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Nafisaben W/O BadrudIn Tofafarosh Vs. John Alias Zenub Abdulkadar Babuji and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR674
AppellantNafisaben W/O BadrudIn Tofafarosh
RespondentJohn Alias Zenub Abdulkadar Babuji and ors.
Cases ReferredBabubhai v. Bharatkumar
Excerpt:
- - it was alleged that the cause of action arose to the plaintiff when the obsequial ceremonies in connection with the death of the deceased sakinabanu were completed and thereafter when a notice dated december 8, 1972 was served upon the defendants calling upon them to hand over peaceful and quiet possession of the suit premises and the defendants failed and neglected to hand over possession of the suit premises. , and it was on the acceptance of this evidence as reliable evidence that the learned judge in the small causes court ultimately dismissed the suit of the plaintiff. 469. in that case the division held that it is well settled that the jurisdiction of the court to entertain and try such a suit depends upon the averments made in the plaint and the suit cannot be ousted by the.....b.j. divan, c.j.1. the petitioner in these proceedings is the original first defendant. the first respondent is the original plaintiff and respondents 2, 3 and 4 were original defendants nos. 2 to 4. the name of respondent no. 2 was deleted after this civil revision application was filed. the plaintiff filed a suit against the four defendants in the court of the civil judge, senior division. surat. that suit was regular civil suit no. 1624 of 1972. the plaintiff's case as set out in the plaint was that he was the owner of a building situated in surat. on the western side of the second floor of that property, one sakinabarui gulamhusen songadhwala was the occupant and she was the statutory tenant in respect of those premises. sakinabanu died on september 2, 1972. sakinabanu had no son and.....
Judgment:

B.J. Divan, C.J.

1. The petitioner in these proceedings is the original first defendant. The first respondent is the original plaintiff and respondents 2, 3 and 4 were original defendants Nos. 2 to 4. The name of respondent No. 2 was deleted after this Civil Revision Application was filed. The plaintiff filed a suit against the four defendants in the Court of the Civil Judge, Senior Division. Surat. That suit was Regular Civil Suit No. 1624 of 1972. The plaintiff's case as set out in the plaint was that he was the owner of a building situated in Surat. On the western side of the second floor of that property, one Sakinabarui Gulamhusen Songadhwala was the occupant and she was the statutory tenant in respect of those premises. Sakinabanu died on September 2, 1972. Sakinabanu had no son and the defendants to the suit, namely, her daughter, her daughter's son and other relations who were defendants in the suit had, according to the plaint, come to the suit premises only to attend to the obsequial ceremonies in connection with the death of Sakinabanu. It was the contention of the plaintiff in that suit that as the deceased Sakinabanu was a statutory tenant, none of heirs of the deceased had any right in the suit premises and though the defendants had come to the suit premises in order to attend the obsequial ceremonies, after the ceremonies were over they continued to occupy the premises out of mala fides and with the intention of occupying the suit premises. The defendants are alleged to have locked up the suit premises. It was the plaintiff's case that in spite of repeated requests by the plaintiff to hand over possession of the suit premises, the defendants had not done so and, according to the plaintiff the possession of the defendants of the suit premises was as trespassers and the defendants had committed a criminal offence in continuing to be in possession of the suit premises. In paragraph 4 of the plaint it was specifically averred that since the defendants were trespassers in the suit premises, the suit was filed on title to recover possession of the suit premises from the defendants. It was alleged that the cause of action arose to the plaintiff when the obsequial ceremonies in connection with the death of the deceased Sakinabanu were completed and thereafter when a notice dated December 8, 1972 was served upon the defendants calling upon them to hand over peaceful and quiet possession of the suit premises and the defendants failed and neglected to hand over possession of the suit premises.

2. On these averments the plaintiff prayed that peaceful possession of the premises should be handed over from the defendants to the plaintiff after granting a declaration to the plaintiff that the possession of the defendants in the suit premises was as trespassers.

