1. This is an appeal against the judgment and decree of the City Civil Court in Suit No. 3932 of 1964 returning the plaint for presentation to the proper- Court on the ground that the City Civil Court has no jurisdiction to entertain the suit.
2. It is well settled that the jurisdiction of a Court to decide the issue depends on the averments contained in the plaint read as a whole and not on the defence that may be taken up by the defendant. It follows that even if in the plaint the plaintiff has attempted to meet anticipated defence it cannot affect the plaintiff's basic cause of action in the plaint. To appreciate the cause of action in the plaint it is necessary to consider the history leading to the present suit.
3. The plaintiffs are the owners of a building known as 'Ganpati Nivas' at Cadell Road. One Shanta Gopichand Rin was the monthly tenant in respect of the ground floor of the said building. The plaintiffs filed a suit in the Small Cause Court being R.A.E. Suit No. 15117 of 1958 against Shanta Rin and the present defendant on the ground that Shanta had illegally sublet the premises to the defendant herein. On 26-2-1959 and 9-3-1959 Shanta and the present defendant filed their respective writ en statements denying any subletting. Both of them stated that the defendant had no interest in the said premises. It should be noted that the defendant did not at any time amend his written statement to claim the subtenancy though the suit was ultimately heard and dismissed on 27-4-61 i.e. after the amendment of the Rent Act conferring protection on the sub-tenants, provided the sub-tenancy was granted prior to 21-5-1959. At the final hearing the plaintiffs did not press the ground of sub-letting, obviously on the basis that both the defendants had denied the subletting in their written statements and because after 21-5-1959 it will not help the plaintiffs to' establish sub-tenancy as such sub-tenancy if established would be protected and would therefore be against the interest of the plaintiffs. As against this, if there really was a sub-tenancy the defendant would have amended the written statement as it would obviously be in his interest to do so. The other ground taken up by the plaintiffs was of bona fide requirement which also appears to have been disallowed by theSmall Cause Court. The Plaintiffs thereafter filed, another suit bearing No. 4109 of 1962 against Shanta only on the ground of non-payment of rent The present defendant was not made a party to that suit. It can be presumed that he was not made a party inasmuch as he had already stated on oath that he had no interest in the premises and continued to do so even till 1961. On 1-2-1963 an ex parte decree was passed against Shanta for eviction. In the execution proceedings the defendant obstructed and an Obstructionist Notice No. 344 of 1963 was issued on 29-3-1963. The defendant contended that he was a subtenant. On 31-3-1964 the notice was discharged holding that the defendant was a lawful subtenant. It is difficult to understand how the learned Judge could have come to the conclusion that subtenancy existed as the burden lay heavily on the defendant to establish the subtenancy inasmuch as he would have to establish subtenancy between 19-3-1959 and 21-5-1959 by some cogent and unimpeachable evidence and as in the written statement he had not claimed subtenancy till 1961. Not only that but he had allowed the plaintiffs to give up their ground of subtenancy based on these written statements assuming there: was any subtenancy.
4. The present suit is filed by the plaintiffs, inter alia, for setting aside the order of the Small Cause Court. This suit is based on mixed causes of action, one cause of action is for setting aside the order under Order 21, Rule 103 of C. P. C. and another for eviction of the defendant on the ground that he had no right, title or interest in the premises. The reading of the plaint makes it absolutely clear that the plaintiffs vehemently deny that they are the landlords and the defendant a tenant. The averments of the plaintiffs are that the plaintiffs are the owners of the building and the defendant has no right, title and interest in the building. I do not find any averment in the plaint which can lead to any other conclusion. The plaint does not proceed on the basis that the plaintiffs are the landlords and the defendant is the tenant. It would be the defendant's defence that he is a lawful subtenant. . It is difficult to understand how such a suit can be filed by theplaintiffs in the Small Causes Court. I cannot visualize how the plaint or application can be drafted so as to bring the case within the jurisdiction of the Small Causes Court while at the same time denying the relationship of landlord and tenant. The plaintiffs must necessarily say that according to them there is no relationship of landlord and tenant between them and the defendant and on this ground alone the Small Causes Court will be bound to reject their plaint.
