Section 41 of the Presidency Small Cause Courts Act as substituted by Maharashtra Amendment Act XIX of 1976 confers concurrent jurisdiction upon the Presidency Small Cause Court at Bombay to try suits of the nature specified in the said section and does not take away the jurisdiction  which this  High Court on    its Original      Side   or   the     Bombay     City Civil  Court possessed prior to the coming   into   force   of   the   said      Amending Act.     In  other  words,   according to  Mr. Sanghavi,   after  the  said Act came  into force,   a   person    who    has    granted a licence   to   another  to   use     and   occupy his immovable  property has  on the  determination  by efflux of time or termination      of   such   licence  a     choice     of forum  and   he  could either file the suit in the   Presidency   Small     Cause   Court or in the alternative in the High Court or the   Bombay   City   Civil   Court     depending upon the valuation of the subject-matter   of  the   suit.     Mr.   Sanghavi submitted      that   Section 41   as   so   substituted did  not   contain any  words  excluding     the     jurisdiction      which     the Civil   Courts   till     then    possessed.     He argued that the section did not provide that  the  Presidency Small   Cause   Court at Bombay  alone     would   have jurisdiction or that no other Court would have jurisdiction   to   try   suits of   the   nature specified in the said section.  He sought support   for   his     arguments    from    the language of  Section   28 of the  Bombay Rents,   Hotel   and   Lodging House   Rates Control  Act,   1947,     which  provides    at the   end   of   Sub-section   (1) thereof, “no other   court   shall   have   jurisdiction     to entertain any   such  suit,   proceeding    or application   or  to   deal   with  such  claim or  question.”     In   Mr.   Sanghavi’s     submission   the   absence    of   a   clause    like the   one in   Section   28   of   the   Bombay Rent Act  set  out  above clearly indicated that  this  High  Court and  the  Bombay   City   Civil Court   continue  to   have concurrent  jurisdiction   in   respect  of all suits of the nature specified in the said Section    41.    The    arguments    of    Mr. Sanghavi,   however,   overlook   two   very important   statutory   provisions,    namely, the   amendment  to clause    12    of   the Letters Patent of this High Court    and Section   3 of  the    Bombay    City    Civil Court  Act,   1948.   The  extent  and  limits of the  Ordinary Original Civil Jurisdiction   of this   High   Court   are   prescribed by the   said   Clause   12. As   originally enacted,   the   said   clause   12   empowered this  High Court   in  the exercise  of    its Ordinary   Original   Civil   Jurisdiction   to receive,   try   and     determine     suits     of every  description   if the conditions   prescribed  by   the     said   clause    12    were satisfied. There was an exception  in the said   clause   12   to the  suits  which    the High   Court   on   its  Original   Side   could entertain and try. That exception was in the following words:\n<\/p>\n
  “except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, in which the debt or damage, or value of the Property sued for, does not exceed one hundred rupees.”\n<\/p>\n
 By the Bombay High Court Letters Patents Amendment Act, 1948 (Bombay Act XLI of 1948), the said clause 12 was amended with respect to the aforesaid exception to the High Court’s power to entertain and try suits. After such amendment the said exception reads as follows:\n<\/p>\n
  “except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court.”\n<\/p>\n
 The reason for this amendment was that the Government of Bombay had decided to set up a City Civil Court for Greater Bombay. Accordingly, on May 10, 1948 the Bombay City Civil Court Act, 1948 (Bombay Act XL of 1848), was passed. The jurisdiction of the new Court was described in the following terms by Section 3 of the said Act:\n<\/p>\n
  “Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay…..”\n<\/p>\n
 There are certain exceptions provided in the said section. These exceptions are suits and proceedings cognizable by the High Court in its Admiralty, Vice-Admiralty, testamentary, intestate, matrimonial and insolvency jurisdictions and under any special law other than the Letters Patents and suits and proceedings cognizable by the Small Cause Court. Thus, by Section 3 of the Bombay City Civil Court Act, the jurisdiction of the City Civil Court to entertain and try any suit or proceeding cognizable by the Small Cause Court is expressly barred even though such suit or proceeding may be within the pecuniary jurisdiction of the City Civil Court. In order to obviate any argument that even after the setting up of the City Civil Court the High Court continued to have jurisdiction in respect of civil suits cognizable by the Bombay City Civil Court, the Legisla-lature of the Province of Bombay enacted the said Bombay High Court Letters Patents (Amendment) Act, 1948 (Bombay Act XLI of 1948), making the amendment set out earlier to clause 12 of the Letters Patent. At the same time the Legislature took the opportunity by this amendment to abolish the concurrent jurisdiction which this High Court possessed in suits of which the subject-matter exceeded one hundred rupees in value and which were triable by the Bombay Presidency Small Cause Court. The Bombay City Civil Court Act, 1948, and the Bombay High Court Letters Patents Act, 