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Narandar B. Agarwal and anr. Vs. Usman Haji Abbas and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberAppeal from Order No. 339 of 1982
Judge
Reported in1982(1)BomCR863
ActsSpecific Relief Act, 1963 - Sections 6; Presidency Small Cause Courts Act, 1882 - Sections 41, 41(1) and 41(2)
AppellantNarandar B. Agarwal and anr.
RespondentUsman Haji Abbas and anr.
Appellant AdvocateN.H. Gursahani and ; G.T. Khilnani, Advs., i/b., Khilnani and Co.
Respondent AdvocateH. Suresh and ; B.R. Choudhari, Advs.
Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - it is by now well settled that the question of title is wholly irrelevant in a suit under section 6 of the specific relief act. , in the aforesaid decision, after making reference to the earlier decisions of this court as well as the division bench decision of this court in nagin v. ..is also indicative of the fact that the suits like the present one under section 6 of the specific relief act also fall within its ambit......november, 1981. therefore, they filed a suit for restoration of possession under section 6 of the specific relief act on the basis that they were in possession within six months before the date of the suit and were dispossessed without due process of law. it is not necessary to make a detailed reference to other averments made in the plaint.2. the defendants resisted the suit on various grounds and also raised a preliminary contention that the city civil court has no jurisdiction to entertain and decide the suit. the city civil court came to the conclusion that the suit squarely falls under the provisions of section 41 of the presidency small causes courts act, 1882, hereinafter referred to as the act, and therefore, the small cause court alone will have the jurisdiction to entertain.....
Judgment:

C.S. Dharmadhikari, J.

1. The appellants-plaintiffs filed a suit for possession of the suit property being Godown No. 10 on Plot No. 176. Reti Bunder, Darukhana, Bombay 10. It is the case of the plaintiffs that they were in exclusive possession of the suit premises, but were dispossessed some time in November, 1981. Therefore, they filed a suit for restoration of possession under section 6 of the Specific Relief Act on the basis that they were in possession within six months before the date of the suit and were dispossessed without due process of law. It is not necessary to make a detailed reference to other averments made in the plaint.

2. The defendants resisted the suit on various grounds and also raised a preliminary contention that the City Civil Court has no jurisdiction to entertain and decide the suit. The City Civil Court came to the conclusion that the suit squarely falls under the provisions of section 41 of the Presidency Small Causes Courts Act, 1882, hereinafter referred to as the Act, and therefore, the Small Cause Court alone will have the jurisdiction to entertain and try the suit and hence passed an order returning the plaint for its presentation to the proper Court. It is this order of the City Civil Court dated 18th of May, 1982 in Notice of Motion No. 1173 dated 12th of March, 1982 in Cause Suit No. 132 of 1982, which is challenged in the present appeal.

3. Shri Gursahani, learned Counsel appearing for the appellants contended before me that the City Civil Court has committed an error in coming to the conclusion that it has no jurisdiction to entertain and try the suit, which was under section 6 of the Specific Relief Act. According to Shri Gursahani various averments made in the plaint were in the nature of History and background of the litigation and in substance the suit was filed against the trespasser based on prior possession and subsequent dispossession. Such a suit is wholly covered by section 6 of the Specific Relief Act and, therefore, the City Civil Court will have the jurisdiction to entertain and try such a suit. In support of his contention he has relied upon the decisions of this Court in Shivax C. Cambatta v. Sunderdas Ebji 52 Bom.L.R. 381; Madhav Prasad Nigam v. Indirabai Chandravarkar 55 Bom.L.R. 21; Dattatraya Krishna Jangam v. Jairam Ganesh Gore 64 Bom.L.R. 645 and Pandhari v. Mirabai 1980 Mh.L.J. 39.

4. On the other hand it is contended by Shri Suresh, learned Counsel appearing for the defendants that the present suit is wholly covered by section 41 of the said Act, and, therefore, the City Civil Court was right in returning the plaint for its presentation to the proper Court. Shri Suresh has also placed reliance upon an unreported decision of this Court in Notice of Motion No. 1310 of 1980 in S.C. Suit No. 1460 of 1980, Chimanlal Dutta v. Jharna Ghosh and others, decided by Mehta, J., on 5/6th February, 1981. Though it was initially contended by Shri Suresh that the present suit is not covered by the section 6 of the Specific Relief Act, he has also now contented that even if it assumed that the said suit is under section 6 of the Specific Relief Act then also in view of the decision of Mehta, J., the Small Cause Court alone will have the jurisdiction to entertain such a suit and hence it was rightly held by the City Civil Court that it had no jurisdiction.

