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Krishnaji Ramji Vinarkar Vs. Shamsunder Jagannath Shukla - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 105 of 1954 with C.A. No. 2380 of 1953
Judge
Reported inAIR1955Bom166; (1954)56BOMLR896; ILR1954Bom1217
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11, 13, 15, 16, 17, 20, 28, 28(2) and 29; Presidency Small Cause Courts Act, 1882 - Sections 41
AppellantKrishnaji Ramji Vinarkar
RespondentShamsunder Jagannath Shukla
Appellant AdvocateB.A. Pandya, Adv.
Respondent AdvocateV.T. Walavalkar, Adv.
Excerpt:
.....of court under act xv of 1882 to hear proceedings. ; jurisdiction to deal with any claim or question arising out of the bombay rents, hotel and lodging house rates control act, 1947, or any of its provisions is ancillary to the jurisdiction conferred upon the court to decide a suit or proceeding between a landlord and tenant or an application made under the act. by conferring jurisdiction on special courts constituted under the act to deal with any claim or question arising out of the act or any of its provisions, it is not intended to indicate a third category of proceedings--that is proceedings other than suits and proceedings between landlords and tenants and proceedings in the nature of applications made under the act in which any claim or question arising out of the..........not appear to have been canvassed.but it is clear from the judgment that the plaintiff filed the suit claiming to be a landlord, and pleaded that the defendant who was an assignee of the interest of the tenant had forfeited that right only because he attempted to use the premises for a purpose other than the purpose for which they were originally let, and it was held relying only on the averments made in the plaint that the suit filed by the plaintiff for a decree in ejectment on those averments was not maintainable.it may be pertinent to point out that the suit was held not maintainable in the high court on the allegations made in the plaint, and not on the view that the high court ceased to have jurisdiction in a properly instituted suit, by reason of the defence raised by the.....
Judgment:
ORDER

1. The opponent in this revision application filed ejectment proceedings against the petitioner in the Court of Small Causes, Bombay, under Chapter VII of the Presidency Small Cause Courts Act. It was the case of the opponent that the petitioner was his licensee, and that eventhough possession was demanded the petitioner failed to vacate and deliver possession of room No. 17 In the Bandulwala Chawl No. 3, Sayani Road, Bombay; and hence the proceedings.

2. The petitioner was duly served with the process of the Court of Small Causes, but he did not file any defences on the date fixed for hearing and applied for an adjournment. No adjournment was however granted, and the ejectment proceedings were heard by the Court. On consideration of the evidence the Court came to the conclusion that the petitioner was a licensee of the opponent and that the license was revoked, and the Court passed an order against the petitioner directing him to vacate and deliver possesion within six months from the date of the order.

Against that order an appeal was filed before the appellate Bench of the Court of Small Causes on the assumption that the proceedings were 'a suit' under Section 28 of the Bombay Act 57 of 1947. But that appeal was rejected on the ground that the appellate Bench had no jurisdiction to entertain the appeal. The petitioner has come to this Court in revision against the order passed by the Court of first instance as well as the order passed by the appellate Bench of the Court of Small Causes, Bombay.

3. On behalf of the petitioner it is urged that the petitioner is a sub-tenant of room No. 17 in Bandulwala Chawl, Sayani Road, Bombay, and he is entitled to protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, and that the opponent is not entitled to obtain an order in ejectment against him toy filing proceedings under Chapter VII of the Presidency Small Cause Courts Act. It has to be noted however that no such contention was raised In the Court of first instance. The Court of first Instance on evidence came to the conclusion that the petitioner was a licensee, and on that footing passed an order against the petitioner calling upon him to vacate and deliver, possession.

4. Mr. Pandya on behalf of the petitioner has urged an elaborate argument on the assumption that the petitioner had contended before the Court of first instance that the petitioner was a sub-tenant of the opponent, and that the Court of Small Causes in its ordinary jurisdiction had no jurisdiction to hear those proceedings in view of Section 28, Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, and that in any case an appeal was competent to the appellate Bench under Section 29 of that Act. In my view the argument of Mr. Pandya becomes academic, when it is appreciated that no defences were filed by the petitioner in the Court of first instance.

The question whether the petitioner was a subtenant of the opponent was never sought to be raised by a proper plea in that Court and could obviously not arise in this Court. I have, however, heard Mr. Pandya on the question raised by hint, because, as it appears from the notes of evidence, the petitioner had stated in his evidence that he paid rent to the opponent. But in my view the contention now raised that the Court of Small Causes in its ordinary jurisdiction under Chapter VII of the Presidency Small Cause Courts Act could not proceed to hear the ejectment proceedings which were instituted by the opponent has no substance.

