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Sarfarzali Nawabali Mirza Vs. Miss Maneck G. Burjorji Reporter - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal from Order No. 8 of 1975
Judge
Reported in(1976)78BOMLR704; 1976MhLJ576
AppellantSarfarzali Nawabali Mirza
RespondentMiss Maneck G. Burjorji Reporter
Excerpt:
bombay rents, hotel and lodging house rates control act (lvii of 1947) as amended by maharashtra act xvii of 1973-sections 5(4a), 5(6a), 15a and 28-plaintiff's suit for a declaration that the defendant had no right title and interest in the premises-suit filed on the basis of the defendant being a paying guest-defendant claimed to be a licensee protected by the amendment to the rent act, being maharashtra act xvii of 1973-whether under section 28 of the rent act the city civil court had jurisdiction to try the suit-whether averments in the written-statement relevant for determining jurisdiction of the court.;the jurisdiction of a court is normally and ordinarily to be determined at the time of inception of a suit. this jurisdiction should not be controlled or affected by any subsequent.....apte, j.1. this revision petition by the original defendant is directed against the findings recorded by the judge of the city civil court, bombay, in short cause suit no. 3413 of 1.973 on two preliminary issues. the first issue was whether city civil court had jurisdiction to try the suit and the second issue was whether the suit was properly valued. on the first issue the learned judge recorded a finding in the affirmative and on the second in the negative and directed the original plaintiff-respondent to pay the deficit court-fees on the amount of rs. 7,350 which was found to be the proper valuation of the suit. against these findings the defendant preferred an appeal.2. when the appeal came up for final hearing before lentin j., it was pointed out that conflicting observations were.....
Judgment:

Apte, J.

1. This revision petition by the original defendant is directed against the findings recorded by the Judge of the City Civil Court, Bombay, in Short Cause Suit No. 3413 of 1.973 on two preliminary issues. The first issue was whether City Civil Court had jurisdiction to try the suit and the second issue was whether the suit was properly valued. On the first issue the learned Judge recorded a finding in the affirmative and on the second in the negative and directed the original plaintiff-respondent to pay the deficit Court-fees on the amount of Rs. 7,350 which was found to be the proper valuation of the suit. Against these findings the defendant preferred an appeal.

2. When the appeal came up for final hearing before Lentin J., it was pointed out that conflicting observations were made by Vaidya J. on the one hand and Gandhi J. on the other in different matters on the very point which arises for consideration in this case. It appears, in A.O. No. 328 of 1974 which came up for hearing before Kania J., he in view of the conflict of views between the aforesaid two single Judges referred the matter to a division Bench. When the present appeal which has now been converted into a revision petition came up for final hearing before Lentin J., he also followed the same course and that is how this appeal has come up for hearing before this division Bench.

3. Before dealing with the merits of this case, we would like to mention that when the matter was being argued on behalf of the appellant by Mr. B.R. Naik, we questioned Mr. Naik as to how an appeal was maintainable against the findings Recorded by the learned Judge inasmuch as the order passed by the learned Judge was not one falling under Order XLIII, Rule 1 of the Civil Procedure Code which lists the orders against which appeal lies. We also pointed out that under Section 104 of the Civil Procedure Code an appeal lies only from the orders mentioned therein and against no other orders. Realising the difficulty, therefore, Mr. Naik conceded that this appeal was not maintainable and he sought our leave to convert the Appeal from Order into a revision application. Accordingly we granted leave and the original Appeal from Order has been converted into a revision application.

4. Now, the short question that arises for our consideration in this revision application is whether the Judge of the City Civil Court was right in holding that on a plain reading of the plaint filed by the plaintiff he laid jurisdiction to entertain it. This question arises on the following facts:

5. The respondent Miss Maneck Gustadji Burjorji Reporter is a tenant of a flat consisting of two rooms, a kitchen and a sanitary block on the 2nd floor of a building known as 'Jer Villa' in Parsi Colony at Dadar in Greater Bombay. It seems that on. or about May 10, 1972 the petitioner had inserted an advertisement in a local newspaper inviting offers for accommodation on leave and licence basis or as a paying guest. Pursuant to this advertisement, the respondent-plaintiff seems to have contacted the petitioner-defendant through one Mrs. Poncha and it was agreed between the plaintiff and the defendant that the plaintiff should allow the defendant to occupy one of the two rooms in the flat as a paying guest with a facility to use the kitchen as also the sanitary block. This agreement was arrived at sometime by about May 23, 1972 and was to be effective from June 1, 1972 and was to be in force for eleven months.

6. According to the plaintiff, she herself was residing in the same flat and was carrying on business from the said premises in the name and style of 'Azelia Enterprises' and had business dealings with Handloom Export Promotion Council and Cotton Textile Export Promotion Council and various other overseas buyers.

7. Now, it appears that while the defendant was in occupation of one of the rooms as aforesaid, sometime early in the year 1973 the State Government introduced a Bill to amend the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act') with a view to give the status of a tenant even to a licensee in occupation of premises on leave and licence basis. Accordingly by Maharashtra Act No. 17 of 1973, suitable amendments were made in the relevant provisions of the Rent Act to which we would in due course make a reference. Suffice it to state here that by Section 15A of the Rent Act, persons who were in occupation of any premises or any part thereof which was not less than a room as a licensee, was deemed to be a tenant of the landlord provided he was in occupation of the premises on February 1, 1973, and all the protection that was given to a tenant under the Act against eviction etc. was extended even to such a licensee.

