MR. VIPUL GOPALDAS ASHAR AND ANR.versusCHANDRAKANTA NARENDRA KHANDELWAL

                                                 CRA 124-26+.DOC

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION

        CIVIL REVISION APPLICATION NO. 124 OF 2026


Vipul Gopaldas Ashar & anr.                        ..Applicants
     Versus
Virendra Girdharilal Khandelwal                  …Respondent

                          WITH
       CIVIL REVISION APPLICATION NO. 143 OF 2026

Vipul Gopaldas Ashar & anr.                        ..Applicants
     Versus
Chandrakanta Virendra Khandelwal                 …Respondent

Mr. Dhruva Gandhi, a/w Mr. Mihir Kakade, & Mr. Himagn
      Malik i/b Jayakar & Partners, for the Applicants.
Mr. S A Abhyankar a/w Ms. Anjali Helekar & Ms. Apurva
      Mhatre, for the Respondent.

                          CORAM :     N. J. JAMADAR, J.
                          DATE    :   24th MARCH 2026

ORDER :


1.    These Civil Revision Applications are directed against

orders dated 21st November, 2025, passed by the learned Judge,

City Civil Court, in the Notices of Motion taken out by the

applicants/defendants, for the rejection of the plaints in SC Suit

Nos. 43/2018 and 44/2018, instituted by the respondents in the

respective applications, whereby the said Notices of Motion were

rejected.




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2.    The respondent in each of the applications/plaintiffs are

the co-owners of the premises situated at CTS No. 371, Malad,

Mumbai. The Respondents had developed the said premises and

constructed residential and commercial premises therein.


2.1   The plaintiff in SC Suit No. 43/2018 claimed that, Flat No.

102 and 401 in the said building came to be allotted to the

plaintiff. Flat No. 102 had been given on leave and licence. The

defendants/applicants desired to occupy the said flat as

licencee, for a term of 11 months commencing from February,

2013 to January, 2014. An aggregate amount of Rs. 11,00,000/-

towards the licence fee at the rate of Rs. 1,00,000/- per month

was paid by the defendants. However, the defendants did not

execute the leave and licence agreement.


2.2   Instead, the defendants in connivance with the Advocate to

whom the parties had approached to draft the leave and licence

agreement, prepared a false and forged document, purportedly

executed on 15th February, 2013 to the effect that the plaintiff

had agreed to sell Flat No. 102 and her undivided right, title and

interest in the subject property. Thus, the plaintiff instituted the

suit asserting that, the defendants were the trespassers and for

the necessary declaratory and consequential reliefs.


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2.3   In SC Suit No. 44/2018, the respondent/plaintiff has

made identical averments, with the change that the defendants

had agreed to occupy Flat No. 601 on leave and licence basis.


2.4   It   would   be   contextually     relevant   to    note,   the

applicants/defendants contend that the plaintiffs had agreed to

sell the suit flats and the other properties by executing a writing

dated 15th February, 2013; which incorporated the terms of the

contract between the parties to sell the subject flats. Under the

said contract for sale, the plaintiffs accepted part consideration

and put the defendants in possession of the subject flats and,

therefore, the defendants were constrained to institute the suits

against the plaintiffs herein seeking specific performance of the

said contract. To give a counter blast, the plaintiffs herein have

instituted the instant suits raising false contentions.


2.5   In the instant suit, the applicants/defendants took out the

Notices of Motion seeking rejection of the plaint on multifold

grounds including that, the suit for eviction of licencee was

barred by the provisions contained in the Maharashtra Rent

Control Act, 1999 (‘the Act, 1999’), and, even otherwise, the suit

was ex facie barred by law of limitation, as it was instituted

beyond three years of the purported knowledge of the plaintiff
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that, the writing dated 15th February, 2013 was forged and the

defendants had allegedly practiced fraud on the plaintiffs.


2.6   By the impugned order, the learned Judge, City Civil Court

rejected the Notices of Motion observing inter alia that, there

was no leave and licence agreement in writing and, therefore,

the bar to the jurisdiction of the City Civil Court, cannot be

countenanced. It was further observed that, on the basis of the

averments in the plaint, it appeared that the suit was instituted

within the prescribed period of limitation from the date of

knowledge of the offending transactions.


