V.S. Desai, J.
1. The respondents are a company incorporated in the State of Delaware in the United States of America and have a place of business in Bombay at Metro House, Mahatma Gandhi Road, Bombay 1. The respondents were the tenants of a godown situate at 51, Dockyard Road, Mazgaon, Bombay. On December 1, 1955, the respondents purported to create a sub-tenancy in favour of the appellants in respect of the eastern portion of the godown at 51, Dockyard Road, on certain terms and conditions as set out in the letter which they wrote to the appellants on December 1, 1955. In respect of the goods stored in the godown there was an insurance effected by the respondents and they were paying certain insurance premium. It appears that as a result of the use made by the appellants of the portion sub-let to them the insurance premium which the respondents had to pay was increased. Therefore, on January 5, 1956, the respondents asked the appellants to remove storing of rice bags and also stop-polishing of rice which they were alleged to be doing in the sub-let portion of the godown. The appellants denied the correctness of the facts alleged by the respondents with the result that the respondents informed the appellants by their letter dated January 30, 1956, that the purported sub-tenancy did not create any rights in their favour and they were, therefore, trespassers and called upon them to vacate the premises occupied by them by the end of February 1956. The appellants claimed protection under the Bombay Rent Act. This led to some further correspondence between the parties and a meeting was fixed to see if the matter could be settled. However, the meeting did not materialise and after some further correspondence the respondents filed a suit in the City Civil Court, out of which the present appeal arises, alleging that the appellants were trespassers having no right to continue in possession or in the alternative they were at best licensees in respect of the eastern portion of the godown and their licence was validly revoked and terminated by the respondents. In the suit which they filed, the respondents claimed to recover possession with mesne profits and costs.
2. The defendants resisted the suit contending that there was a valid contract of sub-tenancy subsisting between the parties; that the said sub-tenancy had not been legally and validly terminated and the plaintiffs were not, therefore, entitled to the relief of possession. They also contended that the suit was one which fell within the purview of Section 28 of the Bombay Bent Act and was not, therefore, capable of being entertained by the City Civil Court and could be entertained only by the Court of Small Causes, Bombay. The defendants denied that they were trespassers and contended that they had paid all dues payable by them up to and inclusive of May 1956. They further denied that they had committed any acts contrary to the terms of the sub-tenancy and also denied that there was any nuisance of rats because of the storage of rice. They also denied having polished the rice in the godown and that their acts were responsible for the increase in the premium rates. It was also contended by the defendants that even if the contract of sub-tenancy was unlawful, the plaintiffs were not entitled to sue them in ejectment by taking advantage of their own wrong. The defendants contended that the letter of December 1, 1955, did not create only a licence in their favour, and even if it created a licence in their favour, the said licence was not validly revoked nor had they committed any breach of the terms and conditions of the licence. They denied their liability to pay any extra premium and further contended that the sum of Rs. 1,200 which they had kept with the plaintiffs could not be treated as deposit because of the provisions of the Bombay Rent Act.
3. The trial Court held that it had jurisdiction to entertain and try the suit and that the existence of the contract of sub-tenancy dated December 1, 1955 did not disentitle the plaintiffs from maintaining their suit. It further held that the defendants were not sub-tenants of the plaintiffs in respect of the eastern portion of the godown in suit as contended by the defendants and the plaintiffs were entitled to eject the defendants from the premises in suit. The trial Court, however, did not think it necessary to consider the question whether the defendants were licensees of the plaintiffs in respect of the suit premises and whether there was any breach of the terms of the licence or whether the licence was validly revoked and terminated by the plaintiffs. In respect of the claim made by the plaintiffs for the increased amount of insurance premium or for past mesne profits, the trial Court took the view that those claims could not be allowed. It also appears that the plaintiffs did not press for those claims and stated to the Court that they were giving up those claims. In view of these conclusions, the trial Court passed a decree in favour of the plaintiffs ordering the defendants to deliver possession of the suit premises to the plaintiffs and future mesne profits at the rate of Bs. 400 per month for a period of three years from the date of the decree or until delivery of possession, whichever event happened first. Plaintiffs were also awarded costs of the suit. Against this decree passed by the trial Court the defendants have come to this Court in the present appeal.