8. The plaintiff alleged that in view of this amendment made by the Legislature, the defendant changed his stand and began to claim that he was a tenant of the premises given to him and that he was liable only to pay proportionate standard rent for the premises to the plaintiff. He also filed a declaratory suit, being Suit No. 1690 of 1973, on April 4, 1973 in the Court of Small Causes at Bombay against the present plaintiff and her father for a declaration that he was a lawful sub-tenant of the premises and prayed for fixing the standard rent of the premises at Rs. 50. Incidentally it may be stated that in this suit he claimed that he was in occupation of the entire premises and not only of one room and on that basis he prayed to the Court to fix the standard rent of the entire flat at Rs. 50.

9. Thereafter on April 26, 1973, the present suit in which this revision application arises was filed in the City Civil Court by the respondent alleging that the defendant was allowed to occupy only one room as a paying guest but the defendant was trying to take possession of the entire for by taking forcible possession of the other room as well. She therefore prayed in this suit for a declaration that the defendant had no right title or interest in, over or to the said flat and further prayed for an injunction restraining the defendant from interfering with or disturbing her possession of the flat.

10. Subsequently the plaint in the suit was amended after the initial agreement for eleven months came to an end and one more prayer was added that the defendant be ordered by a mandatory injunction to remove himself together with his articles and belongings and other things from the said premises.

11. By his written statement the defendant denied that he was in occupation of only one room and that too as a paying guest. He maintained that he was allowed to occupy the entire flat by the plaintiff as a licensee on a monthly compensation of Rs. 350. He further claimed that as he was in occupation of the premises as a licensee through the plaintiff on February 1, 1973, by virtue of the amendment made in the Rent Act by Act No. 17 of 1973, he became the tenant of the premises. It is needless to refer to the other contentions raised by the defendant inasmuch as they are not pertinent for the disposal of this revision petition. The defendant, therefore, contended that in view of the provisions of Section 28 of the Rent Act, the City Civil Court had no jurisdiction to entertain the suit but it was only the Small Causes Court that had jurisdiction to entertain it.

12. It appears that after the filing of the suit, plaintiff took out a Notice of Motion against the defendant directing him not to disturb her possession of the kitchen and on that Notice of Motion, on May 4, 1973 possession of the kitchen was delivered to the plaintiff through Sheriff by the order of the Court and on August 21, 1973 that Notice of Motion was disposed of without passing any order.

13. Then on March 26, 1974 the defendant took out a Notice of Motion for restoration of possession of kitchen to him. This notice of Motion was dismissed by the City Civil Court on April 29, 1974.

14. Against that order, defendant came in appeal, being Appeal No. 199 of 1974, to this Court but it was dismissed by Gandhi J. on July 17, 1974. While dismissing that appeal, however, the learned Judge observed that looking to the peculiar facts of the case he felt that ends of justice would be met by expediting the matter and therefore directed the City Civil Court to dispose of the suit itself by the end of January 1975.

15. After the matter went back to the trial Court, the trial Court appears to have framed necessary issues that arose on the pleadings of the parties and the first two issues were those which have been reproduced above, viz. ' (1) Whether this Court has jurisdiction to try the suit? (2) Whether the suit is properly valued ?''. Then by common consent these two issues only were taken for trial as preliminary issues and, as already stated above, on the question of valuation of the suit, the learned Judge found that the suit was not properly valued and, according to him, it should have been valued at Rs. 7,35O and, therefore, directed the plaintiff to make good the deficit of Court-fees on the basis of that valuation. On the question of jurisdiction, it appears to have been argued on behalf of the defendant before the learned Judge that since the defendant had raised a contention in his written statement that he was not a paying guest but was a licensee raised to the status of a tenant by virtue of the amendment in the Rent Act, he was entitled to the protection afforded by the various provisions of the Rent Act, and since this was a question between landlord and tenant, it was exclusively triable by the Court of Small Causes in view of the provisions of Section 28 of the Rent Act. In support of this contention, some unreported judgments delivered by Vaidya J. sitting singer were cited before the learned Judge. On the other hand, on behalf of the plaintiff on unreported judgment delivered by Gandhi J. in Kiran Laxmidas Kapadia v. Dharamdas Vithaldas Shah (1978) Chamber Summons in Suit No. 510 Of 1965, decided by Gandhi J., In November 5, 1973 (Unrep.) was cited. Besides, the Supreme Court judgment in Raizada Topandas v. Grorakhram (1963) 66 Bom. L.R 106 S.C. was relied upon. The learned Judge relied upon the unreported decision of Gandhi J. which was in conformity with the Supreme Court decision in Raizada's case and accepted the contention of the plaintiff that it is only on a plain reading of the plaint that the question of jurisdiction must be decided prim (r) facie and not by taking into account the defence of the defendant as well. In the result, the learned Judge overruled the contention in this respect raised by the defendant and held that he had jurisdiction to entertain and try the suit. It is against these findings that the present revision petition is now filed.

16. The first contention that was advanced by Mr. B.R. Naik for the petitioner was that the learned Judge of the trial Court was in error in recording findings only on two issues in direct contravention of the direction given by Gandhi J. According to him, the learned Judge ought to have disposed of the suit in toto by recording findings on all the issues instead of taking only two issues for preliminary decision. It, however, appears from the order of the learned Judge that it was at the instance of the parties themselves that the learned Judge took these issues for consideration first, before deciding the other issues on merits. In fact, both the parties invited the learned Judge to record his findings on these points first and that was why the learned Judge was persuaded to take up these two issues first for his decision. It would not, therefore, be open to the petitioner to turn round and contend that the learned Judge had committed an error in recording his findings only on these two preliminary issues.

