Bombay High Court
Captain Nanda vs Amarnath P. And Ors. on 17 September, 1990
Equivalent citations: 1990(3)BOMCR601
JUDGMENT
H. Suresh, J
1. Respondent No. 2 filed a suit in the Bombay City Civil Court, being Suit No. 1537 of 1984 as against the present appellant/defendant No. 2 and also one Amarnath P. for a declaration that the present appellant as also the said Amarnath have no right of any nature to enter upon the property of the plaintiff and also for an injunction restraining them from trespassing or entering upon the plaintiff's property known as Akash Deep situated at Gamdevi, Bombay-400 007. He took out a notice of motion for interim reliefs, being Notice of Motion No. 1407 of 1984. In that notice of motion, the present appellant took up a contention that the Bombay City Civil Court had no jurisdiction to entertain and try this suit. That objection was raised under section 9-A of the Code of Civil Procedure. The learned Judge, accordingly, framed a preliminary issue and decided the same by his order dated 2-5-1985 whereby he held that the Bombay City Civil Court had jurisdiction to entertain and try the suit. It is against that order, the appellant has preferred the present appeal.
2. It is well settled that the question of jurisdiction when raised under section 9-A of Code of Civil Procedure, has to be decided on the basis of the averments made in the plaint. Let us, therefore, consider the averments made in the plaint. It is the contention of the present appellant that the suit falls within the scope of section 28 of the Bombay Rent Act, 1947.
3. The plaint shows that the plaintiff (respondent No. 3) and defendant 3 to 13 are the owners of the property known as Akash Deep. The said building comprises of a basement where mostly garages/work shops were situated and the floor wits six upper storeys were occupied by tenants. The Plaintiff says that defendant No. 1, the said Amarnath, was of tenant in respect of a garage and a workshop situated in the basement of the said building. It is the case of the plaintiff that defendant No. 1 had unlawfully parted with possession of the said premises to defendant No. 2, the present appellant. He has further stated that at the material time, in August 1983 defendant No. 2 was in use and occupation of the said premises.
4. It appears that during the monsoon, on 5th August, 1983, the entire building collapsed and the entire structure including the premises in occupation of defendants 1 and 2 came down and completed collapsed. The plaintiff says that since then, the area where the suit premises is situated, is being used as a doping place by the plaintiff and the other owners of the property, and the salvaged material has been kept and stored in the said portion. The plaintiff says that the Bombay Municipal Corporation has not allowed reconstruction of any structure on the said property. All the plans submitted by the plaintiff and defendants 3 to 13 have not been passed by the Bombay Municipal Corporation.
5. Strangely, the plaintiff submits that as a result of the collapse of the house and destruction of the structure, all the rights in respect of defendants No. 1 stood extinguished and that defendants 1 and 2 have no right of any nature over the suit premises or any part thereof and/or over the salvaged material stored in the suit premises. It is further submitted that in any event, defendants 1 and 2 have no right of any nature to enter upon the suit and/or put up any construction of any nature on the suit premises. Thereafter the plaint proceeds to say that defendants Nos. 1 and 2 intend to remove the salvaged material and to carry out permanent construction on the said land by entering on the same. It further save that on 27th September, 1983, defendant's 1 and 2 brought building material, cement, bricks etc. for carrying out repairs, additions and alternations at site. It further says that as on 8th March, 1984 the plaintiff observed that defendants 1 and 2 had between 7th March, 1984 and 8th March, 1984 broken walls of the building plaster.
6. The plaintiff, therefore, submits that he is entitled to a declaration that defendants 1 and 2 have no right to inter upon the suit premises and to occupy the same. The rest of the averments are not necessary for the purpose of deciding the question of jurisdiction. Prayer (a) of the plaint is for a declaration that defendants 1 and 2 have no right of any nature to enter upon the property of the plaintiff and defendants 3 to 13 and/or occupy the suit premises. Prayer (b) of the plaint is for a permanent order of injunction restraining the defendants 1 and 2, their servants and agents from trespassing or entering upon the plaintiff's property the said Akash Deep. The remaining prayers are for consequential reliefs.
