# GorJhandas l'urshottamdas Sonawala v. Eastern Cotton Company Bltagwati ]. JWarch JI. 368"

- **Citation:** [1959] 1 S.C.R. 367
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** CIVIL APPELLATE JURISDIOTit">N: Civil Appeal No. 84 of 1957
- **Bench:** B. P. Sinha, Jafer Imam, SuBBA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gorjhandas-l-urshottamdas-sonawala-v-eastern-cotton-company-bltagwati-jwarch-ji-1643
- **Pages:** 13

## Headnote

Bombay City Civil Court, Jurisdiction of-Suit to establish
status as tenants and sub-tenants f-0r protection from evictionW hether can be entertained-Bombay Rents, Hotel and Lodging
House Rates Control Act, I947 (Bom. LVII of z947), ss. 28·and
29A.
A who was a tenant of N sub-let the premises to Band C. N
filed a suit for ejectment against A, B and C in the Court of Small
Causes, Bombay, on the ground of illegal sub-letting. The suit
was decreed. Thereafter, A, B and C filed the present suit in the
Bombay City Civil Court for a declaration that A was a tenant of
N and was protected from eviction by the provisiom; of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1~47,
and that B and C were lawful sub-tenants of A and were as such
entitled to possession, use and occupation of the premises. The
City Civil Court held that it had jurisdiction to entertain the suit
but dismissed it on the ground that there was no lawful subletting. On appeal, the Bombay High Court l!eld that the City
Civil Court had no jurisdiction to entertain the suit and dismissed
the appeal without going i.nto the merits :
·
Held, that the High Court was right in holding thats. 28 of
the Act barred the City Civil Court from entertaining the suit.
Section 28 explicitly confers on courts specified therein jurisdiction to entertain a suit between a landlord and a tenant in respect
of a claim which .arose out of the Act or any of its provisions,
•
....
f.
GorJhandas
l'urshottamdas
Sonawala
v.
Eastern Cotton
Company
Bltagwati ].
JWarch JI.
368"
SUPREME COURT REPORTS
[1959]
r958
and expressly prohibits any other court exercising jurisdiction
with respect thereto. In the present suit the claim being one
Babulf/l Bhurau1ul which arose out of the Act, and the City Civil Court not being a
an l .·l nother
court specified in s. 28, it could not entertain the suit. Though
v.
s. 29A of the Act allows questions of title to be reagitated in a
A'andra11i Skivra1n civil court, it applies only to titles which do not arise out of the
rind (!titers
A.ct or any of its provisions; and titles which could not be
established outside the Act but which arose under the provisions
of the Act by virtue of a claim made thereunder must be detei;.-
mined by a court specified in s. 28.
!main j.
CIVIL APPELLATE JURISDIOTit">N: Civil Appeal No.
84 of 1957.
Appeal from the judgment and decree dated November 7, 1955, of the Bombay High Court in Appeal No.
629 of 1955, arising out of the judgment and decree
dated August 9, 1955, of the City Civil Court, Bombay,
in Suit No. 2178 of 1954.
•
A. V. Viswanatha Sastri and J. N. Shroff, for the
a ppollants.
Purshotam Tricumdas and 0. P. Lal, for the respondents.
19.58.
March 31.
The following Judgment of the
Co~lrt was delivered by
IMAM J.-The sole question considered and decided
by the High Court was whether the suit filed by the
"'ppellants in the City Civil Court could be entertained
by that Court, having regard to the provisions of s. 28
of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (hereinafter referred to as the Act).
The High Court was of the opinion that the City Civil
Co"urt had no jurisdiction to entertain the suit. It did
not pronounce any opinion on the merits of the appellants' case.
The only question which requires consideration in this appeal is whether the High Court
correctly deciCled that the City Civil Court had no
jurisdiction to entertain the suit filed by the appellants.
The first plaintiff in the suit before the City Civil
Court, was a tenant of the premises in question under
the first defendant. The second and third plaintiffs
were persons to whom the said premise& were sublet by
•
.. .,
"
S.C.R.
SUPREME COURT REPORTS
369
the first plaintiff. The first defendant as landlord of
z958
the premises in suit gave notice to quit to the first B b 1 1-;,.
1
plaintiff on December 6, 1947. Thereafter, he filed suit a:,,; Anot~:;"'"
No. 483/4400 of 1948 in the Court of Small Causes
v.