17. Mr. B.R. Naik contended that even by consent the learned Judge could not have contravened the directions given by this Court by Gandhi J. while disposing of the earlier appeal No. 199 of 1974. But what Gandhi J. had done was simply to give a direction to the learned trial Judge to dispose of the suit as early as possible, It was not that it was a mandate given to the trial Court to dispose of the suit at any cost by that date. It was with a view to expedite the disposal of the case that the direction was given. We, therefore, do not see any force in the contention that the learned Judge was wrong in taking the two preliminary issues first for his consideration, especially in view of the fact that the parties themselves had invited the Court to record findings on these preliminary issues.

18. The next contention advanced on behalf of the petitioner was that in view of the contention raised by the defendant that he was not a paying guest but was a licensee who had acquired the status of a tenant by virtue of the amendment made in the Rent Act by Act No. 17 of 1973, the jurisdiction to try this suit was exclusively vested in the Court of Small Causes. In this respect it was contended that while determining the question of jurisdiction, it is not only the allegations made in the plaint that should be taken into consideration by the Court but also the defences raised by the defendant and on consideration of the cumulative effect of both the allegations in the plaint and the defences raised by the defendant in the written statement that the Court should determine whether a particular suit falls within its jurisdiction. In other words, what was contended was that the Court should determine the question of jurisdiction after ascertaining the substance of the controversy between the parties by going through the plaint as well as the written-statement. It is however, difficult to accent this contention in view of the authoritative pronouncements not only by this Court but also by the Supreme Court.

19. In Govindram Salamatrai v. Dharampal : AIR1951Bom390 this question was considered by a Division Bench of this Court consisting of two eminent Judges, viz. the Chief Justice Mr. M.C. Chagla and Mr. Justice Bhagwati, (as he then was). In that case the plaintiffs had filed a suit on the original side of the High Court against the defendants alleging that they were licensees of certain property in the possession of the plaintiffs and that the licence had been properly and legally terminated and that they were entitled to an order of Eviction against the defendants. The contention of the defendants was that they were not licensees but tenants and therefore were protected, under the Rent Restriction Act. The suit was filed on the Original Side of the High Court inasmuch as the valuation of the suit property for the purpose of jurisdiction exceeded Rs. 25,000. The main and substantial issue that arose for determination, therefore, was whether the defendants were licensees as alleged by the plaintiffs, or tenants as alleged by the defendants. It may here be mentioned that at that time the amendment of 1973 introduced by Act No. 17 of 1973 giving the same protection as that of a tenant to a licensee not having been introduced, the licensees were not protected under the provisions of the Rent Act.

20. Mr. Justice J.C. Shah (as he then was), who heard the suit came to the conclusion that the defendants were licensees and not tenants and consequently passed a decree in ejectment in favour of the plaintiffs and it was from that decree that the appeal was preferred which came up for hearing before the aforesaid Division Bench. A preliminary question was raised before the Division Bench that the trial Court had no jurisdiction to entertain and try the suit in view of Section 28 of the Rent Act, because under that section such a suit must he tried and disposed of by the Court of Small Causes. Section 28 of the Rent Act, as it then stood, (deleting the unnecessary portion) provided as follows:

28. (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 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 jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

21. While repelling the above argument advanced on behalf of the appellants, Chagla C.J. observed (p. 388):.There can be no doubt that when a plaintiff files a suit against a defendant alleging that he is his licensee, it is a suit which cannot be entertained and tried by the Small Causes Court because it is not a suit between a landlord and a tenant, and judging by the plaint no question arises out of the Rent Control Act or any of its provisions which would have to be determined on the plaint as it Stands. Equally so, in a suit so framed the only Court that would have jurisdiction would be the High Court because the jurisdiction of the High Court to deal with suits against licensees has not been taken away by any provision of the Rent Control Act., It cannot be suggested that the plaintiff should anticipate any defence that might be Taken up by the defendant that he is a tenant or that the initial jurisdiction which the Court had or which the Court lacked should be controlled or affected by any subsequent contention that might be taken up by the defendant. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to consider whether the Court had jurisdiction to entertain and try that suit or not.

22. It appears to have been, however, argued that although the Court might have had jurisdiction when the suit was filed, as soon as the defendant raised the contention that he was a tenant the Court ceased to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the provisions of Section 28. It was observed in this connection that really, this question was not a question that had anything to do with the Act or any of its provisions. It was a question which was collateral and which had got to be decided before it could be said that the Act had any application at all. The very application of the Act depended upon the defendant being a tenant. If he was not a tenant, the Act had no application and therefore before the Court can apply any provisions of the Act or decide any question arising out of the Act, it had got to determine whether the defendant was a tenant who can claim the protection of the Act. It was a jurisdictional question which had got to be determined in order to decide whether the particular Court in which the suit had been filed had or had not jurisdiction to try the suit. It was further stated that Section 28 did not deal with jurisdictional questions which have got to be decided in limine before matters arising under the Act can be considered by the Court. Ultimately it was held that Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, does not deprive the High Court of its jurisdiction in all suits for possession where ever 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. The High Court's jurisdiction is also deprived in those cases where, although the landlord might file a suit against a person alleging that he is a licensee or a trespasser, it may ultimately turn out that the defendant was not a licensee or a trespasser but a tenant and he was entitled to the protection of the Act. It was further held:

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 beet been 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.