3. The suit was filed on December 29, 1972. It appears that till 1975 the suit was not disposed of but when the Court of Small Causes was set up at Surat, along with other matters under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act), this suit was transferred to the newly established Small Causes Court and the suit was nutobered as Small Cause Court Suit No. 1289 of 1975. The learned Judge in the Small Causes Court considered the question whether the defendants were tenants within the meaning of Section 5(11)(c) of the Act and he came to the conclusion that the first defendant, who was the daughter of the deceased Sakinabanu, was residing with Sakinabanu when the deceased Sakinabanu died and hence under Section 5(11)(c) of the Act she became a tenant in the suit premises. He therefore held that the case of the plaintiff that the defendants were in possession of the suit premises as trespassers fell to the ground and it had been proved on the evidence led in the case that defendant No. 1 was a tenant in the suit premises under Section 5(11)(c) of the Act and hence there was no question of the defendants being held to be trespassers in the suit property. It was the case of defendant No. 1 that she along with her mother Sakinabanu, her husband and daughters was residing in the suit premises. It was her further case that her husband used to go to Hong Kong for earning his livelihood and whenever he used to come to Surat he used to reside with the first defendant in the suit premises. Oral and documentary evidence was led by defendant No. 1 to establish that defendant No. 1 had been residing with her mother Sakinabanu in the suit premises from 1958 to 1971, at least so far as documentary evidence was concerned., and it was on the acceptance of this evidence as reliable evidence that the learned Judge in the Small Causes Court ultimately dismissed the suit of the plaintiff. It must be noted that after the suit was transferred from the Court of the Civil Judge, Senior Division, Surat, to the Small Causes Court, the plaintiff had not raised any objection that the suit was not governed by the Act and the Small Causes Court had no jurisdiction to try the suit. On the contrary, he led evidence before the Court in order to establish his case that the defendants were trespassers in the suit property.

4. Against the decision of 'the learned Judge in the Small Causes Court an appeal, being Regular Civil Appeal No. 209 of 1977, was filed in the District Court at Surat and the appeal was disposed of by the learned Extra Assistant Judge, Surat. In the memo of appeal the plaintiff had not urged that the Small Causes Court had no jurisdiction to try the suit. At the hearing of the appeal a contention was raised that in view of the frame of the suit filed by the plaintiff, the Small Causes Court which was the Court of exclusive jurisdiction functioning under Section 28 of the Act, had no jurisdiction to hear and dispose of this suit. On behalf of the plaintiff reliance was placed on the decision of the Supreme Court in Raizada Topandas v. Gorakhram Gokalchand : [1964]3SCR214 , The learned Extra Assistant Judge hearing the appeal accepted that contention of the plaintiff and ultimately allowed the appeal. He set aside the judgment and decree of the trial Court and directed that the record and proceedings of the suit be sent back to the trial Court with a direction to move the District Judge, Surat, to transfer the suit to the Civil Court at Surat and that these orders should be obtained administratively under the Civil Courts Act. The present Civil Revision Application has been filed by original first defendant against the judgment and order of the learned Extra Assistant Judge, Surat.

5. Section 28 of the Act is in these terms and I am concerned with Sub-section (i) of that section:

Notwithstanding anything contained in any law and notwithatanding 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 the jurisdiction,

(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad,

(a) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and

(e) elsewhere, the Court of the Civil Judge, (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil judge (Senior Division) having ordinary jurisdiction,

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 (Part II) apply and to decide any application made under this Act and to deal with any claim or question arising out of the 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, proceeding or application or to deal with such claim or question.

Under Sub-section (2) it has been provided:

Notwithatanding anything contained in Clause (aa) of Sub-section (1), the District Court may at any stage withdraw any such suit, proceeding or application ponding in a Court of Small Causes established for any area under the Provincial Small Cause Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area.

Under Sub-section (2)(b) of Section 28-

Where any suit, proceeding or application has been withdrawn under Clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceeding or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn.

Under Sub-section (c) of Sub-section (2) of Section 28-

The Court of the Civil Judge trying any suit, proceeding or application withdrawn under Clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes.

The Explanation to Section 28 says that in Section 28, the word 'proceeding' does not include an execution proceeding arising out of a decree passed before the coming into operation of the Act.

6. The decision in Raizada Topandas' case (supra) was in connection with Section 28 of the Act. In that case the plaintiffs instituted a suit in the City Civil Court, Bombay, asking for a declaration that the defendants were not entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop. The allegations on which the claim to these reliefs was based were that the defendants had been granted a licence to use the shop of which the plaintiffs were the tenants under the owner and that defendants were wrongfully continuing there in spite of the termination of the licence and were thereby preventing the plaintiffs from carrying on their business in the shop. The defence to the suit was that the relationship between the parties was not that of licensor and licensee but that the shop had in fact been sub-let to them and that the agreement between the parties had been given a form of licence only as a cloak to protect the plaintiffs from ejectment under the Act by the landlord on the ground of unlawful sub-letting. The defendants contended that as they were really tenants, their landlords, plaintiffs, were not entitled to remove them from possession in view of the provisions of the Act. On these facts the Supreme Court held that Section 28(1) of the Act was not attracted and the suit was not within the exclusive jurisdiction of the Court of Small Cause. The City Civil Court, Bombay, therefore, had jurisdiction to entertain the suit. It was held by the Supreme Court that the general principle which governs the question of jurisdiction at the inception of suits was as follows:

7. The plaintiffs chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum-chosen. If he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him relief. 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 defendants 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. In that case, S.K. Das, J. speaking for himself and Hidayatullah, J. as he then was, observed in paragraph 6 at page 1352:

Leaving out what is unnecessary for our purpose Section 28(1) states that notwithatanding anything contained in any law and notwithatanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for the provision, be within its jurisdiction, the Court of Small Causes in Greater 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 (meaning thereby Part II) apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provision and no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with any such claim or question. It is to be noticed that the operative part of the sub-section refers to two matters (a) 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 Part II apply and (b) any application made under the Act or any claim or question arising out of this Act or any of its provisions. What is the true effect of Sub-section (1) of Section 28 with regard to the aforesaid two matters?

And the answer to the question so posed in this manner was given in paragraph 7 at page 1352 as follows:

Section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions-all this notwithatanding anything contained in any other law.

(Emphasis supplied by me.)

Thus, according to this passage which has been extracted from paragraph 7 of the judgment at page 1352, it is clear that the exclusive jurisdiction of the Court of Small Causes or the court functioning under Section 28 of the Act, is not merely in respect of suits and proceedings between a landlord and a tenant regarding recovery of rent or possession of any premises to which any of the provisions of Part II apply, but the exclusive jurisdistion relating to applications under the Act and the exclusive jurisdiction to deal with and decide any claim or question arising out of the Act or any of its provision is in these Courts of exclusive jurisdiction referred to in Section 28(1). Really speaking, as a pure process interpretation, it is obvious that exclusive jurisdiction referred to in Section 28(1) is in three categories. Category (1) is in respect of and suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; Category (2) is to decide any application made under the Act, and Category (3) is to deal with any claim or question arising out of the Act or any of its provisions. That this is the proper interpretation is borne out by the concluding words of Section 28(1): 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with any such claim or question'. 'Such suit or proceeding' means a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply. 'Application' in the concluding words of Section 28(1) refers to an application under the Act and 'to deal with such claim or question' means to deal with any claim or question arising out of the Act or any of its provisions. And the concluding words which bar the jurisdiction of all other Courts are specific in indicating that there are these three categories of matters which are within the exclusive jurisdiction of the Courts referred to in Section 28(1) of the Act. The portions which I have extracted from paragraph 7 at page 1352 of the report and which are underlined also indicate that that is the interpretation put by the Supreme Court because after the semi-colon it starts by saying 'it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions'. Therefore, it is only the Court of Small Causes which had the exclusive jurisdiction to decide whether the defendants who were the daughter and other heirs of the deceased were within the definition of 'tenant' as set out in Section 5(ll)(c) of the Act. No other Court had jurisdiction to decide this question under Section 5(11)(c) of the Act.

8. In view of this interpretation of Section 28 (1) and the three categories, it is obvious that it was only the Court of Small Causes at Surat which had the jurisdiction to deal with and decide the question as to whether the defendants were tenants in respect of the suit premises or not.

9. Mr. Chokhawala however contended that it was not the defendants' contention which would govern the question of jurisdiction at the inception but what was averred in the plaint and the averments of the plaint which will decide the question of jurisdiction at the inception of the suit Mr Chokhawala relied on the decision of a Division Bench of this High Court in Nanikram Sobhraj Mills (Pvt) Ltd. v. Kirtidev Chinubhai 20 G.L.R. 469. In that case the Division held that it is well settled that the jurisdiction of the Court to entertain and try such a suit depends upon the averments made in the plaint and the suit cannot be ousted by the averments made in the written statement. In a case of this type, the question of returning the plaint to proper court does not arise because the special court constituted under Section 28 of the Act will have no jurisdiction to entertain the suit based on a plaint in which the plaintiff seeks the relief of possession of immovable property on the strength of his title. At page 472 of the report, M.K. Shah J. speaking for the Division Bench, observed:

The expression any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this Part apply in our opinion, would not cover the premises which are not let out but are trespassed upon by the defendant, according to the case of the plaintiff.

M.K. Shah, J. further observed-

Three conditions have to be satisfied before the bar becomes applicable. Firstly, the suit or proceeding must be between 'a landlord and a tenant, secondly, the suit or proceeding must be one -relating to recovery of rent or possession, and thirdly such recovery of rent or possession claimed in the suit or proceeding must be in respect of premises to which any of the provisions of part Two of the Act apply.

