Oral Judgment:
1) Rule, with the consent of the learned Counsel appearing for the parties, made returnable forthwith and heard.
2) The Writ Jurisdiction of this Court, under Article 227 of the Constitution of India, is invoked against the order dated 20th March, 2013, passed by the learned Judge of the City Civil Court, Borivali Division, Dindoshi, Mumbai, by which order, the learned Judge has ruled that the said Court has the jurisdiction to try and entertain the Suit.
3) The Petitioner herein is the original Defendant No. 2 to the Suit in question. The Respondent No. 1 herein is the original Plaintiff, who is the mother-in-law of the Petitioner and the mother of the Defendant No. 1. The Defendant No. 1 is the husband of the Petitioner. The Suit in question being S. C. Suit No. 1560 of 2011 has been filed for the following relief:-
œa) That this Hon'ble Court be pleased to pass a permanent order and injunction restraining the Defendants, their agents, servants and/or any other person or persons claiming through or under them from in any manner entering upon and/or remaining in the premises being situated at A/5, Model Town Co. op. Hsg. Soc, Gulmohur Cross Road No. 7, J. V. P. D. Scheme Vile Parle (W), Mumbai “ 400 049. And/or disturbing the Plaintiffs peaceful use, occupation and possession in respect of the said flats in any manner whatsoever.
b) ¦......?
The Suit is founded on the fact that the Plaintiff is the owner of the property in question and that the Defendants, against whom the prayer is directed have no right of whatsoever nature in respect of the suit property, save and except, to reside with the Plaintiff in their capacity as family members. It is the case of the Plaintiff that on account of the inter se fights between the Defendants, it is not possible for the Plaintiff to reside with the Defendants. It is further averred that the Plaintiff is suffering from various ailments, the continuation of the Defendants in the suit premises is therefore not conducive for the Plaintiff's health. In the context of the issue which arises in the present Petition, it would be apposite to reproduce paragraph 8, which reads thus:-
œ8. The Plaintiff states that though, on majority of the occasions, the Defendants are not keeping well with each other however, on some of the occasions the Plaintiff is also being made to believe and feel that the Defendants are making a drama only in order to create nuisance for the Plaintiff hereinabove. The Plaintiff states that it has further been learnt by the Plaintiff that though, the Defendant No. 1 do not have any independent right in respect of the said flats despite the same, he had made some application before the Hon'ble Family Court at Bandra seeking injunction against the Defendant No. 2 by virtue of which, he is trying to establish his rights in respect of the said flat with an intention to grab the same.?
As indicated above, the Plaintiff has filed the Suit simplicitor for injunction for restraining the Defendants from disturbing the Plaintiffs peaceful use, occupation and possession in respect of the flats, in any manner whatsoever.
4) It appears that in the said Suit, the Plaintiff filed an application for injunction being Notice of Motion No. 1959 of 2011. To the said Notice of Motion, an affidavit in reply came to be filed on behalf of the Defendant No. 2 i.e. the Petitioner herein. The Defendant No. 2 also filed an affidavit in the said Suit contending in the said affidavit that since the valuation of the suit premises runs into few crores, it is beyond the pecuniary jurisdiction of the City Civil Court.
5) At this stage, it would be relevant to refer to the proceedings filed by the Defendant No. 1 against the Defendant No. 2 for divorce, being Petition No. A-1270 of 2011 and the interim application filed therein by the Petitioner herein, who is the Respondent in the said Petition. The Family Court, Mumbai has passed an order on 4th July, 2011 restraining the Petitioner in the said Petition i.e. the Respondent No. 1 herein, not to oust the Petitioner herein from the matrimonial house without adopting the due process of law. The Respondent No. 2 is also directed not to withdraw the facilities which the Petitioner is availing in the matrimonial house and the Respondent No. 2 herein is also directed not to make any obstruction in the day to day life of the Petitioner.
6) In the instant Suit, in view of the objection raised by the Petitioner as regards the jurisdiction of the City Civil Court to try and entertain the Suit, the City Civil Court framed a preliminary issue to the following effect, œWhether this Court has jurisdiction to try and decide the Suit??. Both parties made a statement that they would not like to lead any evidence and would make submissions and accordingly the parties were heard on the preliminary issue. The said preliminary issue was tried by the City Civil Court and, as indicated above, by the impugned order, the City Civil Court has ruled that the said Court has the jurisdiction to try and entertain the Suit.