1948, were both brought into force simultaneously on August 16, 1948 by notifications dated August 14, 1948. Thus, after the amendment to clause 12 of the Letters Patent this High Court had no jurisdiction to entertain and try or, to use the language of clause 12, “to receive, try and determine” any suit which is cognizable either by the Presidency Small Cause Court at Bombay or the Bombay City Civil Court. It is significant to note that the language of the new Section 41 is strikingly similar to the language of Section 3 of the Bombay City Civil Court Act. It now becomes clear why the Legislature thought it necessary to introduce in Section 28 of the Rent Act a specific provision that no other Court will have jurisdiction to entertain any suit, proceeding or application or to deal with any claim or question provided for by the said Section 28. It was because at the date when the Bombay Rent Act was enacted, clause 12 of the Letters Patent had not been amended, and the only exception to the High Court’s jurisdiction with respect to suits triable by the Court of Small Cause at Bombay was with respect to suits falling within the jurisdiction of the Small Cause Court in which the debt or damage or value of the property sued for did not exceed rupees one hundred. 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 Cause Court, this High Court would have concurrent jurisdiction to try such suit.\n<\/p>\n
 8. The next point urged before us by Mr. Sanghavi was 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 the period of the licence expiring by efflux of time or by the termination of the licence. With respect to this submission the first point to be noted is that the section applies not only to suits between licensors and licensees but also between landlords and tenants in cases where the Rent Act does not apply. Further, the section does not refer to only one category of suits but to several categories. These categories are:\n<\/p>\n
 (1) suits between a licensor and licensee relating to the possession of any immovable property situated in Greater Bombay, <\/p>\n
 (2) Suits between a landlord and tenant relating to the possession of any immovable property situated in Greater Bombay, <\/p>\n
 (3) suits relating to the recovery of the licence fee or charges in respect of such immovable property, and <\/p>\n
 (4) suits relating to the recovery of rent in respect of such property.\n<\/p>\n
 Now, a suit for the recovery of licence fee or charges may lie either when a licence subsists or after it has come to an end, and similarly a suit for the recovery of rent may lie either when the tenancy subsists or after it has come to an end, but it is difficult to envisage a case where during the subsistence of a licence a licensor can file a suit for the recovery of immovable property from the licensee or where during the subsistence of a tenancy a landlord can file a suit against his tenant for the recovery of immovable property given on tenancy to his tenant. If a licensor or a landlord wants te recover possession of the 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 or the tenancy determining by efflux of time subject to the provisions of the Bombay Rent Act. Mr. Sanghvi, however, submitted that so far as licensors and licensees were concerned, a suit for the recovery of possession could be filed by a licensor even during the subsistence of the licence where the licence was revocable at will and had not been determined by a prior notice given by the licensor to the licensee, in which case, in Mr. Sanghavi’s submission, the filing of the plaint would operate as a determination of the licence.  The fallacy in this argument   lies   in   this   that since the very act    of filing the suit would be a termination of the licence, the suit cannot   be   said  to be a     suit  between    a licensor   and      licensee   between   whom such relationship  is  subsisting.   Further to put   such  a   construction   upon     Section 41 and to confine it only to    suits of this one particular class would be to render  the   section   meaningless   so    far as suits   between   landlords   and   tenants for the recovery of possession provided for   in   the   said   section   are  concerned, because   under   the   law a   tenancy   cannot   be  determined    in  the  manner    in which   a licence      can     be     determined where there  is no  period   provided     for the licence and the licence is revocable at will.  The use of the words “a licensor  and licensee” and  “a landlord    and tenant”   in   the   said   Section   41   has no such   particular   significance   or   effect as canvassed   for   by Mr.   Sanghavi.   These words   have   been      used   in   accordance with a very     well-settled     and normal Legislative   drafting   practice.   In   various statutes dealing with rights and obligations arising out of jural or contractual relationship   and      enforcement   of   such rights   and   obligations   the   parties   are described   by   the   legal   character   they bear.     Thus,   Section   108   of  the   Transfer of Property Act,   1882,   which   deals     with the  rights  and  liabilities of lessor    and lessee,  by Clause   (h)    provides    that    “the lessee may     even after the determination of the  lease  remove,   at  any    time whilst he is    in    possession of the property  leased    but    not     afterwards,   all things   which   he   has   attached     to    the earth…..”. Clause  (i) of the said Section  108
