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Ranjit Patiraj Chanbe Vs. Behram Sheriar Irani - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 42 of 1963
Judge
Reported in(1963)65BOMLR464
AppellantRanjit Patiraj Chanbe
RespondentBehram Sheriar Irani
DispositionAppeal dismissed
Excerpt:
.....in a proper court having jurisdiction under the general law, he cannot be evicted and the whole cycle of litigation must start again. 183. 11. we may incidentally observe that the special jurisdiction was created with the best of intentions, i......the defendants, their agents and servants from executing the warrant of possession in the rent suit. the trial court holding that the court had no jurisdiction returned the plaint for presentation to the proper court.2. we will refer to the bombay rents, hotel and lodging house rates control act, 1947, as the rent act and the presidency small cause courts act, 1882, as the pre. sim. c. c. act.3. mr. sayed has contended that such a suit is maintainable under the provisions of the rent act by reason of section 29a of the act. he argues that when special jurisdiction was created by section 28, it was never intended to render those decisions final and since he was claiming a title to remain in possession of the property, the court was in error in returning the plaint for.....
Judgment:

Patel, J.

1. This is an appeal from an order returning the plaint for presentation to the proper Court. The facts are as follows: The respondents-defendants are the owners of the suit property. They filed a suit against the appellant-plaintiff in the Court of Small Causes under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for eviction on the ground that ho was their tenant and that rent was in arrears for more than six months. The plaintiff contested the suit contending that he was not a tenant of the defendants but was the tenant of one Atmaram Sadashiv, who himself was a tenant of the defendants, The Court tried the issues which arose on these conflicting claims and came to the conclusion that the plaintiff was a tenant of the defendants and as he was found to be in arrears of rent for more than six months, the Court made a decree. The plaintiff carried the usual appeals available to him tinder the provisions of the Rent Act but failed. He then instituted the present suit alleging that lie was a sub-tenant of Atmaram Sadashiv, that he had no privity of contract with the defendants and that he should be declared to be entitled to remain in possession of the property. He claimed necessary injunction restraining the defendants, their agents and servants from executing the warrant of possession in the rent suit. The trial Court holding that the Court had no jurisdiction returned the plaint for presentation to the proper Court.

2. We will refer to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as the Rent Act and the Presidency Small Cause Courts Act, 1882, as the Pre. Sim. C. C. Act.

3. Mr. Sayed has contended that such a suit is maintainable under the provisions of the Rent Act by reason of Section 29A of the Act. He argues that when special jurisdiction was created by Section 28, it was never intended to render those decisions final and since he was claiming a title to remain in possession of the property, the Court was in error in returning the plaint for presentation to the proper Court.

4. We will assume that a right as a tenant is a title, though a Divisional Bench consisting of Chagla C. J. and Dixit J. have held in K. M. Motwani v. Albert Sequeira : (1958)60BOMLR1282 that:.the protection which the Rent Act gives to a tenant or a sub-tenant is a personal right, not a right in property, and what the Explanation to Section 43 (of the Presidency Small Causes Courts Act) contemplates is title and not a personal right.

5. Section 28 is an all-embracing section creating special jurisdiction in the Courts mentioned in it. In Greater Bombay the jurisdiction under the Rent Act is given to the Court of Small Causes, Bombay, and it provides that that Court alone shall have jurisdiction (1) 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 the provisions of the Act apply, (2) to decide any application made, and (3) to deal with any claim or question arising out of the Act or any of its provisions. It further provides that 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.' By Section 29 elaborate provision has been made for testing the decision of the trial Court by appeal and revision, of course, in certain cases, limiting the right of appeal. Sub-section (3) of Section 29 gives power to a bench of two Judges of the Small Causes Court and elsewhere the District Court to call for the record of the order or decree in order to satisfy itself that the decision of the Court was according to law. Section 29A declares that nothing contained in Section 28 or Section 29 shall be deemed to bar a party from filing a suit in a competent Court to establish his title to the premises.