In the City Civil Court, reliance was placed on behalf of the Petitioner on the Full Bench Judgment of this Court in the case of PrabhudasDamodar Kotecha and Anr. vs. Manharbala Jeram Damodar and Ors. (2007(5) Bom.C. R. 1). On behalf of the Respondent No. 1 herein i.e. theoriginal Plaintiff, reliance was placed on the Judgment of a learned Single Judge of this Court in the matter of Conrad Dias vs. Joseph Dias (1995(3) Bom. C. R. 218). The Trial Court, as can be seen, held that the Petitioner herein was not a gratuitous licencee, since she is residing in the premises since the time of her marriage i.e. from the year 1991 as one of the members of the family and therefore cannot be termed as a gratuitous licencee. The Trial Court held that the submission made on behalf of the Defendant No. 2 that since she is a gratuitous licencee, the Suit would lie before the Small Causes Court, did not appeal to it. Insofar as the pecuniary jurisdiction is concerned, the Trial Court held that since the Plaintiff is the owner of the suit premises and since by prayer clause (a) the relief sought is of injunction, the same does not impinge upon the pecuniary jurisdiction of the City Civil Court. The Trial Court held that a Suit filed by the owner before the City Civil Court is maintainable against a family member and since the Suit is admittedly not for declaration but for simplicitor injunction, the City Civil Court has the jurisdiction. The Trial Court accordingly answered the issue in favour of the Plaintiff and ruled that it has the jurisdiction to try and entertain the Suit. As indicated above, it is the said order which is impugned in the present Petition.
7) Heard the learned Counsel appearing for the parties. The principal contention of the learned Senior Counsel appearing for the Petitioner Shri. Vashi was that the Petitioner being the daughter-in-law and being permitted to stay in the suit premises along with her husband, was a gratuitous licencee and therefore, a suit filed for restraining her from entering the premises would lie only before the Small Causes Court. The learned Senior Counsel, in support of the said contention, sought to place reliance on the Full Bench Judgment of this Court in the case of PrabhudasKotecha and Anr. (supra). It was the submission of the learned Senior Counsel that the reference to the Full Bench had arisen in view of the issue, whether a person who is allowed to stay gratis would be covered by the term gratuitous licencee as defined under Section 41(1) of the Provincial Small Cause Courts Act, 1987 (hereinafter referred to as œthe PSCC Act?). The learned Senior Counsel would seek to draw this Courts attention to the facts of the Writ Petition, in which, the order came to be passed referring the issue to the Full Bench. It was the submission of the learned Senior Counsel that the Judgment of the learned Single Judge of this Court in the case of Conrad Dias (supra) is impliedly overruled by the Judgment of the Full Bench. The learned Senior Counsel also sought to question the maintainability of the Suit filed only for injunction without claiming the relief of declaration, in view of Section 34 of the Specific Relief Act. It was the submission of the learned Senior Counsel that such a Suit, dehors the relief of declaration, was not maintainable. The learned Senior Counsel, to buttress the said submission, placed reliance on the Judgment of the Apex Court in the case of AnathulaSudhakar vs. P. Buchi Reddy (dead) by Lrs. and Ors. (AIR 2008 SC 2033). The learned Senior Counsel would contend that in the said Judgment, the Apex Court has carved out the categories of Suits, which, without claiming the relief of declaration and filed simplicitor for injunction were not maintainable.