4. Mr. Sakhardande, who appears for the defendants-appellants, has urged before us that the lower Court has erred in holding that it had jurisdiction to try the suit. According to Mr. Sakhardande, this was a suit which fell within the purview of Section 28 of the Bombay Rent Act and was within the exclusive jurisdiction of the Court of Small Causes, Bombay. Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, so far as it is material, provides:
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 deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of Sub-section (2), no other Court shall have jurisdiction to entertain any such suit,... or to deal with such claim or question.
In order that the provisions of this section may apply, the suit must be between a landlord and a tenant. It must relate to the recovery of rent or possession of any premises to which any of the provisions of Part II of the Act apply and in which any claim or question arising out of the Act or any of its provisions must arise. Now, in the present case, the suit relates to the recovery of possession of premises to which the provisions of Part II of the Act apply. What must, however, be found, is whether it is a suit between a landlord and a tenant. The words 'landlord' and 'tenant' are both defined under the Act, and we have to see whether the parties to the present suit are within those definitions. The word 'landlord' which is defined in Section 5(3) includes in respect of his sub-tenant a tenant who has sub-let any premises, and the word 'tenant' which is defined in Section 5(11) states, so far as is material for our purposes, that a
'tenant' means any person by whom or on whose account rent is payable for any premises and includes-(a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act,...
It will be seen from the provisions of the Act that a sub-tenant whose subtenancy is created after the coming into operation of the Act is not recognised at all. It is only those sub-tenants, who have derived their title as sub-tenants before the coming into operation of the Rent Act, i.e., before February 13, 1948, that are included within the inclusive part of the definition of the word 'tenant'. The word 'tenant' therefore, in Section 28 must mean, so far as sub-tenants are concerned, only a sub-tenant whose sub-tenancy is created prior to February 13, 1948. A person in whose favour a sub-tenancy is created after February 13, 1948, is not a tenant within the definition of the word 'tenant' in the Rent Act at all and no provisions of the Rent Act can apply to such a person. In the present case, it is admitted that the sub-tenancy on which the defendants rely has been created for the first time on December 1, 1955. They are, therefore, not a 'tenant' within the meaning of the word as used in Section 28 and the suit against the defendants, therefore, is not a suit between a landlord and a tenant so as to be triable exclusively by the Court of Small Causes, Bombay. Therefore, the provisions of Section 28 do not apply to the present case, and the suit, is not within the exclusive jurisdiction of the Court of Small Causes, Bombay. Moreover, the suit which has been filed in the present case is on the basis of title by an owner against a trespasser or alternatively on the basis of a license by a licensor against a licensee. No doubt, the letter of December 1, 1955, which purports to create a sub-tenancy has been referred to in the plaint, but it has been referred to not with a view to admit that the plaintiffs are landlords and the defendants tenants but to emphasise that the defendants are trespassers or at best licensees. The suit, therefore, is a suit as against a trespasser or licensee, on the plaint which the plaintiffs have filed, and such a suit is certainly not one which is within the jurisdiction of the Court of Small Causes, Bombay. The jurisdiction of the Court has to be decided initially at the time of the inception of the suit, and on the plaint which the plaintiffs have filed, there is no doubt that the suit is within the jurisdiction of the City Civil Court. It is, however, contended that although the plaintiffs have filed their suit on the basis of a suit by an owner against a trespasser or alternatively on the basis of a suit by a licensor against a licensee, the defendants have set up a contention of tenancy and, therefore, the suit is one which is governed by Section 28 of the Bombay Rent Act. Now, the question whether a suit, in which the plaintiff alleges that the defendant is a trespasser or a licensee but the defendant contends that he is a tenant, is a suit which can be tried only by the Special Court under the Bombay Rent Act has been the subject-matter of decision of a division bench of this High Court in Govindram Salamatrai v. Dharampal : AIR1951Bom390 . In that case, a suit was filed on the Original Side of this High Court by the plaintiff alleging that the defendant was a licensee. The defendant contended that he was a tenant entitled to protection of the Rent Act. It was urged that the question whether the defendant was a tenant or a licensee was one which arose under the Bombay Rent Act, and since Section 28 of the Bombay Rent Act conferred exclusive jurisdiction on the special Courts under the Act to deal with any claim or question arising out of the Bombay Rent Act it was the Small Causes Court alone and not the High Court which had jurisdiction to deal with and dispose of the question whether the defendant was a tenant or not. In negativing this contention the division bench held that when a plaintiff files a suit against a defendant alleging that the defendant is a licensee or a trespasser it is a suit which cannot be entertained 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 Act or any of its provisions which would have to be determined on the plaint as it stands. