Zenobia Poonawala vs Dr. Rustom Ginwalla - Civil Revision Application

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Zenobia R. Poonawala And Anr vs Dr. Rustom Farhad Ginwalla And Ors on 24 March, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:14090
-CRA388-2024.DOC

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION

                  CIVIL REVISION APPLICATION NO. 388 OF 2024

           1. Zenobia R Poonawala (Nee Ginwalla)
           2. Rohinton Poonawala                           ...Applicants/
                                                              Ori.Def.1&2
                               Versus

           1. Dr. Rustom Farhad Ginwalla
           2. Dr. Naheed Ginwalla
           3. Sushila Landge
           4. Gracy Soares
           5. Nazareth Soares
           6. Neil Soares
           7. Dhun Hodiwala
           8. Gul Karanjia
           9. Nadir Karanjia
           10. Kiyanush Karanjia
           11. Cherie Ginwalla                         ...Respondents/
                                                         Ori. Plaintiffs
                                     WITH
                    INTERIM APPLICATION NO. 10681 OF 2024
                                      IN
                  CIVIL REVISION APPLICATION NO. 388 OF 2024

           Mr. Amrut Joshi, a/w Premlal Krishnan, Nadeem Sharma,
                Hrishikesh Nadkarni and Yazad Udwadia, for the
                Applicants.
           Mr. Sameer Pandit, a/w Aastik Agarwal, i/b Wadia Ghandy &
                Co., for Respondent No.1.

                                        CORAM: N. J. JAMADAR, J.
                                    Reserved On: 10th DECEMBER, 2025
                                 Pronounced On: 24th MARCH, 2026

                                        1/31
           SSP
                                              -CRA388-2024.DOC

JUDGMENT: -

1. By this revision application the applicants, original

defendant Nos.1 and 2, assail the legality and correctness of an

order dated 29th May, 2024 passed by the learned Judge, City

Civil Court, Greater Bombay, whereby the Notice of Motion

No.1117/2023 in SC Suit No.2905/2022 for the rejection of the

plaint under the provisions of [Order VII Rule 11 of the Code of

Civil Procedure](https://indiankanoon.org/doc/161831507/), 1908 ("the Code"), came to be dismissed.

1. Though there is a chequered history of multi-pronged

litigation between the parties before the different forums, the

background facts necessary for the determination of this

revision application can be summarized as under:

2.1 For the sake of clarity and convenience, the parties are

hereinafter referred to in the capacity in which they are arrayed

in SC Suit No.2905/2022 before the City Civil Court.

2.2 Dr. Rustom Ginwalla (R1/P1) is the brother of applicant

No.1/D1.

2.3 R11/P11 and Rashna Ginwalla are the sisters of P1 and

D1. Applicant No.2/D2 is the husband of D1. 2/31
SSP

-CRA388-2024.DOC

Rutton Manor, comprising ground plus four storey structure

with terrace and two garages, and having 10 flats, situated at

Garden Road, Apollo Reclamation, Colaba ("the suit building") is

at the heart of the controversy. Pervin Ginwalla, the late mother

of P1 and D1 was the original lessee of the premises, over which

Rutton Manor stands. After the demise of Pervin Ginwalla, it

seems, disputes have arisen between the parties.

2.4 P1 claims, after Pervin's demise, Farhad Ginwalla, the late

father of P1, P11 and D1, became a co-owner of the suit building

alongwith D1. Late Farhad had a 55% share and D1 had the

rest 45% share therein.

2.5 The defendant No.1, on the other hand, contends, she is

the sole surviving joint tenant of the head lessor, Mumbai Port

Trust ("MbPT") and undisputed sole landlord of the suit

building.

2.6 In the wake of the disputes, D1 has filed a suit before the

Court of Small Causes, Mumbai, for eviction of P1, from the

three flats in the suit building. D1 had also instituted a civil

suit, being SC Suit No.2927/2015, before the City Civil Court,

Mumbai, seeking certain reliefs, qua P1 in relation to the suit

building.

3/31 SSP

-CRA388-2024.DOC

2.7 Late Farhad allegedly executed a duly stamped and

registered Gift Deed dated 11th October, 2017, inter alia,

transferring his 45% and 10% interest in the suit building, and

the leasehold rights in the underlying land in favour of P1 and

Rashna Ginwalla. Thus, P1 claims with effect from 11 th October,

2017, P1 ceased to be a tenant of the flats in the suit building

and became a co-owner of the suit building.

2.8 P1 and others instituted a suit, being Suit No.790/2018,

before the High Court alleging harassment and nuisance by the

applicants. Certain interim reliefs were granted in the said suit

by a learned Single Judge. An appeal preferred by the D1

thereagainst came to be dismissed.

