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Vishnu Dutt Vashisth and anr. Vs. Maharashtra Watch and Gramophone Company and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1483 with 1488 of 1965
Judge
Reported inAIR1967Bom434; (1967)69BOMLR229; 1967MhLJ547
ActsBombay Rents Hotel and Lodging House Rates Control Act, 1947 - Sections 28; ;Bombay Stamp Act; Bombay Court-fees Act - Sections 6; ;Transfer of Property Act, 1882 - Sections 108; ;Code of Civil Procedure (CPC), 1908
AppellantVishnu Dutt Vashisth and anr.
RespondentMaharashtra Watch and Gramophone Company and ors.
Appellant AdvocateM.H. Kenia, Adv., i/b., Mathubhal Jamietram and Madan, Attroneys and ;J.M. Gandhi and ;Mody, Advs., i/b., Haridas and Co., Attroneys
Respondent AdvocateS.T. Tijoriwalla and ;P.B. Sawant, Advs.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 28 - word recovery in section 25(1) whether governs word 'possession' -- suit merely relating to possession of premises whether within ambit of section 28 -- transfer of properly act (iv of 1882), section 108 -- whether covenant for quiet enjoyment an obligation of licensor -- supreme court obiter, binding effect of--bombay court-fees act (bom. xxxvi of 1959), section 6(iv)(d); schedule i item 7; schedule ii item 23(f).;to give exclusive jurisdiction to the courts mentioned in section 28 of the bombay rents, hotel and lodging house rates control act, 1947, one of the conditions is that the suit or proceeding must relate either to the recovery of rent or to the recovery of possession of premises to which.....order(1) this is a revision application under section 115 opf the code of civil procedure by defendants 1 and 5 from the judgment of the city civil court, bombay, holding on preliminary issues that it has j jurisdiction to entertain and try the suit and that the subject matter of the suit is properly valued. i am concerned in his revision application with two questions only; one, whether by reason of the provisions contained in section 28 of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter called the act), the city civil court has jurisdiction to entertain and try the suit and two, whether the subject matter of the suit is properly valued. questions arising out of the three other preliminary issues were not canvassed before me.(2) suit no. 6171 of 1964 has.....
Judgment:
ORDER

(1) This is a revision application under Section 115 opf the Code of Civil Procedure by defendants 1 and 5 from the judgment of the City Civil Court, Bombay, holding on preliminary issues that it has j jurisdiction to entertain and try the suit and that the subject matter of the suit is properly valued. I am concerned in his revision application with two questions only; one, whether by reason of the provisions contained in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act), the City Civil Court has jurisdiction to entertain and try the suit and two, whether the subject matter of the suit is properly valued. Questions arising out of the three other preliminary issues were not canvassed before me.

(2) Suit No. 6171 of 1964 has been filed in the City Civil Court by three plaintiffs who are respondents 1 to 3 to this revision application. The plaintiffs are in occupation of three shops which have a peculiar situation. A cinema theatre called Kohinoor Cinema, is situated on the Ranade Road, Dadar, Bombay, and the three shops of which the plaintiffs claim to be tenants are a part of those premises. The inner enclosure of the theatre does not about on the Ranade Road, but a narrow passage leading to the enclosure abuts on that road. The shop run by respondent 1 has an opening on the Ranade Road but the shop of respondents and 3 open out into the passage only. In order to reach the theatre, one has to pass necessarily through this passage. The case of the plaintiff is that the proprietors of the Kohinoor Cinema and those claiming under them are conducting their business in a manner which is calculated to cause obstruction to their business. The obstruction is stated to be of this nature: for a long time, according to the plaintiffs, the booking offices of the cinema theatre were so situated that the formation of the queues of cinemagoers would not occupy a part of the passage. The position of the current and advance booking offices has been, however, changed by the management of the theatre with the result that queues are mostly formed in the passage. The queues are alleged to last for along time causing serious interference with the business of the plaintiffs. Plaintiff No. 3 conducts a foot-wear shop and his case is that he has of necessity to serve his customers in the passage, because no other space is available to him for that purpose. The formation of long and unending queues in the passage of about 8 feet width is stated to prevent him from serving his customers. He and the other plaintiffs therefore ask for an injunction retraining the defendant s from permitting the formation of queues in the passage. The other reliefs sought by the plaintiffs partake essentially of the character of this main relief and flow from it.