23. This decision, therefore, makes it pretty clear that the question whether a Court other than the Small Causes Court has jurisdiction to try a particular suit is to be determined on the basis of the allegations made in the plaint and the defence raised by the defendant is irrelevant for the purpose of deciding that question. Of course, if ultimately on trial it is found that the allegations made by the plaintiff are not substantiated but that the defence taken by the defendant was true, it is open to the Court either to return the plaint for presentation to the proper Court or to dismiss it as the circumstances of the case may warrant.

24. Similar question arose before the Supreme Court in two cases, viz. Raizada Topandas v. Gorakhram and Vasudev v. Board of Liquidators (1963) 66 Bom. L.R. 205 S.C. In Raizada's case the suit was instituted by M/s. Gorakhram, the respondents before the Supreme Court for a declaration that they were in lawful possession of the premises in dispute and that the defendants, who were appellants before the Supreme Court, had no right to enter into or remain in possession of the said shop and for an injunction restraining them from entering into the shop. The substantial defence of the defendants was that the respondents-firm had sub-let the shop to the appellants at a monthly rental. The suit was filed in the City Civil Court at Bombay and, therefore, the defendants also took a plea that as the question involved in the suit related to the possession of the premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. This contention was upheld by the trial Court but the High Court negatived it and hence the defendant approached the Supreme Court by special leave.

25. The appeal was heard by a Bench of three Judges and by majority it was held:

Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, proceeds on the basis that exclusive jurisdiction is conferred on certain Courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, there fore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, the defendent cannot by his plea force the plaintiff to go to a forum where on his averments he cannot go.

The third Judge (A.K. Sarkar J.) also concurred with the ultimate decision, but explained (p 114):.I do not want to be understood as assenting to the proposition that a reference to the written statement is not at all permissible for deciding whether a Court has jurisdiction under the section to deal with claims or questions of a certain kind.

It may be mentioned, in passing, that the observations made by Chagla C.J. at p. 388 in Govindram's case, which have been quoted above, were quoted with approval at p. 111 of the report and it was observed:.We are in agreement with these observations, and we do not think that Section 28 in its true scope and effect makes a departure' from the general principle referred to earlier by us.

Their Lordships also made it quite clear that the argument advanced on behalf of the appellants that the section in effect stated that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the Court mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant, though plausible, was untenable on a careful scrutiny. Not only this, but it was further observed (p. 110) :.We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain Courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act.

Their Lordships in so many words stated that whether the suit is of the kind as is referred to in Section 28 or not will have to be decided by the frame of the suit, i.e. by reference to the plaint.

26. In the other case of Vasudev v. Board of Liquidators the Supreme Court held that under Section 28 of the Bombay Rents, Hotel and Lodging House Bates Control Act, 1947, the exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in Section 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary Court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. Reliance appears to have been placed on behalf of the appellant in that case as well as in the earlier case of Raizada, on Babulal v. Nandram : [1959]1SCR367 but it was observed that there was nothing is that judgment which supported the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced.

27. In fact, it appears that in Babulal's case in the plaint itself it was admitted that the defendants were landlords of the premises at various stages and the plaintiffs were the tenants and hence it was held that the suit was as between landlord and tenant and that it did not cgase to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiff.

28. Then there is a Full Bench decision of this Court in Dattatraya Krishna v. Jairam Ganesh : AIR1965Bom177 F.B. That was a case in which the defendant, who was the original tenant of the premises, had sub Jet them to the plaintiff under an agreement that the plaintiff should pay Rs. 20 per month to the defendant. According to the plaintiff, the defendant was encroaching upon the premises with a view to oust him from possession and hence he filed a suit in the City Civil Court for a declaration that the defendant was a trespasser and that he should be ordered to quit and vacate the premises. The defendant inter alia contended that the Court had no jurisdiction to try the suit. The City Civil Court held that it had jurisdiction to proceed with the suit and on merits dismissed plaintiff's claim. The plaintiff appealed to the High Court. It came up for hearing before a single Judge (Mr. Justice Naik) who referred the same to a Full Bench. The Full Bench held that on order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant about the -existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue. Similarly, if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit. In this connection it would be worthwhile to reproduce the observations at p. 670 of the report made by Chainani C.J. who delivered the judgment of the Court, which run thus:.The first question which arises in this connection is whether the jurisdiction of the special Court depends on the plaintiffs case as made out in the plaint or whether the contentions raised by the defendant are also to be taken into consideration. This question has been finally settled by the Supreme Court in two cases, Raizada Topandas v. Gorakhram and Vasudev v. Board of Liquidators. In the former case the Supreme Court approved the view taken by this Court in Govindram Salamatrai v. Dfcarompol, and Joswautlol v. 'Western Comp., India : (1959)61BOMLR1087 that the jurisdiction of the Court should ordinarily be determined at the time of the institution of a suit when the plaint is filed, that the plea of the defendant will not determine or change the forum and that in order to decide whether a suit comes within the purview of Section 28 what must be considered is what the suit as framed in substance is and what the relief claimed therein is. In Vasudev's case it was held that under Section 28 of the Rent Act the exclusive jurisdiction of the Court arises only if the person invoking the jurisdiction of the. Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in Section 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord, the defendant is not entitled to displace the jurisdiction, of the ordinary Court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application.