2.9 D1 also instituted a suit, being Suit No.405/2023, before

the High Court against against P1 and others in respect of the

suit building asserting, inter alia, that the tenancies in favour of

P1, P11 and Rashna Ginwalla (D3 therein) were null and void-

ab-initio, and P1, P11 and others were trespassers.

2.10 Asserting that the plaintiffs, including P1, are the

occupants of the suit building and taking umbrage at alleged

illegal conduct, nuisance, obstruction and other acts and

omissions on the part of the defendants, the plaintiffs instituted 4/31 SSP

-CRA388-2024.DOC

the instant suit i.e. Suit No.2905/2022 before the City Civil

Court purportedly espousing their civil rights as occupants of

the suit building.

2.11 The substance of the claim of the plaintiffs is that, in

order to exert pressure upon the plaintiffs to give in to the

unlawful demands of the defendants, the latter have resorted to

various illegal acts including causing obstruction in the use of

the lift, repairs and upkeep of the building and the common

facilities and amenities. Alleging various acts of commission and

omission, the plaintiffs have prayed for permanent injunction to

restrain the defendants, their servants and agents from in any

manner obstructing the use of the lift in the suit building by the

plaintiffs, their family members, guest servants, agents and any

person claiming under the plaintiffs; from obstructing the

plaintiffs from installing CCTV cameras in or around the

respective premises and in the suit building; from in any

manner preventing the peaceful ingress and egress of the

plaintiffs, their family members etc. to and from the suit

building, from in any manner preventing the access, use and

enjoyment of the common terrace and common areas of the suit

building, and from in any manner obstructing the access to the 5/31 SSP

-CRA388-2024.DOC

meter room, water tanks, lift room, pump room, etc. and repairs

and maintenance thereof.

2.12 In the said suit, applicant No.1/D1 took out a Notice of

Motion for rejection of the plaint, contending inter alia that the

City Civil Court has no jurisdiction to entertain, try and decide

the suit as the issues that arise for determination have their

genesis in the relationship of landlord and tenant between the

parties and, thus, the Court of Small Causes, at Mumbai has

the exclusive subject matter jurisdiction. D1, in her capacity as

the landlord, has instituted eviction suits before the Court of

Small Causes against plaintiff Nos.1, 4, 7, 8, 9 and 10. Whereas

plaintiff Nos.2, 3, 5, 6, 10 and 11 have no legal right to occupy

the portions of the suit building. Thus, the suit, at the instance

of plaintiff Nos.2, 3, 5, 6, 10 and 11, was not maintainable.

Since the eviction suits are sub-judice before the Court of Small

Causes at Mumbai, while deciding those suits, the Court of

Small Causes can also pass consequential orders.

2.13 The respondents - plaintiffs resisted the Notice of Motion.

The substance of the resistance was that the instant suit does

not pertain to any tenancy rights nor it pertains to recovery of

possession of the leased premises or rent thereof. On the 6/31 SSP

-CRA388-2024.DOC

contrary, the instant suit essentially represents a tortious claim

for nuisance and harassment at the hands of defendant Nos.1

and 2. Moreover, D1 has herself disowned the jural relationship

of the landlord and tenant and, thus, the Civil Court has the

plenary and residuary jurisdiction, to entertain, try and decide

the suit.

2.14 After appraisal of the averments in the plaint, documents

annexed thereto and the material on record and hearing the

parties, the learned Judge, City Civil Court was persuaded to

dismiss the Notice of Motion. It was observed inter alia that, D1

was prima facie putting hindrances in the utilization of the

basic amenities by the occupants and, thus, the suit would not

fall within the exclusive jurisdiction of the Court of Small

Causes at Mumbai as the plaintiffs were not seeking the relief of

injunction to protect their possession over the suit premises but

asserting their rights as occupants and seeking relief to ensure

uninterrupted use of the basic amenities. The conditions which

were necessary for conferring exclusive jurisdiction on the Court

of Small Causes were not fulfilled. Therefore, the Civil Court was

not precluded from exercising the jurisdiction.

1. Being aggrieved, D1 and D2 have preferred this revision. 7/31 SSP

-CRA388-2024.DOC

1. I have heard Mr. Amrut Joshi, the learned Counsel for the

applicants - defendants, and Mr. Sameer Pandit, the learned

Counsel for respondent No.1 - plaintiff, at some length. The

learned Counsel for the parties, took the Court through the

pleadings and material on record, including the orders passed

by the Courts in the proceedings between the parties and the

pleadings/affidavits of the parties in the other proceedings to

demonstrate the position the parties have taken in regard to the

jural relationship between the parties.