On the facts of the case before the Division Bench it was not a question of the second or the third category of matters which are within the exclusive jurisdiction of Special Courts mentioned in Section 28(1) of the Act and therefore, the question which is now before me, namely, the exclusive jurisdiction to decide the question arising under Section 5(11)(c) of the Act was not before the Division Bench and the facts of the case in Nanikram Sobhraj Mills' case (supra) brought the case fairly and squarely within the ratio of the Supreme Court decision in Raizada Topandas' case (supra).

10. Under these circumstances, in my opinion, though the frame of the suit was on the basis that the defendants were trespassers and though it was the plaintiff's case in the plaint that the defendants were trespassers and he would claim possession of the suit premises as if they were trespassers, the facts averred in the plaint indicate that whichever was the Court which tried the suit, it would have jurisdiction to decide the question of Section 3(11)(c) of the Act because in the plaint it was alleged that Sakinabanu had no son and the defendants had come to the suit premises only in connection with the obsequial ceremonies in connection with the death of Sakinabanu. In anticipation of the plea that might be raised by the defendants that they were tenants within the meaning of Section 5(11)(c) of the Act, the owner of the property, the plaintiff, was averring in the plaint that statutory tenancy was not heritable and secondly that none of the defendants was residing with Sakinabanu at the time of her death.

11. Assuming that my conclusion regarding the jurisdiction of the Court of Small Causes to decide the issue under Section 5(11)(c) of the Act is not correct and assuming that the jurisdiction of the Court is to be judged only from the averments made in the plaint and that too on the face of the plaint without examining implications of the averments made in the plaint, there is an alternative contention which has to be considered in this case. Under Section 21 of the Civil Procedure Code, no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Under Sub-section (2) of Section 21, which inserted by the Amendment Act, 1976, no objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. Under Sub-section (3), no objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. In view of Section 21, Sub-section (2) and (3), which have been inserted by the Cede of Civil Procedure (Amendment) Act, 1976, it is clear that under Section 21 as it now stands, objections as to jurisdiction could be taken in any of the following three circumstances: (a) under Sub-section (2) with reference to pecuniary limits of the jurisdiction of the Court; (b) under Sub-section (3) with reference to the local limits of the jurisdiction of the Court so far as executing Court is concerned, and (c) under Sub-section (1) of Section 21 which bars by elimination the objections as to the place of suing on any other ground. All other grounds as to place of suing are covered by the bar of elimination by Sub-section (1) of Section 21. Therefore, under Sub-section (1) of Section 21, the Appellate or Revisional Court, as the case may be, is prevented from allowing any objection as to place of suing unless such objection was taken in the first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

12. The provisions of Section 21 of the Civil Procedure Code came up for consideration before the Supreme Court in Bahrein Petroleum Co. Ltd. v. P.J. Pappu : (1966)IILLJ144SC . In paragraph 3 of the judgment of the Supreme Court, Bachawat, J. speaking for the Supreme Court observed:

As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under Section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.

(Emphasis is supplied)

Mr. Chokhawala for the first respondent is right when he contends that what Section 21 of the Code deals with is lack of jurisdiction on the ground of territorial jurisdiction of the Court and it does not refer to a situation where there is inherent lack of jurisdiction in the Court. If there is inherent lake of jurisdiction, then, the decree of the Court would be a nullity or the order of the Court would be a nullity. In the instant case, however, there was no inherent lack of jurisdiction. On the contrary, the Court of Small Causes had the exclusive jurisdiction to decide the claim or question arising under the Act or under any of its provisions and the questions arising under Section 5(11)(c) of the Act could only have been decided by the Court of exclusive jurisdiction. Hence it cannot be said that there was inherent lack of jurisdiction in the Court of Small Causes to deal with the question whether any of the defendants to the suit was a tenant within the meaning of Section 5(11)(c) and it cannot be said that there was inherent lack of jurisdiction in the Court to deal with and decide that particular question.

13. There are also observations in Chakuhhal Ranchhod v. Bat Pushpa Kanaiyalal (1973) All India Rent Control Journal p. 267. In that case D.P. Desai J. sitting single considered the effect of the decision in Raizada Topandas case (supra) and held that in substance the petitioners, that is, the legal heirs representatives of the tenant, claimed a statutory right conferred upon the persons following within Section 5(11)(c) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947. But apart from this right, even if it was vested in the present petitioners (i.e. petitioners before the Court) the plaintiff (landlord) wanted possession on the grounds mentioned in Sections 12 and 13 of the Act. To recapitulate, these grounds were non-payment of rent, sub-letting contrary to the provisions of the Act and bona-fide and reasonable requirement for personal occupation. In these circumstances, the only course left open to the plaintiff was to approach the Rent Court under Section 28 of the Act. In order to enable the plaintiff to obtain the relief of possession on the grounds mentioned in Sections 12 and 13 of the Act, it would have been necessary to determine the claim made by the petitioners before the Court as statutory tenants. Therefore, this is clearly a case in which a claim or question arising out of the Act, was required to be answered in order to get the relief of possession on the grounds mentioned in Sections 12 and 13 of the Act.

