# [1964] 3 S.C.R. 214

- **Citation:** [1964] 3 S.C.R. 214
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeal No. 75of1962
- **Bench:** S. K. Dab, A. K. Sarkar, M. HIDA.YA.TtiLLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-3-s-c-r-214-2882
- **Pages:** 23

## Headnote

JuriBdietion of Oourl-Bu!t filed in Olty Oltlil Oourt · alleging that dtfen®nt waa a llu'lllJe&-Prayer /or injunclion-De/endant al/,e,gi7tg relation of lan<ilord and tenant-Whethtr 8111QU cause• court ha. exclusive juriadiction-Bombay R•nl8, Hotel and
Lodging H01JBe Ratea Oontrol Acl, 1947 (Bom. LXII o/ 1947),
aa. 28,29,29A.
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 shnp and for an amount of commission payable to it
1-1nder the agreemel)t, 'fhe plaint proceeded on the footin!l that
·-
•
3 S.C.R. SUPREME COURT REPORTS
215
during the period of agreement the appel~ants were mere licensees and after the expiry of the agreement they were mere trespas·
sers. The plaint in terms negatives any relationship of land·
lord 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 anJ 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 appel·
!ants 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 thereupoR 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 exclmive jurisdictio'1 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
Jaw.
'l'he present appeal i:s by way of special leave.
In the
appeal the same question as to thejurisdiction u! 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 P «rt 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 a• 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 fornm where on his own averments he
cannot go. If the suit as framed is by a land-lord or a tenant
11nd the relief asked for is in the n11ture of a claim which ari.e1
1'63
Rlliud• To~lli"
••