1. Mr. Joshi, the learned Counsel for the applicants, would

submit that, incontrovertibly, the eviction suits instituted by D1

in the capacity of the landlady are pending before the Court of

Small Causes against plaintiff Nos.1, 4, 7, 8, 9 and 10. The

relationship of landlord and tenant between defendant No.1 and

plaintiff Nos.1, 4, 7, 8, 9 and 10 can, thus, hardly be contested.

Plaintiff No.3 is a maid servant. Plaintiff No.11 is a resident of

USA.

1. Mr. Joshi would, thus, urge that in the face of almost

admitted jural relationship between the parties, the suit of the

present nature is expressly barred by the provisions contained

in Section 33 of the Maharashtra Rent Control Act, 1999 ("the 8/31 SSP

-CRA388-2024.DOC

Rent Act, 1999"), which confers exclusive jurisdiction in Brihan

Mumbai on the Court of Small Causes, Mumbai, to entertain

and try any suit or proceeding between a landlord and a tenant

relating to recovery of rent or possession of any premises and to

decide any application under the said Act, and bars the

jurisdiction of the other Courts to entertain any such suit

proceeding or application or to deal with such claim or question.

1. Mr. Joshi would further urge that, the plaintiffs assertion

that they are espousing their rights as occupants of the suit

building is but an instance of clever drafting. The plaintiffs

against whom the suits are sub-judice before the Court of Small

Causes at Mumbai have deliberately suppressed the fact that

eviction suits have been instituted against them before the

Court of Small Causes.

1. In any event, Mr. Joshi would submit, even the claim of

the plaintiffs that, they were deprived of the essential services

and amenities and, therefore, they were seeking injunctive

reliefs before the Civil Court also does not insulate the suit

before the City Civil Court from the bar envisaged by Section 33 of the Rent Act, 1999. Laying emphasis on the provisions

contained in Section 29 of the Rent Act, 1999, Mr. Joshi urged 9/31 SSP

-CRA388-2024.DOC

that, even a dispute in regard to the withholding of essential

supply or service is required to be agitated before the Court of

Small Causes at Mumbai.

1. Mr. Joshi further submitted that, the plaintiffs have not

only acknowledged the relationship of landlord and tenant but

have also sought reliefs from the Court of Small Causes in the

pending proceedings in the said capacity. Attention of the Court

was invited to the written statement filed on behalf of plaintiff

Nos.8 and 9 herein in RAE Suit No.714/2021, wherein

categorical admissions are made regarding the jural relationship

between the parties. In RAE Suit No.70/2015, plaintiff No.1 had

sought permission to deposit rent. Reliance was also placed on

the tenancy agreement executed by plaintiff No.4 and plaintiff

No.7; who had also applied for the permission to deposit the

rent in the Court of Small Causes. In the face of the aforesaid

material, Mr. Joshi would urge that, the suit before the City

Civil Court was expressly barred by the provisions contained in Section 33 of the Maharashtra Rent Control Act.

1. To buttress the aforesaid submission, as regards the

general principles which govern the exercise of power to reject

the plaint under the provisions of Order VII Rule 11, Mr. Joshi 10/31 SSP

-CRA388-2024.DOC

placed reliance on a number of judgments including the

decisions of the Supreme Court in the cases of [Popat and

Kotecha Property vs. State Bank of India Staff Association](https://indiankanoon.org/doc/232106/) 1, [T.

Arivandandam vs. T. V. Satyapal and another](https://indiankanoon.org/doc/1747770/) 2, [Rajendra Bajoria

others vs. Hemant Kumar Jalan](https://indiankanoon.org/doc/53410471/) and others3 and a judgment of

the learned Single Judge of this Court of [JVPD Sterling CHSL

(Regd.) and others vs. Kamla Landmarc Builders and others](https://indiankanoon.org/doc/113298492/) 4.

1. To fortify the submission that, a party who does not

approach the Court with clean hands and suppresses material

facts to gain an advantage over the adversary, is not entitled to

be heard at all, Mr. Joshi placed reliance on the judgment in the

case of S. P. Chengalvaraya Naidu vs. Jagannath (dead) by LRs.5.

1. On the point of exclusive jurisdiction conferred on the

Court of Small Causes under the provisions of Section 33 of the

Rent Act, 1999, Mr. Joshi placed reliance on the judgment of the

Supreme Court in the case of [Banatwala and Company vs. Life

Insurance Corporation of India and another](https://indiankanoon.org/doc/192605638/) 6, wherein it was,

inter alia, enunciated that an application for restoration of
1 (2005) 7 Supreme Court Cases 510.

