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2013 DIGILAW 2478 (BOM)

Pradeep Advertising Agency v. Aurbindo Circle

2013-12-03

R.K.DESHPANDE

body2013
Judgment R.K. Deshpande, J. 1. Rule, made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. Both the Courts below have recorded the concurrent finding of fact that the premises let out to the petitioner/plaintiff are open plot, and hence the provisions of the Maharashtra Rent Control Act, 1999 are not applicable to the present case. The suit filed for declaration and permanent injunction has thus been dismissed. 2. Inviting my attention to the definition of the "premises" under section 7(9) of the Maharashtra Rent Control Act, Shri Joshi, the learned counsel for the petitioner/plaintiff, has urged that the tenancy or the licence-agreement need not be in respect of a building, but even if it is in respect of gardens, grounds, garages and out-houses appurtenant to such building or part of a building, still it will be covered by the definition of "premises" under section 7(9) of the said Act. 3. Section 7(9) of the said Act, being relevant, is reproduced below: "Section 7(9): "premises" means any building or part of a building let or given on licence separately (other than a farm building) including.-- (i) the gardens, grounds, garages and outhouses, if any, appurtenant to such building or part of a building, (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house." It is apparent that the "premises" under section 7(9) of the Maharashtra Rent Control Act comprise the building or part of a building, let or given on licence separately, including the gardens, grounds, garages and outhouses, etc., appurtenant to such building or part of a building. In view of this, mere open space, ground or garden let out or given on licence without letting out any building or part of a building to which it is appurtenant, is not covered by the definition of "premises" under section 7(9) of the said Act. Therefore, I do not find any illegality in the judgments and orders passed by both the Courts below. 4. Shri Joshi for the petitioner/plaintiff has further urged that both the Courts below have proceeded on the footing that the petitioner/plaintiff has admitted that the tenancy is in respect of open plot. Therefore, I do not find any illegality in the judgments and orders passed by both the Courts below. 4. Shri Joshi for the petitioner/plaintiff has further urged that both the Courts below have proceeded on the footing that the petitioner/plaintiff has admitted that the tenancy is in respect of open plot. He has further urged that the question as to whether it is the open plot or not, is a disputed question, and unless the parties are provided an opportunity to lead evidence on the point of jurisdictional fact, the Court could not have proceeded to dismiss the suit. In view of the interpretation of the definition of the word "premises", as has been done above, and an undisputed fact that no building or any part thereof is let out, the question of leading evidence does not arise. It is apparent that the premises in question are open plot, which was let out for erecting the hoarding. The said contention is also rejected. 5. Shri Joshi for the petitioner/plaintiff has further urged that the jurisdiction of the Small Causes Court is governed by the provisions of section 26 of the Provincial Small Cause Courts Act, 1887 irrespective of the fact that the tenancy is covered by the provisions of the Maharashtra Rent Control Act. After going through the reliefs claimed in the suit, it is apparent that it is not a suit relating to the possession of any immovable property. Hence the suit is not covered by the Provincial Small Cause Courts Act. The said contention is, therefore, rejected. 6. It is also urged by Shri Joshi for the petitioner/plaintiff that under Order VII, Rule 10 of the Civil Procedure Court, the Court is required to return the plaint for its presentation before the proper Court once it is found that the Court has no jurisdiction. It is not possible to accept this argument. Once it is held under Order VII, Rule 11 of the Code that the Small Causes Court has no jurisdiction to entertain, try and decide the suit, it has to be dismissed and it is open for the plaintiff to file such suit in appropriate forum. 7. Shri Joshi has cited several decisions, but I do not find that the same are applicable to the facts of the case at hand. Hence, the said decisions are not discussed here. In the result, the petition is dismissed.