1. These two appeals arise out of two suits filed in the Bombay City Civil Court at Bombay. Suit No. 2058 of 1959 is filed by Messrs Gorakhram Gokalchand, a firm carrying on business at Choksey Chamber, Zaveri Bazaar, Bombay. Their case is that they are the tenants of a shop hearing No. 582/638. Defendants Nos. 1 and 2 are father and son and are carrying on business in art silk goods. By an agreement dated June 23, 1955, defendant No. 1 appointed the plaintiffs as his commission agents for the purpose of the sale of cloth at the said shop of the plaintiffs at Mulji Jetha Market. It was agreed that the agreement shall remain in force for a period of four years terminating on June 30, 1959. It was further agreed that the plaintiffs should be entitled to the commission at the rate of 2 annas per sale of goods worth Rs. 100, defendant No. 1, however, guaranteeing a minimum amount of Rs. 500 per month as and by way of commission. In para. 5 of the plaint the plaintiffs referred to Clauses 3 of the agreement dated June 23, 1955. Clause 3 read as follows:-
That my art-silk goods will be stocked in your shop at Govind Galli, Mooljee Jetha Cloth Market, Bombay and that myself, the members of my family, my servants and family agents only shall have your permission to utilise your said shop premises for the purpose of looking after my said business.
The plaintiffs stated that pursuant to the above term defendant No. 1 and defendant No. 2 and/or their servants were permitted by them to visit the said shop of the plaintiffs only for the purpose of looking after the said business of commission agency carried on by the plaintiffs. The plaintiffs further stated that by the agreement only a personal right had been created in favour of defendant No. 1 permitting him to enter the shop only for the purpose of looking after the business without creating any right of whatsoever nature in respect of the said shop. The agreement dated June 23, 1955, came to an end by efflux of time on June 30, 1959. On determination of the said agreement the plaintiffs called upon defendant No. 1 to finalise the accounts in respect of the business which was being carried on at their shop premises. They informed defendant No. 1 that they were no longer desirous of continuing the said business and act as his commission agents and asked him to make up the accounts and remove the stock-in-trade etc. lying at their said shop premises. The plaintiffs also intimated to the defendants that as the agreement had come to an end, defendants and/or their family members and/or their agents or servants should not enter into the shop and disturb them. The defendants, however, did not heed to the notice given by the plaintiffs. The defendants, their servants and their agents continued to visit the shop premises daily even after the expiry of the period of the agreement and wrongfully prevented the plaintiffs from attending to the business at their shop. The plaintiffs, therefore, instituted the suit for a declaration that they are in lawful possession of the shop premises bearing No. 582/638 at Mulji Jetha Market, and that the defendants, their family members, servants and agents have no right to enter into or remain in possession of the said shop after June 30, 1959. They have prayed for an injunction restraining the defendants, their servants, agents and family members from entering into the said shop premises. They have also prayed for the amount of commission which may he found due and payable to them under the agreement dated June 23, 1955.
2. The defendants resisted the suit. It is not necessary to set out the several contentions raised by the defendants in their written statement. For our present purpose we need only refer to the contention raised by the defendants in regard to the jurisdiction of the Court in which the suit has been instituted by the plaintiffs. It was contended that defendant No. 1 was the lawful tenant of the plaintiffs in respect of the suit shop premises and, therefore, in view of the provisions of Section 28 of the Bombay Rent Act it was the Court mentioned in that section which alone could entertain the suit and not the Bombay City Civil Court.
3. In the other suit being Suit No. 390 of 1953 the case of the plaintiffs was that the defendant was their licensee and the relief claimed by them was for a declaration that the defendant had ceased to be their licensee and therefore be directed to hand over peaceful and vacant possession of the premises along with the furniture and other articles lying in the premises. The defendant in that suit also raised the same contention as was raised by the defendants in the first suit to which we have already adverted. He stated that he was the tenant of the furnished premises in. the suit and the plaintiffs were his landlords and as there was a relationship of landlord and tenant between the plaintiffs and the defendant, the provisions of the Bombay Rent Act applied to his case and therefore the Bombay City Civil Court had no jurisdiction to entertain the suit.
