# J 19;2 IMPORTERS AND MANUFACTURERS LTD. Dc1;. 10 v. • PHEROZE FRAMROZE TARAPOREWALA AND OTHERS

- **Citation:** [1953] 1 S.C.R. 226
- **Court:** Supreme Court of India
- **Decided:** 1952-01-25
- **Case number:** Civil Appeal No. 172 of 1952
- **Bench:** Mehr Chand Mahajan, Das, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-19-2-importers-and-manufacturers-ltd-dc1-10-v-pheroze-framroze-taraporewala-3
- **Pages:** 7

## Headnote

Betmbay Rents, Hotel and Lod,ging Rates Control Act, 1947,
s. 28-Sub-lease by tenant in contravention of ter1n of lease-Suit
by landlord against tenant anci sub-tenant for possession and compen3ation for use and occupation-Jurisdiction of Small Causes Oou,rt"
-Oonstrnction of s. 28-Impleading of wb-tenant, effect of.
Where a lease of a flat situated within the City of Bombay
contained "'a term that the tenant shall not assign, sub-let or re-let
the premises without the previous consent of the landlord and the
tenant, in contravention of this term sub-let the flat, and the landlord instituted a suit against him and the sub-tenant in the
Court of Small Cause~, Bombay, for possession and compensation
for use and occupation of the premises, and the sub-lessee contended that the Court of Small Causes had no jurisdiction so far as he
was concerned inasmuch as the suit was not one between a landlord and a tenant nor one for rent within s. 28 of the Bombay
Rents, Hotel and Lodging Rates Control Act, 1947:
Held, (i) that the suit was clearly one for possession and the
claim for compensation was merely an incidental claim;
(ii) s. 28 of the Act conferred jurisdiction on the Court
oi. Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession, but also "to deal with any claim or question arising out of
this Act or any of its provisions" and s. 28 was thus wide
enough to cover the question raised as between the plaintiff and
the sub-lessee ;
(iii) in any event, though the sub-lessee was not a necessary
party- to the suit he was a proper party, and the joinder of such It
party cannot alter the nature of the suit and make it any the less
a suit between a landlord and tenant or take it out of s. 28.