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of the suit and a suit by a plaintiff against the defendant alleging that the defendant is a licensee or a trespasser is at its inception within the jurisdiction of the High Court or the City Civil Court and not in the Small Causes Court. The Court in which the suit is filed does not cease to have jurisdiction as soon as the defendant raises a contention that he is a tenant. The question which such contention raises is a jurisdictional question which has got to be determined in order to decide whether the particular Court in which the suit is filed has or has not jurisdiction to try the suit and Section 28 of the Rent Act does not deal with jurisdictional questions which have got to be decided in limine before matters arising under the Act can be decided by the Court. It was held that there was nothing in Section 28 of the Rent Act to warrant the contention that the High Court had been deprived of its jurisdiction in all suits for possession wherever the defendant took up the contention that he was a tenant. The jurisdiction was deprived in cases where the landlord filed a suit against a tenant and the tenant claimed protection under the Rent Act or in cases where although the plaintiff alleged that the defendant was a trespasser or a licensee but it ultimately turned out that the defendant was not a trespasser or a licensee but a tenant and that he was entitled to the protection of the Rent Act. In view of this decision, which is directly in point, Mr. Sakhardande's, contention that the present suit was not within the jurisdiction of the City Civil Court cannot succeed.
5. It is urged by Mr. Sakbardande that the authority of this decision is considerably shaken by a recent decision of the Supreme Court in Babulal Bhurmal v. Nandram Shivram : 1SCR367 . We do not think that Mr. Sakhardande is right in this submission. On the other hand, the observations in this decision, to which Mr. Sakhardande has invited our attention, in our view, far from supporting his submission, go against his contention. In that case, a landlord after giving a notice to quit to his tenant on- December 6, 1947, filed a suit against him in the Court of Small Causes, Bombay, joining to the suit two other persons who were alleged to be sub-tenants of the tenant. The landlord's case was that the tenancy of his tenant was validly terminated and he was entitled to evict his tenant; that the alleged sub-tenants of the tenant were trespassers who had no right to be on the premises. The suit succeeded in the Small Causes Court, the Court holding that the sub-tenants were not lawful subtenants, the sub-letting by the tenant to them being contrary to law. The Small Causes Court, therefore, passed a decree against the plaintiff and the alleged sub-tenants. Thereafter, the tenant as plaintiff No. 1 and the alleged sub-tenants as plaintiffs Nos. 2 and 3 filed a suit against the landlord in the City Civil Court for a declaration that plaintiff No. 1 was a tenant of the defendant and was entitled to protection under the Rent Act and that plaintiffs Mos. 2 and 3 were lawful sub-tenants of plaintiff No. 1 and were entitled to possession and occupation of the premises as sub-tenants thereof. A question was raised in the City Civil Court as to whether the City Civil Court had jurisdiction to entertain the suit. The City Civil Court held that it had jurisdiction to entertain the suit, but dismissed it on merits. In the appeal which was filed in the High Court, the High Court dismissed the appeal holding that the City Civil Court had no jurisdiction to entertain the suit and, therefore, the suit filed by the plaintiffs in the City Civil Court was not maintainable. It was from this decision of the High Court that an appeal was filed in the Supreme Court and the question which the Supreme Court bad to consider was whether the suit filed by the plaintiffs was within the jurisdiction of the City Civil Court. It was urged before the Supreme Court that the suit was maintainable under Section 29A of the Bombay Rent Act which provided that nothing contained in Sections 28 or 29 should be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. The Supreme Court held that a suit which was competent to establish title under Section 29A was a suit to establish title de hors the Bombay Rent Act and not a suit which sought to establish title which required to be established under the Rent Act itself. It was held:. It is possible to conceive of cases where in a suit under Section 28 of the Act a question of title to the premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of Section 29A of the Act. Oh 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.