4. In both the suits the issue as to whether the Bombay City Civil Court had jurisdiction to entertain the suits was treated as a preliminary issue. The learned Judges who disposed of the preliminary issue held relying mainly upon a recent judgment of the Supreme Court reported in Babulal Bhuramal v. Nandram Shivram : 1SCR367 , that the City Civil Court had no jurisdiction to entertain the suits against the defendants when they raised a question or made a claim that arose under the Bombay Rent Act or under any of its provisions. Accordingly the learned Judges directed that the plaints in the aforesaid two suits be returned to the respective plaintiffs for their presentation to the proper Court. It is against these orders returning the plaints to the plaintiffs that the present appeals from order have been preferred to this Court by the plaintiffs in the aforesaid two suits.
5. Section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, so far as is material for our present purpose 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 decide any application made tinder 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 orquestion.
It is the contention of the respondents before us that in view of this section it is the Court of Small Causes, Bombay, and not the Bombay City Civil Court that shall have jurisdiction to entertain the present suits. Now, it is not disputed that the provisions of Part II of the Bombay Rent Act apply to the present premises which are the subject-matters in the aforesaid two suits. Then the question arises whether the present suits are between landlords on the one hand and tenants on the other and relate to the recovery of rent or possession of such premises and the City Civil Court is called upon to deal with any claim or question arising out of the Act or any of its provisions.
6. It is well established that for the purpose of determining whether the ordinary civil Court or the Court constituted under a special Act has jurisdiction to entertain a particular suit, the nature of such suit has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up by the defendants. This rule is so well known that we do not think that it is possible now to controvert it. In Ananti v. Chhannu I.L.R. (1929) All. 501, a Full Bench of that Court held that the jurisdiction of the Court is to be initially determined by the allegations made in the plaint, and the allegations made in the written statement cannot oust that jurisdiction unless and until the allegations of fact have been gone into, tried judicially and found to be true, and that the plaintiff's allegations have been found to be false. Where therefore a plaintiff, alleging himself to be a tenant, sues in the civil Court a defendant, treating him as a trespasser, for possession and compensation regarding a holding or a part thereof, and the defendant pleads tenancy, then the suit is maintainable in the civil Court even after having regard to Sections 99 and 230 of the Agra Tenancy Act. The learned' Judges in that case referred to and followed an earlier Full Bench decision of that Court reported inTarapat Ojha v. Ram Ratan Kuar I.L.R. (1893) All. 387 In the course of their judgment they observed (p. 508) :
Where the plaintiff chooses his forum and the defendant denies the jurisdiction of the court to hear the case, two questions arise, viz.:
1. Whether, on the allegations made in the plaint, the suit is cognizable by the court, and
2. Whether, on the true state of facts, on facts alleged and established by the defendant, the suit should be tried by the court.
Where it is found that, on the allegations made in the plaint, the suit is cognizable by the court, it will have to proceed to find whether the facts alleged in the plaint are established or not. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendant are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety. The reason will be that on the unamended plaint the revenue court would have no jurisdiction to hear this suit. Of course, if the court allows the plaintiff, even at the late stage of the case, to amend his plaint so as to convert the suit into one against a person claiming as a landholder or through a landholder, the plaint can be returned for presentation to the revenue court.
Our own Court has also adopted the same rule for determining the nature of the suit for the purpose of jurisdiction. In Govindram Salamatrai v.Dharampal : AIR1951Bom390 , the learned Chief Justice Mr. Chagla observed (p. 388) :. There can be no doubt that when a plaintiff files a suit against a defendant alleging that ho 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... 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... 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.
Mr. Justice Bhagwati, as he then was, in his concurring judgment has observed that whether a suit was capable of being entertained by the High Court would be determined by a perusal of the plaint which was filed in the High Court.
7. In Jaswantlal v. 'Western Comp., India,' (1969) 61 Bom. L.R. 1087, it was held that in order to decide whether a suit comes within the purview of Section 28 of the BombayRents, Hotel and Lodging House Rates Control Act, 1947, 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 of the Act.