8) Per contra, the learned Senior Counsel appearing for the Respondent No. 1 i.e. the original Plaintiff Shri. Singh would support the impugned order. The learned Senior Counsel would contend that insofar as the second ground of challenge i.e. the Suit simplicitor for injunction is not maintainable is concerned, such a ground was not urged in the application filed in the Trial Court nor any contention was raised before the Trial Court, nor the instant Petition contains any ground, which has its basis in the maintainability of the Suit on the ground that the Plaintiff is not claiming the consequential declaration. The learned Senior Counsel would contend that the reference to the Full Bench in the case of PrabhudasKotecha and Anr. (supra) was whether the expression œlicencee? in Section 41(1) of the PSCC Act derives its meaning from the definition of œlicencee? in Sub-Section 4A of Section 5 of the Bombay Rent Act or whether the expression œlicencee? used in Section 41(1) of the PSCC Act is a term of wider import so as to mean and include a œgratuitous licencee?. The learned Senior Counsel would contend that the issue before the Full Bench was therefore not as to who is a gratuitous licencee covered by the said definition in the PSCC Act. The learned Senior Counsel would contend that the reference has been answered by the Full Bench dehors the facts of the Petition, in which, the occasion to make the reference arose. This, the learned Senior Counsel sought to buttress, by drawing this Courts attention to the observations made by the Full Bench in the said Judgment.
Insofar as the second ground of challenge is concerned, the learned Senior Counsel Shri. Singh would contend that apart from the fact that such a challenge was not raised, the Plaintiff, in the light of the pleading, was not required to seek the relief of declaration, as, no title to the property in question was setup by the Defendants and only bald statements have been made questioning the Plaintiffs ownership of the suit property. The learned Senior Counsel would contend that the order passed by the Trial Court does not merit interdiction at the hands of this Court under Article 227 of the Constitution of India.
9) Having heard the learned Senior Counsel appearing for the parties, I have bestowed my anxious consideration to the rival contentions. As indicated above, the issue which arises for consideration is, whether, in the facts and circumstances of the case, the Bombay City Civil Court has the jurisdiction to try and entertain the Suit. It is trite that insofar as the question of jurisdiction is concerned, the same is to be tried on the basis of the averments in the Plaint. In the instant case, as mentioned herein above, the Plaintiff claims to be the owner of the property. The Defendant No. 1 is the son and the Defendant No. 2 is her daughter-in-law, who is the Petitioner herein. It is the case of the Plaintiff that after the marriage of the Defendant No. 1 with the Defendant No. 2, in the year 1991, the Defendant No. 2 came to reside in the suit property, which is of the ownership of the Plaintiff. Though the suit property, in the opening lines of prayer clause (a), has been loosely described as premises A/5, towards the end of the said prayer, the Plaintiff has referred to the said œflats?. The parties obviously know what they are litigating at. Though a faint objection was sought to be raised by the learned Senior Counsel appearing for the Petitioner as regards the description of the property, the same was not with any deal of conviction. It is averred by the Plaintiff that on account of the inter se fights/quarrels between the Defendant No. 1 and the Defendant No. 2 it has become impossible for the Plaintiff to reside with peace in the suit property and therefore, she has filed the Suit in question, seeking an injunction against the Defendant Nos. 1 and 2. The Plaintiff, as can be seen from the averments in paragraph 8 of the Plaint, has loosely stated that though the Defendant No. 1 does not have any independent right in respect of the said flats, despite the same, he has made some applications before the Family Court at Bandra, Mumbai seeking injunction against the Defendant No. 2, by virtue of which, he is trying to establish his rights in the said flats with an intention to grab the same. The said averment, therefore, cannot be, by any stretch of imagination, considered to be an averment, wherein, it can be stated that the defendant No. 1 is seeking to set up a title or an adverse claim in respect of the said flats.
10) Now, the next pleading is in the affidavit filed by the Defendant No. 2 in Notice of Motion No. 1959 of 2011, wherein, the Defendant No. 2 has stated that the Plaintiff is/was housewife and therefore could not have purchased the suit premises from her own income and that she has learnt from reliable sources that the Plaintiff has purchased the said property by selling the ancestral property, in which the Defendant No. 1 had also a share. The aforesaid averment in the affidavit in reply to the Motion also cannot be said to be an averment which sets up a case, whereby the title of the Plaintiff is being questioned and that the title in favour of the Defendant No. 1 is being setup. It is in the said context that the matter would have to be considered.