It will thus be seen that the question which arose before the Supreme Court and was decided in this case related to the scope of suits which were permitted under Section 29A of the Rent Act and had no direct bearing on the question which was decided in the case reported in Govindram Salamatrai v. Dharampal. It is argued, however, that in deciding the question which was before them their Lordships of the Supreme Court have construed the provisions of Section 28 of the Rent Act and discussed the scope of these provisions and the suits which fall within the purview of the said section, and the observations which their Lordships have made in that connection support the contention that a suit in which the plaintiff alleges that the defendant is a licensee or trespasser, but the defendant contends that he is a tenant, falls within the purview of Section 28 of the Rent Act and the jurisdiction to entertain and try such suits belongs exclusively to the special Courts as specified in Section 28. The observations on which reliance is placed occur firstly at p. 957 of the report in Babulal Bhurmal v. Nandram Shivram. Their Lordships have observed:.Do the provisions of Section 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions? The answer must be in the affirmative on a reasonable interpretation of Section 28.
These observations do not lend support to the submission which is urged before us by Mr. Sakhardande. With great respect, it appears clear to us from these observations 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. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of a claim which arises out of the Act or any of its provisions, then only and not otherwise will it be covered by Section 28. This is made abundantly clear by what their Lordships have observed immediately after the observations quoted above. Their Lordships have observed (p. 959) :
Suit No. 483/4400 of the Court of Small Causes, Bombay, was admittedly by a landlord. Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act. The suit, in substance, was a denial of the right of the defendants as tenants. The claim of the defendants was that they were protected by the provisions of the Act. In such a suit the claim of the defendants was one which arose out of the Act or any of its provisions and only the Courts specified in Section 28 and no other could deal with it and decide the issue.
Mr. Sakhardande has next relied on the observations at p. 958 of the report in Babulal Bhurmal v. Nandram Shivram where their Lordships have stated:. On a proper interpretation of the provisions of Section 28 the suit contemplated in that section 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.
These observations also do not help Mr. Sakhardande for, here again the emphasis is on the suit as framed and on what the suit as framed in substance is. These observations occur in the context where their Lordships were considering the suit filed in the City Civil Court. Considering the suit filed in the City Civil Court, their Lordships pointed out that the suit was one relating to possession of premises to which the provisions of Part II of-the Act applied and claims and questions arising out of the Act or any of its provisions were required to be dealt with in the suit. Independently of the Act, the plaint in the suit disclosed no cause of action. Their Lordships then observed (p. 958):.The suit, therefore, was essentially a suit between a landlord and a tenant. The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs.
In view of these observations it is not possible to accept the contention which has been urged by Mr. Sakhardande. A suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of the Rent Act or any of its provisions does not become a suit covered by the provisions of Section 28 of the Act as soon as the defendant raises a contention that he is a tenant. As we have already observed earlier, the observations of their Lordships of the Supreme Court in Babulal Bhurmal V. Nandram Shivram on which Mr. Sakhardande seeks to rely far from supporting him go against his contention.
6. Mr. Sakhardande has then contended that the lower Court has erred in holding that the defendants are not the lawful sub-tenants of the plaintiffs. He argues that under Section 15 of the Bombay Rent Act what has been made unlawful is a sub-tenancy as against the landlord but not a sub-tenancy as between the tenant and the sub-tenant. Mr. Sakhardande says that reading Section 13(1)(e) together with Section 15 of the 'Act, it would be clear that sub-letting is not unlawful as between the tenant and the sub-tenant. Section 13(1)(e) provides that if a tenant sub-lets the whole or part of the premises, the landlord will be entitled to evict him. Section 15 states that it will not be lawful for a tenant to sub-let the whole or any part of the premises let to him. It is argued that if the meaning of Section 15 was that there could be no sub-letting in law at all, even if purported to be effected between the tenant and the sub-tenant, Section 13(1)(e) could not have used the word 'sub-let'. According to Mr. Sakhardande, the object in enacting Section 15 was that the sub-letting by the tenant to the sub-tenant should not avail as against the landlord and should not afford the sub-tenant any protection under the Kent Act. Now, if the object in enacting Section 15 was only that the sub-tenancy should not avail as against the landlord, we do not see why it was necessary to enact Section 15, because that provision had been made by Section 13(1)(e) itself, which provided that, not only would a sub-tenancy not avail as against the landlord but it would provide him with a ground to evict the tenant himself. If the object in enacting Section 15 was only to deprive the subtenant of the protection of the Rent Act, we do not see why the language of that section should have been in these general words.