8. If, therefore, it is only the averments in the plaints that are the determining factors in ascertaining the nature of the suit, there cannot be any doubt that the present suits are not suits between a landlord and a tenant and that no claim or question arises out of the Bombay Rent Act or any of its provisions which would have to be determined on the plaints as they stand. In fact, it is not disputed that the averments in the plaints do not disclose any relationship between the parties as that of landlord and tenant or raise any claim or question arising out of the Bombay Rent Act or any of its provisions. It is, however, urged by the learned Counsel Mr. Khambatta that the defendants claim that relationship viz. the relationship of landlord and tenant and have raised questions regarding their rights as tenant under the Bombay Rent Act and, therefore, it is contended that the jurisdiction of the Bombay City Civil Court would be ousted and that the suits would lie only in the Court of Small Causes at Bombay. In support of this contention Mr. Khambatta seeks to rely upon the decision of the Supreme Court reported in Babulal Bhurmal v.Nandram Shivram. The facts in that case were that the landlord had filed a suit in the Court of Small Causes at Bombay which was Suit No. 483/4400 of 1948 against his tenant and against two others who claimed to be the sub-tenants of his tenant. The ground upon which the eviction was sought for by the, landlord in his suit was that the tenant (who had been impleaded as defendant No. 1) had forfeited his rights under the Bombay Rent Act as he had illegally sub-let the premises to others who were defendants Nos. 2 and 3 to the suit. The Court of Small Causes held that subletting upon which the defendants had relied was contrary to law and they could not, therefore, claim protection under the Bombay Rent Act. There was accordingly a decree in favour of the landlord for eviction against all the defendants. The defendants thereafter instituted Suit No. 2178 of 1954 in the Bombay City Civil Court. They were plaintiffs Nos. 1 to 3. Plaintiff No. 1 was the head-tenant, and plaintiffs' Nos. 2 and 3 claimed to be his sub-tenants. It was averred that plaintiffs Nos. 2 and3 were lawful sub-tenants from plaintiff No. 1 and, therefore, entitled to the rights and privileges conferred upon such lawful sub-tenants under the provisions of the Bombay Rent Act. The landlord, who was the defendant in this suit, raised a question of jurisdiction. He contended that the suit as instituted by the plaintiffs could not be entertained by the Bombay City Civil Court in view of Section 28 of the Bombay Rent Act. The Bombay City Civil Court held that it had jurisdiction to entertain the suit but dismissed the suit on merits. The plaintiffs preferred an appeal to the High Court. The High Court decided only the question of jurisdiction and disagreeing with the view of the Judge of the City Civil Court held that the City Civil Court had no jurisdiction to entertain the suit. The judgment of the High Court is reported in Harswarup Khannamal v. Nandram (1955) 58 Bom. L.R. 288. In the appeal before the High Court, the plaintiffs-appellants relied upon Govindram Salamatrai, which we have referred to above. That case was distinguished on the ground that it did not relate to a suit between a landlord and a tenant, but it related to a suit between a licensor and a licensee.
9. Thereafter the plaintiffs went in appeal to the Supreme Court. Their Lordships of the Supreme Court held that the High Court correctly decided that the suit filed by the plaintiffs could not be determined by the City Civil Court and dismissed the appeal.
10. We have read the decision of their Lordships with care with the learned Counsel, Mr. Khambatta, but we have not been able to find any observation in any of the paragraphs of the judgment of their Lordships which would support the present contention made by Mr. Khambatta for the respondents. Their Lordships have in more than one place largely referred to the averments in the plaint and have tried to find out as to what was the suit and what was the relief claimed in such suit. On the other hand, reading the judgment as a whole it seems to us clear that the same test which we have set out above for determining the jurisdiction of the Court was at the back of their Lord-ships' minds when they referred to the several averments made in the plaint which was before them. First they have referred to the plaint and have stated that the plaint clearly asserted that plaintiff No. 1 was entitled in law to sublet the premises in question to plaintiffs Nos. 2 and 3 and that there had been a lawful subletting of the premises to them. In para. 11 of the plaint the plaintiffs asserted that they were always ready and willing to pay the rent in respect of the said premises and to observe and perform the terms and conditions of the tenancy. Paragraph 12 was also referred to by their Lordships wherein the declaration which the plaintiffs prayed for in the suit was in the following terms:
The plaintiffs submit that they are entitled to a declaration that 1st plaintiff is a tenant of the said premises within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, and that the 2nd and 3rd plaintiffs are entitled to the possession, use and occupation of the said premises as the lawful sub-tenants of the 1st plaintiff in respect of the said premises.
