REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5786 OF 2002
Laxmidas Morarji (Dead ) by LRs. ........... Appellants
Versus
Miss Behrose Darab Madan ..............Respondent
WITH
CIVIL APPEAL NO. 5787 OF 2002
JUDGMENT
H.L. Dattu, J.
1) These appeals are directed against the decision of Bombay High Court in
Writ Petition No.519 of 1987 dated 12.02.1998 and the order passed in
Civil Application No.5701 of 2000 in Writ Petition No.519 of 1987 dated
30.8.2001. By the impugned order, the High Court, has dismissed both
the writ petitions and also the civil application.
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2) The facts leading to these appeals are as under:-
Mr. Salehbhai Alibhai Rangwala was the owner of a building then
known as Mohamedali Mansion, situated at 241, Princess Street,
Bombay. The Flat No. 2-B on the second floor of the building,
(hereinafter referred to as `the suit premises’) had been let out to one
Dosabai, the brother of Ms. Dhanbai Batliwala, (hereinafter referred
to as the `deceased-tenant’), on a monthly rent of Rs. 104.10 paisa.
Dhanbai was staying with her brother in the suit premises. After the
death of her brother in the year 1953, Dhanbhai became the tenant of
the suit premises by virtue of Section 5(11)(c)(i) of the Bombay
Rents, Hotel and Lodging Houses Rates Control Act, 1947 (`the Act’
for short). She expired on 17.12.1963. It appears that the deceased
tenant in her last will dated 24th April, 1959 had appointed the trustees
and executors of her will. Sometime in the early part of the year 1965,
the original owner had sent notice to the trustees and executors of the
will of the deceased tenant to hand over the vacant possession of the
suit premises and also to pay the arrears of rent alleged to be due from
01.11.1964. Since the trustees and executors of the will failed to
vacate the suit premises, the original owner filed Suit No.310 of 1967
before the Court of Small Causes at Bombay, against the trustees and
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the respondent in this appeal, inter-alia seeking recovery of possession
of the suit premises and for payment of Rs.3018.90 paisa, being the
arrears of rent for the period from 01.11.1964 to 31.03.1967. In the
suit filed, it was specifically stated, that, the defendant No. 5
(respondent) is not the tenant and has no legal and valid claim over
the suit premises and therefore no notice was required to be given to
her, however, she is arrayed as a party in the suit by way of caution
and to avoid any technical objection in future. It was also mentioned
in the suit, that, the defendants 1 to 4 (trustees and executors of the
will) have parted with the possession of the suit premises to defendant
No.5, respondent in this appeal.
3) In the written statement filed, respondent apart from others, had stated
that the court of small causes at Bombay has no jurisdiction to entertain
the petition, since the landlord of the premises has not accepted her as a
tenant of the suit premises; she has been adopted as a daughter by the
deceased tenant; deceased tenant has by her last will, bequeathed the
tenancy rights of the suit premises; she is the daughter of sister of the
deceased tenant and was residing with the deceased tenant and, therefore,
would fit in to the definition of a tenant as envisaged under Section
5(11)(c)(i) of the Act and, therefore, entitled to an eviction notice.
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4) The Small Causes Court, while dismissing the suit by its order dated
02.07.1977, held that, the law of adoption is unknown to the Parsis and
the defendant No.5 (respondent) has proved the fact that she was residing
with the deceased tenant as a member of her family and as such she is
entitled to claim tenancy rights under the provisions of Section
5(11)(c)(i) of the Act.
5) The original owner along with the predecessor of the present petitioners,
being aggrieved by the judgment of the court of Small Causes at Bombay
preferred an appeal before the court of Small Causes at Bombay in
Appeal No.74 of 1978. The appellate court, on consideration of oral and
documentary evidence held that, there was no landlord and tenant
relationship between executors of will and the petitioners and therefore
the suit itself was not maintainable. The respondent retains the tenancy
rights as she was the adopted daughter of the deceased tenant under her
will dated 2nd April, 1959 and was a member of her family residing with
her at the time of her death. It was also observed that bequeath of the
tenancy rights either of the residential premises or of shop premises
cannot be given effect to, unless the concerned person satisfies the
requirement of Section 5(11)(c)(i) of the Act and lastly the defendants 1
to 4 have not produced any evidence to show that the adoption is
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unknown to Parsis. In view of the above findings the appellate court had
dismissed the appeal.