7. An argument similar to the one which is advanced before us by Mr. Sakhardande was advanced before this Court in an unreported decision in Narayanrao Krishna Ohate v. Purushottam Kalidas (1952) Civil Revision Application No. 128 of 1952, decided by Chagla, C.J., on December 2, 1952 (Unrep.). It was contended there that Section 15 was merely complementary to Section 13(1)(e) and no penal provision had been enacted and, therefore, notwithstanding Section 15 a valid sub-tenancy could be treated as between tenant and sub-tenant. This argument was negatived and it was observed:. Section 13(1)(e) deprives a tenant of the protection of the Rent Act who sub-lets the premises let out to him. It is difficult to understand why it was at all necessary to enact Section 15 if the only object of enacting that section was to make it complementary to what the Legislature had already enacted in Section 13(1)(e). Section 13(1)(e) is self-contained and its object is, as I said, to deprive a tenant of the protection of the Rent Act who has sublet the premises let out to him. The object of Section 15 is entirely different. It embodies the policy of the law that after the Act came into force no subtenancy should be created, and, therefore, the Legislature has' advisedly used the language which one finds in Section 15, viz. that it shall not be lawful, after the coming into operation of the Act, for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein.
With great respect, we are in complete agreement with the view taken in this case with regard to the interpretation of Section 15 of the Bombay Rent Act. It seems to us that in view of the clear language of Section 15, what is provided by that section is that there can be no valid sub-tenancy after the coming into operation of the Rent Act notwithstanding anything contained in any other law. We cannot, therefore, accept Mr. Sakhardande's contention that the defendants are entitled to rely on the sub-tenancy as a valid sub-tenancy as against the plaintiffs.
8. Mr. Sakhardande has then urged that the plaintiffs having been a party to this contract of sub-tenancy between them and the defendants, which is rendered unlawful by Section 15 of the Rent Act, and having put the defendants in possession in pursuance of this contract, cannot come to the Court and seek its assistance for obtaining back possession from the defendants. Now, it seems to us that if the plaintiffs had to rely on the unlawful contract for the purposes of obtaining the relief which they have claimed in the plaint, they would certainly not have been entitled to so rely and the Court would not have assisted them. But what the plaintiffs are relying upon in the present suit is not the contract which is unlawful or contrary to the policy of the law. What they are relying upon is their title, and they are seeking, on the basis of that title, to recover possession from persons who have no right to remain in possession. It is the defendants who have to set up the contract to resist the plaintiffs claim for possession and in that sense it will be the defendants who seek to rely on it. Mr. Sakardande, however, argues that even though the plaintiffs have not sought to rely on the unlawful transaction or contract, the defendants have brought it to the notice of the Court and even in a case where the illegal contract has not been relied on by the plaintiffs in support of their claim or for the purposes of enforcing their claim, if the illegality is pointed out to the Court even by the other side, the Court will refuse to help the plaintiffs. In this connection, he has invited our attention to the observations in the case of Guddappa Chikkappa v. Balaji Ramji : (1941)43BOMLR681 , F.B. It was held in that case that a Court will not allow itself to be used as an instrument of fraud, and by the application of rules of evidence or procedure it will not allow its eyes to be closed to the fact that it is being used as an instrument of fraud. Once the Court finds that the plaintiff is seeking its assistance to enable him to get the benefit of what is a fraud, it refuses to assist him. Beaumont, C.J. observed (p. 691) :-. I think the true rule is stated by Sir Grimwood Mears in Vilayat Husain v. Misran' where he says (p. 398):-
In all cases where a plaintiff is relying upon a deed, the defendant is entitled as of course to give evidence of the circumstances under which the document came into existence. When those circumstances embrace and include an allegation of a joint fraud by both plaintiff and defendant, the particulars of that fraud must be pleaded; and it is then the duty of the court to look into the matter, and if the court comes to the con-elusion that the parties were acting together with a view to perpetrate a fraud, and did in fact perpetrate that fraud, and that there is no difference in the degree of guilt of the plaintiff (who is asking the Court to give him some help) and that of the defendant, the duty of the Court is not to assist either party; in other words, the duty of the Court is to dismiss the claim, because the court having then in its knowledge that it has before
it two persons equally guilty of fraud will not assist either of them'.
