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Raza Ali Gulam HussaIn Zaboli of Bombay Vs. Ratilal Amritlal Shah of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberNotice of Motion No. 1844 of 1985 in Suit No. 651 of 1975
Judge
Reported in1986(1)BomCR466; (1985)87BOMLR450
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10; Presidency Small Cause Courts Act, 1882 - Sections 19, 46 and 41; Maharashtra Presidency Small Cause Courts (Amendment) Act, 1976
AppellantRaza Ali Gulam HussaIn Zaboli of Bombay
RespondentRatilal Amritlal Shah of Bombay
Appellant AdvocateI.S. Khemani, Adv.
Respondent AdvocateGirish Desai and ;M.P. Rao, Advs., i/b., Hooseni Doctor & Co.
Excerpt:
.....small cause courts act, 1882 as amended by maharashtra act no. xix of 1976, it is clear that a suit filed by a licensor for recovery of possession of immovable property from a licensee much prior to 1976 and pending in the high court or the city civil court has to be decided as if the maharashtra act no. xix of 1976 has never come on the statute book and for the purpose of such a suit unamended section 41 of the presidency small cause courts act, 1882 holds the field. the said section 41 does not contemplate any 'suit' at all but an application and hence section 10 of the code of civil procedure, 1908 has no application at all to stay the suit in the high court.;a suit filed by a plaintiff in the small cause court for a declaration as a protected licensee and for a further..........was the sub-tenant in respect of the said portion. he has not even stated in the plaint in his own suit filed in the small causes court, to which i will refer presently, that he was a licensee in respect of the relevant portion of the shop from 1-6-1971 or 1-1-1973. his case has been that he was in exclusive occupation of that portion and on that basis he has been contending that he is entitled to the protection extended to persons such as him by the amendment of section 5(11) and by virtue of section 15a of the bombay rent act. but it can be stated with reasonable certainty that in the context of the provisions of section 15a of rent act, the present suit filed by the plaintiff will prove a damp squib if it is found by any competent court that the defendant was a mere licensee in.....
Judgment:

Sharad Manohar, J.

1. The dispute, which is the subject matter of this Notice of Motion and of the suit in which the Notice of Motion is taken out by the defendant, relates to a portion of the shop situate in Mehemadi Mention, Gokhale Road (South), Dadar, Bombay-400 028. There is no dispute that the present plaintiff is the tenant in respect of the said shop. There is further no dispute that a portion of the said shop has been in occupation of the defendant (who has taken out the present Notice of Motion) and the defendant has been carrying on the business of chemist in the said portion, whereas, in the remaining portion, the plaintiff carries on hotel business. The dispute in this case revolves around quite narrow a question viz. whether the plaintiff inducted the defendant in the said portion of the shop for conducting the plaintiff's business of chemist of the defendant was given only some space in the shop and he was carrying on his own business of chemist therein. There is no dispute that the defendant was inducted by the plaintiffs in the particular portion of the shop, firstly by an agreement dated 1-6-1971 which was subsequently renewed on 1-1-1973. It is not the case of the defendant that he was the sub-tenant in respect of the said portion. He has not even stated in the plaint in his own suit filed in the Small Causes Court, to which I will refer presently, that he was a licensee in respect of the relevant portion of the shop from 1-6-1971 or 1-1-1973. His case has been that he was in exclusive occupation of that portion and on that basis he has been contending that he is entitled to the protection extended to persons such as him by the amendment of section 5(11) and by virtue of section 15A of the Bombay Rent Act. But it can be stated with reasonable certainty that in the context of the provisions of section 15A of Rent Act, the present suit filed by the plaintiff will prove a damp squib if it is found by any Competent Court that the defendant was a mere licensee in respect of relevant portion of the shop on 1-2-1973, when the Act amending the Rent Act came into force. On the other hand, it is not disputed with very much seriousness that if what was given by the plaintiff to the defendant was not only a space enclosed by 4 walls but also a business for conducting, then the defendant will have no defence to the suit. It is, thus clear that the question involved in this dispute is extremely narrow a question.