29. From the above authorities, the legal position is well-settled that gin order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if oh a fair reading of the plaint, it becomes apparent that the plaintiff has alleged relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to the recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provision, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant-about the existence of relationship of landlord and tenant, the continuance of the suit in tie special Court will depend on the decision of the Court on that issue. Similarly if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit.

30. Mr. Naik for the appellant relied on Bhimaji v. Dundappa : [1966]1SCR145 . Mohmad Khan v. Dadamiyan : AIR1971Guj77 . Nivrutti Laxman v. Shivdayal : (1959)61BOMLR957 F.B. and Rajaram v. Mahipat : AIR1967Bom408 . All these cases, however, are not relevant in this case inasmuch as they arise under the Bombay Tenancy Act provisions of which are quite different from the provisions of the Bombay Rent Act. What these cases, in substance, lay down is that where in a suit instituted in a civil Court a question arises as to whether a person is a tenant of an agricultural land, the civil Court cannot decide that question but must refer that question to the proper authority under the Tenancy Act. This is because Section 85 of the Bombay Tenancy Act bars the jurisdiction of the civil Court to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. Section 70 of the Bombay Tenancy Act which deals with powers of the tribunal under the Act inter alia prescribes that it would be the duty and function of the Mamlatdar to decide whether a person is, or was at any time in the past, a tenant or a protected tenant or a permanent tenant. Thus the exclusive jurisdiction to decide the jurisdictional fact itself is conferred on the special Tribunal established under the Act and the power of a civil Court in that respect is taken away. Section 85A, which was subsequently introduced, provides that if such a question which falls within the exclusive jurisdiction of the special tribunal established under the Tenancy Act arises in a suit before a civil Court, the civil Court should stay the suit and refer such issue to such competent authority for determination.

31. No such provision conferring exclusive jurisdiction to decide whether a Person is a tenant or a licensee or a trespasser is exclusively conferred by Section 28 of the Rent Act on the Court of Small Causes. All that the section does is to confer exclusive jurisdiction on the Court of Small Causes in Greater Bombay to entertain and try a suit or proceeding between landlord and tenant relating to the recovery of rent or possession of any premises to which any of the provisions of Part II of the Act apply and to decide any application made under the Rent Act and to deal with any question arising out of this Act or any of its provisions. It does not say that the Court of Small Causes would have exclusive jurisdiction to decide a plea of tenancy if raised before a civil Court even by way of defence.

32. As has been observed by Mr. Justice Deshpande in Kamata v. Badriprasad : AIR1975Bom187 it is one thing to say that the dispute between the landlord and the tenant is cognizable only by a Court under Section 28 of the Bombay Rent Act and quite another to say that plea of tenancy can be decided exclusively by such Court even if raised in defence. In that case, no doubt the question arose in a proceeding under the Maharashtra Cooperative Societies Act. However, the observations made by the learned Judge are pertinent in this case.

33. In connection with the cases cited under the Tenancy Act, it is enough to point out that cases on the construction Of one statute are rarely of value in construing another statute, for each case turns on the language with which it is concerned and statutes are not often expressed in the same language. As we have pointed out above, the language used in the relevant provisions of the Bombay Rent Act and that used in the provisions of the Bombay Tenancy Act is quite different and, therefore, these cases are of no assistance to us in interpreting the provisions of Section 28 of the Rent Act.

34. Mr. Naik placed great reliance on the ruling of the Supreme Court in Sushi-la Kashinath v. Harilal, Govindji (1960) 78 Bom. L.R. 320, S.C. and contended that by implication, the Supreme Court by this decision has overruled its previous decisions. He placed reliance on the following passage of the report (p. 332):

In view of the discussion contained in the above decisions and the reasons given by us earlier, it follows that the reliefs asked for by the plaintiff in the suit and the controversy raised by the defendants regarding the plaintiff's right to obtain those reliefs, all relate to 'claims or questions arising out of this Act or any of its provisions, and therefore, the Court having jurisdiction is the Special Court under Section 28 of the Act.

Mr. Naik placed much stress on the words 'the controversy' occurring in this passage and submitted that the aforesaid observations made by the Supreme Court would go to show that to determine whether the special Court under Section 28 of the Rent Act has jurisdiction to decide a suit must be determined not only from what the plaintiff alleges in the plaint but also on taking into consideration the controversy raised by the defendant.

35. In order to appreciate this argument, it is necessary to state the background in which these observations were made by the Supreme Court. It appears that in that suit the plaintiff, who was respondent No. 1 before their Lordships, had given an advance of Rs. 12,500 to respondents Nos. 2 to 5 who were defendants Nos. 1 to 4 who had made a representation to the plaintiff that they were putting up a building in the said property according to the plans and specifications submitted to the Bombay Municipality. The plaintiff applied to the defendants to let to him, on the basis of a monthly tenancy, a portion of the building to be constructed as soon as the building was ready for occupation. Defendants Nos. 1 to 4 agreed to do soon the plaintiff advancing the aforesaid sum and accordingly the plaintiff had advanced the said sum. The same defendants also executed a deed of charge in favour of the plaintiff on the date and the same was even registered as required by Section 18(5) of the Rent Act. It, however, appears that although the building was completed, the defendants failed to let out the agreed premises to the plaintiff in spite of the provision to that effect contained in the deed of charge. On the other hand, the defendants let out the same to some third parties, contrary to and in breach of the provisions contained in the deed of charge. Hence the suit in which the appeal arose was instituted by the respondent No. 1 for realization of the amount of advance given by him together with interest at 4 per cent, per annum. The suit was instituted in the Court of Small Causes at Bombay and the plaintiff prayed for enforcing the charge in his favour created by the deed against the property.