6) Against the decision of the Appellate Court, the appellant filed writ
petition before the High Court. The learned single Judge dismissed the
writ petition, being of the opinion that there is no perversity in the
findings and the conclusions reached by the Trial Court and the first
appellate court and also has observed that no exception can be taken to
the findings recorded by the trial court that the respondent would inherit
the tenancy of the suit premises as she was residing with the tenant as a
member of the family of the tenant.
7) Since the aforesaid order had been passed without hearing the learned
counsel for the petitioner, an application for review came to be filed by
the petitioners to review the order passed in the Writ Petition. It was
dismissed vide order dated 30.08.2001.
8) Appellants have preferred separate appeals before this Court, inter alia,
questioning the order passed by the High Court in the writ petition and
the civil application filed for review of the order passed in writ petition.
9) These appeals were heard in part on 15th April, 2009 and 30th July, 2009
and when the matters were taken up for hearing on 6th August, 2009, the
learned counsel for the respondent stated that as desired by the
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respondent, he has given no objection to her and she wants to argue the
matter in person. The respondent was present before the Court. Instead
of arguing the matter, she sought an adjournment. The same was
declined, since the appeals were pending on the Board for last seven
years and the learned counsel for the appellant had closed his
submissions.
10)The learned senior counsel Mr. Rohington Nariman submitted, that, the
respondent is not a member of the deceased tenant’s family and was not
residing with the deceased at the time of her death and therefore
respondent cannot claim to be the tenant of the suit premises. In aid of
his submission, the learned senior counsel invites our attention to the
definition of tenant under Bombay Rent Act. The learned senior counsel
has also taken us through the pleadings and the evidence on record to
substantiate that the respondent cannot claim any right, much less
tenancy right, in the suit premises under the deceased tenant.
11)We do not think it necessary to discuss in detail the evidence adduced by
the parties in view of the course we propose to adopt in deciding these
appeals.
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12)The primary issue which falls for our consideration and decision is,
whether the suit filed by the owner of the suit premises was maintainable
before the Small Causes Court, Bombay.
13)The specific case of the plaintiff in the suit filed was that the respondent
is not a tenant and has no legal and valid claim over the suit premises
and therefore no notice was required to be given to her. However, she is
arrayed as a party in the suit by way of caution and to avoid any technical
objection in future. It was also mentioned in the suit that the defendants
1 to 4 (trustees and executors of the will) have parted with the possession
of the suit premises to defendant No.5 (respondent in this appeal). It was
also mentioned that the suit is for recovery of the suit premises to which
the provisions of Bombay Rent Control Act would apply.
14)Apart from others, it was the defence of the defendant No.5 (respondent
in this appeal), that the Small Causes Court, Bombay does not have
jurisdiction to try the suit, if the plaintiff were to assert that she is not the
tenant of the suit premises.
15)To decide the issues which have been raised for our consideration and
decision, it is necessary to notice the definition of “tenant” and
jurisdiction of courts under the Bombay Rents, Hotel and Lodging
Houses Rates Control Act, 1947. Section 5(11) of the Act reads :
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“(11)”tenant” means any person by whom or on whose
account rent is payable for any premises and includes,-
(a) xx xx xx xx
[(aa) xx xx xx xx
(b) xx xx xx xx
[(bb) xx xx xx xx
[(bba) xx xx xx xx
[(c) (i) in relation to any premises let for residence,
when the tenant dies, whether the death has occurred
before or after the commencement of the Bombay Rents,
Hotel and Lodging House Rates Control (Amendment)
Act, 1978, any member of the tenant’s family residing
with the tenant at the time of his death or, in the absence
of such member, any heir of the deceased tenant, as may
be decided in default of agreement by the Court.”