(3) Defendant No. 1 to the suit is the manager of the Kohinoor Cinema, defendant No. 2 is the original owner of the theatre, defendant NO. 3 is stated to be the present owner of the theatre and defendants Nos. 5 and 6 are the lessees of the Kohinoor Cinema. Defendant No. 4,. A formal party, was subsequently deleted from the suit.

(4) Defendants Nos. 3, 5 and 6 contended, in so far as is material for the present purposes, that the suit was essentially between landlords and tenants, that it related to possession of the premises alleged to have been let out to the tenants, that it raises claims or questions arising out of the Act or out of some of its provisions and, therefore, the Court of Small Causes, Greater Bombay was exclusively entitled to entertain and try the suit. In a word, it was contended by these defendants that by reason of the provisions contained in Section 28 of the Act, the City Civil Court has no jurisdiction to try the suit. It was capable of being valued in terms of money and therefore, the plaintiffs were in error in paying fixed Court-fees on the plaint.

(5) The learned trial Judge raised five preliminary issues, but, as stated earlier, I am concerned with two out of those issues. On the first of these issues, he has held that the City Civil Court has j jurisdiction to try the suit, because the suit did not fall under section 28 of the Act. According to the learned Judge, the suit was undoubtedly between landlords and tenants but it did not relate to recovery of possession nor did it involve any claim or question arising out of the Act or out of any of its provisions. The learned Judge has held that the reliefs claimed by the plaintiffs are wholly outside the Act and therefore, the jurisdiction of the City Civil Court to entertain and try the suit was not affected by section 28 of the Act. On the second of the two issues, the learned Judge has held that the relief claimed by the plaintiffs was not capable of being valued in terms of money and therefore, the plaint was chargeable with fixed Court fees. These findings are challenged in this revision application by defendants 1 and 5.

(6) The main question for decision is whether by reason of the provisos contained in Section 28 of the Act, the Court of Small Causes, Bombay has exclusive j jurisdiction to try the suit. The relevant part of Section 28 of the Act reads thus:

'Notwithsatinding anything contained in any law and not with standing 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,

(aa) . .

(b) ........

shall have j 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 no other Court shall have j jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question'.

(7) This section has been the subject-matter of numerous decisions, including a Full bench decision of this Court and at least two decisions of the Supreme Court. The principle underlying the section is now easy to understand in the light of those decisions and the meaning of the several phrases used in that section is now more clear. Frequently, however, difficulties arise in the actual application of the provisions contained in the section. The case before me demonstrates one type of such difficulties. It is manifest that the following conditions must be satisfied in order that a suit or proceeding should be triable by the Courts of exclusive j jurisdiction mentioned in Clauses (a), (aa) and (b) of sub-section (1) of Section 28:

(1) The suit or proceeding must be between a landlord and tenant. Unless this condition is satisfied Section 28 can have no application. If this condition is satisfied, it is further necessary that either

(2) the suit or proceeding must relate to the recovery of (i) rent or (ii) possession of premises to which the provisions of Part II of the Act apply, or

(3) Some application must have been made under the Act, or the suit or proceeding must involve a claim or question arising out of the Act or out of any of its provions.

If in addition to the first condition either of the two other conditions is satisfied, the suit would lie in the Court of exclusive jurisdiction.

(8) The learned trial Judge has held that the first condition is satisfied and there he is clearly right, for it seems to me indisputable that the suit is between a landlord and tenant. As regards the second condition, the suit does not relate to the recovery of rent and therefore, the first part of the second condition does not apply. This is common ground. The question which has been keenly debated before me is whether the second part of the second condition is satisfied, because if it is satisfied, the City Civil Court would have no jurisdiction to try the suit.