2. I may briefly refer to the events, before the present suit, which have necessitated the present Notice of Motion filed by the present defendant for stay of the present suit under section 10 of the Civil Procedure Code.

As stated above, the second agreement between the plaintiff and the defendant, on the basis of which the defendant claimed possession of the portion in question, took place on 1-1-1973. It appears that the dispute started between the parties thereafter, as a result of which the present defendant filed R.A. Suit No. 30/114/75 in the Court of Small Causes, at Bombay for a declaration that---

(a) he was a protected tenant (or rather, as it should have been said a protected licensee or a deemed tenant) in respect of the particular portion of the suit shop; and

(b) he was the owner of the Silver Jubilee Store, which admittedly is a Chemist shop and of the furniture lying in the said portion of the shop.

He also asked for certain other ancillary reliefs, but they are of no relevance for the purpose of this Notice of Motion.

It is conceded before me that though a relief for interim injunction was asked for in that suit by the present defendant, who was the plaintiff in that suit, no injunction as such has been obtained by him and that he has been satisfied in that suit with a statement made by the present plaintiff that the defendant would not be dispossessed without the due process of law. Mr. Khemani states before me that this was the result of the fact that the present suit was pending against the defendant. It is, therefore, clear that the present plaintiff was entitled to prosecute the present suit and obtain decree against the present defendant. But excepting this remedy, the present defendant was given assurance of not being dispossessed by the present plaintiff.

Thereafter, the present suit was filed by the present plaintiff in this Court on 19th June, 1975. The reliefs prayed for in the present suit are:

(a) that the defendant be ordered and decreed to forthwith, deliver to the plaintiff possession of the business viz. Silver Jubilee Stores (Chemists and druggists) together with the stock-in-trade, furniture and fixtures mentioned in the Schedule to the agreement dated 1st January, 1973; or

(b) that in the alternative to prayer (a) above the defendant be ordered and decreed to forthwith deliver to the plaintiff possession of the portion of Shop No. 7 on the ground floor of the building known as Mahamadin Mansion, Gokhale Road (South), Dadar, Bombay-28.

3. Both the suits are merrily pending for the last 10 years. The issue involved is a very narrow issue and for the decision of this issue both the suits are lingering on for years together. No Court can be happy about such a situation.

In these circumstances, an application was made before me on behalf of the present plaintiff for hearing of this present suit at an earlier date. The application was opposed by the defendant and the main ground for opposition was that the defendant has already instituted a suit for vindication of his right in the Court of Small Causes. Contention was that, that suit being earlier in time section 10 of the Civil Procedure Code applies and that this Court should have to stay its hand until that suit was decided.

I was somewhat sceptic about this position and hence, I directed the defendant to institute appropriate proceedings in this Court for getting the present suit stayed. The defendant has, therefore, taken out the present Notice of Motion before me only, for stay of the present suit having regard to the fact that his own suit is anterior in time to the present suit. Significantly enough, this Notice of Motion is being taken out, for the first time, after 10 years.

4. The question was argued extensively before me both by Mr. Khemani for the defendant and Mr. Desai for the plaintiff and quite a few authorities were also cited by Mr. Desai. But after hearing both the learned Counsel, I am satisfied that the question is capable of being disposed of on the plain reading of section 10 of the Code in conjunction with section 46 of the Presidency Small Cause Courts Act, 1882, as amended up to date, and section 41 of the same Act, as it existed before the amendment brought about by Maharashtra Act 19 of 1976.

5. The relevant portion of section 10 of the Code runs as follows:

'No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in (India) having jurisdiction to grant the relief claimed.'

Even a superficial analysis of the above section would show that the following positions must exist in order to attract its application.

(a) the subsequent suit in the Court and the previous suit, both, must involve an issue or issues which are directly and substantially the same;

(b) the parties must be the same in the legal sense;

(c) the parties must be litigating under the same title; and

(d) the Court in which the previous suit was filed must have had jurisdiction to entertain the subsequent suit filed in the other Court.