11) Now, coming to the Full Bench Judgment of this Court, in the case of PrabhudasKotecha and Anr (supra), the issues referred to the Full Bench can be gainfully reproduced herein under:-
œ(i) Whether the expression œLicensee? used in Section 41(1) in Chapter VII of PSCC Act, not having been defined therein, would derive its meaning from the expression œlicensee? as used in Sub-Section (4A) of Section 5 of the Rent Act and/or whether the expression œlicensee? used in Section 41(1) of PSCC Act is a term of wider import so as to mean and includes a œgratuitous licensee? also?
(ii) Whether a suit by a œlicensor? against a œgratuitous lecensee? is tenable before the Presidency Small Causes Court under Section 41 of PSCC Act??
The said reference to the Full Bench was made in view of the divergence of views between two Division Benches of this Court in the case of RameshDwarkadas Mehra and in the case of Bhagirathi Lingawade. No doubt, in the Judgment of the Full Bench, the facts in Writ Petition No. 561 of 2005 have been referred to. The said facts disclose that the Defendants, whose eviction was sought, were in use and occupation of one bedroom in Flat No. 16, Ram Mahal, Churchgate, Mumbai as their guest. So far as the hall and kitchen are concerned, family members of the Plaintiff and the Defendants were using it as common amenities. In the said case, the Defendant No. 1 was the younger brother of the Plaintiff No. 1. The facts further disclose that the HUF of the Plaintiff No. 1 was the tenant of Flat No. 11 in the very same building and that the members of the HUF were in need of additional premises, hence, they acquired the suit flat in the year 1964. It was the case of the Plaintiff that the HUF of the Plaintiff No. 1 has been and continues to be a tenant of Flat No. 16 and they are paying the rent of the suit flat to the landlord. It was further the case of the Plaintiffs that they allowed and/or permitted the Defendants to use the bedroom in the suit flat as guest of the said HUF of the Plaintiff No. 1. It was the Plaintiffs case that they have revoked the said permission granted to the Defendants and since they did not vacate the suit flat and continued to hold possession wrongfully and illegally, they filed the Suit for eviction. The Full Bench, however, in paragraph 6 has clarified that it does not propose to deal with the Petitions on merits and would like to address only the question raised and fell for its consideration. Hence, the consideration by the Full Bench of the issue referred to it was not on the basis of the facts involved in the Petitions, in which the issue had arisen. The Full Bench answered the issue by holding that the term œlicencee?, as defined under Section 41(1) of the PSCC Act is of wider import than the term œlicencee? as defined in Sub-Section (4A) of Section 5 of the Bombay Rent Act. This answer was rendered by the Full Bench after going through the gamut of referring to various Judgments as well as referring to the definition of œlicencee? in various legal dictionaries as also considering the provisions of the two cognate being the PSCC Act and the Bombay Rent Act. The learned Senior Counsel appearing for the Respondent No. 1 herein Shri. Singh is therefore right in his contention that the issue before the Full Bench was not as to who can be a gratuitous licencee under Section 41(1) of the PSCC Act, but the issue was whether the term œlicencee? has the same meaning as defined under Sub-Section (4A) of Section 5 of the Bombay Rent Act. What is of note is that the Full Bench has observed that by the licence granted the person is granted the permission to do certain things which otherwise would be unlawful. In my view, the Judgment in the case of PrabhudasKotecha (supra) does not aid the Petitioner in any manner insofar as the ouster of the jurisdiction of the Bombay City Civil Court is concerned.
12) Now, coming to the Judgment in Conrad Dias's case (supra), a learned Single Judge of this Court, has, in the said case, considered the definition of œlicencee? as appearing in Section 52 of the Easements Act, 1882 and has held that a son, by no stretch of imagination, can claim to be a licencee of his father, as he is a family member and he resides since birth with his father in the suit premises in question. In my view, the interpretation of the word gratuitous œlicencee? by the learned Single Judge in the case of Conrad Dias (supra) has, in no manner, been impliedly overruled, as sought to be contended by the learned Senior Counsel Shri. Vashi for the Petitioner. In fact, the learned Single Judge has interpreted the term licensee on the touchstone of Section 52 of the Easements Act, and held that a son could not be termed as a licencee. The term licencee has been interpreted by the Full Bench in PrabhudasKotechas case (supra). The Full Bench has observed in paragraph 47 of the said Judgmnet that the word licencee has been used by the legislature in the PSCC Act in the general sense of the term as defined in the Indian Easement Act. As indicated abve the issue before the Full bench was not as to who is a gratuitous licencee. In my view therefore, the Trial Court was right in referring to Conrad Diass case (supra) whilst holding that the Defendant No.2, being the daughter-in-law, cannot qualify to be a gratuitous licencee. This is on the aspect of the ouster of the jurisdiction of the City Civil Court on the ground that the Defendant No. 1 is a gratuitous licencee is concerned.
