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Mohit Gajadhar Ahir Vs. Inderbali Rangai Ahir and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 4 of 1976
Judge
Reported inAIR1977Bom445
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28; Small Causes Court Act - Sections 41
AppellantMohit Gajadhar Ahir
Respondentinderbali Rangai Ahir and ors.
Appellant AdvocateM.V. Shah, Adv.
Respondent AdvocateKishor V. Tembe, Adv.
Excerpt:
the case questioned about the authority that could deliver jurisdiction when the tenant filed a suit for declaration of tenancy - the defendant rival also claimed to be the tenant - it was held that the court of small cause had the jurisdiction to try the suit in question. - - he joined the present plaintiff as well as the trustees as party defendants. 1 to 5 and he had a right to protect that tenancy as well as possession. 6. this suit was now opposed by the trustees as well as defendant no. tenancy as well as possession as a tenant are the issues within the exclusive jurisdiction of small causes court- those are the very issues raised by the present plaintiff in his litigation......litigation. this defendant is playing the role, as has been described by the appellate court, as a rival tenant. for the convenience of reference, the plaintiff will be described as a tenant and inder bali as a rival tenant. according to the plaintiff, the rival tenant was merely staying with him as a licensee and had nothing to do with the premises. however, this rival tenant took into his head to claim tenancy and to challenge right, title and interest of the present plaintiff tenant. hence he filed suit no. 435/ 60 in the court of small causes at bombay for a declaration that he was the lawful sub-tenant of khodabhai or after his demise his son hirubhai khodabhai. he joined the present plaintiff as well as the trustees as party defendants. however, he withdrew that suit with liberty.....
Judgment:
ORDER

1. This is a revision application by the original plaintiff against the appellate order of the Division Bench of the Court of Small Causes at Bombay. The facts of the litigation which may be noted for the purpose of appreciating the present revision application are these :

2. Umer Mansion, Arthur Road, Jacob Circle, Bombay-11, is a property belonging to a trust of which original defendants Nos. 1 to 5 and present respondents Nos. 2 to 6 or 7 appeared to be the trustees. The plaintiff's case in the trial Court was that one Khodabhai was the original tenant of room No. 3 of these premises from the trustees. Khodabhai consented in writing that the tenancy be transferred in the name of the plaintiff and on the strength of that writing, the trustees not only acted upon it but actually accepted the plaintiff as a tenant of that room and issued rent bills in his name from the year 1960. In this manner as a lawful tenant of room No. 3 directly from the trustees the plaintiff is in occupation in his own right as full-fledged tenant. That occupation began in 1960 and is even continuing now.

3. Defendant No. 1, present respondent No. 1 called Inder Bali Rangai Ahir, is original defendant No. 6 in the present litigation. This defendant is playing the role, as has been described by the Appellate Court, as a rival tenant. For the convenience of reference, the plaintiff will be described as a tenant and Inder Bali as a rival tenant. According to the plaintiff, the rival tenant was merely staying with him as a licensee and had nothing to do with the premises. However, this rival tenant took into his head to claim tenancy and to challenge right, title and interest of the present plaintiff tenant. Hence he filed Suit No. 435/ 60 in the Court of Small Causes at Bombay for a declaration that he was the lawful sub-tenant of Khodabhai or after his demise his son Hirubhai Khodabhai. He joined the present plaintiff as well as the trustees as party defendants. However, he withdrew that suit with liberty to file another on the same cause of action. Subsequently he filed Suit No. 2327/62 in the Court of Small Causes without joining Hirubhai, the legal heir and representative of the original tenant Khodabhai, for a declaration that the tenancy created by defendants Nos. 1 to 5, the trustees, in favour of the present plaintiff is not a valid one and that in law he continues to be the lawful subtenant of Hirubhai and therefore a tenant of the trustees. In both these suits, viz. Suit Nos. 435/60 and 2327/62, the trustees as owners filed written statements or defences entirely supporting the present petitioner. In other words, they accepted the proposition that Khodabhai withdrew his tenancy and the present plaintiff was accepted as a direct tenant by the trustees. They therefore supported the claim of the plaintiff in regard to his title to the tenancy and his physical possession as against the claim of the rival tenant.

4. The plaintiff says that in spite of such a defence solemnly taken by the trustees they have somehow changed their mind and have taken a complete somersault. In spite of the written statement mentioned above and during the pendency of the suit No. 2327/62 they accepted the rival tenant as their direct tenant and began issuing rent bills in his name. This fact was notified to the Court by the rival tenant on 19-8-1964 and the rival tenant withdrew his suit 2327/62. However, this new development having taken place much earlier, the rival tenant filed an application under Section 41 of the Small Causes Court Act, being No. 819/E of 1963 on 12-11-1963. He claimed eviction against the present plaintiff on the basis of the rent bills in his favour issued by the trustees.

