PETITIONER: RAIZADA TOPANDAS & ANR. Vs. RESPONDENT: M/S. GORAKHRAM GOKALCHAND DATE OF JUDGMENT: 22/04/1963 BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M. CITATION: 1964 AIR 1348 1964 SCR (3) 214 CITATOR INFO : R 1978 SC1217 (35) RF 1980 SC1605 (16) RF 1981 SC 537 (19) RF 1991 SC1494 (7) ACT: Jurisdiction of Court-Suit filed in City Civil Court alle- ging that defendant was a licensee-Prayer for injunction- Defendant alleging relation of landlord and tenant-Whether small causes court has exclusive jurisdiction-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LXII of 1947), ss.28,29,29A. HEADNOTE: The respondent Is a partnership firm. It instituted a suit in the Bombay City Civil Court against the appellant. It was alleged in the plaint that by virtue of an agreement appellant No. I appointed the respondent as his commission agent for the sale of his cloth in the shop which was in the possession of the respondent. The agreement was to remain in force for four years. Persuant to the agreement the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further rights to enter into the shop. The respondent prayed for a declaration that it was in lawful possession of the shop, for an injunction restraining the appellants, their family members, servants and agents from entering into the shop and for an amount of commission payable to it under the agreement. The plaint proceeded on the footing that 215 during the period of agreement the appellants were mere licensees and after the expiry of the agreement they were mere trespassers. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The defence of the appellants was that the respondent had sublet the shop to them at a certain monthly rent. But since no subletting is possible under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, without the consent of the land-lord the parties entered into a sham agreement which was never acted upon and which was only a cloak to conceal the true relationship. The relationship was that of a land-lord and tenant. On these averments in the written statement the appellants took the plea that the Court of Small Causes Bombay alone had jurisdiction to try the suit. The City Civil Court relying on a decision of this Court upheld the contention of the appellants and made an order that the plaint be returned for presentation to the proper court. The respondent thereupon appealed to the High Court. The High Court held that on a correct interpretation of s.28 of the Act the suit out of which the appeal had arisen was not a suit within the exclusive jurisdiction of the Court of Small Causes Bombay and setting aside the order of the City Civil judge directed that it should dispose of the suit in accordance with law. The present appeal is by way of special leave. In the appeal the same question as to the jurisdiction of the City Civil Court was raised. Held (per S.K. Das and M. Hidayatullah, JJ.) that S. 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 of the Act 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. Section 28 does not invest the Court of Small Causes with exclusive power to try questions of title as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S. 28 depends, the defendant by his plea cannot force the plaintiff to go to a forum where on his own averments he cannot go. If the suit as framed is by a land-lord or a tenant and the relief asked for is in the nature of a claim which arises 216 out of the Act or any of its provisions then only and not otherwise will it be covered by S. 28. The City Civil Court had jurisdiction to entertain the suit and the High Court correctly came to that conclusion. Ananti v. Ghhannu, (1929) I.L.R. 52 All. 501 Govindram Salamatrai v. Dharampal, (1951) 53 Bom. L.R. 386, and Jaswantlal v. Western Company, India (1959), 61 Bom.L R. 1087, approved. Babulal Bhuramal v. Nandram Shivram [1959] S.C.R. 367, explained. Per Sarkar, J. The suit is not one between a land-lord and a tenant for recovery of possession of premises and there. fore it does not come under the first kind of matters mentioned in s. 28(1). The suit does not come under the second kind mentioned in that section as that deals with certain applications only. Section 28 thirdly provides that no court other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act concerning properties in Greater Bombay. This part of the section does not purport to affect any court's jurisdiction to entertain and try a suit but it only prevents a court from dealing with certain claims and questions. Therefore a court may try a suit in so far as it does not thereby have to deal with a claim or question arising out of the Act. It is unnecessary to decide the dispute whether it is per- missible under the section to look at the defence for ascertaining whether a claim or question under the Act, arises in the suit because even the defence in the present case does not raise any claim or question under the Act. The defence really is that the appellants arc not licensees. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. Quite clearly, such a question is neither a question nor a claim arising out of the Act. Neither is a question whether the appellants are sub-tenants one arising out of the Act for the Act says nothing as to the creation of a tenancy. No discussion of any question or claim arising out of the Act is necessary for deciding the suit. 217 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 75 of 1962.