2.7   Being aggrieved, the applicants/defendants have invoked

the revisional jurisdiction of this Court.


3.    I have heard Mr. Dhruva Gandhi, the learned Counsel for

the applicants, and Mr. S A Abhyankar, the learned Counsel for

the respondents. The learned Counsel for the parties took the

Court through the averments in the plaint and the material on

record.


4.    Mr. Gandhi canvassed a two-pronged submission. First,

on the own showing of the plaintiff, the applicants were

inducted in the subject flat as licencee. If that is the case, the

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City Civil Court has no jurisdiction to entertain, try and

determine the    suit for recovery of possession of the licenced

premises from an erstwhile licencee and only the Competent

Authority appointed under Section 40 of the Act, 1999, has the

exclusive jurisdiction under Section 24 of the Act, 1999.


5.    Secondly, even if the case of the plaintiff is taken at par,

the suit is ex facie barred by limitation. In the plaint, the

plaintiffs averred that they became aware of the alleged

fraudulent document dated 15th February, 2013 and the fraud

practiced on the plaintiffs, only upon being served with the

papers   and    proceedings   in   the    suits   instituted   by   the

defendants.


6.    Attention of the Court was invited to the interim order

dated 10th May, 2013 passed by the learned Judge, City Civil

Court in the Notices of Motion taken out by the defendants in

the said suit. It was submitted that, the institution of the suit in

the year 2018, after the service of the papers and proceedings in

those suits in the year, 2013 itself, was clearly barred by

limitation.


7.    In contrast to this, Mr. Abhyankar, the learned Counsel for

the respondents/plaintiffs, resisted the submissions on behalf
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of the applicants. Emphasis was laid on the fact that, the very

document dated 15th February 2013 which is pressed into

service on behalf of the defendants, dismantles the case of the

defendants. The defendants have even not paid the deficit stamp

duty on the said fraudulent document which was impounded by

the trial Court for adjudication of the stamp duty. Mr.

Abhyankar further urged that, the conduct of the defendants

also deserves to be taken into account as they have not

deposited the balance consideration, as directed by the Court,

and, thus, the interim reliefs in their suits stood vacated. The

defendants who are in the unauthorized occupation of the

subject flats have filed these applications to further delay the

disposal of the suits, urged Mr. Abhyankar.


8.    From the perusal of the averments in the plaint and the

material on record, it prima facie appears that the essential

contest between the parties revolves around the nature of the

jural relationship. On the one hand, the plaintiffs assert that,

the defendants came in possessions of the subject flats as

licencee thereof, and under the pretext of execution of leave and

licence agreement, a fraudulent document showing that the

plaintiff had sold the subject flats was brought into force. On

the other hand, the defendants claimed that, the transaction
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between the parties was that of sale of the subject flats and

there was never any relationship of licensor or licencee between

the plaintiffs and the defendants.


9.    Keeping in view the aforesaid broad nature of the

controversy between the parties, the averments in the plaint and

the document annexed with it, are required to be appraised so

as to decide whether plaints deserve to be rejected, as being

barred by any law. From the perusal of the averments in the

plaint, it becomes evident that, the plaintiffs have asserted that,

the defendants entered into the possession of the subject flat as

licencee. The entire licence fees was paid upfront. However, the

defendants did not execute the leave and licence agreement.

Thus, the defendants are the trespassers.


10.   In the backdrop of the aforesaid assertions in the plaint,

Mr. Gandhi would urge that, the fact that the leave and licence

agreement is not forthcoming, does not make any significant

difference in the matter of jurisdiction of the Competent

Authority to consider the prayer for eviction of the persons who

are stated to be the licencees.


11.   To lend support to this submission, Mr. Gandhi placed

reliance on the judgments of this Court in the case of Mukesh
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Dharsibhai Thakkar Vs. Rajnikant Ramanlal Gunderia & ors. 1,

and another Division Bench judgment in the case of Nagin

Mansukhlal Dogli Vs. Haribhai Manibhai Patel 2, which was

affirmed in the Mahadev P. Kambekar (Dead) through LR’s Vs.

Shree Krishna Woolen Mills Pvt. Ltd3.