5. Section 28, Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, provides in so far as it is material:

'(1) Notwithstanding anything contained in any law 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 Greater Bombay, the Court of Small Causes, Bombay,........

shall have jurisdiction to entertain and try any suit or proceeding between a landlord & 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 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.'

The effect of Section 28 is to constitute courts of special jurisdiction to try suits, proceedings and applications of the nature specified in that section and to exclude jurisdiction of other Courts to try suits, proceedings and applications specified therein or to deal with claims or questions arising under the Act or any of its provisions. However, the jurisdiction which is conferred on special Courts constituted under the Act is primarily 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 which the provisions of Part II of the Act apply. If the suit or proceeding is not between a landlord and a tenant, or does not relate to the recovery of rent or possession of any premises or relates to premises which are not of such a nature that the provisions of Part II of the Act do not apply, the special Court could have no jurisdiction to entertain or try those suits or proceedings and the jurisdiction of ordinary Courts to entertain and try those suits or proceedings would not be excluded. Jurisdiction is also conferred upon special Courts constituted under the Act to decide applications made under Act 57 of 1947.

Under Act 57 of 1947 it is contemplated that applications may be filed by parties for obtaining certain specified reliefs without instituting a suit; for instance, an application may be filed under Section 11 of the Act for fixation of standard rent, or under Section 16 for recovery of possession, for making repairs and for an order for redelivery of possession after repairs are completed, or under Section 17 when a decree for eviction has been passed by the Court on grounds specified in items (g) and (i) of Section 13; or under Section 20 for recovery of amounts which have been recovered otherwise than in accordance with the provisions of the Act, and similar other applications.

It is true that Section 28 enables the special Court to deal with any claim or question arising out of the Act or any of its provisions. But in my judgment jurisdiction to deal with any claim or question arising out of the Act 57 of 1947 or any of its provisions is ancillary to the jurisdiction conferred upon the Court to decide a suit or proceeding between a landlord and tenant or an application, made under the Act.

By conferring jurisdiction on special Courts constituted under Act 57 of 1947 to deal with any claim or question arising out of tile Act or any of its provisions, it is not intended to indicate a third category of proceedings--that is proceedings other than suits and proceedings between landlords and tenants and proceedings in the nature of applications made under the Act, in which any claim or question arising out of the Act or any of its provisions may fall to be decided.

6. In this case the ejectment proceeding instituted by the opponent is not a suit or proceeding between a landlord and a tenant, nor is it an application made under the Act or under any of its provisions, and in my view Section 28 can have no application to this proceeding, merely because the petitioner resisted the proceeding on a plea that he was a tenant entitled to the benefit of Act 57 of 1047.

7. Mr. Pandya on behalf of the petitioner contended that it was intended by the Legislature by conferring jurisdiction upon special Courts constituted under Act 57 of 1947 to deal with any claim or question arising out of the Act or any of its provisions to constitute them Courts of exclusive jurisdiction to try a claim or a question arising out of the Act or any of its provisions, even though it does not arise in a suit or proceeding between landlord and tenant, or even when it does not arise in an application made under the Act.

I am unable to accept that contention for diverse reasons, pre-eminent among which is that I am bound by a judgment of a Division Bench of this Court reported in -- 'Govindram Salamatrai v. Dharampal', : AIR1951Bom390 . That was a case in which the plaintiffs filed a suit against the defendant on the Original Side of this Court claiming possession of certain premises situate in Greater Bombay alleging that the defendants were licensees and the plaintiffs were licensors. The defendants contended inter alia that they were tenants of the plaintiffs, and were entitled to protection under the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, and the High Court had no jurisdiction in view of the provisions of Section 28 of the Act to try the suit.

The contention raised by the defendants was negatived at the trial, and it was held that when the plaintiffs filed the suit on the allegation that the defendants were their licensees, the proper forum for the determination of the question was the High Court, and not the special Court having jurisdiction under Section 28 of Act 57 of 1947. An appeal by the defendants was dismissed and the decree of the trial Court was confirmed. The head-note of the case in so far as it is material is:

'Section 28, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, does not deprive the High -Court of its Jurisdiction in all suits for possession wherever, the defendant takes up the contention that he is a tenant. The High Court has only been deprived of the jurisdiction in those suits where -a landlord files a suit) against his tenant and the tenant seeks the protection of the Act......Whether a person is entitled to the protection of the Act, whether a person is entitled to the benefit of any of the provisions of the Act, all these are questions which only the Small Causes Court can decide and determine, but whether a person is a tenant or a licensee or a trespasser are not questions' which Section 28 has left to the determination of the special Court set up under the Act.

The proper forum for the determination of the question whether the relationship between the plaintiff and the defendant is as between landlord and tenant or as between licensor and licensee or as between owner and trespasser is the High Court which initially has got the jurisdiction to entertain the suit for ejectment which has been properly framed on the basis of relationship as between licensor and licensee or owner and trespasser.'

