Gujarat High Court
Mohmad Husain Chotumiya Shaikh vs Taraben Manilal Shah on 13 December, 1990
Equivalent citations: (1991)1GLR585
JUDGMENT K.G. Shah, J.
1. This revision petition is directed against the order dated July 17, 1989, passed by the learned Second Joint Civil Judge (J.D.), Ahmedabad, Rural at Mirzapur.on Exh. 57 in Civil Suit No. 263 of 1985 on his file. By the impugned order, the learned Judge has rejected Exh. 57 application filed by the revision petitioner (the plaintiff) for a permission to amend the plaint.
2. The petitioner filed the suit against Manilal (since deceased) (Defendant No. 1) and Babulal respondent No. 5 herein (Defendant No. 2).
3. In the plaint, the petitioner averred that since about 16 years, he is running the business of a flour factory in the suit premises. It is the case of the petitioner that he had taken the suit premises on lease from deceased Jaishanker, who was the original tenant in the premises. The petitioner averred that formerly he used to pay rent at the rate of Rs. 27/ - per month for the suit premises to Jaishanker, and since the death of Jaishanker, he has been paying the rent to Babulal, opponent No. 6 (defendant No. 2). The petitioner averred that though he paid rent regularly, defendant No.2 never issued him any rent receipt. In paragraph 3 of the plaint, the petitioner averred that defendant No. 1-Manilal is the owner of the premises. In that paragraph, he also stated that he took the premises on lease in 1969 and Manilal, defendant No. 1 has fully consented to that. He then averred that opponent No. 5 was, since some time prior to the filing of the suit, trying to increase the rent and that demand for increased rent was stoutly opposed by him. Therefore, accordingly to the petitioner, opponent No. 5 has been trying to snatch away the possession of the premises from him.
4. The petitioner further averred that on March 21, 1985, when he was at the suit premises, where he has been doing the business, deceased defendant No 1-Manilal came to the shop and threatened him to vacate the premises. At that time, according to the petitioner, from Manilal he came to know that Manilal had filed some suit in respect of the suit premises in the Narol Court, and Manilal at that time told the petitioner that the possession of the premises was his i.e. of Manilal. Then the petitioner made inquires, and according to him, he came to know that Manilal had filed a suit in Narol Court for the recovery of the possession of the premises, and had obtained a decree for possession in that suit being Suit No. 22 of 1984, and had put up that decree for execution by Execution Application No. 38 of 1985, and had therein, obtained a false endorsement about the possession of the premises having been handed over to him. According to the petitioner, he was not a party to Suit No. 22 of 1984 or to the Execution Application No. 38 of 1985. On these averments in the main, the petitioner in paragraph 10 of the plaint, prayed for a permanent injunction restraining the defendants to the suit, either personally or through their servants, agents, etc. from taking away the possession of the suit premises from him. He also prayed for a declaration that the decree obtained by Manilal in Civil Suit No. 22 of 1984 was null and void.
5. The case that was set up by the defendants in the suit was that Manilal had obtained the possession of the suit premises in execution of the decree obtained by him in Suit No. 22 of 1984 and thereafter, the petitioner has forcibly entered into the premises, and that the petitioner is therefore, a trespasser in the premises.
6. The petitioner filed the suit in the Court of the learned Civil Judge (S.D.), Ahmedabad (Rural) at Narol (now at Mirzapur). By the suit the petitioner invoked the regular civil jurisdiction of the learned Civil Judge. According to the petitioner, he had taken the premises on lease from Jaishanker, and as averred by him in plaint para 3, Manilal, the original owner of the premises had consented to the same. Still however, reading the plaint as it stands, clearly goes to show that the petitioner invoked the ordinary regular civil jurisdiction of the learned Civil Judge. He averred that the defendants were illegally trying to take away the possession of the premises from him, and he paid the Court-fees of Rs. 30/- on the plaint on that very basis.
7. During the pendency of the suit, the petitioner moved an application Exh. 57 for amendment of the plaint. He wanted to additionally contend that Jaishanker, the original tenant of the premises had, through opponent No. 5 transferred or assigned to him the running business of Ganesh Flour Factory, which was run by Jaishanker in the suit premises, for a consideration of Rs. 8,501/-, and that transfer and assignment was made by Jaishanker within the knowledge of and with the consent of defendant No. 1-Manilal who has since expired. Therefore also, he gets protection under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Rent Act"). This is the additional contention which the petitioner wanted to aver in the plaint by seeking an order from the Court, below Exh. 57. The learned trial Judge has rejected that application. Hence the revision.