5. It is no doubt true that Mehta, J., in Notice of Motion No. 1310 of 1980 in S.C. Suit No. 1460 of 1980 has held that even a suit under section 6 of the Specific Relief Act is covered by section 41 of the said Act. However in my opinion the said view requires reconsideration for more than one reason. It is by now well settled that the question of title is wholly irrelevant in a suit under section 6 of the Specific Relief Act. The area covered by section 6 of the Specific Relief Act is very limited. Under the said provision if any person is dispossessed without his consent of immovable property, otherwise than in due course of law then he can approach the Civil Court to recover possession thereof notwithstanding any other title that may be set up in such a suit. Thus, the question of entitlement to possession is wholly irrelevant Law on the subject is wholly explained in the latest decision of this Court in Pandhari v. Mirabai 1980 Mh.L.J. 39 and, therefore, it is not necessary to probe into the said question in detail. Once it is held that the question of title is not relevant in a suit under section 6 of the Specific Relief Act, then in my opinion such a suit prima facie is not covered by Section 41 of the said Act. Mehta, J., in the aforesaid decision, after making reference to the earlier decisions of this Court as well as the Division Bench decision of this Court in Nagin v. Haribhai, : AIR1980Bom123 , in para 9 of his judgment has observed as under :

'The objection with regard to the jurisdiction of this Court is founded on sound reason. I am inclined to agree with Shri Thakkar and Shri Mehta that the provisions of the amended section 41(1) of the Presidency Small Causes Courts Act are comprehensive and would embrace a suit filed under section 6 of the Specific Relief Act. The fact that sub-section (2) of section 41 which has carved out certain exceptions makes no mention of suits filed under section 6 of the Specific Relief Act, is an indication that the legislature did not intend to exempt such suits from the purview of section 41(1). The wording of section 41(1) 'The Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings......'is also indicative of the fact that the suits like the present one under section 6 of the Specific Relief Act also fall within its ambit. The observations of the Division Bench in the case of Nagin v. Haribai, : AIR1980Bom123 cited heretofore support the submission made on behalf of the defendants. I am of the view that the observation of Chagla C.J., in the case of Shivax C. Cambatta 52 B.L.R. 381 relied upon by Shri Shah cannot apply to the provisions of section. 41 of the Presidency Small Causes Courts Act. I, therefore, held that the present suit is 'a suit which is covered by the provisions of section 41(1) inasmuch as it is a suit between a landlord and tenant relating to the recovery of possession of immovable property.' The plaintiff has served the relationship of landlord and tenant as between him and the defendants. In this view to the matter, I hold that this Court will have no jurisdiction to try the suit.'

I do not find anything either in section 41 of the said Act or in the decision of this Court in Nagin v. Haribai. : AIR1980Bom123 , from which an inference could be drawn that even suits under section 6 of the Specific Relief Act, where the question of title is wholly irrelevant, are also covered by section 41 of the said Act. Sub-section 2 of section 41 of the said Act only lays down:

'41(1).....

(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other Law for the time being in force applies.'

Only because a reference is not made to the provisions of section 6 of the Specific Relief Act in sub-section (2) of section 41 of the said Act, an inference cannot be drawn that the suit is also covered by sub-section (1) of section 41 of the said Act. What is contemplated by sub-section (1) of section 41 of the said Act is a suit or a proceeding between licensor and a licensee, or a landlord and a tenant, relating to recovery of possession of immovable property etc. The said section does not deal with the suit filed by person who has been dispossessed illegally. As already observed a suit contemplated by section 6 of the Specific Relief Act has nothing to do with the title of a person and hence whether a person is a licensor or a landlord is not very much relevant while deciding a dispute covered by section 6 of the Specific Relief Act. In this view of the matter, in my opinion, the decision of Mehta, J., deserves reconsideration.

6. Hence it is directed that the record and proceedings of this appeal from order may be placed before the Honourable Chief Justice for referring the same to a Larger Bench.

Case referred to larger Bench.


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