2 (1977) 4 Supreme Court Cases 467
3 (2022) 12 Supreme Court Cases 641.

4 2019 SCC OnLine Bom 6792.

5 (1994) 1 SCC 1.

6 (2011) 13 Supreme Court Cases 446.

11/31 SSP

-CRA388-2024.DOC

essential supplies and services when necessary shall be

maintainable under the Rent Act, 1999, and a Division Bench

judgment of this Court in the case of Nirmal Ujwal Credit Co-

operative Society Ltd. vs. Narendra Mohanlal Choudhary and

another7. In the latter case, it was enunciated that the

provisions of Section 29 of the Rent Act, 1999 are in the nature

of a Code in itself in the matter of any essential supply or

services, and remedy has been provided thereunder to a tenant

whenever such essential supply or service enjoyed by him is cut

off or withheld.

1. On the aspect of the determination of the question of

exclusive jurisdiction in the context of the provisions contained

in Section 28 of the Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947, reliance was placed on the judgment in

the case of Natraj Studios (P) Ltd. vs. Navrang Studios and

another8.

1. In contrast to this, Mr. Pandit, learned Counsel for the

Respondent No.1, would submit that the bar of subject matter

jurisdiction, sought to be pressed into service by the Applicants,

is wholly misconceived, and, even non-existant in the

7 2022 SCC OnLine Bom 1637.

8 (1981) 1 Supreme Court Cases 523.

12/31 SSP

-CRA388-2024.DOC

contemplation of the Applicants as well. Mr. Pandit assiduously

submitted that the instant suit raises a tortious claim of

nuisance and harassment qua the Defendants, plain and

simple. The plaint nowhere refers to the jural relationship of

landlord and tenant between the parties. Neither the Plaintiffs

seek to protect their possession over the respective portions of

the suit building in their capacity as tenants, nor the suit

relates to recovery of rent or any other matter covered by the

provisions contained in Section 33 of the Maharashtra Rent

Control Act, 1949.

1. Inviting attention of the Court to the averments in the

plaint and the frame of the suit, Mr. Pandit submitted that, it is

settled position in law that the jurisdiction is required to be

initially determined on the basis of the averments in the plaint

and not the defence raised by the Defendants. Support was

sought to be drawn from the observations of the Supreme Court

in the case of Natraj Studios (P) Ltd. (supra) , on which reliance

was placed by Mr. Joshi.

1. To bolster up the submission that, the plaint in the

present form does not set up the landlord tenant relationship

and, therefore, the provisions contained in Section 33 of the 13/31 SSP

-CRA388-2024.DOC

Maharashtra Rent Control Act, are not attracted, Mr. Pandit

placed reliance on the judgment of the Supreme Court in the

case of Mansukhlal Dhanraj Jain and Ors. V/s. Eknath Vithal

Ogale9.

1. Mr. Pandit further submitted that, in the case at hand, the

Defendant No.1 has not only categorically denied the tenancy of

the Plaintiff No.1 and others, but has also instituted a suit

before the High Court, being Civil Suit No.405 of 2023,

asserting that those tenancies are null and void ab-initio.

Plaintiff No.1 is alleged to be a trespasser and a decree for

possession in respect of the properties in the possession of

Plaintiff No.1 is sought. Therefore, the Defendant No.1 can not

again turn around and contend that the City Civil Court's

jurisdiction is barred and the Court of Small Causes has the

exclusive jurisdiction. To this end, a very strong reliance was

placed by Mr. Pandit on the decision of the Supreme Court in

the case of Abdulla Bin Ali and Ors. V/s. Calappa and Ors.10.

1. In the facts of the case at hand, Mr. Pandit would urge,

the Plaintiff No.1, post execution of the gift deed by late Farhad,

has consistently asserted co-ownership over the subject building

9 (1995) 2 SCC 665
10 (1985) 2 SCC 54 14/31 SSP

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since October 2017. Conversely, Defendant No.1 has not only

challenged the said gift deed, but even questioned the tenancies

granted by late Farhad in favour of Plaintiff No.1 and others,

during Farhad's life time, as fraudulent. To add to this, on the

own showing of Defendant No.1, Plaintiff Nos.2, 3, 5, 6 and 10

are not the tenants of the portions of the suit building in their

respective occupation. Thus, no jural relationship of landlord

and tenant exists between Defendant No.1 and Plaintiff Nos.2, 3,

5, 6 and 10. Consequently, it cannot be said that the rights

sought to be espoused by those Plaintiffs in the capacity of the

occupants of the suit building fall within the exclusive

jurisdiction of the Court of Small Causes.