Bombay on April 29, 194

## Text

S.C.R.
SUPREME COURT REPORTS
367
sorts of disputes tenable or otherwise in order to
avoid their liability in respect of the transactions
effected by them in the Association. It may be hoped
that the Association will take effective steps to bring
the official contract form in conformity with the bylaws in operation from time to time and the practice
of the trade prevailing in the Association.
• The result therefore is that this appeal fails and
must stand dismissed with costs throughout .
•
Appeal dismissed. ~
.BABULAL BHURAMAL AND ANOTHER
v.
NANDRAlVI SHIVRAlVI AND OTHERS
(B. P. SINHA, JAFER IMAM and SuBBA RAO JJ.)
Bombay City Civil Court, Jurisdiction of-Suit to establish
status as tenants and sub-tenants f-0r protection from evictionW hether can be entertained-Bombay Rents, Hotel and Lodging
House Rates Control Act, I947 (Bom. LVII of z947), ss. 28·and
29A.
A who was a tenant of N sub-let the premises to Band C. N
filed a suit for ejectment against A, B and C in the Court of Small
Causes, Bombay, on the ground of illegal sub-letting. The suit
was decreed. Thereafter, A, B and C filed the present suit in the
Bombay City Civil Court for a declaration that A was a tenant of
N and was protected from eviction by the provisiom; of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1~47,
and that B and C were lawful sub-tenants of A and were as such
entitled to possession, use and occupation of the premises. The
City Civil Court held that it had jurisdiction to entertain the suit
but dismissed it on the ground that there was no lawful subletting. On appeal, the Bombay High Court l!eld that the City
Civil Court had no jurisdiction to entertain the suit and dismissed
the appeal without going i.nto the merits :
·
Held, that the High Court was right in holding thats. 28 of
the Act barred the City Civil Court from entertaining the suit.
Section 28 explicitly confers on courts specified therein jurisdiction to entertain a suit between a landlord and a tenant in respect
of a claim which .arose out of the Act or any of its provisions,
•
....
f.
GorJhandas
l'urshottamdas
Sonawala
v.
Eastern Cotton
Company
Bltagwati ].
JWarch JI.
368"
SUPREME COURT REPORTS
[1959]
r958
and expressly prohibits any other court exercising jurisdiction
with respect thereto. In the present suit the claim being one
Babulf/l Bhurau1ul which arose out of the Act, and the City Civil Court not being a
an l .·l nother
court specified in s. 28, it could not entertain the suit. Though
v.
s. 29A of the Act allows questions of title to be reagitated in a
A'andra11i Skivra1n civil court, it applies only to titles which do not arise out of the
rind (!titers
A.ct or any of its provisions; and titles which could not be
established outside the Act but which arose under the provisions
of the Act by virtue of a claim made thereunder must be detei;.-
mined by a court specified in s. 28.
!main j.
CIVIL APPELLATE JURISDIOTit">N: Civil Appeal No.
84 of 1957.
Appeal from the judgment and decree dated November 7, 1955, of the Bombay High Court in Appeal No.
629 of 1955, arising out of the judgment and decree
dated August 9, 1955, of the City Civil Court, Bombay,
in Suit No. 2178 of 1954.
•
A. V. Viswanatha Sastri and J. N. Shroff, for the
a ppollants.
Purshotam Tricumdas and 0. P. Lal, for the respondents.
19.58.
March 31.
The following Judgment of the
Co~lrt was delivered by
IMAM J.-The sole question considered and decided
by the High Court was whether the suit filed by the
"'ppellants in the City Civil Court could be entertained
by that Court, having regard to the provisions of s. 28
of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (hereinafter referred to as the Act).
The High Court was of the opinion that the City Civil
Co"urt had no jurisdiction to entertain the suit. It did
not pronounce any opinion on the merits of the appellants' case.
The only question which requires consideration in this appeal is whether the High Court
correctly deciCled that the City Civil Court had no
jurisdiction to entertain the suit filed by the appellants.
The first plaintiff in the suit before the City Civil
Court, was a tenant of the premises in question under
the first defendant. The second and third plaintiffs
were persons to whom the said premise& were sublet by
•
.. .,
"
S.C.R.
SUPREME COURT REPORTS
369
the first plaintiff. The first defendant as landlord of
z958
the premises in suit gave notice to quit to the first B b 1 1-;,.
