Bombay High Court
Chamanlal Dutta vs Jharna Ghosh And Ors. on 5 February, 1981
JUDGMENT D.N. Mehta, J.
1. The plaintiff has taken out this Notice of Motion dated the 19th of September, 1980 praying for the appointment of the Court receiver, High Court, as the suit premises i.e. Flat No. 202, Venus Appartments, 20th floor Twin Star Co-operative Housing Society Ltd., Cuff Prande, Colaba, Bombay-5. The plaintiffs has further prayed for an Interim Order restraining the defendants from entering into or remaining upon or occupying the said premises in the Venus Apartments. The plaintiff has also prayed for the appointment of a Commissioners to take an inventory of the articles lying in the said premises in the Venus Apartments.
2. During the course of the arguments, Shri Mehta, learned Counsel for defendant No. 1 and Shri Thakkar, learned Counsel for defendants 2 and 3 raised an objection with regard to the jurisdiction of this Court to entertain the suit. According to learned Counsel, in view of the provisions of section 41 of the Presidency Small Causes Courts Act, 1882 this Court cannot entertain this suit. I am, therefore, required to frame the issue of jurisdiction as a preliminary issue, pursuant to the provisions of section 9-A of the Civil Procedure Code and to try the same. Section 9-A(1) of the Civil Procedure Code provided :---
"Section 9-A(1).---Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and dispose of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit."
I have, therefore, framed the following issue :---
"Whether this Court has jurisdiction to try the suit in view of the provisions of section 41 of the Presidency Small Causes Courts Act, 1882."
3. Shri Thakkar, pointed out that under the provisions of amended section 41 of the Presidency Small Causes Courts Act, 1882 which was substituted for the original by the Maharashtra Act (XIX) of 1976, all suits and proceedings between a licensor and licensee and a landlord and a tenant relating to the licence fee or charges or rent therefore were triable exclusively by the Court of Small Causes. Shri Thakkar pointed out that the provisions of section 41(1) were pari materia with the provisions of section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act") save and except that in section 28 it was only in case a claim or question arose out of the Rent Act, in which case the suit was triable exclusively by the Court of Small Causes. However, under section 41 of the Presidency Small Causes Courts Act, no such reservation was made. Shri Thakkar, therefore, contended that the provisions of section 41 were wider in their implication then the provisions of section 28 of the Rent Act. The plaint wherein the plaintiff claimed to be a tenant of the defendants. The relevant passage relied upon by Shri Thakkar is the following :---
"The plaintiff submits that the real intention of the parties was to create a monthly tenancy in respect of the entire suit premises by putting the plaintiff in exclusive possession thereof on a monthly rent of Rs. 2500/-."
Shri Thakkar also pointed out a passage at paragraph 11 of the plaint where in the plaintiff stated that he was entitled to an order and decree against the defendants directing them to hand over vacant and peaceful possession of the suit premises to him. Shri Thakkar then drew my attention to the two prayers in the plaint. In the first, the plaintiff prayed for an order and decree against the defendants directing them to hand over to the plaintiff vacant and peaceful possession of the suit premises in Venus Apartments. Secondly, the plaintiff prayed for permanent injunction against the defendants restraining them from remaining upon or occupying the said premises in the Venus Apartments. Shri Thakkar, therefore, argued that this was a suit as between a landlord and a tenant and it was a suit relating to the recovery of possession of immovable property situated in Greater Bombay. He, therefore, contended that the suit fell squarely within the ambit of section 41 of the Presidency Small Causes Courts Act and that being so, this Court would not have jurisdiction to try the same but that the Court of Small Causes would have exclusive jurisdiction to entertain this suit. Shri Thakkar relied upon a recent decision of this Court in the case of Nagin Manuskhlal Dogli v. Haribhai Manibhai Patel, , wherein my brother Madan, J. speaking for the Division Bench was pleased to observe :---
"Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of Rs. 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of Rs. 375 per month and for a sum of Rs. 375 per month from the date of the suit till possession of the said flat was handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that section 41 of the Presidency Small Causes Courts Act, did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensation for wrongful use and occupation of the property or mesne profits. This argument by Mr. Sanghavi overlooks the language used in the said section 41. The said section 41 speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay." It is significant that the words used in the said section 41 are "suits relating to the recovery of possession" and not "suits for possession." Rule 12 of Order 20 of the Civil Procedure Code, 1908, provides as to how a Court is to proceed "Where a suit is for the recovery of possession of immovable property and for rent or mesne profits.
x x x x x x x x x x x x The words 'relating to' are intentionally and designadly used in the said section 41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy."