1. As a sequitur of the aforesaid submissions, Mr. Pandit

would urge that, if a cause of action survives against even one of

the Defendants or against some of the properties, then the suit

must proceed for trial.

1. The question of bar of jurisdiction of the ordinary Civil

Courts is often raised under Order VII Rule 11(d) of the Code,

where the special enactment deals with the subject matter of

the suit directly, collaterally or even remotely. The starting point

of inquiry, however, firmly rests in a well ingrained principle 15/31 SSP

-CRA388-2024.DOC

that the Civil Court has, in a sense, omnipresent and plenary

jurisdiction to decide all suits of civil nature, unless their

cognizance is expressly or impliedly bar. An inference of

exclusion of the Civil Court's jurisdiction is not to be readily

drawn. Where a bar of jurisdiction on account of conferment of

exclusive jurisdiction on a Court / Tribunal under a special

enactment, like, the Maharashtra Rent Control Act, 1999, is

urged, the inquiry as to whether the subject matter of the lis

before the Civil Court falls within the exclusive province of the

jurisdiction of the Court/Tribunal created thereunder, becomes

necessary.

1. Relevant part of Section 33 of the Act, 1999 reads as

under :

"33. Jurisdiction of courts

(1)Notwithstanding anything contained in, any law
for the time being in force, but subject to the
provisions of Chapter VIII, and notwithstanding that
by reason of the amount of the claim or for any other
reason, the suit or proceeding would not, but for this
provision, be within its jurisdiction, -

(a) in Brihan Mumbai, the Court of Small Causes,
Mumbai, 16/31 SSP

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(b)in any area for which a Court of Small Causes is
established under the provincial Small Causes
Courts Act, 1897 such Court, and,

(c) elsewhere, the Court of the Civil Judge (junior
Division) having jurisdiction in the area in which the
premises are situate or, if there is no such Civil
Judge, the Court of the Civil Judge (Senior Division)
having ordinary jurisdiction, shall have jurisdiction
to entertain and try any suit or proceeding between a
landlord and a tenant relating to the recovery of rent
or possession of any premises and to decide any
application made under this Act (other than the
applications which are to be decided by the State
Government or an officer authorized by it or the
Competent Authority); and subject to the provisions
of sub-section (2), no other court shall have
jurisdiction to entertain any such suit, proceeding or
application or to deal with such claim or question."
22. Section 41 of the Presidency of Small Causes Act, 1882

which also confers exclusive jurisdiction on the Court of Small

Causes, reads as under :

"41. suits or proceedings between licensors and
licensees or landlords and tenants for recovery of
possession of immovable property and licence fees or
rent, except to those to which other Acts apply to lie
in Small Cause Court. - (1) Notwithstanding
anything contained elsewhere in this Act, but
subject to the provisions fo sub-section (2), the 17/31 SSP

-CRA388-2024.DOC

Court of Small Causes shall have jurisdiction to
entertain and try all suits and proceedings between
a licensor and licensee, or a landlord and tenant,
relating to the recovery of possession of any
immovable property situated in Greater Bombay, or
relating to the recovery of any licence fee or charges
or rent therefor, irrespective of the value of the
subject-matter of such suits or proceedings.

(2)Nothing contained in sub-section (1) shall apply to
suits or proceedings for the recovery of possession of
any immovable property, or of licence fee or charges
of rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, the Bombay Government Premises
(Eviction) Act, 1955, the Bombay Municipal
Corporation Act, the Maharashtra Housing and Area
Development Act, 1976 or any other law for the time
being in force apply."
23. Evidently, both Section 33 of the Act, 1999 and Section 41 of the Act, 1882 begin with non-obstante clauses. Consequently,

the jurisdiction of the other Courts, which they would otherwise

have, would stand ousted if the conditions stipulated in [Section

33](https://indiankanoon.org/doc/89620778/) of the Act, 1999 read with Section 41 of the Act, 1882 are

satisfied. On a plain reading of the aforesaid provisions, the

following conditions need to be satisfied before the ouster of the

jurisdiction of the ordinary civil court can be sustained: 18/31

SSP

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(a) suit or proceeding must be between the landlord and

the tenant or the licensor and the licensee, as the case may be;

(b) the suit or proceeding must relate to recovery of rent or

possession of any premises; or

(c) suit or proceeding is in relation to any application made

under the Maharashtra Rent Control Act, 1999.
If the aforesaid conditions are satisfied, the latter part of Section 33 precludes the other Courts from entertaining any

such suit, proceeding or application or to deal with such claim

or question.