6. It is contended that the word 'title' is a word of large import and any and every title that the plaintiff may allege and which may enable him to remain in possession of the property must have been intended to be covered by this provision. In our view this is not so. The Legislature could never, after making these elaborate provisions conferring special jurisdiction on special Courts, have intended that another cycle of litigation must start which would enable the litigants to challenge the decisions made by these Courts. In any event, in the general interest of finality of decisions, it is but proper that such effect should not be given to legislative enactment by construction, if it can be avoided. Moreover, the Court must make an effort to harmonize the two provisions and avoid repugnancy, if possible. It would be proper, therefore, particularly in view of the bar of jurisdiction of any other Court to entertain any suit or proceeding where any question under the Act arises, to limit the content of the word 'title' occurring in Section 29A. The word 'title' must then have a limited meaning and must only mean such title as does not fall within the provisions of the Act, i.e. which is not a title based on tenancy or sub-tenancy. We are supported in this conclusion by the decision of the Supreme Court in Babulal Bhurmal v. Nandram Shivram : [1959]1SCR367 where their Lordships held:

The suit contemplated in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties.... On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit is exclusively vested in the Courts specified in Section 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in Section 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction. By enacting Section 29A the Legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under Section 28 on a question of title de hors the Act.

7. Mr. Sayed, however, relied upon Madhavprasad Kalkaprasad v. Indirabai : AIR1953Bom192 where an obstructionist having failed in a proceeding under the Rent Act in the Small Causes Court, filed a suit in the High Court for a declaration of his title as a sub-tenant and necessary injunction. A Division Bench of this Court held, giving a very limited meaning to the words of Section 28, that such a suit was maintainable. The learned Chief Justice said:

When the plaintiff's suit is a simple suit by a tenant complaining of being dispossessed by a landlord and claiming possession from him as against a trespasser, the suit is not a suit for possession contemplated by Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and it, therefore does not fall within the ambit of the section.

In Shivaling Gangadhar v. Navnitlal : (1958)60BOMLR374 , the learned Chief, Justice sitting singly took a similar view. With respect, it omits from, consideration important portion of the section. The words are (1) 'suit or proceeding relating to-possession', and (2) 'any claim or question arising out of this Act or any of its provisions'. In (1), the words are not 'suit or proceeding for possession'. It seems to us that the decisions in Madhavprasad Kalkaprasad v. Indirabai and Shivaling Gangadhar v. Navnitlal cannot now be considered binding in view of the decision of the Supreme Court in the case cited above. Clearly that case would now fall within the ambit of the principle stated, by the Supreme Court in the above case and the suit would have to be thrown out from the High Court. In a Division Bench consisting of Chagla C.J. and Shah J. in Mehersingh Sethi v. Khurshed Satarawall : (1954)56BOMLR540 the learned Chief Justice said (p. 548):.the jurisdiction of special Courts is not merely to try suits for the recovery of rent or possession; but the jurisdiction is wider, because the jurisdiction is to try suits relating to the recovery of rent or possession,

thus placing emphasis on the words 'relating to'. In Harswarup Khannamal v. Nandram (1955) 58 Bom. L.R. 288 a Division, Bench consisting of Chagla C.J. and Dixit J. took the view that title contemplated by Section 29A was a title de hors the Act and if it arises by reason of the provisions of the Act then it is a title under the Act. The decisions are in conflict with the two referred to before, which must be held to bo no longer good law.

8. Mr. Sayed argued that so far as his client was concerned he had no privity of contract with the defendants, and as long as the tenancy of the head tenant subsisted, he could not be evicted by the defendants and this was a question of title. It must be noted that Section 29A does not refer to a title to remain in possession, of the property. It speaks of a title which must be such a title as does not only entitle him to remain in possession but is outside the provisions of the Kent Act and does not raise a question under the Act. The question whether a person is a tenant or a sub-tenant is necessarily a question which arises under the Rent Act. If he is a sub-tenant, then protection can only be given under the provisions of the Act and not otherwise. Under these circumstances, even if a plaint be cleverly worded by the plaintiff, the Court has to consider the substance of the pleadings and decide the question as to whether or not the claim falls within the ambit of the Rent Act. To hold otherwise would enable every defendant who is defeated in a proceeding under the Rent Act going to the City Civil Court and saying that he was a trespasser and unless a proper decree is obtained in a proper Court having jurisdiction under the general law, he cannot be evicted and the whole cycle of litigation must start again. It is impossible to sustain a contention such as this.