Appeal by special leave from the judgment and decree dated
October 19, 1959, of the Bombay High Court in Appeal No. 152
of 1959.
N. C. Chatterjee, J.B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the appellants.
A. V. Viswanatha Sastri and D. D. Sharma, for respondents.
1963. April 22. The judgment of S.K. Das and Hidayatullah,
JJ. was delivered by Das J… Sarkar J., delivered separate,
judgment.
S.K. DAS J.-The only question which arises in this appeal
is, whether on a proper interpretation of s. 28 of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 (Bombay Act LVII of 1947) the Court of Small Causes
Bombay had exclusive jurisdiction to deal with the suit out
of which this appeal has arisen.
The respondent before us is a partnership firm. It was in
possession as a tenant of a shop No. 582/638, at Mulji Jetha
Market, Bombay. It instituted a suit in the Bombay City
Civil Court (to be distinguished from the Court of Small
Causes, Bombay) in which it asked for (1) a declaration that
it was in lawful possession of shop No. 582/638 at Mulji
Jetha Market, Bombay and that the present appellants (who
were the defendants in the suit) or their family members,
servants or agents had no right to enter into or remain in
possession of the said shop ; (2) for an injunction
restraining the present appellants, their family members,
servants and agents from entering into the said shop ; and
(3) for an amount of commission payable to it under an
agreement
218
dated June 23, 1955. The main averments in the plaint were
that by the aforesaid agreement defendant No. 1, appellant
No. 1 before us, appointed the respondent as his commission
agent for the sale of the appellants’ cloth in the shop in
question. The agreement was to remain in force for a period
of four years expiring on June 30, 1959. Pursuant to the
agreement, the appellants, their family members, servants
and agents were allowed by the respondent to visit the shop
only for the purpose of looking after the business of
commission agency. On the expiry of the agreement the
appellants had no further right to enter into the shop and
in paragraphs 10 and 11 of the plaint the respondent-firm
-alleged that some commission was due to it and further it
asked the appellants not to disturb the possession and
peaceful enjoyment of the shop by the respondent ; but the
appellants, their servants and agents were visiting the shop
daily and preventing the respondent from having access to
its various articles such as stock-in-trade, books of
account, furniture, fixtures etc. On these averments the
respondent-firm asked for the reliefs to which we have
earlier referred. The plaint proceeded on the footing that
during the period of the agreement the appellants were mere
licensees, and after the expiry of the agreement they were
trespassers and had no right to be in the shop. The plaint
in terms negatives any relationship of landlord and tenant
as between the parties to the suit.
The substantial defence of the appellants was that the
respondent-firm had sublet the shop to the appellants at a
monthly rent of Rs. 500/ ; but as no sub-tenancy could be
legally created at the time, without the consent of the
landlord, by reason of the provisions of the Act, the
respondent-firm with a view to safeguard its position in
regard to the penal provisions of the Act required the
appellants to enter into a sham agreement in the shape of a
letter dated June 30, 1952. The agreement was never acted
219
upon and was intended to be a cloak to conceal the true
nature of the transaction. The appellants further alleged
that the agreement dated June 23, 1955, was also not
operative between the parties, and the true relation between
the parties was that of landlord and tenant. On these
averments in the written statement the appellants took the
plea that as the question involved in the suit related to
the possession of premises as between a landlord and his
tenant, the Court of Small Causes, Bombay, alone had
jurisdiction to try the suit.
On these pleadings a preliminary issue as to jurisdiction
was framed by the City Civil Court, Bombay and this issue
was in these terms:
“Whether this court has jurisdiction to entertain and try
this suit ?”