5. Mr. Tijoriwala has strongly relied on the judgment of Palekar, J. (as he then was) of this Court dated 1-2-1967 in Civil Revn. Appln. No. 1934 of 1962 with Civil Revn. Appln. No. 1935 of 1962. The facts therein were very similar to this case. There also the proceedings arose out of the execution proceedings. After an order in execution proceedings the suit was initially filed in the Small Causes Court which was decreed but on appeal the Appellate Bench of the Small Causes Court came to the conclusion that the Small Causes Court had no jurisdiction. A suit was therefore filed in the City Civil Court. In that case the petitioner was the landlord and one Shetty was the tenant and the respondent was claiming the sub-tenancy rights. After considering various authorities, Palekar, J. observed as follows:
'There is no dispute that Shetty was the tenant of the petitioner and the petitioner was entitled to file a suit for possession against Shetty in the Small Causes Court. That was plainly a suit by a landlord against his tenant relating to possession. It is also not disputed that only the Small Causes Courts have jurisdiction to remove obstruction in execution of that decree. The decree was a decree of the Small Causes Court and was executable by that Court. In execution, that Court was entitled to put the petitioner in possession against any person bound by the decree. A person bound by the decree is not necessarily the judgment-debtor. A person may be bound without being a judgment-debtor if that person's possession is on behalf or relatable to the judgment-debtor. If the petitioner had succeeded in the obstructionist notice, the petitioner would have been put in possession against the respondents by the Small Causes Court. On the other hand, if the respondents wanted to be put in possession being unsuccessful in the resistance, they would have been required to file a suit against the petitioner, and since, they claimed to be tenants, though independently of Shetty, the suit filed by them against the petitioner would have been a suit between the tenant and the landlord cognizable only by the Court of Small Causes under Section 28 of the Act. Unfortunately for the petitioner, he was unsuccessful in the obstructionist notice, and, therefore, he had to file the suit. In that suit his claim is identical with the claim in the obstructionist proceedings, viz., that the decree against Shetty obtained by him is executable against the respondents. He had to file the suit, because it was necessary for him to do so within one year as required by the Statute. The notice of obstruction had been summarily disposed of, and in a sense, the suit filed by the petitioner was merely a continuation of the execution proceedings he had started against the tenant. In my opinion in a very real sense, the suit is still a suit between the landlord and tenant relating to possession in which a claim or question under the Act arises. Mr. Hungund pointed out that if this is really a suit between a landlord and tenant, then the tenant Shetty ought to have been made a party, and since he is not made a party, the suit cannot be regarded as a suit between a landlord and tenant. It appears to me that this is too technical a way of looking at the problem. Even if Shetty had been made a party, he would not have been anything more than a formal party. No relief was claimed against him. indeed, no relief was claimable against Shetty because already there was a decree for eviction against him and the relief for eviction could have been obtained by executing that decree. The plaint clearly mentions that this very decree which has been obtained by the petitioner against Shetty is binding on the respondents, and, therefore, executable against them personally. The mere fact that Shetty has not been made a party that is to say, his name is not mentioned in the title of the suit will not make the suit any the less a suit which can be described as a suit between a landlord and tenant relating to possession of the property in which a claim or question under the Act arises.'
