The Bombay High Court has clarified a long-standing ambiguity in civil jurisdiction by holding that a suit for eviction against a gratuitous licensee cannot be entertained by a Civil Court. This decision reaffirms the exclusive jurisdiction of the Small Causes Court under the Provincial Small Cause Courts Act, 1887, and provides critical guidance on procedural remedies when jurisdictional defects are raised belatedly.
Background & Facts
The Dispute
The respondent, Smt. Rimatai Lonare, filed a suit in 2000 seeking possession of property against the appellants, Shriram and Vijay Lonare, alleging they were occupying the premises as gratuitous licensees without any consideration. The appellants denied this, asserting an oral agreement of sale for Rs.75,000 and filed a counter-claim for specific performance. The trial court decreed the suit for possession and dismissed the counter-claim.
Procedural History
The case progressed through multiple stages:
- 2000: Suit filed by plaintiff in Civil Court for eviction of alleged gratuitous licensees
- 2007: Trial Court decreed suit for possession and dismissed counter-claim
- 2012: Appellants filed Regular Civil Appeal, which was dismissed by the District Judge
- 2024: Second Appeal filed before Bombay High Court, raising jurisdictional challenge for the first time on appeal
Relief Sought
The appellants sought quashing of the decrees on grounds of lack of jurisdiction. The respondent, while conceding the jurisdictional bar, requested the plaint be returned for presentation before the Small Causes Court under Order VII Rule 10-A CPC, a request the appellants did not oppose.
The Legal Issue
The central question was whether the Civil Court has jurisdiction to entertain a suit for eviction against a gratuitous licensee, or whether such suits are exclusively within the domain of the Small Causes Court under Section 26 of the Provincial Small Cause Courts Act, 1887.
Arguments Presented
For the Appellant
The appellants relied on Prabhudas Damodar Kotecha v. Manhabala Jeram Damodar (2013) 15 SCC 358 and Sitaram Punjaram Borikar v. Leelabai Rambhau Borikar (2017) to argue that Section 26 of the Provincial Small Cause Courts Act bars Civil Courts from adjudicating suits for eviction of gratuitous licensees. They contended that jurisdictional defects, being fundamental, can be raised at any stage, even in second appeal, and that the failure of the lower courts to decide this issue rendered their decrees void ab initio.
For the Respondent
The respondent conceded the legal position that the Civil Court lacked jurisdiction. However, instead of seeking dismissal, the respondent requested the plaint be returned under Order VII Rule 10-A(2)(b) of the Code of Civil Procedure, 1908, to enable presentation before the competent Small Causes Court, thereby preserving the substantive right to seek possession.
The Court's Analysis
The Court examined the statutory framework under Section 26 of the Provincial Small Cause Courts Act, which explicitly bars Civil Courts from entertaining suits for possession of immovable property where the defendant is a licensee without consideration. The Court affirmed that this bar is absolute and jurisdictional, not merely procedural.
"The jurisdiction of the Civil Court is excluded by statute where the subject matter falls within the exclusive purview of the Small Causes Court. This exclusion is not a matter of convenience but of legislative intent."
The Court distinguished between mere irregularities and jurisdictional defects, holding that the latter cannot be cured by waiver or acquiescence. The fact that the appellants raised the issue for the first time in second appeal did not preclude consideration, as jurisdiction cannot be conferred by consent or lapse of time.
The Court further noted that Order VII Rule 10-A CPC provides a clear procedural mechanism to return the plaint to the plaintiff for presentation before the competent court, thereby avoiding a technical dismissal that would prejudice the plaintiff’s substantive rights. The respondent’s request was both legally sound and equitable.
The Verdict
The appellants succeeded. The High Court quashed both the trial and appellate decrees, held that the Civil Court lacked jurisdiction, and directed the plaint to be returned to the plaintiff for presentation before the Small Causes Court at Nagpur. The dismissal of the counter-claim was upheld.
What This Means For Similar Cases
Jurisdictional Objections Can Be Raised at Any Stage
- Practitioners must raise jurisdictional challenges under Section 26 of the Provincial Small Cause Courts Act at the earliest opportunity, but failure to do so earlier does not waive the defect
- Courts are obligated to examine jurisdiction even if not raised by parties, as it goes to the root of the court’s authority
- Appellate courts must not validate decrees passed without jurisdiction, regardless of procedural delays
Return of Plaint Under Order VII Rule 10-A CPC Is the Correct Remedy
- When a Civil Court lacks jurisdiction over a suit for eviction of a gratuitous licensee, dismissal is not the answer
- The proper course is to return the plaint under Order VII Rule 10-A(2)(b) CPC to enable filing before the Small Causes Court
- This preserves the plaintiff’s right to seek relief while upholding statutory jurisdictional boundaries
Small Causes Courts Must Expedite Such Matters
- Courts are now under an implicit duty to ensure expeditious disposal of returned suits, especially where delay has already exceeded two decades
- The Bombay High Court’s directive to decide the matter before 31.12.2026 sets a precedent for judicial accountability in backlog cases