Then Clauses (a) and (b) of para. 18 of the plaint were referred to wherein the relief sought by the plaintiffs was mentioned. Clause (c) of para. 18 of the plaint was also referred to wherein the plaintiffs had prayed for an injunction against the defendants, their servants or agents restraining them from proceeding further with the execution of the decree of the Court of Small Causes in Suit No. 483/4400 of 1948. After having referred to the several paragraphs in the plaint, their Lordships observe:
It is manifest from the assertion in the plaint and the nature of the relief asked for, that the plaintiffs based their case on the provisions of theAct.
After having referred to the several paragraphs in the plaint they proceeded to construe the provisions of Sections 28 and 29A of the Act and then they observe:
In a suit for recovery of rent, where admittedly one party is the landlord and the other the tenant, Section 28 of the Act explicitly confers on Courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other Court exercising jurisdiction with respect thereto. Similarly, in a suit relating to possession of premises, where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the Courts specified in Section 28 and no other. All applications made under the Act are also to be entertained and disposed of by the Courts specified in Section 28 and no other. In all such suits or proceedings the Courts specified in Section 28 also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions. The words employed in Section 28 make this quite clear. 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 reasonableinterpretation of Section 28.
We asked Mr. Khambatta to point out any passage in the judgment of their Lordships from which it could be suggested that their Lordships were also considering the contentions of the defendant as having a bearing upon the question of jurisdiction of the Court to entertain the suit before them. He only drew our attention to and strongly relied upon the words used in the question posed by their Lordships:
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?
Mr. Khambatta says that this question covers also a case where in a suit it is not the plaintiff but only the defendant in the position of the respondents before us who has raised a contention that he is a tenant and, therefore, the Bombay City Civil Court has no jurisdiction to entertain a suit against him. It is not possible to hold that such a case is covered by the question posed by their Lordships in the passage which we have quoted above. To us it seems 'that the question covers only two cases. Both of them are cases where the plaintiff either as landlord or as tenant has filed his suit and has asked for a relief which is in the nature of a claim which arises out of the Act or any of its provisions. The first is where the plaintiff alleges that he is the landlord and himself denies that the defendant is his tenant in the sense that he is not entitled to be protected from eviction by any of the provisions of the Act, and the second is where the plaintiff alleges that he is a tenant and himself denies that the defendant is his landlord in the sense that he is not entitled to evict the plaintiff under the provisions of the Bombay Rent Act. The cases covered by the question are qualified by the latter clause, '' 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'. This qualification obviously excludes the case of a defendant raising a plea under the provisions of the Bombay Rent Act.
11. Mr. Khambatta, however, contended that a relief in the nature of a claim which arises out of the Act or any of its provisions could be asked even by a defendant under the provisions of the Bombay Rent Act. We have ourselves looked into the provisions, particularly those of Part II of the Bombay Rent Act, and we do not find any provision in that Part which entitles a person in the position of a defendant to ask for such a relief in the same manner as plaintiff can do in a suit properly instituted by him. Mr. Khambatta refers us to the provisions of Section 12 of the Bombay Rent Act, which is in Part II. Section 12, as it reads, refers only to the suit which can be instituted by the landlord under certain circumstances stated in that section. It is true that when the tenant complies with the provisions of Clause (b) of Sub-section (3) of Section 12, the landlord will not be entitled to a decree for eviction. It only means that in the event of such compliance by the defendant plaintiff's suit for eviction will be dismissed. It does not mean that under the aforesaid clause any right has been conferred upon the defendant as such to ask for a relief in the nature of a claim which arises out of the Act or any of its provisions. The words of the clause speak only of the suit wherein the relief claimed by the plaintiff is eviction of the defendant and do not refer to any relief as such which can be claimed by and granted to defendant. The clause only sets out the circumstances under which the relief for eviction claimed by the plaintiff shall not be granted to him. Besides, the words used in the question posed by their Lordships are 'the relief asked for in the suit' which obviously mean that it is only the plaintiff who can ask for a relief by his suit.