12.   Evidently, there is no agreement in writing to evidence the

relationship of licensor or licencee between the parties. The

Explanation to Sub-section (3) of Section 24 of the Act, 1999

inter alia provides that an agreement of licence in writing shall

be conclusive evidence of facts stated therein. In the case of

Mukesh Thakkar Vs. Rajnikant Gunderia (supra), on which

reliance was placed by Mr. Gandhi, this Court enunciated that

in the face of an agreement of licence in writing, it will not be

open for a party to lead evidence to show that, the transaction

was   not     of   leave   and   licence   but   that   of   tenancy.

Notwithstanding the absence of the agreement of licence in

writing, Mr. Gandhi would urge, the competent authority only

would have the jurisdiction.




1     2016 SCC OnLine Bom 731
2     AIR 1980 Bom 123
3     (2020) 14 SCC 505
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13.   The aforesaid submissions deserve consideration in the

context of the averments in the plaint and the tenor of the

plaintiffs claim. In substance, the plaintiffs are contesting the

jural relationship between the parties. It is trite, a party can

question the character of the document. There is a difference

between challenge to the content of the documents and the

challenge to its character. A party is entitled to demonstrate

that, the document in question does not represent the bargain

which the parties intended to arrive at.


14.   In the case at hand, the Court finds that, it is the stated

case of the defendants that, they were put in possession of the

subject flats under the terms of the purported agreement for

sale dated 15th February, 2013. The defendants have not at all

referred to, much less admitted, the antecedent relationship

between the parties. In such a situation, where there is material

to indicate that, a party has disputed the character of its

occupation,   the     jurisdiction   of     the   Civil   Court   is   not

instantaneously ousted. The question of jurisdiction would then

merit adjudication.



15.   A useful reference in this context can be made to a three-

Judge Bench judgment of the Supreme Court in the case of

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Natraj Studios (P) Ltd. Vs. Navrang Studios & anr. 4, wherein the

legal position expounded 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 of
      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 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

4     (1981) 1 SCC 523
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      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.”


16.   If a party has set up a jural relationship, which is not

governed by the special enactments, then the plaintiff is entitled

to institute the suit in the ordinary Civil Court considering the

defendant to be a trespasser. A useful reference in this context

can be made to a judgment of the Supreme Court in the case of

Abdulla Bin Ali & ors. Vs. Calappa & ors 5., wherein it was

enunciated that, when the Defendants therein denied the title of

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



5     (1985) 2 SCC 54
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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.



17.   The plaintiffs have instituted the suit with a clear

assertion that, the applicant/defendants are the trespassers.

Thus, submission on behalf of the defendants/applicants

premised      on   the   bar   of   jurisdiction   contained   in   the

Maharashtra Rent Control Act, 1999, does not merit acceptance.


18.   On the aspect of the bar of limitation, it may be apposite

to note that, the fact that the plaintiffs are the co-owners of the

suit property is rather incontrovertible. The plaintiffs claimed

that, the defendants are the trespassers and, thus, seek

recovery of possession of the subject flats. The reliefs in the

plaint are thus in assertion of the proprietory title of the

plaintiffs over the subject flats. As the claim of the plaintiff for

recovery of possession of the subject flats rests in ownership

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thereof, the claim of the plaintiffs cannot be confined to the

declaration sought by the plaintiffs that purported writing

between the parties dated 15th February, 2013 is illegal, bad in

law, void and not binding upon the plaintiffs.


19.   In the circumstances of the case, it cannot be said that,

the relief of the recovery of possession of the subject flats

inexorably flows from the declaration of the character of the

writing dated 15th February, 2013 only. Rather, the suit appears

to have been instituted on the basis of title of the plaintiffs over

the suit subject properties. Resultantly, even if one part of the

cause of action survives, the suit must proceed to trial. There

can be no rejection of the plaint in part.


20.   From the aforesaid standpoint, the question as to whether

the suits are barred by law of limitation, thus assumes the

character of a mixed question of facts and law and, therefore,

the learned Judge, City Civil Court was justified in declining to

reject the plaint on the ground that, the reliefs are ex facie

barred by limitation.


21.   For the foregoing reasons, the Revision Applications

deserve to be rejected.



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22.   Hence, the following order :-


                             ::ORDER::

         i) The      Civil   Revision    Applications    stand

         rejected.

         ii) No costs.



                                        [N. J. JAMADAR, J.]




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