8. The Court in that case overruled a judgment of a single Judge of this Court reported to -- 'Ebrahim Salejl v. Abdulla Ali', : AIR1951Bom294 who had taken a different view. My Lord the Chief Justice in delivering the judgment of the Court observed (p. 391) : 'Therefore the question that I have to address myself to is whether the question as to whether the defendant is a tenant or licensee is a question which arises out of the Act or any of its provisions. Really, this question is not a question that has anything to do with 'the Act or any of its provisions. It is a question which is collateral, and which has got to be decided before it could be said that the Act has any application at all. The very application or the Act depends upon the defendant being a tenant. If he is not a tenant, the Act has no application, and therefore before the Court can apply, any provisions of the Act or decide any question arising out of the Act it has got to decide whether the defendant is a tenant who can claim the protection of the Act. It is a jurisdictional question which has got to be determined in order to decide whether the particular Court in which the suit has been filed has or has not jurisdiction to try the suit, and to my opinion Section 28 does not deal with jurisdictional questions which have got to be decided 'in limine' before the matters arising under the Act can be considered by the Court.'

9. Mr. Pandya has however, relied upon certain observations in a judgment of the Supreme Court reported in --'Importers and . v. Phiroz Framroze', : [1953]4SCR226 , and contended that Govindram's case (A), is no longer good law. That was a case in which the plaintiffs filed a suit in the Court of Small Causes at Bombay under Section 28 of the Bombay Act 57 of 1947 against their tenant and a third person who claimed to be a sub-tenant, but whose tenancy was denied' by the plaintiffs. The relief claimed by the plaintiffs was a decree in ejectment against the defendants and a decree for compensation for use and occupation of the premises.

It was the case of the plaintiffs that sub-letting of the premises in dispute by defendant No. 1 (the tenant) to defendant No. 2 was unlawful, firstly, because it was in breach of the terms of the tenancy, and, secondly, because as a statutory tenant after the determination of contractual tenancy, defendant No. 1 was not entitled to create a sub-tenancy. It was contended by the defendants that the Court of Small Causes had no jurisdiction to entertain the suit in which on the allegations made by the plaintiffs, defendant No. 2 was a trespasser, and that a suit by the plaintiffs against defendant No. 2 for possession substantially on the allegation that he was a trespasser and against whom compensation was claimed for use and occupation of the premises was not a suit for recovery of possession and rent contemplated by Section 28 and was not maintainable in the special Court constituted under that provision.

The Court of Small Causes rejected the contention raised by defendant No. 2, and held that it had jurisdiction to entertain the suit, and passed a decree against both the defendants. A revision application was filed against that decree to this Court by defendant No. 2. The application was heard by my Lord the Chief Justice, and was rejected. In the argument on behalf of defendant No. 2 reliance was placed upon the judgment of this Court in Govindram's case (A), and it was contended that the Court of Small Causes had no jurisdiction to entertain the suit, and the suit was maintainable in the High Court.

That contention was rejected and it was held that the principle of Govindram's case (A), had no application to the facts of that case, and the Court of Small Causes was the only Court competent to entertain the suit. Against the decision by this Court an appeal was preferred to the Supreme Court. It was contended before the Supreme Court that inasmuch as a claim was made, for compensation for use and occupation of premises against defendant No. 2 on the plea that he was a trespasser, the suit was not cognizable by tho special Court and that this Court was in error in holding that the Court of Small Causes was competent to entertain the suit.

It was also contended before their Lordships that defendant No. 2 not being a tenant the suit' was not maintainable in the special Court and the only Court competent to decide the plaintiff's suit was the High Court. The Supreme Court rejected both the contentions. In rejecting the contention that when a claim for compensation was made the suit could not be entertained by the Court of Small Causes, It was observed (pp. 74-75):

'The last part of the contention need not detain us long, for the suit was undoubtedly one for possession of the flat and the claim for compensation was only incidental and ancillary to the claim for possession. Jurisdiction to entertain a suit for possession will empower the Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. Such direction for payment of mesne profits is usually an integral part of the decree for possession'.

10. In dealing with the question whether thesuit was competent against defendant No. 2 inthe special Court even though it was alleged thathe was a trespasser, it was observed (p 15):

'Section 28 confers jurisdiction on the Court ofSmall Causes not only to entertain and try anysuit or proceeding between a landlord and atenant relating to the recovery of rent orpossession of the premises, but also 'to dealwith any claim or question arising out of thisAct or any of its provisions'. There is noreason to hold that 'any claim or question'must necessarily be one between the landlordand the tenant'.