14. I may point out that in Babubhai v. Bharatkumar 21 G.L.R 103, a Full Bench of this High Court has held that under the Rent Control Acts the concept of contractual tenancy has lost much of its significance and force and the restricted area under the various State Rent Acts has done away to a large extent with the requirement of the Law of Contract and Transfer of Property Act. Having regard to the definition of word 'tenant' where a person continuing in occupation after determination of contractual tenancy with or without the consent of the landlord, a person continuing in occupation accordingly is entitled to continue in occupation of the same terms and conditions as before till an order of eviction is made against him under the relevant provisions of a State Rent Act. So far as the restricted area under the State Rent Acts is concerned, the distinction between a contractual tenancy and a statutory tenancy is done away with and the extent of the tenancy under the State Rent Control Acts would be the same irrespective of the fact whether the contractual tenancy subsist) or is terminated, if that is so, there is some estate or interest in a tenancy under the Bombay Rent Control Act which will be heritable on the demise of the original tenant. If that is so, the conclusion in inescapable that all the heirs on original deceased tenant would be entitled to succeed to that estate or interest which is protected by the Rent Act till the rural relationship of landlord and tenant is snapped by an order or decree of eviction made under the relevant provisions governing the question of eviction. This conclusion was reached by the Full Bench after examining the decisions of the Supreme Court available till the date of the judgment, that is, till November 1979.

15. In view of this legal position, the very basis of the suit, namely, that statutory tenancy was not heritable, does not survive after the decision of the Full Bench, and hence the plaintiff's suit was cognizable only by the Court of Small Causes where the question of the heirs of the deceased Sakinabu succeeding to the estate of Sakjnabu would have to be decided first. It was clearly therefore, in view of the decision in the Full Bench case, a suit between a landlord and a tenant, even on the averments in the plaint itself and therefore would be governed by the provisions of Section 28(1) of the Act.

16. In the instant case, the plaintiff did not object before the Court of Small Causes at any stage that the Court of Small Causes had no jurisdiction to try and dispose of the suit. No such contention regarding lack of jurisdiction of the Court of Small Causes was raised in the memo of appeal filed against the decision of the Small Cause Court Judge at Surat and therefore, as observed by the Supreme Court in : (1966)IILLJ144SC (supra), the plaintiff allowed the trial to proceed to judgment without raising the objection as to the place of suing and took the chance of a verdict in his favour. He therefore waived the objection and will not be subsequently permitted to raise it. It is possible to say that the long and continuous participation by the plaintiff in the proceedings before the trial Court without raising any protest in this particular case amounts to a waiver of the objection. Under these circumstances, may conclusions are-

(1) that the Court of Small Causes was the only Court which could have decided the question whether the rights of the deceased Sakinabu in respect of the suit premises were heritable or not and if they were heritable, whether they were inherited by any of the defendants in the suit and it was for the Court of Small Causes to decide the further question whether the defendants were protected by the definition of 'tenant' occurring in Section 5(11)(c) of the Act.

(2) My further conclusion is that even if I am wrong on this part of the judgment, in any event, the plaintiff must be deemed to have waived the objection as to jurisdiction and that having taken the chance of getting a decree in his favour is now precluded from contending that the Court of Small Causes at Surat had no jurisdiction to try this suit.

17. In either view of the matter, the order of the learned Extra Assistant Judge allowing the appeal on the ground of jurisdiction was, with respect to him, erroneous. I therefore allow this civil revision application and set aside the judgment and decree of the learned Extra Assistant Judge. Since the matter was not decided on merits by the lower Appellate Court, the matter will now go back to the lower Appellate Court to decide the merits of the case.

18. The civil revision application is therefore allowed. The judgment and order of the learned Extra Assistant Judge, Surat, are set aside. The first' respondent will pay the costs of this civil revision application and of the appeal before the lower Appellate Court to the petitioner. I am passing the above order directing the lower Appellate Court to proceed further with the appeal only because the merits of the case regarding the claim of the petitioner before me under Section 5(11)(c) has not been considered so far as oral and documentary evidence on record is concerned. Orders accordingly. Rule made absolute.


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