(9) Now the question which arises in interpreting the second part of the second condition is whether the suit must relate to the 'recovery of possession' or whether it is sufficient that it relates merely to 'possession'. It is argued by Mr. Gandhi, who appears on behalf of the petitioners, that the words of the second condition are 'recovery of rent or possession' and therefore, it is not right to read this phrase to mean recovery of rent or recovery of pssession. I am unable to accept this contention. If what was contemplated was a suit or proceeding relating to possession merely, it would have been easy for the Legislature to say that a suit between a landlord and tenant 'relating to possession or to the recovery of rent' shall lie in the Courts of exclusive j jurisdiction mentioned in Cls. (a), (aa) and (b) of Section 28(1). The phrase 'recovery of rent' has been accorded a precedence with the obvious intention that the word 'recovery' must govern both 'rent' and 'possession'. There is an additional reason why, in myopinion, it is difficult to accept Mr. Gandhi's submission. By providing that suits 'relating to' the recovery of rent or possession shall be tried by Courts of exclusive jurisdiction, the Legislature had already widened the scope of Section 28. The words 'relating to' the recovery of rent or possession have a wider amplitude than the words 'for recovery of rent or possession' and therefore, by use of the former expression, the scope of matters falling within the exclusive j jurisdiction of certain Courts was intended as far as the Legislature wanted to extend it. By reading the second condition to mean that even if a suit or proceeding merely related to possession but did not relate to recovery of possession, it must go before the Court of exclusive jurisdiction, one would be extending the scope of Section 28 beyond what is justified by the plain language of the section.

(10) Bearing in mind the scheme of the act it seems to me difficult to hold that if a suit merely related to possession but did not relate to recovery of possession, it would still be exclusively triable by the Courts mentioned in Clauses (a), (aa) and (b) of Section 28(1). Normally, an action between a landlord and tenant relates, directly or indirectluy, to the possession of premises in the occupation of the tenant. One can conceive of an exceptional class of disputes between a landlord and tenant in which the possession of premises occupied by the tenant is not a matter in issue, but those cases are few and far between. If the second condition is construed to mean that if a suit relates to the possession of premises though not to the recovery of possession of the premises, it must go before the Court of exclusive jurisdiction, Section 28 would mean for all practical purposes, that almost every suit between a landlord and tenant shall lie in the Court of exclusive jurisdiction. Nothing would then have been easier for the Legislature than to provide that every suit between a landlord and tenant shall be triable exclusively by the Court mentioned in Clauses (a), (aa) and (b) of S. 28 (1). In my opinion, therefore, the requirement of the second condition is that the suit or proceeding must relate either to the recovery of rent or to the recovery of possession of premises to which any of the provisions of Part II apply. It is not a sufficient compliance with this condition that the suit relates merely to possession of such premises.