4. Shri Thakkar has also relied upon certain observations of this Court in the Full Bench decision in the case of Dattatraya Krishna Jangam v. Jairam Ganesh Gore, reported in 66 Bom.L.R. 645, wherein Chainani, C.J. was pleased to observe :---
"The position, therefore, is that 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 the 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."
5. Shri Thakkar and Shri Mehta contended that the observations of the Full Bench make it amply clear that a suit like the present one cannot be entertained by any Court except the Special Court i.e. the Court of Small Causes. They have sought support from the observations of this Court in the case of Nagin Manusukhlal Dogli v. Haribhai Manibhai Patel, cited heretofore.
6. Shri Shah, the learned Counsel for the plaintiff has submitted that this Court alone would have jurisdiction to try the suit as this suit is not a suit contemplated either under section 28 of the Rent Act or under section 41 of the Presidency Small Causes Courts Act. Shri Shah stated that the present suit was a suit under section 6 of the Specific Relief Act, 1963 where the Court was not required to consider the issue of title but only of possession. Section 6(1) of the Specific Relief Act provides as follows :---
"6(1). If any person is dispossessed without his consent of immovable property otherwise then in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit."
Shri Shah contended that a suit filed under section 6 of the Specific Relief Act, 1963 would not fall within the ambit either of section 28 of the Rent Act or section 41 of the Presidency Small Causes Courts Act. In support of this contention, Shri Shah relied upon a Division Bench judgment of this Court in the case of Shiavax Cambata v. Sunderdas Ebji, reported in 52 Bom.L.R. 381, wherein Chagla, C.J. was pleased to observe :---
"In our opinion, it is only when a landlord or a tenant files a suit for possession as a landlord or a tenant and in his capacity as a landlord or a tenant and relying on his title as a landlord or a tenant that it becomes a suit of the description mentioned in section 50 and section 289 of the Act. Although the plaintiff might have set out his title in the plaint, those averments were entirely unnecessary and irrelevant. It is clear that the defendant could not have raised an issue as to the plaintiff's title in the suit. He could not have contested the position that the plaintiff was not entitled to possession because he was not a tenant. He could only have contested and plaintiff's claim on the one simple and short ground, viz., that the plaintiff was not in possession within six months of the filing of the suit. Therefore, the issue as to landlord and tenant could never have arisen in this suit. Therefore, in our opinion, the learned Judge, with respect to him, was in error when he held that this Court had no jurisdiction to try the suit which was before him."
Shri Shah pointed out that the decision in Shiavax Cambata v. Sunderdas Ebji's case cited above was approved by the Full Bench in Dattatraya Krishna v. Jairam Ganesh Gorek, 66 Bom.L.R. 645, wherein Chainani, C.J. was pleased to observe :---
"On behalf of the tenants reliance was placed on the decision of this Court in Shiavax Cambata v. Sunderdas Ebji, 52 Bom.L.R. 381 and Madhavoprasad Kalkaprasad v. Indirabai, 55 Bom.L.R. 21. In Shiavax Cambata's case it was held that a suit by a tenant to recover possession of demised premises from his landlord brought under section 9 of the Specific Relief Act does not fall within the purview of section 28 of the Rent Act. Chagla C.J. pointed out in his judgment that the object of section 9 of the Specific Relief Act is to protect possession without regard to the title or origin of possession that although the plaintiff might have set out his title in the plaint those averments were entirely unnecessary and irrelevant, that the defendants could not have contested the position that the plaintiff was not entitled to possession because he was not a tenant, that they could only have contested the plaintiff's claim on the one simple and short ground viz., that the plaintiff was not in possession within six months of the filing of the suit, that, therefore, the issue as to landlord and tenant could never have arisen in the suit, and that, consequently, the suit was outside the scope of section 28.
With respect, we agree with this observation. Where, therefore, a claim to possession is based on the plaintiff being a landlord or a tenant, the suit will be a suit of the description mentioned in section 28."