\nprovides that “when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them.” Clauses (h) and (i) use the word ‘lessee’ in connection with the rights of a lessee even after the determination of the lease, because these rights which the lessee possesses in his character as a lessee and which came, into being by reason of the lease given to him. Certain rights he had during the continuance of the lease. Certain rights accrued to him on the determination of the lease. Rather than use the word ‘lessee’ while the lease subsists and a clumsy terminology<\/p>\n
or a circumlocution to describe the same person after the leasa has determined, following the well-settled legislative drafting practice, clauses (h) and (i) of Section 108 refer to that person in both eventualities by the word ‘lessee’. Similarly, in various Matrimonial Acts when dealing with the grant of permanent alimony to a wife after divorce, these Acts provide that the Court may grant such alimony to the wife either at the time of the passing of the decree for divorce or on a subsequent application made to it for that purpose. The words used in the sections of the Matrimonial Acts are ‘husband’ and ‘wife’, even though after divorce the relationship of husband and wife between the divorced parties does not subsist. Examples of this will be found in Section 37 of the Special Marriage Act, 1954; Section 25 of the Hindu Marriage Act, 1955; Section 37 of the Indian Divorce Act, 1869; and Section 40 of the Parsi Marriage and Divorce Act, 1936. Words which describe a person’s legal character — the character which he either holds or has once held — are used in statutes as a means of identification or a label to point out the particular rights and obligations which arise out of such relationship either during its subsistence or after its termination, that is, either are existing relationship or are erstwhile relationship. In the case of a lease, except where a tenant is a protected tenant under the Rent Act, there is an obligation upon the lessee to hand over possession of the property to the lessor on the expiry of the lease by efflux of time or its determination. Similarly, in the case of a licence there is an obligation upon a licensee to remove himself from the immovable property, in respect of which he has been given the licence, and to hand over possession of such property to his licensor. These are obligations which are imposed both upon the lessee and the licensee by
\nlaw, irrespective of whether such obligations are stipulated for in the indenture of lease or the agreement of licence or not. In the particular case before us Clause (14) of both the agreements of licence the first agreement dated June 20, 1968 and the second agreement dated July 4, 1969 — provide that on the determination of the licence, the licensee, that is, the defendant, will give vacant possession of the<\/p>\n
licensed premises to the licensor, that is, the plaintiff. Even the absence of such a clause would have, however, made no difference, for the position in law would have been the same. There is thus equally no substance in the second point urged before us by Mr. Sanghavi.\n<\/p>\n
 9. Mr. Sanghavi next argued that the relief claimed by him in the suit was not a decree for possession but was a declaration that the defendant was trespasser upon or in respect of the said flat and that he had no right, title or interest to remain or continue to remain in use and occupation or possession thereof, and for a mandatory injunction against the defendant forthwith to remove himself, his servants and agents, together with his belongings, from the said flat and to hand over vacant and peaceful possession of the said flat to the plaintiff. In Mr. Sanghavi’s submission this was thus a suit for a declaration and an injunction, and by reason of els. (i) and (s) of Section 19 of the Presidency Small Cause Courts Act, 1882, the Small Cause Court had no jurisdiction to entertain such a suit or to grant such reliefs. The material provisions of the said Section 19 are as follows:\n<\/p>\n
 “19. Suits in which Court has no jurisdiction.\n<\/p>\n
 The Small Cause Court shall have no jurisdiction in –\n<\/p>\n
 x  x    x  x\n \n\n (i)    Suits   to   obtain   an   injunction; \n x  x    x  x\n  \n\n (s) Suits for declaratory decrees;\" \n \n\n<\/pre>\n
 The first question which arises is whether this is really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction. The words which Clause (s) of Section 19 uses are “suits for declaratory decrees.” Suits for declaratory decrees are governed by Chap. VI of the Specific Relief Act, 1963. When declarations can be granted is provided for by Section 34 of that Act, which occurs in that Chapter. Under the said Section 34 “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or rght.” Now, here at no stage has the defendant   denied or   been   interested   in
\ndenying  the plaintiff’s  title to the   said
\nflat.   On   the   contrary,   his  case   as    set
\nput   in his said affidavit   in  reply     and
\nin   the   correspondence   proceedings    the
\nsuit  is that while the second agreement
\nof   licence was   still  subsisting,     it    was
\norally   agreed   between   the   parties   that
\nthe   license   would  continue   as  long    as
\nthe  defendant   desired.     He is  thus   accepting  the title  of the plaintiff to   the
\nsaid  flat  as   also the  plaintiff’s   right to
\ngive   the   licence   in respect   thereof    to
\nhim   in   the   plaintiff’s legal   character as