(11) In support of his submission that the requirement of the second condition is that the suit should relate to possession merely, Mr. Gandhi relies on the decisions reported in (1) Babulal Bhuramal v. Nandram, : [1959]1SCR367 Ranjit Patiraj v. Behram Sheriar : (1963)65BOMLR464 ; (3) Dattatraya Krishna v. Jairam Ganesh, : AIR1965Bom177 . I do not propose to discuss these decisions because the question raised by Mr. Gandhi before me did not arise in these cases. What Mr. Gandhi is trying to do is to rely upon a statement here or a statement here appearing in these decisions. For example in the decision reported in : [1959]1SCR367 reliance is placed by the learned Counsel on a passage at page 959 (of Bom LR): (at p. 682 of AIR) in which it is stated that 'in a suit under Section 28 the Court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions.' This passage in the judgment of the Supreme Court, it is argued, must bind this Court even on the assumption that it is obiter. Now it is correct that if the Supreme Court has considered and decided a point, the observations on that point would bind this Court even if the point did not directly arise for decision. But I suppose that the point should have been considered, whether or not it was necessary for deciding the particular dispute in order that it may become a precedent. In the case cited by Mr. Gandhi, the question was whether the City Civil Court had jurisdiction to try a suit for declaration that plaintiff No. 1 was a tenant of the defendants, that he was therefore entitled to the protection of the Rent Act and that plaintiffs Nos. 2 and 3, being lawful sub-tenants of plaintiff No. 1, were entitled to possession of the premises under the provisions of that Act. The suit raised a question which arose out of the provisions of the Act, because plaintiffs Nos. 2 and 3 contended that the sub-tenancy created by plaintiff No. 1 in their favour was lawful within the meaning of the Rent Act and therefore, they could not be evicted from the premises by the defendants. Indisputably, the suit also related to recovery of possession. The landlords had already obtained from the Court of Small Causes a decree for eviction of the tenants on the grounds that plaintiff No. 1 had unlawfully sub-let the premises to plaintiffs Nos. 2 and 3. In this context, it is not possible to take the view that the Supreme Court has held that it is a sufficient compliance with the second condition that the suit merely relates to possession and that it is not necessary that the suit must relate to recovery of possession. Such a point was not argued before their Lordships, it was not necessary to consider it and in fact, it was not considered.

(12) The observations made in (1968) 65 Bom LR 464 and in : AIR1965Bom177 , stand on a similar footing. In neither of these cases did the question arise whether the suit must relate to recovery of possession or whether it is sufficient that it relates to possession. Not only that such a question did not arise in these cases but the question canvassed before me by Mr. Gandhi was neither argued nor considered in there cases and therefore, casual observations in those cases cannot be construed as a decision on the question.

(13) It is urged by Mr. Gandhi that the plaintiffs are trying to protect their possession of the passage or to secure the possession of the passage and therefore, the suit is one relating to possession. The plaint, according to Mr. Gandhi, is drafter ingeniously so as to disguise the real object of the suit, namely, to obtain possession of the passage. In the view I have expressed above as regards the requirement of the second condition, it is unnecessary to find whether the suit relates to possession. I might, however, add that I do not agree that the suit relates to possession. True, that one must look at the plaint as a whole in order to ascertain the nature of the suit and the real relief which the plaintiff is seeking. But considering the various averments in the plaint and having regard to the relief which the plaintiffs are seeking, I am unable to hold that the suit, directly or substantially, relates to possession.

(14) Mr. Gandhi relies very strongly on the averments in paragraph 4 of the plaint where it is stated that the passage forms part and parcel of the shop let out to the plaintiff, that the plaintiffs had at their own expense and with the consent of the 2nd defendant put a roof on the passage, that they had provided a collapsible iron door at the back end of the passage, that they had furnished the passage, with a carpet, fans and fluorescent tubelights, that the business of the plaintiffs could be carried on in the passage only as no other space was available to accommodate the customers and that the premises could not be used effectively without the use of the passage. These averments, according to Mr. Gandhi, show that the plaintiffs are attempting to obtain declaration that they are tenants of the passage, that they have unqualified right to use the passage as an incident of the tenancy of the shops and further that by trying to prevent the formation of queues in the passage, they are seeking an order for possession of the passage, though by a somewhat devious methos. Their argument is plausible but it does not bear close scrutiny. The case of the plaintiffs really is that they are tenants of the shops, that they are entitled to conduct their business in the shops and the formation of queues in the passage causes serious interference with their business. The plaintiffs do not ask and it is not their case that the defendants are not entitled to make use of the passage. The relief sought by the plaintiffs is that the defendants shall not permit queues to be formed in the passage in a manner which will interfere with their business. This limited relief, which does not seek to deny to the defendants the right to use the passage reasonably, has an important bearing on the nature of the suit. It shows that the suit is not for the recovery of possession of the passage nor does it relate to the possession of the passage, at best, it relates to the use of the passage.