7. Shri Shah submitted that in view of the observations of Chagla, C.J. in Shiavax Camabata v. Sunderdas Ebji's case which were approved by the Full Bench in Dattatraya Krishna v. Jairam Ganesh's case, a suit such as the present one filed under section 6 of the Specific Relief Act was not covered by the provisions either of section 28 of the Rent Act or section 41 of the Presidency Small Causes Courts Act.
8. Shri Mehta on the other hand contended that the objection taken on behalf of the defendants was not that the suit was barred under section 28 of the Rent Act but that it was barred under the amended section 41 of the Presidency Small Causes Courts Act. Shri Mehta stated that Chapter VII of the Presidency Small Causes Courts Act, 1882 was substituted by a new Chapter consisting of sections 41 to 46 and that the Amending Act came into force on July 1, 1977. Shri Mehta stated that the observations of Chagla, C.J. in Shiavax Cambata case could not apply to section 41 of the Presidency Small Causes Courts Act for the reason that the Amending Act had not come into force then. Shri Mehta stated that the amended section 41 was a comprehensive section embracing all suits and proceedings between a licensor and licensee or a landlord and tenant relating to the recovery of possession of any immovable property in Greater Bombay or relating to the recovery of the licence fee, or charges or rent therefore. Shri Mehta pointed out that was one other indication in the section itself that the provisions were all embracing and that was the provisions of sub-section (2) of section 41. Sub-section (2) of section 41 provided :---
"(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force, applies."
Shri Mehta stated that sub-section (2) made it clear that the provisions of sub-section (1) did not apply to the provisions of Acts mentioned therein. Sub-section (2) made no mention of suits filed under section 6 of the Specific Relief Act and, therefore, this was one more indication that the legislature did not intend to make an exception of suits under section 6 of the Specific Relief Act. Shri Mehta emphasised the wording of section 41(1) of the Presidency Small Cause Courts Act which provided that the Court of Small Causes had jurisdiction to entertain and try all suits and proceedings between a licensor and licensee or a landlord and tenant relating to the recovery of possession of any immovable property, or relating to the recovery of licence fee or charges or rent therefore. Shri Mehta argued that the wording of the section itself made it clear that suits filed under section 6 of the Specific Relief Act were not exempted. Shri Mehta stated that the observations of the Division Bench in the case of Nagin v. Haribhai, (1979 Bombay Cases Reporter 348) cited heretofore supported his submission.
9. The objection with regard to the jurisdiction of this Court is founded on sound reason. I am inclined to agree with Shri Thakkar and Shri Mehta that the provisions of the amended section 41(1) of the Presidency Small Cause Courts Act are comprehensive and would embrace a suit filed under section 6 of the Specific Relief Act. The fact that sub-section 41 which has carved out certain exceptions makes no mention of suits filed under section 6 of the Specific Relief Act, is an indication that the legislative did not intend to exempt such suits from the purview of section 41(1). The wording of section 41(1). "The Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings........." is also indicative of the fact that suits like the present one under section 6 of the Specific Relief Act also fell within its ambit. The observations of the Division Bench in the case of Nagin v. Haribhai cited heretofore support the submission made on behalf of the defendants. I am of the view that the observation of Chagla, C.J. in the case of Shiavax v. Cambata (52 Bom.L.R. 381) relied upon by Shri Shah cannot apply to the provisions of section 41 of the Presidency Small Cause Courts Act. I, therefore, hold that the present suit is a suit which is covered by the provisions of section 41(1) inasmuch as it is a suit between a landlord and tenant relating to the recovery of possession of immovable property. The plaintiff has averred the relationship of landlord and tenant as between him and the defendants. In this view of the matter, I hold that this Court will have no jurisdiction to try the suit.
10. For the reasons set out above, I am of the view that this Court has no jurisdiction to entertain and try the plaintiff's suit and I answer the preliminary issue framed by me in the negative. I order the plaint to be returned to the plaintiff to be presented to the proper Court under the provisions of Order 7, Rule 10 of the Civil Procedure Code.
11. Shri Baldota applies for stay of this order on the ground that the plaintiff desires to appeal against my order. Parties to maintain status quo till 16th February, 1981. The plaintiff will give forty-eight hours notice to defendants before applying for any ad interim order to the appeal Court.