1
plaintiff on December 6, 1947. Thereafter, he filed suit a:,,; Anot~:;"'"
No. 483/4400 of 1948 in the Court of Small Causes
v.
Bombay on April 29, 1948, whereby he sought to .e.vict Nandram Shivram
the first plaintiff. To that suit the first defendant also
and Others
made the second and the third plaintiffs parties allegi11g that they were trespassers and had no right to be
on the premises. The Small Cause Court held that the
second and third plairttiffs were not lawful subtenants
and the subletting by the first plaintiff to them being
contrary to law the latter had deprived himself of the
protection of the Act. It accordingly passed a decree
for eviction of all the plaintiffs of the present suit. An
appeal against the decree was unsuccessful and a revisional application to the High Court of Bombay was
sumfnarily dismissed by that Court. Thereafter, the
present suit No. 2178 of 1954 was filed by the appellants in the Bombay City Civil Court on September 20,
1954. In this suit the appellants prayed for a declaration that the first plaintiff was a tenant ofthe
defendants and was entitled to protection under the
Act and that the second and the third plaintiffs were
lawful subtenants of the first plaintiff and were ent!tled to possession, use and occupation of the premises as
subtenants thereof. The City Civil Court held that it
had jurisdiction to entertain the suit but dismissed the
suit on the ground that there had been no lawful subletting by the first plaintiff of the premises to the
second and the third plaintiffs as the provisions of
s. 10 of the Bombay Rents, Hotel Rates and Lodging
House Rates (Control) Act, 1944 (Bombay Act No. Vil
of 1944) (hereinafter referred to as the Bombay Rents
Act, 1944) had not been properly complied with.
_Against that decision the appellants appealed to the ·
Bombay High Court which was dismissefi.
The High
Court disagreed with the view of the Judge of the City
Civil Court that he had jurisdiction to entertain the
suit but did not record any decision on the merits of
the appellants' case.
The preamble of the Act states that it was expedient
47
•
Imam].
•
370
SUPREME COURT REPORTS
[1959]
Ig5B
to amend and consolidate the law relating to the
n b 1 1 Eh
1 control of rents and repairs of certain premises, of rates
•a:,; A no;;;;•• of hotels and lodging houses and of evictions. The
v.
entire provisions of the Act read as a whole show that
Nandram Shivram the Act was passed to achieve that purpose. The Act
and Other,
defines "landlord" to mean "any person who is for
Imam].
the time being, receiving, or entitled to receive, rent in
respect of any premises whether on his own account o.r
on account, or on behalf, or for the benefit of any
other person or as a trustee, guardian, or receiver for
any other person or who would so receive the rent or
be entitled to receive the rent if the premises w0re let
to a tenant; and includes any person not being a
tenant who from time to time derives title under a
landlord; and further includes in respect of his subtenant a tenant who has sublet any premises" and
"tenant" to mean "any person by whom or on whose
account rent is payable for any premises and includes
-(a) such subtenants and other persons as have deriv.
ed title under a tenant before the coming into operation of this Act, (a) any person to whom interest in
premises bas been transferred under the proviso
to s. 15, (b) any person remaining, after the determination of the lease, in possession, with or without
the assent of the landlord, of the premises leased
to such person or his predecessor who has derived
title before the coming into opera ti on of this Act,
(c) any member of the tenant's family
residing with him at the time of his death as may
be decided in default of agreement by the Court."
Section 12 gives protection to a tenant from eviction if he pays or is ready and willing to pay
standard rent and permitted increases.
Section 13
states the grounds upon which the landlord is entitled
to recover possession of any premises.
Amongst the
numerous gr<'unds one is if the tenant had since the
coming into operation of the Act sublet the whole or
part of the premises or assigned. or transferred in any
other manner his interest therein. Section 14 states :
"Where the interest of a tenant of any premises is
determined for any reason, any subtenant to whom
the premises or any part thereof have. been lawfully
•
. .
•
S.O.R.
SUPREME ·aouRT REPORTS
371
sublet before the coming into operation of this Act
c958
shall, subject to the provisions of this Act, be deemed
-
b
h
f h
1 dl d
h
Babula! Bhuramal
to
ecome t e tenant o t e an or
on t e same
d A
11
terms and conditions as he would haye held from
a~
v~o ier
the tenant if the tenancy had continued."