36. One of the defences raised by the contesting defendants was that Court of Small Causes had no jurisdiction to entertain the suit inasmuch, as the plaintiff sought a declaration of charge over the suit property and such a declaration relating to immovable property could not be granted by a Court of Small Causes. In this connection reliance was placed on Section 19 of the Presidency Small Cause Courts Act. On behalf of the plaintiff it was contended that the charge which he sought to enforce was created under Section 18(3)(iv) of the Rent Act and, therefore, it was a question arising under the Act which the Small Causes Court alone had jurisdiction to deal with in view of the provisions of Section 28 of the Act. Besides, it was also contended by the defendants that inasmuch as no tenancy was actually created but only an agreement to lease out the property was executed by the defendants in favour of the plaintiff, there was no relationship of landlord and tenant between the parties and hence also the Small Causes Court had no jurisdiction to try the suit. Their Lordships held that it was not necessary that there should be a relationship of landlord and tenant in respect of all the matters covered by Section 28(1) of the Bombay Rent Act. One type of action contemplated under that section, viz. a suit or proceeding for recovery of rent or possession of any premises to which any of the provisions of Part II apply may be between a landlord and a tenant; but in respect of the other matters dealt with in that sub-section, it was not necessary that the relationship of landlord and tenant should exist between the parties before the Court, For instance, a claim or question arising out of the Act or any of its provisions need not necessarily be one between a landlord and tenant and a civil Court will have jurisdiction to deal with such a claim or question.

37. Now, it is apparent from the report of the case that the charge which the plaintiff sought to enforce was one created under the provisions of the Act and he sought to enforce that charge. The defendants, on the other hand, contended that although the charge was created, it could not be enforced in the Court of Small Causes by virtue of Section 19 of the Presidency Small Cause Courts Act. It was in these circumstances that the aforesaid observations were made. It is quite plain from the above observations that their Lordships laid emphasis on the reliefs claimed by the plaintiff in order to determine the jurisdiction of the Court. In passing they made a reference to the controversy raised by the defendants. In the entire report there is nothing to show that their Lordships in any way laid down the proposition that in order to determine in such cases whether a Court has jurisdiction to entertain and try the suit, the Court should not only take into account the allegations in the plaint but also should look to and examine the contentions or controversy raised by the defendant. Indeed, no reference has even been made in this case to the earlier two cases of the Supreme Court, viz. Raizada Topandas v. Gorakhram and Vasudev v. Board of Liquidators in which, as already pointed out above, their Lordships in no uncertain terms laid down that in order to determine the jurisdiction of the Court, it is the plaint and the plaint alone that must be looked to and the defence raised by the defendant by his written-statement subsequently is irrelevant for the purpose.

38. In addition to this, Mr. Naik also referred to Ranjit Patiraj v. Behram : (1963)65BOMLR464 and Ramkishore v. Vijayabahadursingh : AIR1964Bom85 But suffice it to state that these two cases have no bearing on the present case inasmuch as the question which has been raised for consideration in the present case did not arise in those cases.

39. Similarly Mr. Naik also referred to the rulings in I.B. Hingorani v. Pravinchandra (1965) 65 Bom. L.R. 306 and Deecan Merchants v. Dalichand (1968) 72 Bom. L.R. 418 S.C. Both these cases are also not at all pertinent for the determination of the question that arises in the present case. Those cases arose under the Maharashtra Co-operative Societies Act under Section 91 and other sections and did not raise the question which arises for consideration in the present case.

40. Reference was also made by Mr. Naik to paragraph 4 from the judgment of Mr. Justice Krishna Iyer in B. Banerjee v. Anita Pan : [1975]2SCR774 which runs thus (p. 171):

Welfare legislations calculated to benefit weaker classes, when their vires is challenged in court, cast an obligation on the State, particularly when notice is given to the Advocate General, to support the law, if necessary by a Brandeis brief and supply of socio-economic circumstances and statistics inspiring the enactment. Courts cannot, on their own, adventure into social research outside the record and if Government lets down the Legislature in court by not illumining the provisions from the angle of the social mischief or economic menace sought to the countered, the victims will be the class of beneficiaries the State professed to protect. In this case, we are unable to compliment the State or the Advocate General from this point of view. It may happen that when the Court decides against the validity of a measure or order because Government fails to bring the socially relevant totality of facts, it is used as an alibi by the latter for the misfortune. Courts cannot help cover up the Executive's drowsy default or half-hearted help in making the socio-economic conspectus available.

Mr. Naik also made a reference to the following passage from Craies on Statute Law, 7th edn. (p. 247):

If a statute creates a new duty or imposes a new liability, and prescribes a specific remedy in case of neglect to perform the duty or discharge the liability, the general rule is 'that no remedy can be taken but the particular remedy prescribed by the statute' 'Where an Act creates an obligation,' said the court in Doe v. Bridges (1831) 1 B. & Ad. 847 and enforces the performance in a specific manner, we take it to be a general rule that performance cannot be enforced in any other manner. And in Stevens v. Jeacocke (1848) 11 Q.B. 731 the court said: 'It is a rule of law that an action will not lie for the infringement of a right created by statute, where another specific remedy for infringement is provided by the same statute'. And in The Queen v. County Court Judge of Essex (1887) 18 Q.B.D.704 Lord Esher M.R. said: 'The ordinary rule of construction therefore applies in this case, that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which can be pursued'.