(15) But then Mr. Gandhi says if this is so, why was it necessary for the plaintiffs to aver in paragraph 4 of the plaint that the passage has been furnished and decorated by them. The argument is that this averment is made in order to establish in the suit that the plaintiffs are entitled to an exclusive use of the passage. This, in my opinion, is not a correct reading of the plaint. Plaintiffs have stated in paragraph 4 of the plaint that they have furnished and decorated the passage not with a view to suggesting that they are exclusively in possession of the passage or that they are entitled to use the passage exclusively but in order to demonstrate that it is not possible for them to do thier business without making use of the passage. The statement in paragraph 4 as regards the furnishing of the passage can be properly appreciated in the light of the averments in paragraph 5. 5A and 5B of the plaint. Plaintiffs have stated in paragraph 5 that the booking offices were formerly situated at a place which did not necessitate formation of queues in the passage and therefore, they could use the passage for the needs of their business. The position of the booking office was changed and therefore, according to the plaintiffs queues are formed in the passage for long spells, causing serious obstruction to their business. Plaintiffs say in paragraph 5:

'The said queues which form every day in front of the plaintiffs' shop result in a total blockade of the plaintiff's shops and no access whatsoever is left for the said shops. . . Plaintiffs Nos. 2 and 3 have been compelled to close down their shops while plaintiff No. 1 has done little business since said date'.

In paragraph 5-A the plaintiffs say:

'. . . . . . . .access to the shop of the plaintiffs was completely blocked by the queues formed in front of the shops of the plaintiffs and plaintiffs Nos. 2 and 3 were compelled to keep their shops closed . . . . .and plaintiff No. 1 could not transact any business and face the prospect of imminently closing his shop'.

In paragraph 5-B plaintiff allege that the defendants had committed a breach of the covenant for quiet enjoyment and consequently,.

' the plaintiffs have been prevented from enjoyment of the premises demised to them for the purpose for which they were demised, namely, for carrying on business respectively of selling Gramophone records, radios, electrical appliances and goods, foot-wear and other accessories'.

The main relief sought by the plaintiffs on the basis of these averments is that an injunction be issued against the defendants asking them to ensure that t he queues in the passage do not block their (plaintiffs) access to the shops. The other relief which the plaintiffs seek is that the defendants be restrained from locating booking offices at a place which will result in the formation of queues at, near or around the plaintiff's shop and in particular at any point in the area shaded in red, in the sketch annexed to the plaint. The passage in front of the plaintiffs' shops constitutes a major portion of the area so shaded.

(16) These averments in the plaint and the particular reliefs which I have set out above leave no doubt that the plaintiffs are not attempting directly or indirectly to secure or obtain the possession of the passage but that they want an order preventing the defendants from permitting the formation of queues in the passage in a manner which will obstruct the access to the shops.

(17) It is then contended by Mr. Gandhi that the first condition having been satisfied namely, that the suit is between a landlord and tenant, Section 28 will be attracted even if the third condition, but not the second, is satisfied. That raises the question whether the suit involves a claim or question arising out of the Act or out of any of its provisions. It is urged by Mr. Gandhi that in order that the plaintiffs may be entitled to the reliefs sought by them, it would be necessary to find whether they are tenants of the shops and such an inquiry is within the exclusive j jurisdiction of the Courts specified in Section 28. Now, in deciding the issues arising in the suit it may become necessary for the City Civil Court to decide certain other issues incidentally. But the necessity for deciding such issues incidentally cannot take away the j jurisdiction of that Court to decide the other issues which are within its jurisdiction. As I look at the suit, the principal question which it involves is whether on account of some conduct on the part of the defendants, the business of the plaintiffs is materially affected. What is necessary for the City Civil Court to determine principally is whether as a result of a change in the location of the booking offices queues are substantially formed in the passage, whether the formation and continuance of the queues in the passage materially affects the business of the plaintiffs and whether the access of the plaintiffs to their shops is blocked by the Queues. In deciding these issues, it is not necessary to determine whether the plaintiffs are tenants of the shops, though it may be necessary to decide incidentally whether plaintiffs are in lawful occupation of the shops.