The learned judge of the City Civil Court relying on a
decision of this court in Babulal Bhuramal v. Nandram
Shivram (1), decided the preliminary issue in favour of the
present appellants. He held that in view of the
observations of the Supreme Court in the aforesaid decision,
an earlier decision of the Bombay High Court in Govindram
Salamatrai v. Dharampal (2), which had taken a different
view was of no assistance to the present respondent, and
must be deemed to have been over-ruled by the Supreme Court
decision. We may state here that the decision in Govindram
Salamatrai (2) , had itself over-ruled an earlier decision
of the same court in Ebraham Saleji v. Abdulla Ali Raza (3),
where Gajendragadkar J. (as he then was) had taken the view
that s. 28 of the Act included within its jurisdiction all
suits and proceedings where the trial court has to consider
all claims or questions arising out of the Act., and it
makes no difference whether such claim or question arises
from the allegations made in the plaint or those made in the
(1) [1959] S.C.R. 367.
(2)(1951) 53 Bom. L.R, 886,
(3) (1950) 52 Bom. L.R. 897 ,
220
written statement. The learned judge of the City Civil
Court accordingly made an order that the plaint be returned
to the present respondent for presentation to tile proper
court.
An appeal was taken by the present respondent to the High
Court of Bombay from the decision of the learned City Civil
judge. The High Court pointed out in its judgment dated
October 19, 1959, that the ratio of the decision of this
court in Babulal Bhuramal’s case (1), was correctly
explained in a later decision of the Bombay High Court in
Jaswantlal v. “Western Company, India” (2) and on a correct
interpretation of s. 28 of the Bombay Rents, Hotel and
Lodging Houses Rates Control Act, the suit out of which this
appeal has arisen was not a suit within the exclusive
jurisdiction of the Court of Small Causes, Bombay. The High
Court said that the decision in Babulal Bhuramal (1), did
not in effect hold, nor did it justify any interpretation to
the effect, that s. 28 of the Act made a departure from the
general principle that governs the question of jurisdiction,
which is that jurisdiction at the inception of, the suit
depends on the averments made in the plaint and is not
ousted by the defendant saying something in his defence. In
this respect, the High Court accepted as correct the view
expressed by Chagla C. .J. in Govindram Salamatrai (3),
rather than the view of Gajendragadkar, J. in Ebrahim Saleji
(4). In this view of the matter the High Court held that
the City Civil Court has jurisdiction to try the suit out of
which the appeal has arisen. It, therefore, set aside the
order of the learned City Civil judge and directed that it
should now dispose of the suit in accordance with law. The
appellants then asked for special leave to appeal to this
court from the judgment and decree of the High Court, and
having obtained special leave have preferred the present
appeal.
(1) [1959] S.C.R. 367 (2) (1959) 61 Bom. I.h. 1087,
(3) (1951) 53 Bom, L.R (4) (1950) 52 Bom. L,R. 997,
221
The Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 was enacted, to amend and consolidate the law relating
to the control of rents and repairs of certain premises, of.
rates of hotels and lodging houses and of evictions, In Part
II of the Act there are provisions which make rent in excess
of standard rent illegal, provisions relating to increase of
rent, provisions as to when a landlord may recover
possession, when a sub-tenant becomes a tenant, unlawful
charges by landlord etc. All these proceed on the footing
that there is or was, at the inception, a relation of
landlord and tenant between the parties. In the same Part
occur ss. 28. 29 and 29-A. Section 28 which we shall
presently read deals with jurisdiction of courts ; s. 29
deals with appeals, and s. 29-A is a section which saves
suits involving title. The particular section the
interpretation of which is in question before us is s. 28
and we shall read only sub-s. (1) thereof in so far as it is
relevant for our purpose. This subsection reads…
“28. (1) Notwithstanding anything contained in
any law and notwithstanding that by reason of
the amount of the claim or for any other re-
ason, 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) xx xx xx
(b) xx xx xx………
shall have jurisdiction to entertain and try
any suit or proceeding between a land. lord
and a tenant relating to the recovery of rent
or possession of any premises to which any of
the provisions of this Part apply and to
222
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 suit, proceeding or application
or to deal with such claim or question. ”
S.29-A also has some relevancy and may be set
out here…
“Nothing contained in section 28 or 29 shall
be deemed to bar a party to a suit, proceeding
or appeal mentioned therein in which -a
question of title to premises arises and is
determined, from suing in a competent court to
establish his title to such premises.”