Sec- Nandram Shivram
tion 28 of the Act deals with jurisdiction of courts
and Others
and it states: "(1) Notwithstanding anything contnined 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) in any area for which, a Court of Small
Causes is established under the Provincial Small Cause
Courts Act, 1887, such Court and (b) elsewhere, the
Court of the Civil Judge (Junior Division) having
juris"diction in the area in which the premises are
situate or, if there is no such Civil Judge, the court of
the Civil ,Judge (Senior Division) having ordinary
jurisdiction, shall have jurisdiction to entertain and.
try any suit or proceeding between a landlord and a
tenant relating to the recovery of rent or poRsession
of any premises to which any of the provisions of
this Part apply and to decide any application maide
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 such
suit, proceeding or application or to deal with such
claim or question." Section 29 deals with appeals. It
provides that there will be no further appeal from tfie
appellate order. Section 29A, however, states that
nothing contained in ss. 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 i~ a competent
court to establish his title to such premises.
The plaint in the suit filed by the appellants in the
City Civil Court clearly asserts that the first plaintiff
was entitled in law to sublet the premises in question
·tot.he second and third plaintiffs and that there had
been a lawful subletting of the premises yo them. It
Imam ].
•
372
SUPREME COURT REPORTS
[1959]
z958
was not necessary for the first plaintiff to comply with
B b I I Bh
I the provisions of s. 10 of the Bombay Rents Act, 1944.
a u a
urama I
f
and Another
t urther alleged that the Appeal Court of Small
v.
.
Causes of Bpmbay erred in holding that the first
Nandmm Shivram plaintiff could sublet the premises only if he had comana Others
plied with the provisions of s. 10 of the aforesaid Act.
Imam ].
According to para. 11 of the plaint the plaintiffs asserted that they were always ready and willing to pa.y
the rent in respect of the said premises and to observe
and perform the terms and contlitions of the tenancy.
Paragraph 12 states the declaration which the plaintiffs prayed for in the suit, which is in the following
terms : " The plaintiffs submit that they are entitled
to a declaration that 1st plaintiff is a tenant of the
said premises within the meaning of the Bombay
Rents, Hotel and Lodging House Rates Control Act of
194 7, and that the 2nd and 3rd plaintiffs are entitled
to the possession, use and occupation of the said premises as the lawful subtenants of the 1st plaintiff in
respect of the said premises". Clauses (a) and (b) of
para. 18 of the plaint contain the relief sought by the
plaintiffs.
They are in substance what is stated in
para. 12 though separately stated for the first plaintiff and second and third plaintiffs respectively.
The
prayer in cl. (c) of para. 18 is for an injunction against
the defendants, their servants or agents restraining
them from proceeding further with the execution of the
decree of the Court of Small Causes in suit No.
483/4400 of 1948.
It is manifest from the assertion in the plaint and
tl].e nature of the relief asked for that the plaintiffs
based their case on the provisions of the Act. According to them, the Act gave the first plaintiff protection
and the second and third plaintiffs were entitled to
remain in possession as subtenants of the first plaintiff. They accordingly sought to avoid eviction by
seeking an injunction against the execution of the
decree for eviction. One of the grounds upon which
a landlord is permitted to evict a tenant under s. 13 of
the Act is that he has since the coming into op~ation
of the Act, sublet the premises or assigned or transferred in any other manner his interest therein. The
•
,
•
•
·-
•
S.C.R.
SUPREME COURT REPORTS
373
Act, however, saved a subletting before its commencex958
ment, provided the premises had been lawfully sublet. Bab 1 1---;;h a
1
"Tenant" in the Bombay Rents Act, 1944, means
a:= Anot~:,ma
"any person by whom or on whose account rent is
v.
payable for any premises, and includes every personNandram Shivram
from time to time deriving title under a tenant. " It
and Others
was never pretended here or in the High Court, as indeed it could not be, that outside the Act a _subtenancy
would continue to subsist -and the sub-tenant would
become the tenant when the principal tenancy itself
had been lawfully terminated. As the definition of
"tenant" in the Bombay Rents Act, 1944, included a
subtenant, that Act required, under s. 10, certain con.-
ditions to be complied with for the creation of a lawful
subtenancy, as a statutory status of a tenant was being
conferred on a subtenant unknown to the ordinary
law.• Even a lawful termination of the principal
tenancy would not affect the subtenant. In suit No.