(18) What introduces a certain amount of complexity in this position is that the plaintiffs have expressly averred in paragraph 5-B of the plaint that as lessees of the premises there is in their favour an implied covenant of quiet and peaceful enjoyment of the premises and by virtue of the said convenant, the defendants are under an obligation to so locate the booking offices as not lead to the formation of queues in the passage. Mr. Tijoriwala appearing on behalf of the plaintiffs disputes that the covenant for quiet enjoyment mentioned in Section 108 of the Transfer of Property Act is available only to a tenant. According to him, such a covenant is available to every lawful occupant, be he a tenant or a licensee and is enforceable at the instance of the plaintiffs, it would not be necessary to find whether they are tenants. Now frankly Mr. Tijoriwala's argument dos not impress me. The covenant referred to in Section 108 of the Transfer of Property Act is in terms an obligation of the lessor and I do not see how it can be extended to govern the obligations of a licensor. This aspect of the matter, however, is in my opinion immaterial because on the plaint as it stands the question whether plaintiffs are tenants does not arise for decision directly. The principal issue, as stated earlier, which arises for decision is whether the defendants are so conducting their business as to interfere with the right of the plaintiffs to conduct theirs. While deciding this issue, which is the main issue, it may be incidentally necessary to decide whether plaintiffs are entitled to enforce the implied covenant for peaceful enjoyment.

(19) Now the question is: Does the City Civil Court lose its j jurisdiction to try the suit for the reason that it is necessary to decide incidentally whether plaintiffs are tenants of the shops? In my opinion, it does not. It is well established that though a special Court may be set up for deciding a particular issue, that Court can consider other matters incidentally though such matters do not fall within its jurisdiction. I might draw attention to the decision of the Full Bench in : AIR1965Bom177 , which reiterates the view that Section 28 of the Rent Act confers j jurisdiction upon the special Court not only to decide questions referred to in that Section but also matters which are incidental or necessary to the determination of those questions. Now if the special Courts mentioned in Section 28 have j jurisdiction to decide incidentally questions other than those mentioned in that section, it is difficult to understand why the City Civil Court should not have j jurisdiction to decide incidentally the exclusive questions mentioned in Section 28. Therefore, if while considering the implications of the covenant of quiet enjoyment, it becomes necessary to consider incidentally whether the plaintiffs are tenants of the shops, the City Civil Court will have j jurisdiction to do so.

(20) An important aspect of this matter is that the mere circumstance that it becomes necessary for the City Civil Court to decide whether the plaintiffs are tenants of the shops would not bring the suit within the scope of Section 28. Parties to suit may be arraigned as landlord and tenant and the suit may require the determination of the question whether one party is a tenant of the other. But if the suit does not relate to recovery of rent or recovery of possession, or if it does not involve a claim or question arising out of the Act or out of any of its provisions, the suit will not fall under Section 28 and the City Civil Court will have j jurisdiction to try the suit. As indicated earlier, this suit does not relate to recovery of rent or possession and therefore the question is, does it raise a claim or question arising out of the Act or any of its provisions. Now, the claim of a contractual tenant arising out of the Act or any of its provisions is as much within the Act as that of a statutory tenant : AIR1965Bom177 . But though the plaintiffs allege that they are contractual tenants, the suit does not raise a claim or question arising out of the Act or any of its provisions. The suit of the plaintiffs is in substance and reality a suit for compelling the defendants to conduct their business so as not to cause interference with that of the plaintiffs. Such a claim does not flow out of any of the provisions of the Act and indeed, whether or not the Act was on the Statute Book, the suit could always have been brought. As the City Civil Court will not be required in this suit to deal with any claim or question arising out of the Act or any of its provisions, it has j jurisdiction to entertain and try the suit.