6-7. There are two aspects about the judgment of Palekar. J. which requireconsideration. If that judgment was good law the position will be that the jurisdiction of a Court will depend not upon the cause of action in the plaint but on the defence that a defendant may take up to contest a plaintiff's claim. The. judgment also assumes that the relationship between the judgment-creditor and the person claiming through the judgment-debtor is necessarily the same as that between the judgment-creditor and judgment-debtor. This cannot be the case every time. On the basis oi this judgment the person purporting to claim through judgment-debtor may be a rank trespasser qua judgment-creditor, such a person may also be a rank trespasser claiming a completely false relationship between himself and the judgment-debtor. Even in such a situation only the Small Causes Court, which is a special Court, will have jurisdiction by virtue of the claim made by such a person though false. If the reasoning of the judgment of Palekar, J. is applied fully in a case other than between the landlord and the tenant the position will be as follows:
If a suit is filed in the City Civil Court for accounts of partnership valuing the claim below Rs. 50,000/- and the ultimate decree passed is for more than Rs. 50,000/- and after passing of the decree the plaintiff attaches the property of the judgment-debtor of a value of over Rs. 50,000/- in execution and a third party comes forward to contest the application by claiming to have an independent right or right of a mortgagee which necessarily must arise through the judgment-debtor and in such a situation if the Obstructionist Notice is dismissed, the plaintiff will have to file a suit only in the City Civil Court though the valuation of the suit for the purpose of Court-fees will necessarily have to be more than the one in which the City Civil Court can exercise its jurisdiction. I do not think that such an interpretation can be given to the provision of Order 21, Rule 103 of the Civil Procedure Code.
8. It is clear that the claim in the suit in which the decree was passed and the present suit is not identical or similar. The cause of action in the first suit was clearly based on the relationship of landlord and tenant, the ground of eviction arising out of the Rent Act. In the execution proceedings and accordingly even in the present suit the plaintiffs' contention is that they are the owners of the property with a decree against the tenant. The respondent-defendant is not a tenant nor does he have any right through a tenant but is a rank trespasser in the property, purporting to claim a right through the tenant which is false or in any event which cannot give any protection of the Rent Act or any other law. In such a situation in my view it will be impossible for Small Causes Court to have jurisdiction since it can have jurisdiction only if the suit was admittedly between landlord and the tenant and relating to possession or for reliefs arising under the Act.
9. Mr. Patil for the petitioners has relied on the judgment of Kantawala C.J., dated 26-4-1976 in Civil Revn. Appln No. 724 of 1973. In that case also the facts were very similar to the present case. After considering various decisions, including the aforesaid judgment of Palekar, J., the Chief Justice relying on a latter judgment of this Court delivered by Tulzapurkar, J. and reported in Paul Vaz v. Elizabeth : AIR1967Bom389 which again relied on an earlier Division Bench judgment of this Court in the case of Damul v. Shripat, (1904) 6 Bom LR 301, held that a suit instituted following upon adverse decision in execution application, would not be a continuation of the summary application but an independent proceeding governed by the relevant provisions of the of the Civil Procedure Code. With respect I am in entire agreement with the judgment of Kantawala C.J. This judgment obviates the difficult situation that would otherwise have arisen as pointed out by me above under the judgment of Palekar, J. The decision in Damul v. Shripat was not considered by Palekar, J. The entire ratio of the decision of Palekar, J., is that since the suit is continuation of the execution proceedings in which the order was passed the Court in which the execution proceeding lay, alone had jurisdiction. This ratio is clearly contrary to the earlier Division Bench decision and so not good law and I respectfully agree with the judgment of Kantawala, C.J., and prefer to follow the same.
10. In my view, therefore, looking to the cause of action in the plaint it is clear that the City Civil Court alone has jurisdiction to try the claim as made by the plaintiffs and the Small CausesCourt will have no jurisdiction to try the same.
11. In the result the appeal is allowed. The respondent to pay the cost of the appeal. The order of the trial Judge dated 28-7-1978, directing the return of plaint to the plaintiffs for presentation to the proper Court is set aside. The suit shall be heard and disposed of by the said Court in accordance with law. This being a very old suit filed in 1964. I direct that the City Civil Court will hear and dispose of the suit before the end of July, 1981.
12. Appeal allowed.