483/4400 it was finally held by the Appeal Court that
the first plaintiff had not lawfully sublet the premises
and as his tenancy had been terminated he and his
subtenants were liable to be evicted. The plaintiffs
seek for a redetermination of these very questions in
the suit filed by them in the City Civil Court.
•
The plaintiffs rely upon s. 29A of the Act in justification of the suit filed by them in the City Civil Court.
According to them, questions of title are expressly
11.llowed to be reagitated in a competent Civil Court
other than those specified in s. 28 even if such a question arose and was determined by a court exercising
jurisdiction under that section. This contention of the
plaintiffs makes it necessary to construe the provisions
of ss. 28 and 29A of the Act.
In a suit for recovery of rent where admittedly one
party is the landlord and the other the tenant, s. 28
of the Act explicitly confers on courts s~ecified therein
jurisdiction to entertain and try the suit and expressly
prohibits any other court exercising jurisdiction with
respect-thereto. Similarly, in a suit relating to posses-
.sion •of premises where the relationship of landlord
and tenant admittedly subsists between the parties,
jurisdiction to. entertain and try such a suit is in the
•
•
Imam],
•
374
SUPREME COURT REPORTS
[1959]
r958
courts specified ins. 28 and no other. All applications
-h
1 made under the Act are also to be entertained and
Babulal B urama d"
d
f b
th
"t" d •
28
d
and Another
1spose
o
y
e courts spec1 1e
m s.
an no
v.
other. In all such suits or proceedings the courts
Nandram Shivram specified in s. 28 also have the jurisdiction to decide
and Othm
all claims or questions arising out of the Act or any
Iniam ].
of its provisions.
The words employed in s. 28 make
this quite clear. Do the provisions of s. 28 cover oa
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 its provisions? The answer must be in the
affirmative on a reasonable interpretation of s. 28.
Suit No. 483/4400 of the Court of Small Causes, Bombay was admittedly by a landlord.
Eviction of the
tenant and those to whom he had sublet the prei'hises
was sought on the ground that the latter were trespassers and the former was not entitled to remain in
possession, that is to say, that none of the defendants
to that suit were protected from eviction by any of the
provisions of the Act. The suit, in substance, was a
denial of the right of the defendants as tenants.
The
j
claim of the defendants was that they were protected
by the provisions of the Act.
In such a suit the
claim of the defendants was one which arose out of
the Act or any of its provisions and only the courts
specified in s. 28 and no other could deal with it and
decide the issue.
The present suit filed in the City Civil Court raised
j
in substance a claim to the effect that the plaintiffs
were the tenants of the premises within the meaning
of the Act. Such a claim was one which arose out of
the Act or any of its provisions.
The suit related to
possession of the premises and the right of the landlord to evict" any of the plaintiffs was denied on the
ground that the first plaintiff was a tenant within the
meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs.
The City Civil Court was thus called upon to decide
whether the first plaintiff was a tenant of the premises
within the meaning of the Act and whether he had
•
,
•
•
<
•'
S.C.R.
SUPREME COURT REPORTS
375
lawfully sublet the same to the second and third
I958
plainti~s. 'The City Civ~l ~outt, therefo~e, had ~o Babula/ Bhuramal
determme whether the plamt1ffs had established their
and Another
claim to be in possession of the premises in accordance
v.
with the provisions of the Act.
As the tenancy of the Nandram Shivram
first plaintiff had been terminated by the landlord,
anct Others
this plaintiff could resist eviction only if he established
h~s right to continue in possession under the provisions of the Act.
On the termination of the tenancy
Imam].
of the first plaintiff, oiitside the provisions of the Act,
the subtenancy would come to an end and the landlord would be entitled to possession.
This could be
denied to him only if the second and third plaintiffs
could establish that the premises had been lawfully
sublet to them and under s. 14 of the Act they must
be deemed to be tenants of the premises. In other
worcts, the City Civil Court could not decree the suit
of the plaintiffs unless their claim to remain in possession was established under the Act or any of its
provisions. Independent of the Act the plaint in this
suit disclosed no cause of action. Section 28 obvioiAsly
contemplates the filing of any suit relating to possession of any premises to which any of the provisions of
Part II of the Act apply between a landlord and a
tenant and it authorizes the court to deal with any
claim or question arising out of the Act or any of its
provisions in such a suit. The suit of the plaintiffs
filed in the City Civil Court certainly is one relating
to possession of premises to which the provisions of
Part II of the Act apply and in that suit claims and
questions arising out of the Act or any of its prov.isions had to be dealt with. It was, however, suggested
that the suit in the City Civil Court was not one
between a landlord and a tenant because the defendants of this suit did not admit that J>he plaintiffs
were the tenants of the premises in question. Section
28 applies to a suit where admittedly the relationship
of landlord and tenant within the meaning of the Act
subsists between the parties. The plaint in the suit in
the Cioty Civil Court admits that the defendants were
landlords of the premises at various stages and the
plaintiffs were their tenants. The suit, therefore, was
•
•
•
376
. SUPREME COURT REPORTS
[1959]
.I958
essentially a suit between a landlord and a tenant. The
B b l l-Bh
1 suit did not cease to be a suit between a landlord and
a u a
urama
and A noth"
a tenant merely be ca use the defendants denied the
v.