41. Both these references are also irrelevant in the present case. In. the passage quoted from the Supreme Court case, what has been stated is that welfare legislations calculated to benefit weaker classes, when their vires is challenged in Court, cast an obligation on the State, particularly when notice is given to the Advocate-General, to support the law. It is difficult to see how these passages in any way help the contention advanced by Mr. Naik.

42. Mr. Naik also invited our attention to Krishnamoni Dasi v. Baser Mondal : AIR1963Cal225 F.B. It is a Full Bench case. In that case eleven fundamental principles have been laid down by Laik J. which should be borne in mind in deciding eases, where the question of exclusive jurisdiction of a tribunal is raised. It is not necessary to refer to all those principles since Mr. Naik only relied on the ninth principle, which is as follows (p. 250):

(9) The special tribunal might be invested by the legislature with exclusive jurisdiction to determine within its own authority certain matters and where it is so invested, the jurisdiction of the Civil Court must be deemed to have been taken away to that extent.

43. There can be no quarrel with this proposition. But at the same time, it is interesting to point out that the learned Judge has also laid down fourth principle as follows (p. 250):

(4) Even where jurisdiction is given to the statutory tribunal to determine certain facts so as to give itself jurisdiction, it will be for the Court of general jurisdiction to adjudicate as to what are the powers which the statute has given to such an authority or tribunal.

44. This would indicate that the powers of ordinary civil Courts to determine what is the ambit of the powers of the special Court is not taken away.

45. Lastly our attention was invited to the decisions of Vaidya J. sitting singly, given in some cases such as Shantilal Kalidas v. Lallubhai (1973) 77 Bom. L.R. 88 Natvarlal Devshi Rothod v. Lalji Ramji (1973) First Appeal No. 219 of 1964 decided by Vaidya J., on September 17, 1973 (Unrep.) Narayan Ganpat Masurkar v. Vithoba Raghunath Kolte (1973) First Appeal No. 832 of 1965, decided by Vaidya J., on October 2, 1973 (Unrep.) and Murzban F. Mistry v. Parin Jamshed Boywalla (1974) First Appeal No. 867 of 1965, decided by Vaidya J., on March 12, 1974. 'We are told that besides these four, in two other matters also the learned Judge took a similar view viz. that in order to determine jurisdiction of the Court in cases like the present one, the Court should not only take into account the allegations made in the plaint but must also look to the defence raised by the defendants and taking into account the cumulative, effect of both, should determine whether it has or has not the jurisdiction to entertain and try the suit.

46. With profound respect for' the learned Judge, we think that the learned Judge has totally failed to properly appreciate the principles laid down by the Supreme Court in the two cases of Rakada Topandas v. Gorakhram and Vasudev v. Board of Liquidators and the Full Bench decision of this Court in Dattatraya Krishna v. Jairam Ganesh which have already been referred to by us above, as also in the earlier decision of a division Bench of this Court reported in Govindram Salamatrai v. Dharampal. Although he has no doubt made a reference to some of them in his judgment, it appears that in his judgment in Shantilal Kalidas v. Lallubhai in support of his view the learned Judge relied upon the following observations of Sarkar J. in Raizada's case, which appear at p. 114:

I think it unnecessary to decide the dispute whether it is permissible under the section to look at the defence for ascertaining whether a claim or question under the Act arises in the suit.

47. It is difficult to see how these observations support the view of the learned Judge; because, it is obvious that Sarkar J. has kept the question open by observing that it was unnecessary to decide the same. Further Sarkar J. has also said (p. 114):.As at present advised, I do not want to be understood as assenting to the proposition that a reference to the written statement is not at all permissible for deciding whether a Court has jurisdiction under the section to deal with claims or questions of a certain kind.

But this observation does not mean that the learned Judge either agreed or disagreed with the majority view taken by the two other Judges, viz. S.K. Das J. and M. Hidayatullah J. Both of them have in clear terms stated that if the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, the defendant cannot by his plea force the plaintiff to go to a forum where on his averments he cannot go.

48. Even if it is assumed that the observations made by Sarkar J. support the view which the learned single Judge was disposed to take in the aforesaid first appeal, these observations do not displace the majority view which is binding on us.

49. Then in the same judgment, the learned single Judge has also quoted the following observations from the Full Bench case of this Court in Dattatraya Krishna v. Jairam Ganesh. The observations are:

If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue. (p. 671)

Again, with profound respect to the learned Judge, we must observe that the learned Judge has taken these observations out of their context. The entire passage in which these observations occur is as follows (p. 671):

The position, therefore, is that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue. Similarly, if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit.

50. These observations show beyond doubt that to start with, in order to determine ex fade whether the Court has jurisdiction to entertain and try a suit, the Court must look only to the allegations made in the plaint and if subsequently a defence is raised by the defendant about the existence of relationship of landlord and tenant, then the jurisdiction of the Court to try that suit would depend upon the finding on the issue as to whether such relationship exists between the parties or not. That means, the Court, to start with, would have jurisdiction to entertain the suit, but if ultimately, as observed in Govindram Salamatrai's case by Chagla C.J., it turns out that the defendant was not what he alleged to be in the plaint but was a tenant, the Court, will pass a proper order either to return the plaint to the plaintiff for presentation to the proper Court or to dismiss the suit as the circumstances of the ease may warrant.

