Judgment NISHITA MHATRE, J. ( 1 ) THIS Appeal from Order has been filed against the order of the trial Court returning the plaint to the plaintiff, the appellant herein, under Order 7 Rule Id of the Coda of Civil Procedure for presenting the some before the proper Court. The trial Court has held that the suit was hot maintainable and the jurisdiction to decide the issues raised was only with Small Causes court Uunder section 28 of the Bombay Rant Act. ( 2 ) THE suil has been filed for the following reliefs: (a) that the Hon. bie Court be pleased to declare the Defendant and. hen family members as the trespassers in respect of structure admeasuring 6. 75 metres X 1. 6 metres equivalent to 10. 8 sq. metres equivalent to 108 sq. ft. or thereabouts, so made unauthorisedly in the compouno of Nagda Niketan, situated, lying and oeing at Hansoti Road, Cama lane, Ghatkopar, Bcmbay 400 086; (5) That defendant, her family members be directed by an order and decree to remove themselves alongwith all other goods, things and articles from the suit property cr any portion thereof and to hand over the vacant, quiet and peaceful. possession of the same to the Plaintiff; (c) that this Honble Court be further pleased to direct The Defendant by an order and decree, to pay a sum of rs. 24,000/- being tne arrears of mesne profit for the last 10 years unauthorised use and occupation of suit structure as per particulars of claim, exhibit. possession of the same to the Plaintiff; (c) that this Honble Court be further pleased to direct The Defendant by an order and decree, to pay a sum of rs. 24,000/- being tne arrears of mesne profit for the last 10 years unauthorised use and occupation of suit structure as per particulars of claim, exhibit. "b" hereto; and to further pay a sum of Rs,200/- per month as mesne ; profit from the date of filing of suit till defendant ha ids over peaceful pnysical and vacant possession to the Plaintiff; (d/ pancing the rearing and final disposal of the suit, one uefencant, her family members, agents, persons claiming through her be restrained by an order and injunction from not to further encroach upon suit property or any portion thereof arc/or also from inducting any third party and/or also from inducting any third party and/or parting with possession, encumbering, alienating and/or doing any act, deed or thing so as to jeopardise and plaintiffs right, title and interest in respect of suit property and cauaing nuiaanca and annoyance to other occupants of suit property; (e) Interim and ad-interim reliefs in terms of prayers (c) and (d) above; (f) Cost of suit be provided for ; (g) any other further reliefs be granted which this Honble Court deems fit and proper in the circumstances. ( 3 ) IT appears that a Notice of Motion was filed for interim relief by the appellant (the original plaintiff ). A defense was taken by the respondent i. e. , the original defendant; that the City Civil Court nas no jurisdiction to entertain ths suit and that. the preliminary issue regarding Jurisalction be decided first uncer section 9a of the CPC. It appears that without decioing this issue regarding jurisdiction, the trial Court disposed of tne Notice of lotion By passing certain orders. Admittedly, the respondent has not raised any objection for this procedure being followed. ( 4 ) AFTER the pleadings werg complete, the trial court framed various issues inducing the first issue "does the defendantprove that the jurisdiction of this court is barred by Section 26 of Bombay Rent Control Act and by Small Causes Courts Act?/". This issue has been decided in the affirmative after the evidence was led on all issues and arguments were concluded. This issue has been decided in the affirmative after the evidence was led on all issues and arguments were concluded. The trial court has on the basis of the evidence led befcre it come to the conclusion that this was a dispute between the landlord and his tenant and assuming the defendant was a trespasser, it was a dispute which could be decided only by the Small Causes Court as laid down under the provisions of Section 28 of the Bombay Rent act. According, all other issues were not answered and the complaint was returned for presentation in the proper Court. ( 5 ) ON behalf of the appellant; Mr. thorat submits that the issue regarding jurisdiction could have been tried as a preliminary issue under section 9a, before the Notice of Motion came to be made absolute. It is also submitted that once the Notice of Motion was made absolute, the stage for oeciding the issue regarding jurisdiction was passed and therefore, the entire suit was required to be decided on merits. He submits assuming for the sake of argument that such an order could have been passed under Order 14 Rule 2, the Court having not passed the order under thas provision of law, the impugned order was not sustainable. He submits under Order 14 Rule 2, the Court is to decide a case on all issues ang net just the preliminary issue. Under sub rule 2, the Court may decide an issue in respect of jurisdiction if the Court opines that it can be decided only as a question of law. The learned Advocate urges that an issue as to whether the respondent is a tenant or not is a question of fact and, therefore, such an issue must be decided under section 9a and not under order 14 Rule 2. He relies on the judgments in the case of Vishwanath Sawant V/s. Jandabhai kikabhai, 1990 Mah. R. C. J. 273 where this Court has held that in the case of the defendant being a trespasser, the Court of small] causes no jurisdiction