claim of the plaintiffs.
\Vhether the plaintiffs were
Nandram Shivram the tenants would be a claim or question arising out
and Others
of the Act or any of its provisions which had to be
Imam].
dealt with by the court trying the suit. On a proper
interpretation of the provisions of s. 28 the suit corttemplated in that section is not only a suit between a
landlord and a tenant in which that relationship is
admitted but also a suit in which it is claimed that
the relationship of a landlord and a tenant within the
meaning of the Act subsists between the parties. The
courts which have jurisdiction to entertain and try
such a suit are the courts specified in s. 28 and no
other.
No doubt s. 29A expressly provides that nothing
.oj,/ contained in s. 28 or s. 29 shall be deemed to bar a
.
party to a suit, proceeding or appeal, mentioned therein, in which a question of title to premises arises and
is determined, from suing in a competent court to
establish his title to such premises. Even if it be
assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title
which s. 29A permits a party to establish in a competent court other than that specified in s. 28 ? If it is
possible to avoid a conflict between the provisions of
s. 28 and s. 29A on a proper construction thereof, then
it is the duty of a court to so construe them that they
are in harmony with each other. It is possible to
conceive of cases where in a suit under s. 28 a question of title to premises which does not arise out of
the Act or any of its provisions may be determined
incidentally. Any party to the suit aggrieved by such
a determinatwn would be free to sue in a competent
court to establish his title to such premises by virtue
of the provisions of s. 29A.
On the other hand, iu a
suit where a question of title entirely arises out of the
Act or any of its provisions, the. jurisdiction to try
such a suit was exclusively vested in the courts ·specified in s. 28 and no other. That is to say, a title
w.hich could not be established outside the Act but
•
,
•
;
S.C.R.
SUPREME COURT REPORTS
377
which arose under the provisi9ns of the Act by virtue
z958
of a claim made thereunder must be determined by a 8 b 1 1-.
1
"fi d .
28
d
. 1 d h
h A
a u a
/Jhurama
court spec1 e m s.
an a tit e e ors t e
ct may
and Another
be determined in any other court of competent
v.
jurisdiction. The Act purported to amend and con- Nandram Shivram
solidate the law relating to the control of rents of
and Others
certain premises and of evictions. It defined " landlo:rrl" and "tenant" to have a meaning wider in
scope and concept than those words have under the
ordinary law. Any one who was a landlord or a
tenant, as defined in the Act, would have to conform
to the provisions of the Aet and all claims to such a
status would have to be determined under the provisions of the Act as they would be claims arising out
of it. The Act specially provided that the courts
specified in s. 28 shall have the jurisdiction to deal
with amy claim or question arising out of the Act or
any of its provisions and expressly excluded any other
court from having such jurisdiction. It is difficult. to
accept the suggestion that the legislature intended,
after setting up special courts under s. 28 to deal with
such matters, that the same should be reagitated and
redetermined in another suit by a court not specified
in s. 28.
By enacting s. 29A the legislature clearly ·
intended that no finality should be attached to the
decision of a court trying a suit under s. 28 on a
question of title de hors the Act. The provisions of
the Act, on the other hand, clearly indicate that all
claims ·or questions arising out of the Act or any of
its provisions, even though they may be in the nature
of a title to the premises, were to be determined by
the courts specified in s. 28 and no other.
Some reference was made to s. 49 of the Presidency
Small Cause Courts Act, 1882 which provides that
recovery of possession of any immovable property
under Ch. VII of the Act shall be n~ bar to the
institution of a suit in the High Court for trying the
title thereto. The provisions of this section render no
assistance in the matter of interpretation of ss. 28 or
29A. Chapter VII of the Presidency Small Cause
Courts Act deals with the recovery of possession of
•
..