There is no dispute about the second and the third ingredient. The main question now is as regards the fourth ingredient, that is to say as to whether the present suit filed by the plaintiff could have been entertained by the Small Causes Court at any time. It cannot be disputed that if the Small Causes Court has or had no jurisdiction to entertain the present suit as a suit, the provisions of section 10 of the Code cannot be attracted.

The first ingredient is also in doubt. But I will refer to that aspect a little later.

6. It is not disputed before me that but for the provisions of section 41 of the Presidency Small Causes Court Act, the present plaintiff could have claimed any relief, prayed for in this suit against the present defendant, in the Court of Small Causes. The simple reason for this is that the Court of Small Causes does not have jurisdiction to entertain suit on title or suit for recovery of possession of immovable property. But the plaintiff might have been able to file an application to the Small Causes Courts under section 41 of the Small Causes Court Act, as it then existed, for a direction from the Small Causes Court compelling the defendant to deliver the property. But contention was urged before me that the said section 41 is now amended and that with effect from the year 1976, the section contemplates 'suit' being instituted even by the persons such as the present plaintiff, who is at the most a Licensor, for possession of the portion of the shop made over by him to the defendant. After the year 1976, a suit can be filed by a person such as the present plaintiff even for the relief which has been claimed by him in the present suit, in the Court of Small Causes.

With effect from the year 1976, the Amending Act, Maharashtra Act No. XIX of 1976 came into force. The suit filed by the person such as the present plaintiff in this Court after the advent of the said amending Act, would have seriously faced the plea of bar in the form of stay under section 10 of the C.P.C. Whether the suit would be entertainable at all or not is a question which I need not address myself in this judgment. But this much can be stated with certainty, viz. that if the present suit was filed after the advent of the amending Maharashtra Act No. XIX of 1976, the suit might have been required to be stayed, having regard to the provisions of section 10 of the C.P.C.

7. But one difficulty for the present is that the present suit is filed not after 1976, but very much before the year 1976. It is filed on the 19th June, 1975, long before the amending Act came into force and the further difficulty for the defendant is that the amending Act itself makes it clear by section 46 thereof that all suits pending in this Court or in City Civil Court shall be decided as if Maharashtra Act No. XIX of 1976 never came on the statute book. For the purpose of this suit, the present section 41 of the Maharashtra Act has to be totally ignored. For the purpose of the present suit, the unamended section 41 of the Small Causes Court Act holds the field and so far as that section is concerned, it does not contemplate any 'suit' at all. The subsequent suit required to be stayed by section 10 of the Code is the one which is preceded by a 'suit' between the same parties, litigation under the same title and issue directly and substantially the same.

This being the position, section 10 of the Code has no application at all. The present Notice of Motion is, therefore, misconceived.

8. I may mention here that in all probability the parties were fully aware of this position which position probably accounts for the fact that this Notice of Motion is taken out by the defendant after 10 years. I have already mentioned above that in the suit filed by the defendant in the Small Causes Court, no injunction as such was finally obtained by the present defendant (plaintiff in that suit) during the pendency of that suit. The plaintiff in that suit, who is the defendant in this suit, was satisfied by the statement made by the present plaintiff that the possession of the plaintiff in that suit will not be disturbed by the plaintiff in this suit without due process of law. Mr. Khemani specifically stated before me that this was done because the pendency of the present suit was something to which both the parties as well as the Court were very much alive. It was not the contention in those proceedings that this Court has no jurisdiction to entertain the present suit. Contention was that both the Courts were having concurrent jurisdiction.

To my mind, such a position cannot be, normally, countenanced. Normally, conflict of jurisdiction is avoided by the statutes.

If the present defendant was really serious about the present contention, the present Notice of Motion for stay under section 10 of the Code would have been taken out by the present defendant long ago, that is to say, immediately after the summons of the present suit was served upon the defendant. I do not mean to say only that the delay or laches on the part of the present defendant disentitles him from asking for stay under said section 10. That may or may not be so. What I am driving at is that the parties themselves were aware of the position emanating from the inter-action of sections 41 and 46 of the Small Causes Courts Act & section 10 of the Code and that was the reason why no such Notice of Motion was taken out by the defendant until now.