7. I must mention that defendant No. 1, the tenant, had died even before the filling of the suit. It is not clear whether any amendment has been carried out in the plaint or any application has been made to bring the heirs on record or not. However, if appears at some stage, defendant No. 14, who claimed to be an heir of the deceased defendant, made an application for bringing himself on record and the plaintiff's Advocate had consented to his being added as party to the suit. However, no amendment has been carried out so far.
8. On the basis of these statements in the plaint, the learned Judge came to the conclusion that the present suit is a suit between an owner of a property and a trespass namely, defendant No. 2 and that, therefore, the Bombay City Civil Court has jurisdiction to entertain and try the suit.
9. What is lost sight of by the learned Judge is that the tenancy has not been determined. The plaint proceeds on a fundamental fallacy that on the destruction or collapse of the building, the tenancy came to an end. It is a settled principle of law, that mere destruction of the tenanted house by virtue of fire, flood, fall, or otherwise would not bring the tenancy to an end. See the case of Krishna Laxman Yadav v. Narsinghrao Vithalrao Sonawane, .
10. Consequently, the next proposition would be that the landlord would have no right to recover possession of the demised premises unless he first obtains a decree against the tenant. Till such time, if anyone is found in the demised premises. It is wrong to assume on the part of the plaintiff that such a person is a trespasser. In the present case, in the plaint itself, the plaintiff has expressly stated that the tenant had parted with the possession of the suit premises to defendant No. 2 unlawfully. That does not mean that defendant No. 2 becomes a trespasser. Whether the tenant had parted with possession of the premises to any person lawfully or unlawfully again is a question which will have to be decided under section 28 of the Bombay Rent Act and not by a Civil Court.
11. Again the prayer is for injunction, which, if granted has the effect of the tenant loosing possession of the premises for ever. Therefore, it is a suit between a landlord and a tenant relating to recovery of possession of the premises. Thus, in substance, this is a suit between a landlord and a tenant and a person claiming through a tenant, for recovery of possession of the premises incidentally, for the purpose of obtaining a relief as against defendant No. 2 the Court will also have to hold whether defendant No. 2 has been lawfully inducted into the premises or not which question is against a question which would fall within the scope of section 28 of the Bombay Rent Act.
12. Mr. Shah, appearing for the plaintiff submitted that this cannot be considered as a suit between a landlord and a tenant. He submitted that the tenant had inducted defendant No. 2 who has no right whatsoever the respect of the property and, therefore, in law, he should be considered as a trespasser. He also submitted that the Court has to take into account the fact that after the collapse of the building the plaintiff had stored the salvaged material at the suit premises and that, therefore, there was an apprehension that the tenant and defendant No. 1 were trying to reconstruct the premises without the consent from the plaintiff, the landlord and that, therefore, it was in these circumstances the plaintiff had filed the suit in the Bombay City Civil Court and sought the necessary reliefs as mentioned in the pliant. He therefore, submitted that the learned Judge was right when he stated that defendant No. 2 had no right to enter upon or remain in the suit premises and that, therefore, he should be considered as a trespasser.
13. Whatever be the immediate cause of action, which compited the plaintiff to go to the Court of law, still the question of jurisdiction has to be decided on the basis of the averments made in the plaint and on the basis of the substance of the plaintiff's case. In substance, in the present case, the plaintiff wants to evict defendants 1 and 2 from the suit premises on the assumption that defendant No. 2 is a trespasser on the property.
14. In this connection, I may refer to the case of Sita Ram v. Ram Lal, reported in Indian Law Reports 18 All. 440, wherein the Full Bench of the Allahabad High Court has expressly negatived such a contention as advanced by the plaintiffs. The relevant portion is as follows:---
"That lease and the term created by it had not been determined, and the plaintiff cannot be entitled to the physical possession of lands, the possession of which he had granted to another under a lease which is still current. A landlord can no doubt be correctly said to be in possession of his property through his tenants, but that is not such a possession as entitles him to enter upon the lands, or to cultivate them, or to treat his tenants and those holding under them as the trespassers."