1. In the case of Mansukhlal Dhanraj Jain (supra), the

Supreme Court expounded that the phrase 'relating to recovery

of possession' as found in Section 41(1) of the Small Causes

Courts Act, is comprehensive in nature and takes in its sweep

all types of suits and proceedings which are concerned with the

recovery of possession of suit property from the licensee and,

therefore, suits for permanent injunction restraining the

defendant from effecting forcible recovery of such possession

from the licensee - plaintiff would squarely be covered by the

wide sweep of the said phrase. It was further enunciated that 19/31 SSP

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the nature of the suits as contemplated by Section 41(1) of the

Small Causes Courts Act, 1882 and Section 28 of the Bombay

Rent Act, 1999, is the same, namely, it should be the suit

relating to the recovery of possession of premises. Interpreting

the phrase 'relating to recovery of possession' as found in

Section 28 of the Bombay Rent Act, the Supreme Court in the

case of Babulal Bhuramal V/s. Nandram Shivram 11 held that a

suit for declaration that one of the Plaintiffs was the tenant of

the defendant landlord and the other plaintiffs were his sub-

tenants and they were entitled to be protected from eviction

squarely falls within the exclusive jurisdiction of the Small

Causes Court, Bombay under Section 28 of the Bombay Rent

Act and jurisdiction of the City Civil Court for entertaining such

a suit is excluded.

1. The propositions of law, as evincible from the phraseology

of Section 33 of the Maharashtra Rent Control Act, 1999 read

with Section 41 of the Small Causes Courts Act, are quite clear.

The application of the aforesaid propositions to the concrete

cases in myriad fact-situations, however, at times presents

difficulties. The decision of the Supreme Court in the case of Natraj Studios (P) Ltd. (supra), illuminates the path. The
11 AIR 1958 SC 677 20/31 SSP

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approach to be adopted by the Courts in different situations

where a party asserts or disputes the jural relationship of

landlord and tenant was elucidated by the Supreme Court, as

under :

"18. Thus exclusive jurisdiction is given to the
Court of Small Causes and jurisdiction is denied to
other Courts (1) to entertain and try any suit or
proceeding between a landlord and a tenant relating
to recovery of rent or possession of any premises, (2)
to try any suit or proceeding between a licensor and
a licensee relating to the recovery of licence fee or
charge, (3) to decide any application made under the
Act and, (4) to deal with any claim or question arising
out of the Act or any of its provisions. Exclusive
jurisdiction to entertain and try certain suits, to
decide certain applications or to deal with certain
claims or questions does not necessarily mean
exclusive jurisdiction to decide jurisdictional facts
also. Jurisdictional facts have necessarily to be
decided by the Court where the jurisdictional
question falls to be decided, and the question may
fall for decision before the Court of exclusive
jurisdiction or before the Court or ordinary
jurisdiction. A person claiming to be a landlord may
sue his alleged tenant for possession of a building on
grounds specified in the Rent Act. Such a suit will
have to be brought in the Court of Small Causes,
which has been made the Court of exclusive
jurisdiction. In such a suit, the defendant may deny 21/31 SSP

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the tenancy but the denial by the defendant will not
oust the jurisdiction of Court of Small Causes. If
ultimately the Court finds that the defendant is not a
tenant the suit will fail for that reason. If the suit is
instituted in the ordinary Civil Court instead of the
Court of Small Causes the plaint will have to be
returned irrespective of the plea of the defendant.
Conversely a person claiming to be the owner of a
building and alleging the defendant to be a
trespasser will have to institute the suit, on the
plaint allegations, in the ordinary Civil Court only. In
such a suit the defendant may raise the plea that he
is a tenant and not a trespasser. The defendant's plea
will not straightaway oust the jurisdiction of the
ordinary Civil Court but if ultimately the plea of the
defendant is accepted the suit must fail on that
ground. So the question whether there is relationship
of landlord and tenant between the parties or such
other jurisdictional questions may have to be
determined by the Court where it falls for
determination-be it the Court of Small Causes or the
ordinary Civil Court. If the jurisdictional question is
decided in favour of the Court of exclusive
jurisdiction the suit or proceeding before the
ordinary Civil Court must cease to the extent its
jurisdiction is ousted. (emphasis supplied)

1. The Supreme Court has enunciated in clear and explicit

terms that the jurisdictional facts are necessarily to be decided 22/31 SSP

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by the Court, where the jurisdictional question crops up for

consideration and such question may arise for decision before

the Court of exclusive jurisdiction, or the ordinary Civil Court.

If the jurisdictional question is eventually decided in favour of

the Court of exclusive jurisdiction, a suit or proceeding before

the ordinary court must terminate to the extent its jurisdiction

is ousted.