12. Their Lordships themselves have in the subsequent part o the judgment explained as to what cases were intended to be covered by the question posed by them. They have first referred to the Suit No. 483/4400 of the Court of Small Causes which had been admittedly filed by a landlord. Their Lordships have described this suit as a suit by a landlord where there was a denial of the right of the defendants as tenant. It is true that the right asserted by the defendants in that suit is described as a claim which arose out of the Act or any of its provisions. This was necessary to explain the precise nature of the right set up by the defendants and the reference to the precise nature of such right had a bearing upon the averments in the plaint because in their Lordships' view the suit, in substance, was a denial of the right of the defendants as tenants. Their Lordships were only showing that the right or claim set up by the defendants under the Act had been denied by the plaintiff in his suit. For understanding the full implication of the plaintiff's denial of the right of the defendants, it was necessary to know what that right was. The first case contemplated in the question posed by their Lordships, therefore, seems to refer to such a suit as the one filed by the landlord in the Court of Small Causes, Bombay.
13. In the next paragraph of their judgment their Lordships have referred to the second class of suits covered by the question posed by them earlier. Indeed the suit which was before their Lordships was one of such suits. It was a suit which raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act. The suit related to the possession of the premises and the right of the landlord (defendant) to evict any of the plaintiffs was denied on the ground that plaintiff No. 1 was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to plaintiffs Nos. 2 and 3.
14. Therefore, it seems to us that in no part of the judgment of their Lordships is there any reference made to the contentions of the defendant as being germane in considering the question of jurisdiction of a Court to entertain a particular suit.
15. Mr. Khambatta also relied upon the following passage where their Lordships gave their considered view on the interpretation of the provisions of Section 28. Their Lordships 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.
It seems to us that the words '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' must refer only to a suit in which plaintiff makes a claim of such relationship. What seems to have been emphasized throughout the judgment of their Lordships is that if it is found from the nature of the suit which their Lordships determined by reference to the averments in the plaint that the plaintiff has made out a claim which arises under the Act then his suit will have to be tried by the Court specificd in Section 28 of the Act.
16. In Jaswantlal v. 'Western Company, India' the decision of the Supreme Court was also considered at length and it was held that if the suit as framed was by a landlord or a tenant and the relief asked for was in the nature of a claim which arises out of the Act or any of its provisions then only and not otherwise the suit would be covered by Section 28. The learned Counsel contended that the observations made by the learned Judges in that case were not strictly necessary in view of their earlier finding that the defendant was not a tenant as the sub-tenancy claimed by him contravened the provisions of Section 15 of the Bombay Rent Act. It is not possible to hold that the observations made by the learned Judges were not strictly necessary. It seems to us that arguments were made presumably on alternative grounds and the learned Judges were called upon to give their considered view on the arguments raised by a reference to the decision of the Supreme Court. Even assuming that the observations to which we have referred were not strictly necessary, still it seems to us that the learned Judges have, with respect to them, correctly interpreted the decision of the Supreme Court and we are in entire agreement with those observations.
17. Mr. Khambatta strongly relied upon the decision of this Court reported in Ebrahim Saleji v. AbdullaAlin : AIR1951Bom294 , where the learned Judge Mr. Justice Gajendragadkar, as he then was, held that Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, includes within its jurisdiction all suits and proceedings where the trial Court has to consider the claims or questions arising out of the Act, and it makes no difference whether such claim or question arises from the allegations made in the plaint or those made in the written statement. An appeal lies under Section 29 of the Act against a decree or order made in the suit whether it is in favour of the plaintiff or against him. This case came to be considered by the Court of Appeal in Govindram Sala-matrai v. Dharampal, where the learned Judges of this Court did not approve of the reasoning adopted by Mr. Justice Gajendragadkar; in fact, it has been expressly overruled. Further we do not think that the reasoning adopted by Mr. Justice Gajendragadkar will be of much assistance in considering whether the present suit could be entertained by the Bombay City Civil Court or the jurisdiction of that Court is ousted. If, as we have held, it is only the averments in the plaint which are relevant and which alone must be looked to before the nature of the suit is ascertained, then we do not see how the contentions or even the claims made by the defendant at a subsequent stage could be regarded as relevant in considering the nature of the suit, which obviously is not his suit, and in determining the jurisdiction of the Court.
18. For these reasons, the orders that have been passed in the two suits must be set aside and the suits sent back to the lower Court for disposal in accordance with law. The appellants to get their costs of the appeals.
19. The learned Judge will also consider as to who should bear the costs so far incurred in the suits. We direct that the hearing of both the suits be expedited.