•
Imam ].
378
SUPREME COURT REPORTS
[1959]
immovable property from a person including a tenant.
Babu/al Bhuramal The provisions of s. 41 onwards prescribe a summary
and Another
mode for recovery of possession which could even
v.
be stayed by the Small Cause Court if the provisions
Nandram Shivram of s. 47 were complied with.
Indeed, under s. 41 no
and Others
claims or rights are determined. In such a situation
Imam J.
it is clearly understandable that nothing contained in
Ch. VII could be a bar to the institution of a suit: in
the High Court for trying the title to the immovable
·property. In a suit under s. 28 the court has to
_ 11 determine all questions relating to recovery of rent or
~ relating to possession and all claims or questions
arising out of. the Act or any of .its provisions. Section 29 provides for an'appeal against the decision of
'the court. Under Ch. VII of the Presidency Small
Cause Courts Act there is no provision for an appeal
against an order directing recovery of possession.
In our opinion, the High Court correctly decided
that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the
City Civil Court.
On behalf of the appellants a request was made that
if the appeal should fail, they may be given some
time to vacate the premises. The High Court in
dismissing the appeal had directed "Decree not to bA
executed for a fortnight". In granting special leave .
this Court had granted an ex-parte stay, staying the
execution of the i;iecree in suit No. 483/4400 of 1948
of the Court of Small Causes, Bombay until the 16th
day of January, 1956 and h:;i.d directed that the stay
~pplication be posted for hearing on that date. On
that day the application for stay was allowed on two
conditions being fulfilled and on the non-compliance
of which the stay order would stand vacated. On
February 19., 1957, another order was passed by this
Court when its attention was drawn to the non"compliance of the conditions stated in the order of
January 16, 1956, on the part of the appellants. The
stay order was not vacated as the appellants were
ordered to do certain things and because of the 'undertaking given by thein that they would deliver forthwith possession of the premises to the respondents in,
"
•
•
S.C.R.
SUPREME COURT REPORTS
379
the event of the appeal being dismissed or decided
r958
against them.
Having regard to . the undertakings' b 1 1- 1. h
1
.
·
a u a
J urama
given, as also the fact that execution of the decree
and A.noiher
in suit No. 483/4400 of the Co~u~t of Small Causes,
v. · ·
Bombay has been delayed long enough, · we are Nandrani Shivram
unable to accede to the request made by the appeland Others
lants.
·The appeal is accordingly dismissed with costs.
•
Appeal dismissed.
THE STATE OF MADRAS
v .
GANNON DUNKERLEY & CO.,
(MADRAS) LTD.
(S. R. DAS c. J., VENKATARAMA AIYAR, s. K. DAS,'
A. K. SARKAR and VIVIAN BosE JJ.)
Sales Tax-Building contracts-Tax on supply of materials in
construction works_-·State's pou·er of taxation-" Sale of good~"·,
Meaning of-Legislative practice-N aiure of agreement in building
contracts-Indian Sale of Goods Act, I9JO (III of I9JO), s. 4~
]'vfadras General Sales Tax Act, I939 (Mad. IX of I939L as amended by Madras Act XXV of .I947, ss. 2(c)(h)(i), Explanation I(i),
r. 4(3)--Government of India Act, I935 (26 Geo. 5, Ch. 2), s. ro7,
Sch. Jl II, List II, Entry 48.
The responde~t company, doing business, inter alia, in the.
construction of buildings, roads and other .works was assessed to
sales tax by the sales tax authorities who SO\lght to indude.·
the value of the materials used in the execution of building con~
tracts within the taxable turnover of the respondent. The vaii-.
dity of the assessment was challenged by the respondent .\vlio'
contended that the power of the Madras Legi~laljire to impose a.
tax on· sales under Entry 48 in List II in Sch. VII of the. Governc
ment of India Act, 1935, did not extend to imposing a tax 'on tlie,
value of materials used in construction works, as there was no
transaction of sale in respect of those goods, and that the provisions introduced in the Madras General Sales Tax Act, 1939, by
the Maaras General Sales Ta·x (Amendment) Act, 1947, authorfs~
ing the imposition of such tax were ultra vi res.
The Sales Tax
Appellate Tribunal.rejected the respondent's contention but, on
..
Imam],
April I.