## Text

SUPREME COURT REPORTS
[1953 J
19;2
IMPORTERS AND MANUFACTURERS LTD.
Dc1;. 10.
v.
•
PHEROZE FRAMROZE TARAPOREWALA
AND OTHERS.
[MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.]
Betmbay Rents, Hotel and Lod,ging Rates Control Act, 1947,
s. 28-Sub-lease by tenant in contravention of ter1n of lease-Suit
by landlord against tenant anci sub-tenant for possession and compen3ation for use and occupation-Jurisdiction of Small Causes Oou,rt"
-Oonstrnction of s. 28-Impleading of wb-tenant, effect of.
Where a lease of a flat situated within the City of Bombay
contained "'a term that the tenant shall not assign, sub-let or re-let
the premises without the previous consent of the landlord and the
tenant, in contravention of this term sub-let the flat, and the landlord instituted a suit against him and the sub-tenant in the
Court of Small Cause~, Bombay, for possession and compensation
for use and occupation of the premises, and the sub-lessee contended that the Court of Small Causes had no jurisdiction so far as he
was concerned inasmuch as the suit was not one between a landlord and a tenant nor one for rent within s. 28 of the Bombay
Rents, Hotel and Lodging Rates Control Act, 1947:
Held, (i) that the suit was clearly one for possession and the
claim for compensation was merely an incidental claim;
(ii) s. 28 of the Act conferred jurisdiction on the Court
oi. Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession, but also "to deal with any claim or question arising out of
this Act or any of its provisions" and s. 28 was thus wide
enough to cover the question raised as between the plaintiff and
the sub-lessee ;
(iii) in any event, though the sub-lessee was not a necessary
party- to the suit he was a proper party, and the joinder of such It
party cannot alter the nature of the suit and make it any the less
a suit between a landlord and tenant or take it out of s. 28.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 172 of 1952.
Appeal by special leave from the
Judgment and Decree dated January 25, 1952, of the
High Caurt of JudicatUl'e at Bombay (Chagla C.J.)
in Revision Application No. 1119 of 195! from the
Judgment and Decree dated August 10, 1951, of the
Court of Small Causes at Bombay in Appeal No. 355
of 1950, arising out of .Judgment and Decree dated
~-
S.C.R.
SUPREME COURT REPOR'rS
227
1952
December 18, 1950, of the Court of Small Causes in
Suit No. 1055/7943 of 1948.
-
B. H. Lulla for the appellants.
•
C. K. Daphtary (Solicitor-General for India) (R.B.
Importers and
Manufacturdr&
Ltd.
v.
Pheroee
Adhyarujina, with him) for the respondents Nos. 1, 2
and 3.
Framrose
Taraporeioala
1952 .. December 10.
The Judgment of the Court
and Others.
was delivered by
DAS J.-This is an appeal by special leave from
the judgment and order of the High Court of Judicature at Bombay passed on January 25, 1952, in
Civil Revision Application No. 1119 of 1951. It
arises out of a suit filed in the Bombay Small Causes
Oourt under section 28 of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947, for
ejectment from and compensation at the rate of
Rs. 370 per month from November 1, _ 1947, for the
use and occupation of the second floor flat of Sunama
House situate in Cumballa Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D.
B. Taraporewala deceased and as such the owners of
the Sunama House.
The defendants are two in
number, namely, the first defendant Mrs. Dinbai
K. Lala to whom the said flat was let out by the
plaintiffs on or aibout September 1, 1942, at Rs. 370
per month and the second defendant a limited com- .
pany to whom the first defendant had sublet the said
flat as from November 16, 1947, at the same rent.
The defendants contested the suit on a variety of
grounds, but the trial Court by its judgment dated
October 18, 1950, rejected all the _pleas and passed a
decree directing both the defendants· to vacate the
flat by March 31, 1951, and awarding, only as against
the first defendant, Rs. 3,317-10-8 for compensation
·from November 1, 1947, till July 31, 1948, and thereafter at Rs. 370 per month from August 1, 1948, till
delivery of possession besides the costs of the suit.
The defendants preferred an appeal under section 29
·of th~t Act.
Besilles tpe various pleas put forwarq
Das J:
1962
Ifliporters and
l1Jan_ufacturers
.
Ltd.
v.
Pheroz8
J!"f1·a11irozo
TaraporeuJala
and Others.
Das J.
2'28
SUPREME COURT REPORTS
(1953]
before the trial Court, the defendants, before the
Appellate Bench, put forward an additional plea,
which was not pleaded in their written statements,
namely, · th~t the Small Causes Court had no jurisdiction to entertain the suit in so far as it concerned
the second defendant. The Appellate Bench of the
Small Causes Court dismissed the appeal with costs ..
'l'he second defendant thereafter moved the High
Court in revision under section 115 of the Code of
Civil Procedure ,vhich was also dismissed with costs.
The second defendant has now come up in appeal
before ns after having obtained special leave of this
Court.
·
The only contention urged before us is that the
Small Causes Court had no jurisdiction to entertain
this sui.t.
'l'he relevant..portions of section '28 of the
Act are as follows :-
"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) .............. · ...................... ,
(b) ..................................... , .
·, -
,-
. shall have jurisdiction to entertain and try any
suit or proceeding between a landlord and a tenant
relating to the re!lovery of rent or possession of any
premises to which any of the provisions of this Part
1apply, and to 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 no
other Court shall have jurisdiction to entertain any