16)The definition of `tenant’ under the Act, means any person by whom or
in whose account rent is payable for any premises. Section 5(11)(c) (i) of
the Act, is too exhaustive to include any member of the tenant’s family
residing with the tenant at the time of his death. There are two
requirements under Section 5(11) of the Act, which must be fulfilled
before a person may be called `tenant’ under sub-clause(c); firstly, he
must be a member of the tenant’s family and secondly, he must have
been residing with the tenant at the time of his death. Besides, fulfilling
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these conditions, he must have agreed upon to be a tenant by the
members of the tenant’s family. In default of such agreement, the
decision of the court shall be bindings on such members.
17)Section 28 of the Act provides the Small Causes Court with special
jurisdiction to try the cases under the Act. The Section is as under:
“Jurisdiction of Courts
(1) 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,[(aa) in any area for which, a Court of Small Causes is
established under the Provincial Small Causes Courts
Act, 1887, such Court and]
(b) 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
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 apply
[or between a licensor and a licensee relating to the
recovery of the licence fee or charge] and to decide any
application made under this Act and to deal with any
claim or question arising out of this 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, proceedings, or application or to deal with
such claim or question.
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[(2) (a) Notwithstanding anything contained in
clause(aa) of sub-section(1), the District Court may at
any stage withdraw any such suit, proceeding or
application pending in a Court of Small Causes
established for any area under the Provincial Small
Causes 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.]
(b) 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,
proceedings or application, as the case may be, may
either re-try it or proceed from the stage at which it was
withdrawn.
(c) 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.]
Explanation- In this Section “proceeding” does not
include an execution proceeding arising out of a decree
passed before the coming into operation of this Act.”
18)Section 28 of the Act begins with a non-obstante clause. By Section 28 of
the Act, the legislature has designated certain courts to entertain and try
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 and to decide any application made under
Bombay Rent Act and to deal with any claim or question arising out of
Bombay Rent Act or any of its provisions. The designated courts are, the
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Court of Small Causes in Greater Bombay, a Court of Small Causes
established under the Provincial Small Causes Courts Act, 1887, in any
area where such court is established and in other areas, the court of Civil
Judge (Junior Division) having jurisdiction in the area in which the
premises are situated or if there is no such Civil Judge, the court of Civil
Judge (Senior Division) having ordinary jurisdiction.
19)This Court in the case of Khem Chand Dayalji and Co. Vs. Mohammed
Bhaichand (1969) 1 SCC 884, while discussing the provision prescribing
the jurisdiction to the Small Causes Court, has noticed, that “by Section
28 of the Act certain courts were designated as courts of exclusive
jurisdiction to entertain and try suits and proceedings between a landlord
and tenant relating to recovery of rent or possession to which the
provisions of the Act applied and also decide claims or questions arising
under the Act.”
20)The Rent Control Act is a special enactment conferring certain special
rights and imposing certain special obligations upon landlords and
tenants. The Rent Control Act imposes restrictions on the right of
landlord to evict his tenants on the grounds other than what is specified in
the Statute. This court in the case of Om Prakash Gupta Vs. Rattan Singh
and Ors. (1964) 1 SCR 259, has observed, that, ordinarily, it is for the
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civil courts to determine whether and if so, what jural relationship exists
between the litigating parties. The Tribunals under the Act being
creatures of the Statute have limited jurisdiction and have to function
within the limits of the Statute creating them. But within the provisions
of the Act, they are Tribunals of exclusive jurisdiction and their orders
are final and not liable to be questioned in collateral proceedings, like a
separate application in execution proceedings. The Court has further
observed, that, therefore, there is no substance in the contention that as
soon as the appellant denies the relationship of landlord and tenant, the
jurisdiction of the authorities under the Act is completely ousted. A
landlord must be very ill-advised to start proceedings under the Act, if
there is no relationship of landlord and tenant. If a person in possession
of the premises is not a tenant, the owner of the premises would be
entitled to institute a suit for ejectment in the civil courts, untrammeled
by the provisions of the Act. It is only when he happens to be the tenant
of the premises in an urban area, the provisions of the Act are attracted.
Mere denial of relationship of landlord and tenant cannot oust the
jurisdiction unless it is specifically provided in the Statute. If the Rent
Controller finds that the opposite party is not a tenant of the landlord, he
must dismiss the landlord’s application for eviction, but if he finds that
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such a plea by the opposite party is not true and that the opposite party is
a tenant of the landlord, then, if the ground of eviction is proved, he must
order eviction of the tenant.
