JUDGMENT 1. This Second Appeal impugns Judgment and Order dated 10-07-2002 passed in Regular Civil Appeal No.601 of 1997 decided by 2nd Additional District Judge, Nagpur. The Second Appeal was admitted on 29-09-2003 on the substantial questions of law stated as under- A) Whether the Lower Appellate Court is correct in holding that: 1. The suit transaction is lease without any documentary evidence on record? 2. Appellant did not take serious action for two years and hence court came to conclusion that it is circumstance, to infer about lease created? 3. The respondent was paying the electric charges for two years and hence the respondent is not gratuitous licensor and hence lower appellate court comes to the conclusion that transaction between appellant and respondent is lease? 4. The transaction is between the appellant and respondent is lease and therefore the small causes court alone has jurisdiction to decide the matter? 2. The First Appeal arose from the decree of ejectment dated 23-10-1997 passed by the 22nd Civil Judge (J.D.), Nagpur in Regular Civil Suit no. 2419 of 1992. 3. For reasons to follow my answers are in the negative for all questions afore- stated. 4. The facts, briefly stated, are that plaintiff Vinayak Daulat Watkar found eligible was allotted the tenement no.E-72 at Shanti Nagar Colony in the year 1974 on rental basis of Rs 35/- per month from Nagpur Housing and Area Development Board under its 'Economically Weaker Section Scheme'. The defendant, who was tenant of Dutta Kurve of the adjoining premises, requested the plaintiff to accommodate him temporarily as daughter of his landlord was to marry in April, 1989 and his landlord required the premises in his occupation for to solemnize the marriage of his daughter. The defendant did not vacate, as promised after marriage of his landlord’s daughter and continued as unauthorised occupant of the suit tenement despite notice dated 23-08-1992 for to vacate the same. The defendant had resisted the suit by pleading tenancy. The trial court found that the plaintiff was entitled to the relief of possession as lawful owner of the suit tenement who had temporarily allowed the defendant as a licensee. The plea of tenancy by the defendant was rejected by the trial Court. 5. Heard submissions at the bar. Perused the evidence led on record. 6. The trial court found that the plaintiff was entitled to the relief of possession as lawful owner of the suit tenement who had temporarily allowed the defendant as a licensee. The plea of tenancy by the defendant was rejected by the trial Court. 5. Heard submissions at the bar. Perused the evidence led on record. 6. The fact that the Plaintiff was allotted the suit tenement by the Nagpur Housing and Area Development Board under its 'Economically Weaker Section Scheme' was not in dispute. The evidence revealed that the only son of the plaintiff had died on 30-08-1988 and he went to stay with his father-in–law. In the meantime, the defendant was accommodated on his request temporarily for a period of one month as marriage of daughter of the defendant’s landlord was to be solemnised. In the facts and circumstances of the case, the defendant’s failure to vacate the suit tenement despite notice to vacate the suit tenement changed the status of the defendant from a bare licensee into a trespasser. There was no any proof of acceptance of rent by the plaintiff to corroborate defence plea of oral tenancy. The self –interested bald plea of oral tenancy by the defendant, in the absence of any valid document to support it, could not have been entertained by the Civil Court. After receiving notice to quit, any prudent person acting bona fidely, seeking protection as a statutory tenant or a protected licensee, would never fight shy as, being interested to protect possession, he would approach a competent Civil Court in a good faith to prove his status as a tenant. Though the notice to quit was issued on the premise that the defendant is a trespasser and bound to vacate the suit tenement, no such rational step was taken by the defendant for the reasons best known to the defendant. In my opinion, therefore, the trial Court had rightly decreed the suit with damages as well as correctly ordered inquiry into mesne profits, as claimed in the suit after in-depth examination of the evidence led before it. The first Appellate Court had totally misdirected itself to overturn the decree on the ground that the Civil Court had no jurisdiction to pass a decree. The important legal position is ignored by the learned first Appellate Judge. 7. The first Appellate Court had totally misdirected itself to overturn the decree on the ground that the Civil Court had no jurisdiction to pass a decree. The important legal position is ignored by the learned first Appellate Judge. 7. It is a settled legal position as explained by Hon’ble Supreme Court in Raizada Topandas Vs. Gorakhram reported in AIR 1964 SC 1348 that the plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen: If he frames his suit in a manner not warranted by the facts, and goes for his relief to a Court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of Court to which the Court belongs, the plaintiff's suit will have to be dismissed in its entirety. 8. The defendant cannot force the plaintiff to go to a forum where the plaintiff cannot go on the basis of his averments in the plaint that the defendant is a trespasser who has refused to vacate despite notice to vacate. Jurisdiction of the Court has to be determined on the basis of averments in the plaint, taking them to be true and not on the basis of the written statement. Ordinary Civil Court has jurisdiction irrespective of the defence taken in the written statement. Thus, the plaintiff alleging that the defendant is a trespasser can approach an ordinary Civil Court with a suit to recover possession. Ordinary Civil Court has jurisdiction irrespective of the defence taken in the written statement. Thus, the plaintiff alleging that the defendant is a trespasser can approach an ordinary Civil Court with a suit to recover possession. If plaintiff succeeds by proving his case as stated in the plaint, irrespective of the contention pleaded in written statement, the suit of the plaintiff is bound to be decreed but, of course, in such a case, if the defendant comes out with a contention in defence, which is found reliable and acceptable, the plaintiff may be non-suited by an order of dismissal of the suit. Jurisdiction of the ordinary Civil Court to entertain the Civil suit is not barred in such a case. In the present case, the defendant was unable to prove that he was a tenant or a licensee. Hence there was no any illegality or irrationality in the Judgment and Order of the trial court, granting decree in favour of the plaintiff. The first Appellate Judge had no justification at all to overturn or reverse the Judgment and decree passed by the trial Court as merely payment of electricity bills by the occupant cannot create status of tenancy or licensee protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. 9. In the result, therefore, the Second Appeal succeeds. The impugned Judgment and decree is set aside and the decree passed by the trial Court is restored. The appeal is allowed accordingly. 10. Mr. S.P. Kshirsagar, learned Counsel for the respondents, at this stage, prays for grant of stay as to possession for a period of eight weeks as he intends to challenge this Judgment and Order before the Apex Court. Hence, the decree limited to possession shall remain stayed until expiry of eight weeks from today.