11. Mr. Pandya relying upon these observations urged that the Supreme Court took the view that not only jurisdiction was conferred upon the Court of Small Causes, Bombay, by Section 28 of the Act of 1947 to entertain suits and proceedings between a landlord and a tenant, but exclusive jurisdiction was conferred thereby to entertain and deal with all suits and proceedings wherein any claim or question arising out of the Act of 1947 or any of its provisions arose for determination by any court. I am unable to read the judgment of their Lordships in the manner suggested by Mr. Pandya.

What their Lordships were at pains to point out was that the jurisdiction conferred upon the Court of Small Causes was not limited to deciding questions which arise only as between a landlord and a tenant. Their Lordships pointed out that the Court of Small Causes has jurisdiction once a suit or proceeding between a landlord and tenant has been properly entertained to deal with any claim or questions arising out of the Act of 1947 or any of its provisions; and that is made clear by the sentence in the judgment of the Supreme Court which immediately follows the observations set out earlier (p 75):

'In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises, the Small Causes Court acquires the jurisdiction not only to entertain that suit but also 'to deal with any claim or question arising out of the Act or any of its provisions' which may properly be raised in such a suit'.

Their Lordships also pointed out that the claim or question as to the respective rights of the plaintiffs and defendant No. 2 raised in the plaint arose out of the Act and the provisions of Section 28 appeared to be wide enough to cover the same. That observation evidently refers to the provisions of Section 15 of the Act which prohibits subletting after the date on which the Act comes into operation. There is nothing in the judgment relied upon which either directly or indirectly overrules the judgment of this Court in Govindram Salamatrai's case (A). I am bound by the judgment of the Division Bench of this Court in the case in which the essential facts appear to be the same as the facts in the present ease.

12. Mr. Pandya also relied upon an unreported judgment of my brother Tendolkar in the--'Eruch D. Engineer v. Navinchandra Hiralal', OCJ Suit No. 310 of 1947 D/- 22-7-1953 (Bom) (D), on the Original Side of this Court. That was a case in which a suit was filed by the plaintiffs for obtaining possession of the ground floor of a building at Apollo Street, Bombay, on the allegation that the tenant had purported to sell the business carried on in the premises together with its stock-in-trade, goodwill and the tenancy rights to the defendant; and the plaintiffs claimed possession on the ground that the defendant threatened to carry on and did carry on business in those premises for which they were not originally given and which he was not entitled in law to use.

Mr. Justice Tendolkar took the view that even though the suit was not between a landlord and tenant, it was triable only by the Court of Small Causes because it involved determination of a Question arising out of Bombay Act 57 of 1947. The pleadings of that case are not before me; but it does appear from the observations made by the learned Judge in the first paragraph of his judgment that the suit was filed against the assignee of the tenant by the landlord for a declaration that the assignment was void, and for possession. His Lordship held that because the suit involved determination of a question arising out of the Act, the High Court had no jurisdiction to entertain the suit.

The facts of that case are certainly not similar to the facts of the present case. It is obvious from the statement made in the judgment that possession was claimed from the defendant on the footing that there had been termination of the tenancy right which the defendant obtained as an assignee from the original tenant, when he attempted to use the premises for purposes other than the purpose- for which they were originally let to the tenant. The structure of the plaint as summarized appears to have a close similarity with the plaint in the suit before the Supreme Court in --'Importers v. Pheroz', (C).

Before Mr. Justice Tendolkar the suit appears to have been tried on a demurrer. It is evident that before Mr. Justice Tendolkar it was not canvassed, and it could not be canvassed on the facts of the case, that Govindram Salamatrai's case (A), was overruled by the Supreme Court. The question whether a suit filed by a person, who claims to be a landlord, against the assignee of his tenant, whose right is alleged to have been determined by an attempted diversion of the purpose for which the tenancy was granted according to the covenants of the original tenancy, can be regarded as a suit by a landlord against a tenant, does not appear to have been canvassed.

But it is clear from the judgment that the plaintiff filed the suit claiming to be a landlord, and pleaded that the defendant who was an assignee of the interest of the tenant had forfeited that right only because he attempted to use the premises for a purpose other than the purpose for which they were originally let, and it was held relying only on the averments made in the plaint that the suit filed by the plaintiff for a decree in ejectment on those averments was not maintainable.

It may be pertinent to point out that the suit was held not maintainable in the High Court on the allegations made in the plaint, and not on the view that the High Court ceased to have jurisdiction in a properly instituted suit, by reason of the defence raised by the defendant. There is in my view nothing in the judgment relied upon which indicates that in the view of Mr. Justice Tendolkar there was any doubt cast upon the binding character of the earlier judgment of this Court in Govindram Salamatrai's case (A), by the decision of the Supreme Court.

13. In that view of the case, the rule must be discharged with costs.

14. Civil Application No. 2380 of 1953 is also dismissed with costs.

15. Rule discharged.


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