\nlicensor.   The   plaintiff  has  contended  in
\nthe   plaint   that   on   the   licence    coming
\nto an end the defendant is a trespasser
\nupon   the   said   premises.     Whether    the
\ndefendant   has   become   a   trespasser     or
\nnot  is   an issue which  has to be tried in
\nthe     suit.     What      the    plaintiff     really
\nwants  by  the   declaration   prayed   for   in
\nprayer  (a)  of the plaint    is a    declaratory  decree  with  respect to the  answer
\nin his  favour to    that    issue.    Such    a
\ndeclaration  would   stand  on    the    same
\nfooting   were   a   plaintiff   in   a  suit    for
\ndamages   for breach   of   contract   to   ask
\nfor  a declaration to the effect that the
\ndefendant   has   committed   a   breach    of
\ncontract.    It is  the determination of the
\nissue   whether the   licence   has   come to
\nan   end   or   not   which  would   give    the
\nright  to the   plaintiff to  obtain  the   relief     of     possession.      The     declaration
\n‘sought   for  does not    change    the    real
\nnature   of   the   suit.     Section  34   of   the
\nSpecific     Relief  Act   has  no  application
\nto  the  case,   and this    suit    cannot    be
\ndescribed   as  a  suit   for    a    declaratory
\ndecree.  <\/p>\n
\n\n \n\n 10.   Prayer   (b)   of  the   plaint,   in   the\nguise  of  a   prayer  for  a mandatory in\njunction   against   the   defendant   to     remove   himself   from  the   said   flat,   is   in\nsubstance   no   other   than   a   prayer    for\nthe   recovery  of  possession  of the    said\nflat.     Realizing   full   well   that   the   pro\nper relief to pray for would be a decree\nor order for possession but at the same\ntime being desirous of bringing the suit\nin   this   Court     and  simultaneously    not\nwishing the suit to suffer from  a technical    defect,    the    draftsman     of    the\nplaint  has  in the said prayer sought to\nprotect     the     plaintiff    by     using    the\nphraseology     \"that    the    defendant    be\nordered     and decreed     by a mandatory\norder   or  injunction.....\"     Thus,   really,\nwhat is prayed for   is       decree    for\n\n<\/pre>\n
possession. “It is now well settled that when we have to determine the nature of the suit what we are to look at is the real substance of the suit and not legal ingenuity in drafting the plaint. The plaint read as a whole and the real substance of the suit leave no doubt that this is a suit between persons who hold the character of a licensor and licensee, which relationship having come to an end according to the plaintiff, the plaintiff has become entitled both in law and under the agreement of licence to recover possession of the property from the defendant, his licensee.\n<\/p>\n
 11. Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of Rs. 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of Rs. 375 per month and for a sum of Rs. 375 per month from the date of the suit till possession of the said flat is handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensation for wrongful use and occupation of the property or mesne profits. This argument by Mr. Sanghavi overlooks the language used in the said Section 41. The said Section 41 speaks of “all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay”. It is significant that the words used in the said Section 41 are “suits relating to the recovery of possession” and not “suits for possession”. Rule 12 of Order 20 of the Civil P. C., 1908, provides as to how a Court is to proceed “Where a suit is for the recovery of possession of immovable property and for rent or mesne profits.” The contrast between the language used in Order 20, Rule 12 and the said Section 41 immediately strikes one. The phrase “relating to the possession of any immovable property” is wider than the phrase “for the recovery of possession of any Immovable property.” The words “relating to” are intentionally and designedly used in the said Section 41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy.\n<\/p>\n
 12. For the reasons set out above, we hold that this Court has no jurisdiction to entertain and try the plaintiffs suit, and we answer the issue framed by us in the negative.\n<\/p>\n
 13. In the result, under Rule 269-A of the Rules and Forms of the Bombay High Court (on the Original Side), 1957, we order the plaint to be returned to the plaintiff to be presented to the Presidency Small Cause Court at Bombay.\n<\/p>\n
 14. The costs of the suit and heaping in this High Court, fixed at Rs. 300, shall be costs in the suit which the Plaintiff may file in the Bombay Presidency Small Cause Court.\n<\/p>\n
 15. Order accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Nagin Mansukhlal Dagli vs Haribhai Manibhai Patel on 8 February, 1979 Equivalent citations: AIR 1980 Bom 123 Author: Madon Bench: Deshmukh, Madon JUDGMENT Madon, J. 1. The question with respect to this Court’s jurisdiction to entertain and try this suit filed on the Original Side has been referred to a Division Bench […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-83475","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNagin Mansukhlal Dagli vs Haribhai Manibhai Patel on 8 February, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nagin-mansukhlal-dagli-vs-haribhai-manibhai-patel-on-8-february-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nagin Mansukhlal Dagli vs Haribhai Manibhai Patel on 8 February, 1979 - 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