51. It is not necessary to deal with the other judgments of the learned Judge inasmuch as he has practically quoted the authority of his own earlier judgment in the subsequent judgments and has relied on them by merely referring to the judgments of the Supreme Court and the decision of the Full Bench of this Court.

52. Besides, it appears that the learned Judge has very much relied on the passage at p. 332 in the Supreme Court judgment of Sushila Kashinath v. Harilal Govindji. We have already dealt with this passage while dealing with the arguments advanced by Mr. Naik on behalf of the appellant. It is not, therefore, necessary to deal with this aspect at great length. Suffice it to Say, that as observed by the Full Bench of this Court in the State v. Vali Mohammad : AIR1969Bom294 every observation in a judgment of the Supreme Court does not make law. This point has been very emphatically made clear by Chagla C.J. in an earlier judgment in Mohandas v. Sattanathan : AIR1955Bom113 by observing:

It would be incorrect to say that every opinion of the Supreme Court would be binding upon the High Courts in India. The only opinion which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary for the decision of the case, even so, if an opinion, was expressed by the Supreme Court on that question, then the opinion would be binding upon the High Courts.

Mere passing observations which do not lay down any principle of law cannot be treated as obiter dictum binding on the lower Courts. In passing, we may also observe that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of division Benches and of the Full Benches of this Court and of the Supreme Court, as has been very clearly stated by the Supreme Court in Tribhovandas v. Ratilal (1967) 70 Bom. L.R. 73 S.C.

53. Our attention was invited by Mr. Ganatra appearing for the respondent to the two unreported judgments (1) delivered by Mr. Justice Lentin in life Insurance Corporation of India v. Asian New Age Publishers Pvt. Ltd. (1973) O.C.J. Suit No. 84 of 1967, decided by Lentin J., on December 21, 1973 (Unrep.)(2) in Kiran Laxmidas Kapadia v. Dharamdas Vithaldas Shah in which both the learned Judges have followed the Supreme Court rulings in the oases of Raizada and Vasudev, quoted above and have held, that to determine the question of jurisdiction in such cases, it is only the allegations in the plaint that are relevant and it is not permissible to look at the defence raised by the defendant at that stage. We entirely agree with this view taken by these two learned Judges.

54. We are informed at the Bar that as a result of the view taken by Vaidya J. sitting singly, contrary to the view taken by the Supreme Court and the Full Bench decision of this Court quoted above, a lot of confusion has been created in the Courts below and in some eases the Courts have either dismissed, the suits or have returned the plaints to the plaintiff for presentation to the proper Court. In order to resolve this conflict and to remove the confusion, if there be any, we would like to make it clear that the decisions given by Vaidya J. to the contrary, stand overruled.

55. Now, turning to the facts of the present case, if we go through the plaint presented by the plaintiff, it is obvious that the plaintiff's case is that she allowed the defendant to occupy one of the rooms and also the use of a kitchen and the sanitary block as a paying guest on payment of certain monthly charges. She has nowhere stated in the plaint that the defendant was allowed to occupy the premises as a licensee. It is true that in the agreement the words 'licensor' and 'licensee' have been used in respect to the plaintiff and the defendant. Relying on these words, Mr. Naik submitted that even in the plaint, plaintiff's case is that plaintiff was the licensor and the defendant was the licensee in occupation of the premises and since under the amendment, 'licensee' is also included within the definition of 'tenant', on the allegations made by the plaintiff herself in the plaint, this would be a suit between the landlord and a tenant. But we may point out that a paying guest has been expressly excluded from the ambit of the definition of 'licensee' given in Clause (4A) of Section 5 of the Rent Act. In other words, a paying guest is not included in 'licensee' or that paying guest does not become a licensee under the Bent Act. The word 'paying guest' has been defined by Clause (6A) of Section 5 as a person, not being a member of the family, who is given a part of the premises, in which the licensor resides on licence. So even in the case of a paying guest, the expression 'licensor' and 'licensee' has been used and, therefore, in the agreement in the present case the use of the words 'licensor' and 'licensee' does not take the case out of the purview of the definition of 'paying guest' and raise the defendant to the status of a licensee entitled to the protection under the Act by virtue of the introduction of the Section 15A.

56. In passing we may also make a reference to the argument advanced by Mr. Naik that in order that a person should be a paying guest within the meaning of Clause (6A) of Section 5, he must be in possession of part of the premises. It was pointed out that from the agreement it appears that the defendant was not in possession of a part of the premises but was in occupation of whole room and according to Mr. Naik, therefore, the defendant would not fall within the definition of 'paying guest'. But this argument is based on misreading of the definition of paying guest. According to the definition, 'paying guest' means that person who not being a member of the family is in possession of a part of the entire premises in possession of the licensor. The entire premises in the present case consist of two rooms, a kitchen and a sanitary block and part of these premises, that is, one room, was given to the defendant to occupy as a paying guest and, therefore, he was clearly in possession of a part of the premises which were in possession of the plaintiff-licensor as a tenant? of the original landlord.

57. In view of the observations made above, we are of the view that the learned Judge below was right in holding that prima facie he had jurisdiction to entertain and try the suit. 'We, therefore, discharge the rule and remit the suit to the learned Judge to proceed with it and to dispose it of after recording evidence on all the issues arising in the case without any more delay. Rule in Civil Application No. 146 of 1975 is also discharged. The petitioner to pay the costs of the respondent of this revision application as also of the Civil Application.


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