1. Applying these principles to the facts of the case at hand,

first and foremost, since the Defendants are seeking rejection of

the plaint on the ground of bar of jurisdiction, the plaint is

required to be read as a whole in a meaningful and not

formalistic manner. ([T. Arivandandam vs. T. V. Satyapal and

another](https://indiankanoon.org/doc/1747770/) (supra). If an illusion of a cause of action is created or

the exclusive jurisdiction of the Court of Small Causes is sought

to be side-stepped by resorting to clever drafting, then it is the

duty of the Court to nip such an effort in the bud.

1. If, on the aforesaid anvil, the tenor of the plaint is

considered, it appears that the Plaintiffs have instituted the

instant suit in the capacity of the occupants of the suit

building. Plaintiff No.1 has nowhere asserted tenancy rights. In

contrast, there is reference to the Plaintiff No.1's claim of 23/31 SSP

-CRA388-2024.DOC

ownership. The allegations in the plaint revolve around the

obstruction in the use of the lift, access to common terrace and

resistance to activities aimed at repairs, upkeep of the building

and maintenance of cleanliness and hygiene in the suit

premises. The Plaintiffs thus seek injunctive reliefs to abate the

alleged obstruction, annoyance and hindrances.

1. From the tenor of the plaint, it becomes abundantly clear

that the suit nowhere involves the claim of either recovery of

possession or protection of the possession of the Plaintiffs over

the respective portions of the suit building as the occupants

thereof, much less as tenants. Nor the suit relates to recovery

of rent or charges.

1. The thrust of the submission of Mr. Joshi was that, the

reliefs claimed in the suit fall within the ambit of the provisions

contained in Section 29 of the Maharashtra Rent Control Act,

1999, which, in the first part, proscribes withholding of

essential supply or services enjoyed by the tenant, and, in the

second part, provides a remedy for the restoration of such

supply or services. Such a claim, according to Mr. Joshi, would

clearly fall within the exclusive jurisdiction of the Court of Small

Causes as that would take shape of an application under the 24/31 SSP

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provisions of the Rent Act, 1999. A very strong reliance was

placed by Mr. Joshi on the judgments in the cases of [Banatwala

and Company](https://indiankanoon.org/doc/192605638/) (supra) and [Nirmal Ujwal Credit Co-operative

Society Ltd.](https://indiankanoon.org/doc/98204856/) (supra).

1. In the case of [Nirmal Ujwal Credit Co-operative Society

Ltd.](https://indiankanoon.org/doc/98204856/) (supra), a Division Bench of this Court was confronted with

the question, whether a revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999, would be

maintainable against an order passed on an application under Section 29(2) of the said Act. Respondent No.1 therein, had

initiated the proceedings with the contention that the action of

the Appellant of withholding electricity supply to the lift and the

premises let out to the tenant was unjust and without any

sufficient cause. In that context, after adverting to the

provisions contained in Section 29(2) of the Act, the Division

Bench observed that the provisions of Section 29 are in the

nature of a Code in itself in the matter of any essential supply or

service. The same includes supply of water, electricity, lights in

passages and staircases, lifts and conservancy or sanitary

service. The provisions recognize the right of a tenant to enjoy

essential supply and service of the aforesaid amenities which 25/31 SSP

-CRA388-2024.DOC

are basic in nature which a tenant is entitled to enjoy in respect

of the premises let to him. Remedy has also been provided to a

tenant whenever such essential supply or service enjoyed by

him is cut off or withheld.

1. In the case of Banatwala and Company (supra), the

Supreme Court considered the question of maintainability of an

application before the Court of Small Causes, Mumbai, for

restoration of the lift services under Section 29 of the said Act,

where the premises in question was governed by the [Public

Premises (Eviction of the Unauthorized Occupants) Act, 1971](https://indiankanoon.org/doc/1506082/).

The Supreme Court held that, the public premises are not

specifically exempted from the applicability of the MRC Act.

That being so, there was no reason to hold that the remedies

under Section 29 of the Rent Act, 1999 would not be available to

the tenants of the public premises, though for the purposes of

eviction of unauthorized occupants and recovery of arrears of

rent, the proceedings will lie only under the Public Premises Act,

1971.

1. There can be no quarrel with the aforesaid propositions.

However, the question of the jurisdiction of the City Civil Court

does not hinge merely upon the nature of the relief claimed by 26/31 SSP

-CRA388-2024.DOC

the Plaintiffs in the suit, even if some of the reliefs may partake

the character of preservation and continuous availability /

supply of the essential services. As enunciated in the case of

Mansukhlal Dhanraj Jain (supra), the primary requirement is

that the suit or proceeding must be between the landlord and

tenant or the licensee and the licensor. If this jural relationship

is clearly demonstrated, then the nature of the reliefs claimed in

the suit or proceeding becomes relevant.