Leaving out what is unnecessary for our purpose s.28(1)
states that 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, 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 provisions 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 subsection refers to two
matters: (a) any suit or proceeding between a landlord and a
tenant reletting 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
223
question arising out of this Act or any of its provisions.
What is the true effect of sub-s.(I) of s.28 with regard to
the aforesaid two matters? Does it mean that if the
defendant raises a claim or question as to the existence of
a relationship of landlord and tenant between him and the
plaintiff, the jurisdiction of the City Civil Court is
ousted even though the plaintiff pleads that there is no
such relationship, and the only court which has exclusive
jurisdiction to try the suit is the Court of Small Causes,
Bombay ? That is the question before us.
In answering this question it is perhaps necessary to refer
to the general principle which admittedly governs the
question of jurisdiction at the inception of suits. This
general principle has been well explained in the Full Bench
decision of the Allahabad High Court, Ananti v. Chhannu (1),
and bag not been disputed before us. It was observed there:
The plaintiff 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 the
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
(1) (1929) I. L R. 52 All, 501.
224
proper court. If, on the other hand, it is
found that, having regard to the nature of the
suit, it not Cognizable by the class of court
to which the court belongs, the plaintiff’s
suit will have to be dismissed in its
entirety.”
Having regard to the general principle stated above, we
think that the view taken by the High Court in this case is
correct. S. 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 notwithstanding anything contained in
any other law. The argument of learned counsel for the
appellants is that the section in effect states that
notwithstanding any general principle, all claims or
questions under the Act shall be tried exclusively by the
courts mentioned in the section, e.g. the Court of Small
Causes in Greater Bombay, and it does not matter whether the
claim or question is raised by the plaintiff or the
defendant. ‘The argument is plausible, but appears to us to
be untenable on a careful scrutiny. We do not think that
the section says or intends to say that the plea of the
defendant will determine or change the forum. It proceeds
on the basis that exclusive jurisdiction is conferred on
certain courts to decide all questions or claims under the
Act as to parties between whom there is or was a
relationship of landlord and tenant. It does not invest
those courts with exclusive power to try questions of title,
such as questions as between the rightful owner and a
trespasser or a licensee, for such questions do not arise
under the Act. If, therefore, the plaintiff in his plaint
does not admit a relation which would attract any of the
provisions of the Act on which the exclusive jurisdiction
225
given under s. 28 depends, we do not think that the
defendant by his plea can force the plaintiff to go to a
forum where on his averments he cannot go. The
interpretation canvassed for by the appellants will give
rise to anomalous results; for example, the defendant may in
every case force the plaintiff to go to the Court of Small
Causes and secondly, if the Court of Small Causes finds
against the defendant’s plea-, the plaint may have to be
returned for presentation to the proper court for a second
time. Learned counsel for the appellants has argued in the
alternative that the Court of Small Causes need not return
the plaint a second time, for his contention is that Court
has “exclusive” jurisdiction to decide the case whenever a
claim is made under the Act even though the claim is found
to be false on trial. We do not think that this contention
can be accepted as correct, for to do so would be to hold
that the Court of Small Causes has exclusive jurisdiction to
decide question of title, which is clearly negatived by s.
29-A. Anomalous results may not be a conclusive arguments
but when one has regard to the provisions in Part 11 it
seems reasonably clear that the exclusive jurisdiction
conferred by s.28 is really dependent on an existing or
previous relationship of landlord and tenant and on claims
arising under the Act as between such parties.