5. When the present plaintiff became aware of these proceedings he became panicky and rushed to the same Court by filing Suit No. 5923/64 which is the subject-matter of the present revision application. In this suit, he joined all the trustees as defendants Nos. 1 to 5 and the rival tenant as defendant No. 6. By giving the history of the present litigation including the solemn written statement filed by the trustees earlier, he made an application that he is a lawful tenant of defendants Nos. 1 to 5 and not defendant No. 6. He further asserted that he was in physical possession and enjoyment of the property as a tenant through defendants Nos. 1 to 5 and he had a right to protect that tenancy as well as possession. He then alleged that defendants Nos. 1 to 5 are trying to remove him from possession and are issuing rent bills in the name of defendant No. 6, the rival tenant. Being armed with such rent bills, defendant No. 6 has approached the Small Causes Court by eviction application described above. In the circumstances, he claimed that his tenancy be upheld after giving that declaration and defendants Nos. 1 to 5 be restrained permanently by an order of the Court from treating defendant No. 6, the rival tenant, as a tenant and also a mandatory injunction of the Court directing them to treat the plaintiff as their tenant.

6. This suit was now opposed by the trustees as well as defendant No. 6, the rival tenant. One of the points raised undoubtedly was that the Small Causes Court had no jurisdiction. However, on this technical issue as also on the substantive issues based upon the pleadings of the parties, the learned trial Judge of the Court of Small Causes gave findings entirely in favour of the plaintiff. He held that the plaintiff was a tenant in physical possession. He further held that defendants Nos. 1 to 5 were the landlords who had to accept the plaintiff as a tenant. He therefore restrained defendants Nos. 1 to 5 from doing anything by way of encroaching upon the right of the plaintiff as a tenant or to affect his possession as a tenant. Incidentally of course the learned trial Judge passed an order of injunction even against defendant No. 6 the rival tenant from calling himself as a tenant.

7. Against such a decree the original defendant No. 6, the rival tenant, alone went in appeal to the Bench of Two Judges of the Court of Small Causes. That was Appeal No. 88 of 1968. By their order dated 15th October 1975 the two learned Judges allowed the appeal purely on a technical question of jurisdiction and held that the type of the suit the plaintiff has filed in this litigation is not within the special jurisdiction of the Court of Small Causes as contemplated by Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the 'Bombay Rent Act'.) Their main reasoning is that this is essentially a suit between the two rival tenants who want to claim priority over each other and this is not a suit between the tenant and the landlord either relating to rent or possession ag contemplated by Section 28 of the Bombay Rent Act. This being their view, the appeal was allowed and the suit was dismissed. They therefore find it unnecessary to consider the other questions of facts arising in the litigation. Being aggrieved by such an order, the plaintiff has filed this revision application. The sole point that arises for my consideration is whether looking to the facts and circumstances of the case and the claim made by the plaintiff, the Court of Small Causes, Bombay, has jurisdiction to try the suit under Section 28 of the Bombay Rent Act.

8. Though the respondents are served only the trustees appeared through their Advocate and though an appearance has been put by the rival tenant through an Advocate I have had no advantage of hearing that Advocate as he is not present today when the matter was called and heard. Mr. Tembe, the Advocate of the present trustees submits that there appears to be some more trustees other than the present trustees so far as the present suit is concerned. However, he has no definite instructions and his request for adjournment of the matter for some time to ascertain this fact was rejected by me,

9. The only question is whether the present suit can squarely fall within the provisions of Section 28 of the Bombay Rent Act. The provisions of Section 28 of the Bombay Rent Act create the Court of Small Causes, Bombay, as the Court of exclusive 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 to which any of the provisions of this part apply, and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of Subsection (2) no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Undoubtedly therefore where the claim can fall within the ambit of this section, the Court of Small Causes, alone will have jurisdiction. The Appellate Bench of the Small Causes Court wag mainly influenced by the fact that this suit appears to be a suit between two rival tenants and it is not a suit between landlord and tenant. However, if the facts which I have summarised above, are examined closely, it would be apparent that though the target prima facie appears to be defendant No. 6, who is a rival tenant, the real mischief lies with the trustees, which are the landlords. They are cleverly remaining behind the scene and are putting forth defendant No. 6 as a person who could set up a claim against the present plaintiff.