(21) In order that one may appreciate how the City Civil Court will not be required in this suit to deal with a claim or question arising out of the Act or any of its provisions, I would like to draw particular attention to the reliefs claimed by the plaintiffs. The plaintiffs ask in paragraph 10 of the plaint:

'(a) That the defendants, their servants and agents be restrained by a permanent Injunction or Order of this Hon'ble Court from issuing tickets for the current shows from ticket window marked as 'B' in the sketch at Ex. 'A' to the point and situated in the premises of the Kohinoor Cinema situate at Laxmi Bhavan, Ranade Road, Bombay-28.

(C) For a mandatory injunction directing or ordering the defendants, their agents servants and persons claiming through or under them, to prevent the queues for the cinema tickets from interfering with or obstructing the access to the shops of the plaintiffs being shops Nos. 8, 9, 10 and 10-A situate at Laxmi Bhavan, Ranade Road, Dadar, Bombay-28 and shown as C. D. E. And F. in the sketch at Ex. 'A' to the plaint.

(d) (i) That the defendants by themselves, their servants and agents and all persons claiming from, through or under any of the defendants jointly or severally be restrained by a perpetual Order and Injunction of this Hom'ble Court from locating or having any booking office for current shows or advance shows which will result in the formation of queues at, near or around the plaintiff's said premises and in particular at any point in the area covered by red colour boundary in the plaint annexed hereto as Ex. A-1.

(d) (ii) That the defendants by themselves, their servants and agents and all persons claiming by, from or through or under any of the defendants jointly or severally be restrained by a perpetual order and injunction of this Hon'ble Court from interfering with or obstructing the access to the shops of the plaintiffs at 8, 9, 10 and 10-A situate at Laxmi Bhavan,. Ranade Raod, Dadar, Bombay-28 shown on Ex. A to the plaint and /or in any manner interfering or obstructing the normal enjoyment of the said premises by the plaintiffs.'

(22) None of these reliefs strikes me as a back door method to obtain possession of any part of the premises included or alleged to be included in the lease of the plaintiffs. If these reliefs are considered in the context of the plaint as a whole, it would be clear and though the suit is between a landlord and tenant, it neither relates to recovery of possession not does it raise a claim or question arising out of the Act or any of its provisions. The suit is, therefore, within the competence of the City Civil Court and the learned Judge was right in taking the view he has taken on the preliminary issue of jurisdiction.

(23) I see no substance in Mr.Gandhi's argument on the question of valuation of the subject-matter. It is urged that the suit is governed either by Item No. 7 in Schedule I of the Bombay Court-fees Act, 1959, or in the alternative by Section 6(iv) (d) of that Act. Now Item No. 7 relates, in so far as is material, to plaints filed to obtain a substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. The argument is that the plaintiffs could have valued in terms of money the loss caused to them on account of the formation of queues in the passage and therefore, Item No. 7 in Schedule I must apply. I am unable to hold that the relief claimed by the plaintiffs is capable of being valued in terms of money. The case of the plaintiffs is that the formation of queues in the passage blocks access to their shops and obstruct their business. Now the loss caused on account of the alleged conduct on the part of the defendants cannot be valued precisely in terms of money and therefore, the suit will not fall under Item No. 7 of Schedule I.

(24) Section 6 (iv) (d) on which Mr. Gandhi relies alternatively, applies, in so far as is material, to suits for declaration of ownership or nature of tenancy of immoveable property. Now obviously this is not a suit for declaration as regards the nature of tenancy and as I have stated earlier, this is not even a s uit for a declaration that the plaintiffs are tenants. Section 6(iv) (d), therefore, can have no application. The correct provision of the Court-fees Act to apply, as held by the learned Judge, is the learned Judge on the issue of valuation shall have therefore, to be confirmed.

(25) In the result, I confirm the findings of the learned trial Judge and discharge the rule in this revision application with costs.

(26) This judgment will govern Civil Revision Application No.1488 of 1965 also.

(27) Rule discharged.


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