Dealing with a similar argument in Govindram Salamatrai (1)
Chagla, C.J. said :
“There can be no doubt that when a plaintiff
files a suit against a defendant alleging that
he is his licensee, it is a suit which cannot
be entertained and tried by the Small Causes
Court because it is not a suit between a
landlord and a tenant, and judging by the
plaint no question arises out of the Rent
Control Act or any of its provisions which
would have to be determined on the plaint as
it stands…………………
(1) (1951) 53 Bom L. R, 886
226
It cannot be suggested that the plaintiff
should anticipate any defence that might be
taken up by the defendant that he is a tenant
or that the initial jurisdiction which the
Court had or which the Court lacked should be
controlled or affected by any subsequent
contention that might be taken up by the
defendant. The jurisdiction of a Court is
normally and ordinarily to be determined at
the time of the inception of a suit.
Therefore when a party puts a plaint on file,
it is at that time that the Court has
to consider whether the Court had jurisdiction
to entertain and try that suit or not. But it
is argued that although the Court might have
had jurisdiction when the suit was filed, as
soon as the defendant raised the contention
that he was a tenant the Court ceases to have
jurisdiction to try that suit and that
contention could only be disposed of by the
Small Causes Court by virtue of the pr
ovisions
of s. 28.
Therefore, the question that I have to address
myself to is whether the question as to
whether the defendant is a tenant or a
licensee is a question which arises out of the
Act or any of its provisions. Really, this
question is not a question that has anything
to do with the Act or any of its provisions.
It is a question which is collateral and which
has got to be decided before it could be said
that the Act has any application at all.”
We are in agreement with these observations, and we do not
think that s. 28 in its true scope and —- effect makes a
departure from the general principle referred to earlier by
us. Nor do we think that the right of appeal given by s.29
affects the position in any way. In respect of a decision
given by a Court exercising jurisdiction under s. 28, an
appeal is provided for in certain circumstances
227
under s.29. This does not mean that s-28 has the effect
contended for on behalf of the appellants.
As to the decision of this Court in Babulal Bhuramal (1), we
do not think that it assists the appellants. We consider
that the Bombay High Court correctly understood it in –
Jaswantlal v. “Western Company, India” (2). In Babulal
Bhuramal’s case the facts were these. A landlord after
giving a notice to quit to his tenant on December 6, 1947,
filed a suit against him in the Court of Small Causes,
Bombay, joining to the suit two other persons who were
alleged to be sub-tenants of the tenant. The landlord’s
case was that the tenancy of his tenant was validly
terminated and he was entitled to evict his tenant; that the
alleged sub-tenants of the tenant were trespassers who had
no right to be on the premises. The suit succeeded in -the
Small Causes Court, the Court holding that the subtenants
were not lawful sub-tenants, the sub-letting by the tenant
to them being contrary to law. The Small Causes Court,
therefore, passed a decree against the plaintiff and the
alleged sub-tenants. Thereafter, the tenant as plaintiff
No. I and the alleged sub-tenants as plaintiffs Nos. 2 and 3
filed a suit against the landlord in the City Civil Court
for a declaration that plaintiff No. I was a tenant of the
defendant and was entitled to protection under the Rent Act
and that plaintiffs Nos. 2 and 3 were lawful sub-tenants of
plaintiffs No, I and were entitled to possession and
occupation of the premises as sub-tenants thereof. A
question was raised in the City Civil Court as to whether
the City Civil Court had jurisdiction to entertain the suit.
The City Civil Court held that it had jurisdiction to
entertain the suit, but dismissed it on merits. In the
appeal which was filed in the High Court, the High Court
dismissed the appeal holding that the City Civil Court had
no jurisdiction to entertain the suit and therefore, the
suit filed by the plaintiffs in the City
(1) [1959] 367,
(2) (1939) 61 Bom. L.R. 1037.