## Text

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1919
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214 SUPREI\lECOURT REPORTS [19M] VOL.
The Appeal No. 642 of 19151 must therefore also
fail.
costs.
Both the appeals are therefore dism~ed with
Appeals dismilsed.
R.AIZADA TQPANGAS It ANR.
fl.
M/S. GORAKHRAM GOKALCHAND
(S. K. DAB, A. K. SARKAR and
M. HIDA.YA.TtiLLAH JJ.)
JuriBdietion of Oourl-Bu!t filed in Olty Oltlil Oourt · alleging that dtfen®nt waa a llu'lllJe&-Prayer /or injunclion-De/endant al/,e,gi7tg relation of lan<ilord and tenant-Whethtr 8111QU cause• court ha. exclusive juriadiction-Bombay R•nl8, Hotel and
Lodging H01JBe Ratea Oontrol Acl, 1947 (Bom. LXII o/ 1947),
aa. 28,29,29A.
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 shnp and for an amount of commission payable to it
1-1nder the agreemel)t, 'fhe plaint proceeded on the footin!l that
·-
•
3 S.C.R. SUPREME COURT REPORTS
215
during the period of agreement the appel~ants were mere licensees and after the expiry of the agreement they were mere trespas·
sers. The plaint in terms negatives any relationship of land·
lord 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 anJ 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 appel·
!ants 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 thereupoR 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 exclmive jurisdictio'1 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
Jaw.
'l'he present appeal i:s by way of special leave.
In the
appeal the same question as to thejurisdiction u! 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 P «rt 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 a• 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 fornm where on his own averments he
cannot go. If the suit as framed is by a land-lord or a tenant
11nd the relief asked for is in the n11ture of a claim which ari.e1
1'63
Rlliud• To~lli"
••
GordArOM
Gobl<ir.,./
Rciai• T Of1c•las
~.
c,,,.iw.,.
G1kslcl•i1i
216 SUPREME COURT REPORTS [1964] VOL.
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.
A11anti v. Ohhannu, (1929) I.L.R. 52 All. 501 Govindram
Salamatrai v. Dharampal, . (1951) 53 Born. L.R. 386, and
Jaswanllal v. We.tern Oompanv, India (1959), 61 Born.LR.
1087, approved.
Babulal Bliuramal v. Nandram Slii•ram [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 docs 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 juri•diction to deal with any
claim or question arising under the Act concerning properties
in Greater Bombay. This part of the section docs 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 permissible 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 docs not raise any
claim or question under the Act. The defence really is that
the appellants arc not licensees. That being so, the only queo·
tion that the suit involves is whether the appellants arc Jicem·
ec:s of the shop.
Quite clearly, such a qucstio1; is neither a
question nor a claim arising out of the Act.
Neither is a
question whether the appellants arc 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 th~
Act is necessary for dccidini the suit,
I
3 S.C.R.
SUPREME COURT REPORTS. 217
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 75of1962.
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. 0. Mathur
and Ravinder Na rain, for the appellantll.
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.
1'61
a.,,.,., r., •• ,.,
v.
Gt1dltllllft
G.Jcal""""
S.K. DAS J.-The only question which arises
D., 1.
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
196J
R•~ili• T opt1nd.J
•
Gorakhr•m
G11k<W.and
.,., J.
218 . SUPREME CbURT REPORTS [1964] VOL.
dated June 23, 1955. The main averments in. the
plaint were that by the aforesaid agreement defen·
dant No. I, appellant No. I 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 IO 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-intrade, 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
thatthe 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
--
•
I
•
-
3 S.C.R.
SUPREME COURT REPORTS
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 wM 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 BtJbulal 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 ('), 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
('), had itself over-ruled an earlier decision of
the same court in Ebraham Saleji v. Abdulla Ali
Reza('), 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
(I) [1'59] s .. 0.11.. 367.
(ll (1951) S3 Bom, L,R, 8116.
(a) (IHOJ 1J 8o11at ~, 1»7;
1969
1t.•i.cada T1ponias
v.
GordhrUJ
Gokolcha•i
Du J.
1963
R.U:ado T o;mdu
•
••
GtTokhrMn
G•ka/chano
Du/,
220
SUPREME COURT REPORTS[l964]VOL.
written st,atement. The learned Judge of the City
Civil Court accordingly made an order that the
plaint be returned to the present respondent for
presentation to the 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 ('), was correctly explained in a
later decision of the Bombay High Court in Jaswant·
lal 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 ('), did
not in effect hold, nor did it justify any interpreta·
ti on to the effect, that s. 28 of the Act made a depar·
ture 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 (1),
rather than the view of Gajendragadkar, J. in Ebra·
him Saleji ('). · 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.
(I) (19~8J s.c.a. 167.
12) (1~•~16J11<m.1.1'. JOE7.
(S) (1911) &I 8'*, J,,&, a~~..
14.J \1950) b.2. &m. l.,R, 5'7,
,
-
3 S.C.R. SUl>REgt COURT REPOR't'S
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 inerease 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 reason, the suit or proceeding would not, but for
this provision, be within its jurisdiction.
(a) in Greater Bombay, the Court of Small
Causes, Bombay,
(aa) xx
(b)
xx
xx
xx
xx
xx ········•
... 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
18.S
RoiuiaTo;.lG
v.
Garllilr"111
G1A:.l<hoi
Du/.
19U
RaU;ad• To/JOflus
••
r.,,rakhram
GokolcMnd
Das J.
222
SUPRENIE COURT REPORTS (1964] \Tot.
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
bis 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 su it
