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 plaintifflessee(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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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