228
Civil Court was not maintainable. It was from this decision
of the High Court that an appeal was filed in the Supreme
Court and the question which the Supreme Court had to
consider was whether the second suit filed by the plaintiffs
was within the jurisdiction of the City Civil Court. It was
urged before the Supreme Court that the suit was main-
tainable under s. 29-A of the Bombay Rent Act which provided
that nothing contained in ss. 28 or 29 should be deemed to
bar a party to a suit, proceeding or appeal mentioned there
in which a question of title to premises arises and is
determined, from suing in a competent Court to establish his
title to such premises. The Supreme Court held that a suit
which was competent to establish title under s. 29-A was a
suit to establish title de hors the Bombay Rent Act and not
a suit which sought to establish title which required to be
established under the Rent Act itself. It is obvious that
in the suit before the Court of Small Causes, it was open to
the tenant to claim protection under the Act and by reason
of s. 28 no other Court had jurisdiction to try that claim;
therefore, the Supreme Court held that s. 28 barred the
second suit and s. 29-A did not save it, because it only
saved a suit to establish title de hors the Act. The
observations made in that decision on which the present
appellants rely were these
“Do the provisions of s. 28 cover %case where
in a suit one party alleges that he is the
landlord and denies that the other is his
tenant or vice versa and the relief asked for
in the suit is in the nature of a claim which
arises out of the Act or any of the
provisions? The answer must be in the
affirmative on a reasonable interpretation of
s. 28.”
We agree with the High Court that these
observation merely show this that in order to
decide whether a suit comes within the purview
of s. 28 what must
229
be considered is what the suit as framed in
substance is and what the relief claimed
therein is. If the suit as framed is by a
landlord or a tenant and the relief asked for
is in the nature of a claim which arises out
of the Act or any of its provisions, then only
and not otherwise will it be covered by S. 28.
The High Court has rightly said :
“A suit which is essentially one between the
landlord and tenant does not cease to be such
a suit merely because the defendant denies the
claim of the plaintiff. In the same way, a
suit which is not between the landlord and
tenant and in which judging by the plaint no
claim or question arises out of tile Rent Act
or any of its provisions does not become a
suit covered by the provisions of s. 28 of the
Act as soon as the defendant raises a
contention that he is a tenant.”
For the reasons given above we hold that the City Civil
Court had jurisdiction to entertain the suit and the High
Court correctly came to that conclusion. Therefore, the
appeal fails and is dismissed with costs.
SARKAR J.–I agree that this appeal fails.
The City Civil Court, Bombay held that in view of s. 28 of
the Bombay Rents Hotel and Lodging Rates Control Act, 1947
it had no jurisdiction to entertain and try the Suit which
the respondent had filed against the appellants in that
Court and directed the plaint to be returned to the
respondent for being filed in the proper Court indicated by
that section, namely) the Court of Small Causes, Bombay.
The City Civil Court had tried the question as a preliminary
issue in the suit. There was an appeal to the High Court of
Bombay from this decision and the High Court took a contrary
view holding that
230
the City Civil Court’s jurisdiction to entertain and try the
suit had not been taken away by s. 28 of the Act. The
matter is now before this Court in further appeal.
The suit asked for a declaration that the appellants 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 appellants had been granted a licence to use
the shop of which the respondent was the tenant under the
owner and that the appellants were wrongfully continuing
there in spite of the termination of the licence and were
thereby preventing the , respondent from carrying on its
business in the shop. The suit, therefore, was by a
licenser against a licensee for certain reliefs based on the
termination of the licence.
The defence of the appellants to this suit was that the
relationship between the parties was not that of licenser
and licensee but that the shop had in fact been sub-let to
the first appellant and that the agreement between the
parties had been given the form of a licence only as a cloak
to protect the respondent from ejectment under the Act by
its landlord on the ground of unlawful sub-letting. The
appellants contended that as they were really tenants, their
landlord, the respondent, was not entitled to remove them
from possession in view of the provisions of the Act.
The question is, how far the suit is affected by s. 28 of
the Act. I proceed now to set out the terms of that
section omitting the unnecessary portions.