10. The discussion I am making at this stage regarding the pleas taken by the trustees and their position in this litigation is not so much with a view to decide the facts and to hamper the jurisdiction of the trial Court and the Appellate Bench of the Court of Small Causes to discuss and decide those facts. I am merely referring to the history which cannot be gainsaid to point out how the positions are being changed from time to time by the trustees. In the two earlier litigations at the instance of the present plaintiff the trustees accepted the present plaintiff as a tenant. That would prima facie make it clear that the plaintiff's allegation that Khodabhai withdrew his tenancy rights and consented to induct the present plaintiff as a tenant was accepted by the trustees and the rent bills were issued in his favour. That position continued at least till 1963, for upwards of three years. It is only when the second suit filed by the rival tenant was pending in the Court of Small Causes that the trustees made a complete volte-face and began issuing rent receipts in the name of the rival tenant. Why and how they changed so is a matter for the Court of facts to investigate. However, prima facie it does appear that the trustees first acknowledged the plaintiff as a tenant from 1960 to 1963 and thereafter changed their front.

11. Now, let us consider the consequence of the change of this front. They have not only stopped issuing rent bills to the plaintiff but have started issuing directly in favour of the rival tenant, defendant No. 6. It is this act of the landlords which has armed defendant No. 6 with a right to see that he is a tenant and he must get possession from the plaintiff, who is in unauthorised occupation of the premises. It is on that footing that an application under Section 41 of the Small Causes Court Act could be filed by defendant No. 6. The landlords therefore are directly responsible for enabling defendant No. 6, the rival tenant, to hold these proceedings. Since they are supporting him to do so, it means that they are as if prosecuting the remedy of evicting the plaintiff by remaining behind the screen.

12. When the plaintiff therefore asks for a declaration from the Court of Small Causes, which is a court of exclusive jurisdiction, that he is a tenant of the premises through the landlords, viz. the trustees, he is asking for a decision on an issue between a landlord and a tenant, which that court alone can decide. If that issue is answered in his favour, the cloud created upon his possession would be cleared and the remedy which apparently appears through the instrumentality of defendant No. 6 is in fact, in my view, a mischief of the landlords themselves. In other words, the plaintiff is asking the Small Causes Court to protect his right as a tenant against the landlords. On these facts it is difficult for me to understand why this could not be described as a suit between a landlord and a tenant relating to the property which is a tenanted property. Tenancy as well as possession as a tenant are the issues within the exclusive jurisdiction of Small Causes Court- Those are the very issues raised by the present plaintiff in his litigation. Since defendant No. 6 is claiming to be the tenant, for once it does appear that the plaintiff is claiming substantial relief against defendant No. 6. However, as the landlords themselves are parties to the litigation, it is in my view, substantially a suit against the landlord and again substantially a suit for relief which a tenant can claim under the provisions of the Bombay Rent Act.

13. The plaintiff is not merely asking to protect his possession against the rival tenant, but he is asking for a declaration that he be declared as a tenant of the trustees and the trustees who have changed their front should be directed not to disturb the plaintiff's possession as tenant except through appropriate proceedings.

14. This being the real nature of the suit, I do not think that the Court of Small Causes could not have jurisdiction. To say on the face of the record that this is merely a suit between two rival tenants is to exaggerate technicalities to the position of a substantial dispute. A substance of the matter has to be seen and not the form. Viewed in that light, the substantial dispute is between the landlords and the position relating to the plaintiff as a tenant. In the circumstances the trial Judge of the Small Causes Court was right in holding that he had jurisdiction and the Appellate Bench was in clear error.

15. However, unfortunately the Appellate Bench has not disposed of the matter on merits, which it could have done and the remand would have been obviated. However, since they have chosen to dispose of the appeal purely on a technical point and have further observed in paragraph 7 of the judgment that they consider it unnecessary to discuss the other issues involved in the suit, I have no alternative but to allow this revision application and restore back Appeal No. 88/68 to the Appellate Bench of the Court of Small Causes for trying it as an appeal which it has jurisdiction to decide and thereafter to dispose it of on the merits of the matter.

16. Mr. Shah tells me that taking advantage of the Appellate Court's Judgment, the trustees have themselves filed a suit in the Small Causes Court, being RAE. NR. Suit No. 1070/5673 of 1976 against the rival tenant, defendant No. 6, for possession. They are treating him as a tenant already and alleging that he being in arrears they are entitled to ask for possession from him. If this litigation were to be allowed to go without finally disposing of the present litigation, the landlords would be practically entitled to evict the present petitioner-plaintiff, who calls himself a tenant. By resorting to clever means and remedies a dispute which is substantially between a landlord and a tenant cannot be allowed to appear as not between a landlord and a tenant and the machinations of such a landlord could not be allowed to succeed. I therefore direct that RAE. NR. Suit No. 1070/5674 of 1976 pending in the Court of Small Causes shall be stayed until Appeal No. 88/68 is disposed of on merits.

17. The revision application thus succeeds and the rule is made absolute with costs.

18. Revision allowed.


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