13) Insofar as the second ground is concerned, namely that the Suit filed simplicitor for injunction is not maintainable in the absence of any declaration claimed, it is required to be noted that no such ground has been raised in the affidavit filed by the Defendant No.1 questioning the jurisdiction of the City Civil Court, no such contention also appears to be raised before the City Civil Court. The above Petition also does not contain any such ground questioning the maintainability of the Suit in view of the alleged infirmity on account of not claiming the relief of declaration. The Petitioner having not raised the said ground, the objection of the learned Senior Counsel appearing for the Respondent No. 1 herein is well founded. In any event, the said ground, in my view, cannot be a ground which relates to the jurisdiction of the Court, which can be raised under Section 9A of the Civil Procedure Code, the said ground would, at the highest, impinge upon the Plaintiffs right to claim reliefs in the Suit. Be that as it may, since the ground was raised, this Court deems it appropriate to deal with the same. Insofar as the said ground is concerned, the relevant pleadings have already been adverted to in the earlier part of this Judgment. The Apex Court has, in the case of AnathulaSudhakar (supra), referred to the principles as to when a mere Suit for permanent injunction would lie and when it is necessary to file a Suit for declaration and for possession and injunction as consequential reliefs. In the context of the present Petition, paragraph 12 of the said Judgment is material and is reproduced herein under:-
œ12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to Plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.?
The Apex Court has held that a prayer for declaration would be necessary only if the denial of title by the Defendant or challenge to Plaintiffs title raises a cloud on the title of the Plaintiff to the property. The Apex Court observed that an action for declaration is a remedy to remove the cloud on the title to the property. The Apex Court, as can be seen, has observed that the defence raised by the Defendant should be such that raises a serious dispute over the Plaintiffs title, then there is a need to amend the Suit for declaration. Alternatively, he may withdraw the Suit for bare injunction, with permission of the Court to file a comprehensive Suit for declaration and injunction. The Apex Court has therefore laid down the eventualities, under which, a Suit, simplicitor for injunction, would not suffice unless a declaration is claimed. The instant case cannot be said to be a case which would come within the ambit of the observations made by the Apex Court in paragraph 12, as, the defence raised by the Defendant No. 2 i.e the Petitioner herein cannot be said to have raised a serious dispute or cloud over the Plaintiffs title to the property. The averments made in the affidavit in reply, which have been adverted to herein above, only contain a speculative statement that the property might have been purchased out of the sale of ancestral property and therefore, the Defendant No. 1, who is the husband of the Defendant No. 2 has also a right. The said averment, as indicated above, can hardly be said to set up a title in any of the properties. Insofar as paragraph 8 of the Plaint is concerned, that by no stretch of imagination be construed as acceptance of any dispute regarding title of the property. In my view, therefore, apart from the fact that such a ground cannot be allowed to be raised in this Court, for the first time, on merits also, there is no substance in the said ground, as the Suit filed by the Respondent No. 1 herein, founded on her ownership, seeking an injunction against the Defendant Nos. 1 and 2, is maintainable under Section 34 of the Specific Relief Act.
14) Having heard the learned Senior Counsel appearing for the parties and having perused the impugned order, in my view, the impugned order does not suffer from any error of jurisdiction or any other illegality or infirmity for this Court to interdict in its Writ Jurisdiction under Article 227 of the Constitution of India. The Writ Petition is dismissed. Rule is accordingly discharged with no order as to costs.
At this stage, the learned Counsel appearing on behalf of the Petitioner prays for continuation of order dated 14th March, 2014, whereby, it was directed that the matter not to be proceeded in the Trial Court. In the facts and circumstances of the present case, the said order is continued for two weeks from date.