This Notice of the Motion has been taken out only when the Court showed its inclination to consider the plaintiff's application for early hearing favourably. In this connection, I may mention that normally I would have found it very difficult to accede to this request of expedition by the plaintiff. But what happened in the present case was that immediately when the application was made on behalf of the plaintiff, Mr. Khemani started opposing the same with such vigour and gusto that the Court has always expressed its opinion that no party can have any justification for opposing application for expedition. After all every party wants justice from the Court and whether it is the plaintiff or the defendant neither of them has a right to tell the Court that he wants justice but at a later date, not immediately. A very natural reaction of the Court to such emphatic and vehement opposition would, therefore, be of suspicion that the party coming out with such vehement opposition to early hearing is not very confident about the scale of justice tilting in his favour. Moreover, it is not as if that the suit is filed just yester-year. It is quite an old suit, ten years of age. It was on this account that I was seriously considering whether I could spare some time for early hearing of the narrow question involved in the suit and it was thereafter that Mr. Khemani came out with the plea that if such an order was being passed by me he was going to take out a Notice of Motion for stay of this suit under section 10 of the Code.

As already stated, the legal position mentioned above explains the reason why he had refrained from making an application all these years.

9. There is yet another impediment in the way of Mr. Khemani. The main relief prayed by the plaintiff in the Small Cause Suit are two and the peculiar legal position is that he will be entitled to protect his possession only if he is held entitled to both the reliefs. Prayer (a) is for the declaration that he is the deemed tenant in respect of the particular space, whereas prayer (b) is for declaration that he is himself the owner of the Chemist's business being carried on by himself in that space.

The legal position, about which there was hardly any dispute before me, is that if the business belonged to the present plaintiff and he had given it for conducting (naturally, along with the space in his shop) to the present defendant, the defendant could claim no protection in a suit for possession, under the Rent Act, the amendment coming into effect on 1-2-73 notwithstanding. It is, therefore, imperative for the present defendant to indicate his claim to both the reliefs;

(i) claim regarding space;

(ii) claim regarding ownership of the Chemist's business,

10. This is evidently the reason why the present defendant has asked for the two separate declarations in the Small Cause Court suit. But the present defendant's suit in the Small Cause Court is clearly without jurisdiction so far as the second declaration is concerned. The Small Cause Court has no jurisdiction to give a declaration that the business of Chemist being run at present by the present defendant in fact belongs to either the present plaintiff or to the present defendant. This is so for the very simple reason that the question as to whether the business belongs to 'A' or 'B' cannot be decided by the Court of Small Causes by granting any declaration in that behalf, because the Court of Small Causes has no declaratory jurisdiction under the Presidency Small Causes Act. The only prayer that can be considered and granted by the Small Causes Court, therefore, is prayer (a) mentioned in para 2 above. But the grant of that much prayer could not solve this problem at all. That Court cannot consider the question whether the Chemist Shop belongs to the present plaintiff or the present defendant.

It is thus clear that the nature of the two suits is basically different. In the present suit in this Court, the Court is required to consider the comprehensive question as to whether what was given to the defendant was the space with the business and whether the business belongs to the present plaintiff or not, whereas the Small Causes Court can address itself only to the former, question whether any enclosed space was given, as licensee to the plaintiff before that Court; the latter part cannot be considered by Small Cause Court at all.

It is, thus clear that the present suit cannot be and could not have been entertained by the Court of Small Causes.

Further, the suit as framed and filed by the present defendant in the Court of Small Causes cannot be said to be satisfying also the 1st requirement of section 10, viz. the requirement that the issues involved in both the suit are directly and substantially the same. The issue relating to ownership of the business cannot arise in that suit because that Court has no jurisdiction to adjudicate upon that issue. The matter in issue in that suit is very limited while the one in the present suit is fully comprehensive.

This position probably explains why section 10 of the Code was not revoked by the present defendant for all these ten years.

The Notice of Motion is, therefore, dismissed. The costs shall be the costs in the cause.


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