or proceeding would· not; but for this provision, be
within its jurisdiction, the Court of Small Causes in
Greater Bomby 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 applic ation
or to deal with any such claim or question. It is to
be noticed that the operative part of the sub-section
refers to two matters: (a) 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 Part II apply and (b)
any application made under the Act or any claim or
..
•
3 S.C.R.
stJ:t>R.ENIB COURT REPORTS
229
question arising out of this Act t)f any of its provisions. What is the true effect of sub-s.(l) 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. Ohhannu ('), and has 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 territo·
rial limits or pecuniary limits, the plaint will be
ordered to be returned for presentation to the
(I) (1921l) I. L, ll, 52 All, 501,
190
Rai<oa T _,.,,..,
...
c.r..u. ...
Gokc/.-W
Dds J.
196J
&1111'4 T.,.,.ia,
••
Gl!rakfar•
GC.Ulc/iantl
Du J.
!2U SUPREME COURT REPORTS [1964] vo:t.
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 possessi"n of any premises to which any of the
provisi<ms 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
'
J
..
.
~ S.C.R;
SUPREME COURT REPORTS--- 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 wher_e 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
Coutt 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
· 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.
\Ve do not think that this contention can be accep·
ted 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
argument, but when one has regard to• the provisions
in Part II 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 pa~ties. · ·· ·
·
"
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 enter-.
tained
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 Contra.I Act or any .. ·
of its provisions which would' have to be determined on the plaint as it stands .. ;; ............ ~·'." .
(l) (l!l.51) 53 llom. L, R, 8861
/
.. ' .--
1963.
~.~-~z~d~. '{oPlltld~
v.
GJralrh1am
GohilcM11d.
__ .. ,.
""
I>u /,
2!6
SUPREME CO'{JRT REPORTS [1964] vot.
It cannot be suggested that the plaintiff should
anticipate any defence that might be taken up
by the defendant that he i11 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
tha.t 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 provisions 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
decidecl before it could be said that the Act
has any application at all."
We arc in agreement with these observations,
and we do not think that s. 28 in its true scope and
--- effect makes a departure from the &eneral
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
-
3 s.e.R..
SUPREME COURT REPORTS
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 Babwlal
Bhuramal
(• ), we do not think that
it assi1ts
the appellants. We consider that the Bombay High
Court correctly understood it in
Jaswantlal v.
"Western
Company,
India"
(').
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. 1 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. 1 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. 1 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
(I) (19591 &.C::.~ 367,
(2) (IV~9) 61 Bom, L.R. 1037,
1963
R•iuio T¥tmJ.,
••
<Ar•kliram
Gokalch4•d
Das J.
1969
11.aicada T opaai1u
v.
Goraldaram
Gokalclumd
DasJ.
228
SUPREME COURT REPORTS [1964] VOL.
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 plain tiffs was within
the jurisdiction of the City Civil Court. It was urged
before the Supreme Court that the suit was maintainable 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 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. 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 thats. 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 a 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
-
-
-
-
3 S.C.R.
SUPREME COURT REPORTS 229
be considered is whatthe 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 the 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 .-1 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, 194 7 it had no jurisdiction
to entertain and try the suit which the respondent
had filed agaginst 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
1963
Rai:ada T opand<U
••
Gorakhram
Gokalchand
Das J.
Sarkar I.
1963
RoiQJ!/a TojJtJntlas
••
Gorik/ir ...
Gokalclumd
Sarkar J,
230 SUPREME COURT REPORTS [1964'] VOL.
the City Civil Court's jurisdiction to entertain and
try the suit had not been taken away bys. 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 licensor 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 licensor 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 ...................................... , .... ..
••I••• It IO., e I IO O o o o e I IO o o • o I•• O o o Io Io o O o I I I I Io t It t It t Io O I I I
-
-
3 S.C.R.
SUPREK-IE COURT REPORTS
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 tu 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 thia
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 or
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 or
matters contemplated by the section mentioned in the
preceding paragraph and I did not understand
learned coumel 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
~r.,.,..,
"·
c,,_.,.
GtJbk/rnl
SalfJll /.
J96J
Rau::ada Topandas
v.
Gorakhram
Gokalclrand
Sarkar J.
232 SUPREME COURT REPORTS [1964] VOL.
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 he 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 d_oes 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
..
,
3 S.C.R.
SUPREME COURT REPORTS
233
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 juri~dic
tion 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.
thinkl it unnecessary to decide the dispute
because in my view even the defence in the present
case does not raise any claim or question under 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
1963
Raiz.ada Topandas
v.
G;1,alffiram
&okalchond
190J
&i.uda T1p.n«s
v.
Gar.Jchr4m
G1uld111ni
arkar J,
284 SUPREME COURT REPORTS [1964] VOL.
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.