The case with which their Lordships were dealing was a case where the defendants had executed in favour of the plaintiff a sale-deed without consideration, and it was a part of a fraudulent attempt on the part of the defendants to defeat their creditors. The possession, however, still remained with the defendants and the plaintiff sued on the basis of the sale-deed in his favour to obtain possession from the defendants. The defendants resisted the suit, pointed out the circumstances under which the sale-deed came to be executed, and the circumstances as contended by the defendants having been found to be established, the Court held that the Court would not assist the plaintiff to recover possession of the property on the basis of his title because it would mean assisting him to obtain the benefit of what is fraud. Now, in the present case, the title on which plaintiffs seek to recover possession is not in any way connected with any illegality or fraud. The observations, therefore, in the case referred to by Mr. Sakhardande will not be applicable to the present case. A contention similar to this was also raised before this Court in Narayanrao Krishna Ghate v. Purushottam Kalidas, which has been already referred to, and it was observed :
If it is necessary for a party to prove a contract which is prohibited by law in order to obtain any relief from the Court, the Court will not permit such a contract to be proved.
It was observed that if in order to succeed, the tenant had to prove the contract of sub-tenancy, then he would not have been able to prove the same. It was also argued in that ease that the defendant having brought the illegal contract to the notice of the Court, the Court had to go into the question. It was observed:
It is true that if the attention of the Court is drawn to an illegal contract, the Court will not permit either party to prove it if it is necessary to go into that contract in order to enable the plaintiff to obtain any relief from the Court.
But where a plaintiff has not to rely on the illegal contract at all in order to succeed, the principle of pan delicto will have no application.
9. In another recent case reported in Jiwanjirao Scindia v. Muzammil : (1957)59BOMLR1011 this argument has been again considered and negatived. After considering the position in law and the arguments advanced, Mr. Justice S.T. Desai observed (p. 1014) :
But no authority seems necessary for the proposition that the owner of any property can on general principle invoke the aid of the Court for the recovery of the same from another not in lawful possession of it so long as he is able to rest his cause of action on his own title and is not compelled to rely as part of his cause of action on any contract or transaction which is illegal or immoral or otherwise opposed to the doctrine of public policy. It is in cases of the latter categories that the Court acts on the principle underlying the maxim Ex turpi causa non oritur actio and refuses to lend its aid to support obligations or rights said to have arisen between the parties to such dealings. This is because no right of action can spring from them. But title and right to possession of property when relied upon in a case cannot be said to spring from any dealing with the property in permissible or impermissible exercise of that title or right; it is apart, and disturbance or denial of it gives rise to a cause of action independent of and unaffected by those dealings.
10. In that case, a plaintiff, who was a tenant of a flat, had created a sub-tenancy in favour of the defendant and put him in possession of the flat, and had thereafter filed a suit against the defendant alleging that the defendant was a trespasser. It was held that the suit was perfectly maintainable and the plaintiff was entitled to get back the possession of the flat from the defendant.
11. Mr. Sakhardande has urged that at any rate during the period of the subtenancy the plaintiffs should have been held disentitled to seek possession of the premises sub-let, and in support of this submission he has invited our attention to the following passage from Halsbury's Laws of England, third edn., Vol. 23, page 434, para. 1030.
Where a lease has been granted but is unenforceable because it was made for an unlawful purpose, the tenant cannot be obliged to pay rent or perform his covenants but is entitled to remain in occupation until the expiry of the term granted by the lease unless the landlord can prove that the grant of the lease was induced by fraudulent misrepresentation on the part of the tenant. It seems, however, that the landlord might obtain an order for possession under the proviso for re-entry if the tenant committed a breach of covenant or if the tenant had successfully resisted an action for rent on the ground that the lease was void.
Mr. Sakhardande wants to rely on this passage for his submission that the landlord during the period of the lease will not be entitled to ask for eviction of a tenant. In the first place, the contention which Mr. Sakhardande wants to raise has not been raised in the Court below. What was urged in the Court below was that there was a lawful sub-tenancy and it was on the basis of the lawful sub-tenancy that the defendants were in possession. Secondly, whether the passage which Mr. Sakhardande has cited to us relates to a case like the one before us, where the cause of action of the suit of the plaintiff is based on his title unconnected with any contract, lawful or unlawful, is not clear. There is no doubt that even if for the purposes of obtaining the relief which the plaintiffs are claiming they have still to rely on the illegal contract, they would certainly not be entitled to so rely and obtain relief. But where the plaintiffs' cause of action and the plaintiffs' claim spring from their right unconnected with any illegality, we do not see why they should not be able to enforce the same.