8. As pointed out hereinabove, the suit as originally filed and as it stands at this moment is a suit by which the petitioner has invoked the original civil jurisdiction of the learned Civil Judge. Now by the amendment that is sought by the petitioner to be made in the plaint, he wants to raise the contention that he being the transferee and assignee from Jaishanker of a running business in the suit premises, is protected under Section 15 of the Rent Act. The contention which is now sought to be put forward by amending the plaint, for which permission is sought by the petitioner, if allowed to be raised would include in the plaint, a contention about a claim or question arising out of the Rent Act or its provisions. In other words, the contention which is now sought to be incorporated in the plaint if permitted to be incorporated, would require a decision on a claim or a question arising out of the Rent Act or its provisions. Such a determination or decision could only be made by a Court exercising jurisdiction under Section 28 of the Rent Act. True, so far as Narol (now Mirzapur) Court is concerned, the same individual Judge who exercises the ordinary civil jurisdiction also exercises the jurisdiction under Section 28 of the Rent Act. Nonetheless, the two authorities, even though vesting in one and the same individual are different. The determination of the question raised by the petitioner in the plaint as it stands now is within the jurisdiction of the ordinary Civil Court while the determination of the question which is sought to be raised by the petitioner by amending the plaint, for which permission is sought, would be within the exclusive jurisdiction of a Court exercising jurisdiction under Section 28 of the Rent Act. It is now well settled that the Court exercising ordinary civil jurisdiction cannot decide questions of claims arising out of the Rent Act or its provisions. Insofar as the determination of the questions or the claims arising out of the Rent Act or its provisions, the same could be determined only by the Court exercising power and jurisdiction under Section 28 of the Rent Act. Now, if the amendment as is sought to be made by the petitioner, is permitted to be made, an anomalous situation would arise. The questions which are raised by the petitioner in the plaint as it stands today are required to be determined by the Court exercising ordinary civil jurisdiction. The question bearing on Section 15 of the Rent Act which the petitioner now wants to raise by amending the plaint for which he seeks permission can be decided not by the Court exercising ordinary civil jurisdiction, but by the Court exercising jurisdiction under Section 28 of the Rent Act. Even though the person holding the two jurisdictions may be the one and the same individual, he wields two different authorities, one under the Code of Civil Procedure, and the other under Section 28 of the Rent Act. The two authorities cannot be mixed up. This position would be clear if a reference is made to the Division Bench judgment of this Court in Govindbhai Parshottamdas Patel and Ors. v. New Shorrock Mills, Nadiad . In that decision, the Division Bench of this High Court while not approving the ratio in the earlier single Judge judgment in the case of New Shorrock Mills v. Somabhai Mathurbhai Patel 1983(1) XXIV (1) GLR 172, in terms very much clear laid down (at page No. 170 of 1984 (1) GLR paras 29, 30):
In the light of the Scheme of the Rent Act, it is apparent that even when the same person or individual is invested with two different jurisdictions, he cannot exercise two jurisdictions simultaneously, in one and the same proceeding. He has to exercise one jurisdiction at a time because it is not 'he' (the individual officer) who acts, but it is the 'authority' under the particular Act which is distinct and independent that exercises that particular jurisdiction. If one jurisdiction is exercised, not only the original forum may be changed, but the procedure for trial and hearing of the particular proceeding to be adopted by that forum will also be different. Similarly, the superior forum of appeal and revision will also be different. It is thus clear that it is not open to the Court of Civil Judge (J.D.) to entertain the dispute which falls outside the provisions of Section 28 of the Rent Act when it exercises jurisdiction under Section 28 of the Rent Act. Similarly, when the Civil Judge (J.D.) exercises his ordinary civil jurisdiction, it will not be open to him to decide the disputes, which fall within the purview of Section 28 of the Rent Act. The restriction arises on account of the nature of proceedings with which the Court for the time being might be dealing.