to entertain the suit between the plaintiff and the defendant and it would only be the city Civil Court which could entertain such a suit. He further relied on the judgment in the case of Abdulla bin Ali and Ors. v/s. Galappa and Ore. He further relied on the judgment in the case of Abdulla bin Ali and Ors. v/s. Galappa and Ore. , AIR 1985 SC 577 in support of his submission that the jurisdiction of a court is to be determined on tha basis of the averments contained in the plaint. According to the learned advocate, the plaint discloses no such contention that there is relationship between the plaintiff and the defendant as landlord and tenant or such a relationship is in dispute. He further relies on the judgment in the case of Vannattankandy Ibrayi v/s. Kunhabdulla Hajee, (2601) SCC 564 to suomit that assuming for the sake of argument, that it was a tenancy. in favour of the defendant, his tenancy has come tc an sr. d because admittedly, the premises of which the tenancy is claimad ware demolished and, therefore, the deferndant had no right to claim tenancy. ( 6 ) MR. SINGH, appearing or behalf of the Respondent, candidly submitted that the stage at which the preliminary issue regarding jurisdiction of the Court is to be decided was at a stage prior to the Motion being heard. However, he urges that under Order 14 Rule 2, the Court could always decide the issue of jurisdiction without deciding the other issues since-this was an issue of question of law. ( 7 ) IT is obvious from the pleadings contained in the plaint and the reliefs sought for in the plaint that the plaintiff has, filed a suit for declaration of trespass and for possession. The relief further sought for was against the removal of goods and other articles from the suit property and for a decree for payment of rs. 24,000/- being the arrears of mesne profits. for regulafisation and occupation of the suit structure constructed unauthonsecly oy the defendant. Obviously, therefore; there is no averment contained in the plaint regarding tenancy. The allegation is that tne defendant has committed trespass on tne suit premises and, therefore, certain declarations have been sought; As held by the Apex Court in the case of Abdulla Bin Ali (supra), the jurisdiction of a Court has to be determines only on the basis of the allegations contained in the plaint. The case before the Supreme court was that the landlord Mad filea a suit, for possession and meane profits in the Civil Court alleging that the defendant was a trespasser. The case before the Supreme court was that the landlord Mad filea a suit, for possession and meane profits in the Civil Court alleging that the defendant was a trespasser. The defendant took a plea that Civil Court had no jurisdiction to entertain the suit as he was the? tenant. The Apex Court held that the landlord cannot be non suitsc in the Civil Court on the ground that he had not claimeo a. declaration of title. The facts in tha present case are very similar, the suit is for possession and mesne profits. The Small causes Court therefore will have no Jurisdiction to entertain and try such a suit. The re;ationship of landlord and tenant is not in question and therefor the provisions of section 28 of the Rent Act cannot be invoked. ( 8 ) FURTHERMORE; as held by this Court in the case of Viswanath Sawant (supra), the issue as to whether a person is a trespasser can be decided only by the City civil Court and not the Small Causes Court. Therefore, the Small Causes Court has no jurisdiction to try such an issue. The trial Court was, accordingly, clearly in error in returning the plaint. ( 9 ) EVEN under Order 14 Rule 2 of the Code of Civil procedure, the trial Court could nave considered the question of jurisdiction as a preliminary issue although ail other issues have been framed only if it had found it related to the issue of law only. In such circumstances, all other issues are to be settled later, after the issue of jurisdiction is determined. In tne present case, tne trial Court has not adopted even this procedure as laid down under Order 14 Rule 2 and instead the trial Court has framed all issues including the issues relating to the merits of the case. The parties have been permitted to lead evidence in regard to all issues. It is only at the stage of writing the order that the trial Court has confined its decision to only first issue, that of jurisdiction. In my view, it is clearly an erroneous procedure adopted by the Court. The trial Court ought to have decided all issues since evidence had been led on all issues which had been framed together. It is only at the stage of writing the order that the trial Court has confined its decision to only first issue, that of jurisdiction. In my view, it is clearly an erroneous procedure adopted by the Court. The trial Court ought to have decided all issues since evidence had been led on all issues which had been framed together. The stage of deciding the preliminary issue under section 9a had long gone by and it was, therefore, erroneous on the part of the trial Court to return the plaint without deciding the. other issues framed by it. ( 10 ) ACCORDINGLY? the impugned order is sst aside. The trial Court will decide all issues simultaneously since the evidence is complete the trial Court will hear tne arguments on the basis of tne pleadings and evidence already before it and decide the suit by March 2^^5. Tne parties are expected to cooperate in orcer so dispose of tne suit expeciticusly. ( 11 ) APPEAL from Orcsr ssancs disposed of. ( 12 ) WRIT to go down forthwith.