S. 28 (I)-“Notwithstanding anything contained
in any law
231
(a) in Greater Bombay, the Court of Small
Causes, 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 apply 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………………… no other court shall
have jurisdiction to entertain any such suit,
proceeding or application or to deal with such
claim or question.”
The section deals with three different kinds of matters,
namely, (1) suits or proceedings between a landlord and a
tenant relating to the recovery of rent or recovery of
possession of premises, (2) an application made under the
Act and (3) a claim or question arising out of the Act or
any of its provisions. It provides that no court except the
Court of Small Causes, so far as properties in Greater
Bombay are concerned, shall have jurisdiction to entertain
and try any suit or proceeding or to decide any application
or lastly to deal with any claim or question of any of the
said three kinds mentioned in it.
I think it is fairly clear that the suit of the respondent
does not fall within the first two kinds of matters
contemplated by the section mentioned in. the preceding
paragraph and I did not understand learned counsel for the
appellants to contend to the contrary. The suit obviously
does not come within the second kind for that consists of
applications under the Act only and a suit is, of course,
not an “application”. Turning now to the first kind, it has
to be
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observed that it deals with two varieties of suits between
landlord and tenant, namely, a suit for rent and a suit for
possession of premises. Obviously the respondent’s suit is
not a suit for rent for no rent is claimed at all. Nor do I
think it possible to say that the suit is one between a
landlord and a tenant for recovery of possession of
premises. I suppose whether a suit is of this kind or not
will have to be decided by the frame of the suit, that is,
by reference to the plaint for the suit is by the plaintiff
and it must be as lie has decided it shall be. Admittedly
the plaint that the respondent filed does not show that the
suit filed by it is between landlord and tenant nor does it
contain any claim for recovery of possession of premises.
That brings me to the third class of matters mentioned in
the section namely, claims and questions arising out of the
Act. The section provides that no court other than a Court
of Small Causes shall have jurisdiction to deal with any
claim or question arising under the Act concerning
properties in Greater Bombay. It is important to note here
that this part of the section does not purport to affect any
court’s jurisdiction to entertain and try a suit but it only
prevents a court from dealing with certain claims or
questions. Therefore, a court may try a suit in so far as
it does not thereby have to deal with a claim or question
arising out of the Act. If the other claims and questions
arising in the suit cannot be tried without dealing with a
claim or question arising out of the Act, then of course the
practical result would be to prevent the court from trying
the suit at all.
Therefore, it seems to me that the real question in this
case is whether the City Civil Court had no jurisdiction to
try the respondent’s suit as a whole or in part because it
would thereby be dealing with a claim or question arising
under the Act. Does the
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decision of the suit then require any claim or question
arising out of the Act to be dealt with ? If it does not,
the City Civil Court would be absolutely free to try the
suit.
Now, if one considers the plaint only, then of course it is
clear that the present suit raises no claim or question
arising out of the Act. But it is said by the appellants
that the defence raises such a claim or question. The
respondent answers that the section contemplates claims or
questions raised by the plaint only, for the section
determines the jurisdiction of a court to entertain and try
a suit and this must be done when the suit is instituted
and, therefore, it is irrelevant to consider what questions
the defence raises.
I think it unnecessary to decide the dispute whether it is
permissible under the section to look at the defence for
ascertaining whether a claim or question under the Act
arises in the suit. As at present advised, I do not want to
be understood as assenting to the proposition that a
reference to the written statement is not at all permissible
for deciding whether a court has jurisdiction under the
section to deal with claims or questions of a certain kind.
It is important to remember that the question now is whether
a court has jurisdiction to deal with a claim or question
and not whether a court has jurisdiction to entertain a
suit.