1. In the case at hand, on the aspect of the jural relationship

between the parties, by and large, there is no quarrel over the

character of the few of the parties to the suit. Neither the

Applicant No.2-Defendant No.2 claims to be a landlord, nor the

Applicants asserted that the Respondent Nos. 2, 3, 5, 6 and 10-

Plaintiff Nos. 2, 3, 5, 6 and 10 are the tenants. On the contrary,

the applicants contend that they are illegal occupants.

Consequently, the question of existence of jural relationship of

landlord and tenant qua the aforesaid parties does not arise at

all.

1. Secondly, from the perusal of the previous proceedings

between the parties and the orders passed therein, it becomes

explicitly clear that the Applicant No.1/Defendant No.1 has, in 27/31 SSP

-CRA388-2024.DOC

the pleadings, disowned the relationship of landlord and tenant

in regard to the few of other Plaintiffs, which was sought to be

asserted in the instant Notice of Motion. In the Plaint in suit No.

405 of 2023 instituted by the Applicant No.1-Defendant No.1

before this Court, Defendant No.1 claimed that the tenancies

allegedly created in favour of Plaintiff Nos. 1 and 11 were

fraudulent and plaintiff No.1, 11 and Rashna (D3 therein) where

the trespassers. Defendant No.1 had inter alia sought the reliefs

that the tenancies in favour of plaintiff Nos.1 and 11, having

been created by fraud and misrepresentation, were void ab-

initio; the plaintiff Nos.1, 11 and Sushila Landge (P3 herein)

were the trespassers and for delivery of vacant possession of the

portions of the suit building in the occupation of the

abovenumbered Plaintiffs and other Defendants therein.

1. In view of the aforesaid stand of the Defendant No.1,

coupled with the assertions of the right by the Plaintiff No.1 as a

co-owner of the suit building and the institution of the

proceedings by Defendant No.1 as well as the Plaintiffs before

the ordinary civil court, merely because the Defendant No.1 has

instituted eviction suit before the Court of Small Causes for

eviction of few of the Plaintiffs, the jurisdiction of the civil Court 28/31 SSP

-CRA388-2024.DOC

cannot be said to be ousted. A party cannot be permitted to

approbate and reprobate.

1. In the case of Abdulla Bin Ali and Ors. (supra), on which

reliance was placed by Mr. Pandit, the Supreme Court

enunciated that, when the Defendants therein denied the title of

the Plaintiffs and the tenancy, the Plaintiffs filed a suit treating

them to be trespassers and the suit was not on the basis of

relationship of landlord and tenant between the parties, and on

the denial of the tenancy and the title of the Plaintiffs -

Appellants, the latter filed a suit treating the Defendants therein

to be trespassers and the suit against the trespassers would lie

only in the Civil Court and not in the revenue Court. Thus, in

the light of the denial of the tenancy by the Defendants, the suit

was cognizable by the Civil Court.

1. In the case at hand, the Defendant No.1 has not only

denied the tenancy of the Plaintiff No.1 and others, but

instituted proceedings before the Civil Court seeking such

declaration. Thus, it would be impermissible for the Defendants

to take a somersault and seek rejection of the plaint on the

ground that the suit of the present nature would fall within the

exclusive jurisdiction of the Court of Small Causes, at Mumbai. 29/31 SSP

-CRA388-2024.DOC

1. Though Mr.Pandit canvassed submissions premised on the

applicability of the principle of res-judicata, in view of the orders

passed by this Court in Suit No.790 of 2018 and Appeal No.437

of 2018 filed by the Defendants, challenging the interim order

passed therein, yet, in the context of the limited nature of the

inquiry, this Court refrains from delving deep into the said

aspect of the matter. Suffice to note that, this Court has

exercised jurisdiction as the ordinary civil Court in the context

of the disputes over the use of the portions of the suit building

and the alleged infringement of the privacy rights of the

occupants of the suit building.

1. For the foregoing reasons, this Court does not find any

justifiable reason to interfere with the order passed by the

learned Judge, city Civil Court as there is neither any

jurisdictional error, patent legal infirmity or material irregularity

in the impugned order. Thus, the Civil Revision Application

deserves to be dismissed.

1. Hence, the following order:

:ORDER:

(i) Civil Revision Application stands dismissed.
30/31 SSP

-CRA388-2024.DOC

(ii) In view of the dismissal of the Civil Revision Application,

                       IA No.10681 of 2024 also stands disposed.

[N. J. JAMADAR, J.] 31/31 Signed by: S.S.Phadke SSP
Designation: PS To Honourable Judge
Date: 25/03/2026 15:08:10