LexMAHADEV P KAMBEKAR (D) TR. LRS. versus SHREE KRISHNA WOOLEN MILLS PVT. LTD.
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A B C D E F G H 827 MAHADEV P KAMBEKAR (D) TR. LRS. v. SHREE KRISHNA WOOLEN MILLS PVT. LTD. (Civil Appeal Nos. 5753-5754 of 2011) JANUARY 31, 2019 [ABHAY MANOHAR SAPRE AND R. SUBHASH REDDY, JJ.] Presidency Small Cause Courts Act, 1882 – s. 41 – Counter claim – Maintainability – On facts, dispute between the parties relating to land in Bombay suburban district – Suit by plaintiff- lessee(respondent) against defendant-lessor/owner(appellants) on the original side of Bombay High Court claiming specific performance of contract-lease deed in relation to suit land – Defendant filing counter claim against the plaintiff seeking their eviction from suit land and arrears of rent – Single Judge allowed the counter claim and passed decree for possession of the suit land – Division Bench of the High Court held that the Single Judge wrongly entertained the counter claim as it had no jurisdiction on its original jurisdiction to entertain counter claim of this nature in light of s. 41 – Correctness of – Held: Division Bench of High Court rightly held that the counter-claim filed by the defendant was not maintainable – Whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall u/s. 41 and are, thus, cognizable by the Courts of Small Causes, Bombay – Once the tenancy is determined such suits would come within the purview of s. 41 – Parties to raise the factual issues before the competent court which would come to the conclusion on merits. Dismissing the appeals, the Court HELD: 1.1 The High Court in the impugned judgment rightly held that the counter-claim filed by the defendant (appellants) is not maintainable. There is no ground to take a different view than what has been taken by the High Court. [Paras 25, 26][835-G-H] 1.2 Whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of [2019] 1 S.C.R. 827 827 A B C D E F G H 828 SUPREME COURT REPORTS [2019] 1 S.C.R. suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay. [Para 29][836-C-D] 1.3 The submission that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act, was rightly rejected by the Division Bench of the High Court. [Para 30][836-D-E] Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel AIR 1980 Bombay 123 – approved. 1.4 It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court. It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, there is no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. The competent Court would come to its own conclusion on their respective merits and pass appropriate orders in accordance with law. [Para 32, 33][836-G-H; 837-A-B] Mansukhlal Dhanraj Jain & Ors. v. Eknath Vithal Ogale (1995) 2 SCC 665 : [1995] 1 SCR 996; Prabhudas Damodar Kotecha & Ors. v. Manhabala Jeram Damodar & Anr. (2013) 15 SCC 358 : [2013] 9 SCR 52 – relied on. Case Law Reference [1995] 1 SCR 996 relied on Para 20 [2013] 9 SCR 52 relied on Para 25 AIR 1980 Bombay 123 approved Para 30 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5753- 5754 of 2011. From the Judgment and Order dated 19.07.2007 of the High Court of Judicature at Bombay in Appeal No. 169 of 1999 in Suit No. 503 of 1980 and in Appeal No. 199 of 1999 in Suit No. 503 of 1980. A B C D E F G H 829 Shekhar Naphade, Shyam Divan, Sr.Advs., Mahesh Agarwal, Yatin Shah, Gaurav Goel, Abhikalp Pratap Singh, Ms. S.Lakshmi Iyer, Prateek Rusia, Ms.Aastha Mehta, E.C.Agrawala, Manish Sharma, Mrs.Mayuri Raghuvanshi, Vjom Raghuvanshi, Pranay Raj Singh, Ms.Samiksha, Ms.Deepa M. Kulkarni, Nishant Ramakantrao Katneshwarkar, Ms.Asha Gopalan Nair, Advs. for the appearing parties. The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. These appeals are directed against the final judgment and order dated 19.07.2007 passed by the High Court of Judicature at Bombay in Appeal No.169 of 1999 in Suit No.503 of 1980 and in Appeal No.199 of
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