12. Mr. Sakhardande has also invited our attention to the foot-note (d) at page 347 of Principles of the Law of Contracts by Salmond, 2nd ed., which states:
As to whether one who has illegally leased or hired property for a term can recover it back before the end of the term see (and the cases are mentioned). These authorities all support a right of recovery in the owner of the property. Such a right, however, seems contrary to principle. The lessor, pledger or lienor seeking to recover inconsistently with the terms of the lease, pledge or lien can do so only by setting up the illegality of the transaction. It is not solely upon his ownership that he relies, but upon his ownership coupled with the illegality of the contract which ex facie limits it. That is, an essential element in his claim arises ex turpi causa.
It seems to us that the view expressed by the learned author appears to support Mr. Sakhardande's contention. It appears, however, that it applies to a case where the plaintiff's right, which is sought to be enforced in the suit, is not based solely on his ownership but on his ownership coupled with the illegality of the contract. In the present case, as we have seen, there is no such combination and the plaintiffs' claim is solely based on their title unconnected with any illegality. We do not propose to examine the contention raised by Mr. Sakhardande in greater detail, because even if we were to accept as correct in law his contention that in the case of an illegal transaction, if possession is delivered as for a term, at least during the continuance of the term the owner will not be entitled to rely on his title and seek to obtain back possession of the property, it seems to us that in the present case, that duration had clearly expired. We have on record an intimation given by the plaintiffs to the defendants (exh. A-3) inviting their attention to the illegal nature of the transaction and further pointing out to them that in view of the illegal transaction they acquired no right, their right to remain in possession had come to an end and they were required to vacate by the end of the month next after the expiry of the month when the intimation was given. The intimation was given on January 30, 1956, and the time by which the defendants were asked to vacate expired by the end of February 1956. The suit was filed on March 28, 1956, and consequently at the time when the suit was filed the duration of the illegal tenancy had come to an end.
13. In view of the reasons which we have discussed above and in view of the two decisions of this Court to which we have referred, we cannot accept Mr. Sakhardande's contention that the plaintiffs are disentitled from obtaining the assistance of the Court to recover possession of the suit premises on the principle of pari delicto.
14. Mr. Sakhardande has then urged that the lower Court ought to have dealt with the question as to whether the defendants were licensees of the plaintiffs and whether they had committed any breach of the terms of the agreement of licence and whether the licence had been validly terminated. Now, it is true that the plaintiffs alleged in the alternative that the letter of December 1, 1955, which had not the effect of creating a sub-tenancy, could at best be treated as creating a licence in favour of the defendants, and that the licence had been revoked by the plaintiffs. Defendants, however, contended that they were not licensees but were lawful sub-tenants and that the alleged licence by the plaintiffs was not revoked or terminated. It seems to us that there could not be a relationship of licensor and licensee in the present case. The document in terms purported to create a sub-tenancy, and if the sub-tenancy could not be validly created in. law, then it would not have the effect of granting a licence to the defendant. It is true that possession was taken by the defendants in pursuance of the agreement of December 1, 1955, and, therefore, the possession could not be said to have been taken against the will or in spite of the plaintiffs. However, the possession which the defendants obtained was referable to an interest in property which the parties purported to create by the transaction of December 1, 1955. If the transaction failed, the possession which the defendants took was not in pursuance of any legal transaction and would, therefore, be possession which would be wrongful or that of a trespasser. In a licence, as defined in Section 52 of the Easements Act, what is granted is only a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property. In granting a licence, therefore, no interest in property is contemplated to be created in favour of the grantee and the right to use which is given is with a consciousness that all interest in the property remains in the grantor and the grantee has only a personal right to use the property. If possession is given in pursuance of a transaction which is intended to convey interest in the property as, for example, by creating sub-tenancy, such possession cannot be said to have been given by way of licence. It is referable to the interest in property sought to be created, and if no interest is created because the transaction is illegal, the possession is without any right and, therefore, wrongful and that of a trespasser. In this view of the matter, the question as to whether the defendants were licensees need not be considered and consequently also the further question as to whether the licence was revoked.
15. The result, therefore, is that all the contentions which Mr. Sakhardande has urged before us in this appeal fail and the appeal is dismissed with costs.