I think it unnecessary to decide the dispute because in my
view even the defence in the present case does not raise any
claim or question tinder the Act. The defence really is
that the appellants are not licensees. No doubt the
appellants have gone on to say that they are sub-tenants but
they say that only to show why they are not licensees; apart
from that-it is irrelevant to enquire whether they are sub-
tenants or not. I think the defence is only one of
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a traverse ; it is that the appellants are not licensees as
the plaint alleges. That being so, the only question that
the suit involves is whether the appellants are licensees of
the shop. If they are not licensees, then the suit must
fail. No other question would fall for decision. Quite
clearly, a question whether a defendant is a licensee or
not, is not a question nor is it a claim arising out of the
Act.
Assume however that the defence by contending that the
appellants are not licensees as they are subtenants, also
raises the question whether the appellants are sub-tenants.
Even so, it does not seem to me that is a question or claim
arising out of the Act. The Act does not create any
tenancy. That has to be created by a contract. The
question whether the appellants are sub-tenants, that is to
say, tenants of a certain kind, is really a question whether
a contract of tenancy was made between the appellants and
the respondent. That question is not one arising out of the
Act for the Act says nothing as to the creation of a tenancy
and is only concerned with the regulation of the relations
between a landlord and tenant in a tenancy the existence of
which is otherwise brought about.
The appellants no doubt say that the respondent cannot evict
them because they are tenants whose right to possession is
protected by the Act. They say that, therefore, a question
arises whether they are entitled to remain in possession as
subtenants by virtue of the provisions of the Act and
without the decision of that question the respondent’s suit
cannot be decided. I am entirely unable to see ‘that such a
question arises in the suit or that it cannot be decided
without a decision of that question. As soon as it is held
that the appellants are licensees, the suit has to be
decreed. When it is so held it has also been necessarily
held
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that the appellants are not tenants, and, therefore, no
further question as to rights of tenants under the Act falls
to be decided. If however it is held that the appellants
are not licensees but tenants, then on that ground alone the
suit has to be dismissed for the claim is not based on any
ground other than that the appellants are licensees whose
licence has expired. It would not in such an eventuality be
necessary further to consider whether the appellants who
have been found to be tenants, are entitled to protection
from eviction under the Act for the suit involves no claim
whatever for ejectment of the appellants considered as
tenants. No question, therefore, can possibly arise in the
suit as to whether the appellants are entitled to be in
possession as tenants by virtue of rights created by the
Act. Looking at the matter from whatever point of view I
do, I am wholly unable to think that the decision of any
question or claim arising out of the Act is necessary for
deciding the suit.
Learned counsel for the appellants referred to Babulal
Bhuramal v. Nandram Shivram (1), in support of the
proposition that the claim or question arising out of the
Act mentioned in the section may be one where only the
defence gives rise to it. I find it wholly unnecessary to
discuss whether this case supports that proposition for, as
I have said in the case in hand, even the defence of the
appellants does not raise any such claim or question.
I think it right before concluding to refer to s. 51 of the
Act under which reference to suits and proceedings in the
Act are to include reference to proceedings under Chapter
VII of the Presidency Small Causes Court Act, 1882. Chapter
VII of the Presidency Small Causes Court Act contemplates
proceedings for the recovery of possession of premises from
licensees after the termination of licences in certain
cases. Whether the present case is of that
(1) [1959] S. C. R, 367
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type or not is not known. If it is of that type, then it
may be that the City Civil Court would have no jurisdiction
to deal with it and only the Court of Small Causes would
have jurisdiction to do so in view of s. 28. As however no
argument was advanced by counsel for the appellants on the
basis of s. 51 nor the facts necessary for its application
appear on the record, I do not feel called upon to express
any opinion on the matter. I only draw attention to it to
show that if the question does arise that has not been
argued nor decided in this case. I think it also right to
point out that it may be a moot question whether the
appellants, having on their own statement entered into an
agreement to defraud, in a manner of speaking, the superior
landlord of his rights arising under the Act from an
unlawful sub-letting, can be permitted to say that the real
transaction between them and the respondent was a sub-
tenancy.
For these reasons I concur n i the order’ proposed by my
brother Das.
Appeal dismissed.
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