The Full Bench after taking into account that the law of England on this point is consistent with common sense, asserted that principle would apply all the world over and observed :
"That principle is that where a man, whether the owner or merely a tenant, creates a tenancy under him which entitles the tenant to the exclusive use of the land or of the house, as it may be, the man creating the tenancy cannot have any right to actual possession, unless he has by the lease or by agreement with his tenant reserved to himself a right to re-enter and take possession. He has of course a right by due process of law, if the facts arise, to have the tenancy created by him determined and his tenant ejected; but so long as the tenant is entitled to possession, the landlord cannot be entitled to possession. That right to possession he has parted with by the creation of the tenancy."
Therefore, it is clear that it is only after determination of the interests of the tenant by a decree for possession, the landlord can proceed against any other person who is found in possession of the demised premises.
15. Now, with the introduction of a statute like the Bombay Rent Act, 1947, even if any right to re-enter is reserved, the landlord will not be able to exercise any such right, except in terms of the provisions of the Act. Thus we have the well-known dichotomy between right to possession and right to recovery of possession. A landlord may have a right to possession on termination of tenancy or on expiry of the term of tenancy. But the statute gives protection to the tenant by virtue of the Bombay Rent Act, 1947, and, therefore, unless the landlord avails of ground as provided under section 12 or under section 13 of the Act, it is not possible for him to recover possession of the demised premises. In the present case, therefore, unless the terminates the tenancy of defendant No. 1 and obtains a decree of possession as provided under the Bombay Rent Act, 1947 in law, it is not possible for the landlord to proceed against defendant No. 2.
16. This is not a case where it could be said that the tenant himself was dispossessed by a total stranger and for some reason the tenant himself is not in a position to safeguard his possession of the premises. Even in such cases, the legal position is that if a landlord wants to secure possession from such a person, as long as the demises stands, he can file a suit, but the same shall be for and on behalf of the tenant. The principle behind this is that in such circumstances, since it is ultimately likely to affect the reversionery interests of the landlord, the landlord may file a suit, but with no right to recover possession for himself. In this connection, it is worthwhile to refer to the case of Ratanlal Ghelabhai v. Amar singh Rupsingh, reported in (1929) 31 Bom.L.R. 1042. That was a case where defendant No. 2, the tenant of the plaintiff, was unlawfully dispossessed by defendant No. 1 claiming the land as his own. The tenant refused to file any suit. The landlord (the plaintiff) then filed a suit under section 9 of the Specific Relief Act, 1877 (which is equivalent to section 6 of the Specific Relief Act, 1963). But he made the tenant party defendant No. 2 with no relief against him. In that, the Court observed that the proper thing would have been for the tenant to have filed a suit for possession. But the landlord, if he desires to sue immediately on the possessory rights, he can sue "in the name of the tenant and further, for an injury to the reversion, the landlord can sue in his own name. The injury in the present instance consists in a denial of the plaintiff's title to the land for defendant No. 1 has taken possession of it claiming it to be his. I think, therefore, that there is an injury to the reversion in respect of which plaintiff can sue in his own name." Thus far, and no further is all that the landlords can do, in such situation.
17. Lastly, in the present case though the learned Judge was required, to take into account the averments made in the plaint, only he dealt with certain contentions which are not there in the plaint to hold that the defendant is a trespasser an error which he could have easily avoided.
18. In the result, I am inclined to allow this appeal and I pass the following order :
ORDER The impugned order dated 2nd May 1985 is set aside. I further hold that the Bombay City Civil Court has no jurisdiction to entertain and try the suit. The plaint be returned to the plaintiff for presentation in a proper Court. The Registrar of the Bombay City Civil Court to fix a date for handing over the plaint to the plaintiff.
Appeal allowed. There will be no order as to costs.
At this stage, Mr. Shah submits that the order of injunction which has been in force all these years must be continued for some more time. Mr. Abhyankar opposes the said application and points out that the order of injunction puts an unreasonable restraint on the appellant.
P. C, : I restrain the appellant from putting up any construction on the suit premises for a period of six weeks from today. Subject to this, rest of the order stands vacated.