9. The same would be the position under Sections 46, 47 and 49 of the Presidency Small Cause Courts Act. While considering this aspect of the matter it has to be borne in mind that the Rent Act is a special Act dealing with a special subject-matter, viz., landlord and tenant, while the Presidency Small Cause Courts Act is a general Act, and by reason of the opening words of Section 28 pro tanto qua the special subject Rent Act will override and modify the provision of the latter Act. Thus, a landlord cannot recover possession under Section 41 of the Pre. Sm. C.C. Act. Similarly, Sections 46 and 47 will be governed by the overriding provisions of Section 28 of the Rent Act, and a licencee against whom an application is filed under Section 41 of the Pre. Sm. C.G. Act must if he sues in trespass file the suit in the special Court under the Rent Act, if he alleges that the owner is not entitled to recover possession because of his being a tenant or a sub-tenant. In such a case he has not to claim protection of the Act, but allege a relationship of tenancy and whether admitted or not it would be a title under the Act. See Babulal Bhurmal v. Nandram Shivram. It cannot be denied that in such a case though the suit is filed by the tenant, it 'relates' to recovery of possession of the premises. It must also be admitted that a claim to retain possession as tenant must be regarded as a claim or question' arising out of the Act or its provisions. This being so, the special Court alone will have jurisdiction to entertain any such suit or to deal with any question. Similarly, Section 49 which enables a suit on title to be filed must also be deemed to be modified to the extent that if the title claimed by the plaintiff is that of a tenant, then the special Court alone will have jurisdiction. If, however, under Sections 46 and 49 title claimed is other than tenancy, such as that of mortgage, co-ownership, etc., then suit will lie in ordinary Courts. Cases such as Govindram Salamatrai v. Dharampal : AIR1951Bom390 and Jaswantlal v. 'Western Comp. India' : (1959)61BOMLR1087 are really not relevant since in these cases it was held that when plaintiff claimed possession on the ground that the defendant was a trespasser arid the defendant contended that he was a tenant, the ordinary Court did not lose the jurisdiction, but if it was found that the defendant was a tenant, then jurisdiction to pass a decree in ejectment must be declined.

10. It may be argued that originally in the Pre. Sm. C.C. Act, in Sections 47 and 40 the words were 'in the High Court' and by Bombay Act XLIV of 1948 the Act was amended and the words 'City Civil Court' were also added and this was after the Rent Act of 1947 was enacted and, therefore, the Rent Act must be deemed to be repealed or modified to the extent of the inconsistency. This contention also cannot have validity. Even to such cases generalia specialibus non derogant applies. A general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects: Per Lord Hatherley in Garnett v. Bradley (1878) 3 App. Cas. 944. A general later law does not abrogate an earlier special one by mere implication Lancashire Asylums Board v. Manchester Corporation [1900] 1 Q.B. 458...where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation....that, earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. Seward v. 'Vera Cruz' (1884) 10 app. Cas. 59 per Lord Selborne-Maxwell on Interpretation of Statutes, 9th edn., p. 183.

11. We may incidentally observe that the special jurisdiction was created with the best of intentions, i.e., so as to decide these disputes within the shortest time, but it has resulted, in the Bombay city particularly, in multiplicity of suits. After an application under Section 41 of the Pre. Sm. C.C. Act is filed and disposed of finally by the High Court, another cycle of proceedings is commenced in the City Civil Court on the ground of tenancy, with consequential waste of public time and money. Practically one-third the number of suits pending in the City Civil Court are of such nature. It is high time that the Rent Act is so amended as to enable an application under Section 41 of the Pre. Sm. C.C. Act or a suit for eviction against an alleged licencee in the regular Court to be heard and decided by the special Court under the Rent Act, if a contention is raised by the defendant that he is a tenant. The amendment may take the form of a sub-section in Section 28 and may be as follows:

( ) In any case where in a proceeding or a suit plaintiff seeks eviction on the ground that the defendant is a trespasser and the defendant contend that he is a tenant, the application or the suit shall be transferred to and be heard by the Court constituted under this section and it shall make such decree as the findings warrant. To such a decree the provisions of Sections 29 and 29A shall apply.

The provision should be applied to pending proceedings and such suits pending in regular Civil Courts should be directed to be transferred to Courts under Section 28 of the Rent Act. We earnestly hope that in public interest the amendment will be made as early as possible.

12. In our view, therefore, the order made by the learned trial Judge is correct and cannot be interfered with.

13. The appeal fails and is dismissed with coats.


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