21)Section 28 of the Bombay Rent Act deals with the jurisdiction of the
Courts, to decide on issues arising out of the Act. In a suit relating to
possession of the 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. 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 of questions arising out of the Act or any of its provisions. In the
instant case, the suit premises is situate within the jurisdiction of Greater
Bombay. In view of Section 28 of the Act, the Court of Small Causes,
Bombay, will have jurisdiction. The appellants have filed a suit for
eviction. The suit is maintainable provided that a landlord-tenant
relationship is established. However, it is clear from the pleadings of the
appellants that they do not consider respondent No.5 as a tenant. In
furtherance of this stand, the appellants have gone on to adduce evidence
to prove that respondent does not qualify the conditions to be deemed as
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tenant under the Bombay Rent Act. In the light of the principles stated
by this Court in Om Prakash Gupta’s case (1964) 1 SCC 259, the
inevitable conclusion is that Small Causes Court at Bombay had no
jurisdiction to entertain the suit filed by the owners of the suit premises.
22)The learned senior counsel for the appellant would submit that the lis
between the parties is pending before various forums from last four
decades and even as of now the landlord of the premises is unable to get
vacant possession of the suit premises and, therefore, we should exercise
our power under Article 142 of the Constitution of India and direct the
respondent to quit and deliver vacant possession of the suit premises to
the landlord. Reliance is placed on the decision of this court in the case
of Dhanajaya Sharma vs. State of Haryana and Others, [(1995) 3 SCC
757].
23)Article 142 being in the nature of a residuary power based on equitable
principles, the courts have thought it advisable to leave the powers under
the article undefined. The power under Article 142 of the Constitution is
a Constitutional power and, hence, not restricted by statutory enactments.
Though the Supreme Court would not pass any order under Article 142
of the Constitution which would amount to supplanting substantive law
applicable or ignoring express statutory provisions dealing with the
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subject, at the same time these Constitutional powers cannot in any way,
be controlled by any statutory provisions. However, it is to be made
clear that this power cannot be used to supplant the law applicable to the
case. This means that acting under Article 142, the Supreme Court
cannot pass an order or grant relief, which is totally inconsistent or goes
against the substantive or statutory enactments pertaining to the case.
The power is to be used sparingly in cases which cannot be effectively
and appropriately tackled by the existing provisions of law or when the
existing provisions of law cannot bring about complete justice between
the parties. It would be useful at this stage to refer to the observations
made by this Court in the case of Teri Oat Estates (P) Ltd. vs. U.T.
Chandigarh [(2004) 2 SCC 130], “sympathy or sentiment by itself cannot
be a ground for passing an order in relation to where the appellants
miserably fail to establish a legal right. Despite an extraordinary
constituted jurisdiction contained in Article 142 of the Constitution, the
Supreme Court ordinarily would not pass an order which would be in
contravention of a statutory provision.”
24)In view of the aforesaid settled legal principles, it is not possible to
accept the request of learned senior counsel for the appellant.
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25)Since we are of the opinion that the Small Causes Court at Bombay had
no jurisdiction to entertain the suit, we have not pronounced any opinion
on the merits of the appellant’s case.
26)As the appellants were bonafide prosecuting the suit before the court
which had no jurisdiction to entertain the same, we direct, that if along
with the plaint, an application under Section 14 of the Limitation Act,
1963 is filed the time from the date of institution of the suit till this day
shall be excluded in computing the period of limitation in filing the suit.
It is further directed that if any such suit is filed, the same and consequent
appeal/appeals/revision shall be disposed of within a period of one year
from the date of its filing in view of the fact that unfortunately the present
eviction matter remained pending for forty two long years.
27)Civil Appeal No. 5786 of 2002 is, accordingly, dismissed.
28)In view of the dismissal of Civil Appeal No.5786 of 2002 by us today,
Civil Appeal No.5787 of 2002 does not survive and is, accordingly,
dismissed. No order as to costs.
…………………………………J.
[ B.N. AGRAWAL ]
…………………………………J.
[ G.S. SINGHVI ]
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…………………………………J.
[ H.L. DATTU ]
New Delhi,
September 18, 2009.
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