9. Thus, it is clear that though the individual Judge may be the same, he exercises two different authorities, one under the ordinary civil law as ordinary civil jurisdiction and the other as a Court contemplated by Sub-section (1) of Section 28 of the Rent Act. In the present case, the plaint as it stands today has been filed before the ordinary Civil Court invoking ordinary civil jurisdiction of the Court and the Court-fees has also been paid on that basis. The averments that have been made in the plaint are also on that basis. The averments are that the defendants are illegally trying to dispossess the petitioner from the premises. These averments and the questions arising therefrom can only be determined by the ordinary Civil Court exercising ordinary civil jurisdiction. If the new averment which is sought to be incorporated in the plaint by amending the plaint, for which permission is sought, is allowed to be incorporated in the plaint, that would give rise to claims and questions bearing on Section 15 of the Rent Act. Therefore, those claims and questions would arise out of the Rent Act and out of the provisions of the Rent Act. Such claims and questions cannot be decided by an ordinary Civil Court. Therefore, if the amendment as sought is allowed, it would create an anomalous situation. The claims and questions arising from plaint as originally filed will have to be determined by the Court exercising ordinary civil jurisdiction. The claims and questions arising out of the new claim, which is sought to be raised by the petitioner, will have to be determined by the Court contemplated by Sub-section (1) of Section 28 of the Rent Act. Though the Judge may be the same, the two authorities would be different, and as held by the Division Bench of this Court in the judgment just now referred to, when the Civil Judge (J.D.) exercises his ordinary civil jurisdiction, it will not be open to him to decide the disputes which fell within the purview of Section 28 of the Rent Act.
10. This being the position, the amendment as sought cannot be permitted to be made.
11. In Dattatraya Krishna Jangam v. Jairam Ganesh Gore Vol. LXVI of (1964) BLR 645, the Full Bench of the Bombay High Court has held as follows:
In order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint, it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then, it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue. Similarly, if the plaint does not allege relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary Civil Court and not the special Court that will have jurisdiction to entertain the suit.
As pointed out hereinabove, the plaint in the present suit as it stands now does not allege the relationship of landlord and tenant between deceased Manilal and the petitioner, and therein no question arising out of the Rent Act or any of its provisions has been canvassed. Therefore, the suit arising on such a plaint would be within the competence of the ordinary Civil Court and not the Court exercising jurisdiction under Section 28 of the Rent Act. Now, if the amendment as is sought is allowed, the entire jurisdiction would change. Therefore, the amendment as sought cannot be permitted to be made.
12. Mr. Thakore, the learned Advocate for the petitioner submitted that in any view of the matter, the amendment should be allowed and if the Court is of the opinion that by allowing the amendment, the forum would change, the Civil Court should return the plaint for being presented to the Court exercising jurisdiction under Section 28 of the Rent Act.
I am not in a position to accept this submission of Mr. Thakore. Mr. Thakore invited my attention to the decisions in the case of:
(1) Kundcm Mal and Ors. v. Thikana Siryari and Ors. ; and (2) M. Allauddin v. P.S. Lakshmi Narayanan .
It is not necessary for me to refer to these two judgments in details for the simple reason that the case before me is entirely different as compared to the cases in the aforesaid two judgments, and as said above, in the case before me, the claims and questions which have been raised by the petitioner in the plaint as originally filed, are entertainable only by the Court exercising ordinary civil jurisdiction. The claims and questions arising from the new plea that is sought to be inserted in the plaint would be within the exclusive jurisdiction of the Court referred to in Sub-section (1) of Section 28 of the Rent Act. Therefore, if the submission of Mr. Thakore that the Court should allow the amendment and then return the plaint for being presented to the Court exercising jurisdiction under Sub-section (1) of Section 28 of the Rent Act is accepted, after such return of the plaint, the Court exercising jurisdiction under Section 28(1) of the Rent Act would not be in a position to decide the claims and questions as have been raised by the petitioner in the plaint as originally filed and it will be in the same predicament as the Court exercising original civil jurisdiction would be, if it were to try the suit after allowing the amendment to be made in the plaint. Therefore, in either case, the Court would be in a predicament, on account of the anomalous situation that would crop up if the amendment as sought is allowed to be made in the plaint.
13. In The aforesaid view of the matter, I think the amendment as prayed by the petitioner, to be made in the plaint should not be allowed. The Revision Application is therefore, rejected. Notice issued on the revision application is discharged. The interim relief is vacated.
At the request of Mr. Thakore, in order to enable the petitioner to pursue his remedy elsewhere, the interim stay shall continue for Eight Weeks from now.