such suit,·proceeding or application or to deal with.
such claim or question."
It was not disputed that the provisions of Part II
of the Act apply to the premises.
The contention of
the appellant is that the suit as against it was not a
rnit between a landlord and !\ tenant and that, in so·
..,..,-
·•.
-
'
I
S.C.R.
SUPREME COURT REPORTS
229
faras it claimed compensation for use and occupa·
1952
tion, it was not a suit for recovery of rent and, there1
-t -
d
.
d
,
.
d h
1npor ers an
fore, sect10n 28 ha no apphcat10n, an t e Court of 11ianufacturers
Small Causes had no jurisdiction to entertain this
·Ltd.
suit. In view of this plea it is necessary to refer to
v.
the plaint in this suit.
After setting forth their title
Pheraze
Franu·oze. ·
as owners of the Sunama House as trustees under the Taraporewala
will of Framroze D. B. 'I'araporewala the plaintiffs
a,,a Others.
plead that the second floor Jiat was let out to first
defendant on or about September 1, 1942, at Rs. 370
Das J.
per month on terms and conditions printed on the
back of the rent bill form which were shown to and
accepted by the first defendant.
In paragraph 5 of
t.he plaint is set out one of thos_e terms, namely, that
the tenant shall not assign, sublet or re-let the premises . without the previous written consent of the
landlords. In paragraph 7 reference is made to the
notice given by the plaintiffs to the first c).efendant
on October 17, 1946, to vacate the fiat at the end of
November, 1946, on the ground that the same was
required reasonably and bona fide for the use of two
of the beneficiaries under the will. Then, after referring to an unsuccessful attempt on the part of the
plaintiffg to obtain a certificate under section 9 of the
Act, the plaintiffs refer to a letter dated November
16, 1947, written by the first defendant to the plaintiffs intimating that she had from that day sublet the
fiat to the second defendant. It is stated in paragraphs 12 and 13 of the plaint that on December 19,
1947, the second defendant sent a cheque for Rs. 370
for rent for the month of November, 1947, but the
plaintiffs declined to accept the sa.me or to recognise
the second defendant as a lawful occupant as subtenant or otherwise.
It is also alleged that on
January 23, 1948, the plaintiffs gave a notice to both
the defendants to vacate the premises at the end of
February 29, 1948. In paragraphs 14 and 15 the
plaintiffs
formulate the
grounds
for ejectment,
namely, (1) that the alleged subletting by the first
defendant to the second defendant was wrongful,
illegal and in breach of the terms of the tenancy and
~o
230
8UPREME COURT REPOR'l'S
[1953]
w52
(2) that. the plaintiffs required the premises reasonImporters and ably and bona .fi~e for the use. a;i~ occupation of two
· Manufaoturors of the benefwianes.
The plamt1ffs prayed that both
Ltd.
the defendants be ordered to vacate the premises and
v.
that both of them be ordered to pay to the plaintiffs
Pheroze
compensation for the use and occupation of the preFramroze
mises at Rs. 370 per month from November 1, 1947,
Ta1·aporcwala
and Others.
till delivery of vacant possession.
The. appellant
points out that on the face of the p laiut the plaintiffs
Das I.
declined to recognise it as a lawful occupant as subtenant or otherwise and treated it as a mere trespasser
having; no lawful claim to the demised fiat and, therefore, the suit, in so far as it was one between the
plaintiffs and the appellant (the second defendant),
cannot be said to be a suit between a landlord and a
tenant and that the suit in so far as it claimed compensation from him cannot be said to be a suit for
recovery of rent. · The last part of the contention
need not detain us long, for the suit was undoubtedly
one for possession of the fiat and the _claim for
compensation was only incidental and ancillary to
to the claim for possession.
Jurisdiction to entertain
a suit for possession will empower the Court not only
to pass a decree for possession but also to give directions for payment of mesne profits until delivery of
possession. Such direction for payment of mesne pro·
fits is usually an integral part of the decree for possession. 'l'he only question for consideration, therefore, is whether the suit was one between a landlord
and a tenant.
The respondents (the plaintiffs) ·do not contend
that the appellant (the second defendant) is a
"tenant" as defined in section 5 (ll) of the Act. The
appellant, on the other hand, does not and, indeed,
cannot deny that, as between the plaintiffs and the
first defendant, the suit is one between a landlord and
a tenant and as such the Small Causes Court is, under
section 28 of the Act, the only Court competent to
entertain the suit. Section 28 couf ers jurisdiction on
the Court of Small Causes not only to entertain and
try any snit or proceeding between a landlord and I\
,,-
'
-
S.C.R.
SUPREME COURT REPORTS
231
tenant relating to the recovery of rent or possession
of the premises but also "to deal with any claim or
question arising out of this Act or any of its provisions." There is no reason to hold that "any cJoaim
or question" must necessarily be one between the
landlord and the tenant. In any case, once there is a
suit between a landlord and a tenant relating to the
recovery of rent or possession of the premises the
Smail Causes Court acquires the jurisdiction not cinly
to .entertain that suit but also "to deal with any claim
or question arising out of the Act or any of its provisions" which may properly be raised in such a suit.
The plaintiffs in this suit claimed that the purported
subletting by' the first defendant to the second defendant was unlawful both because it was a breach of
the terms of the tenancy and also because as the
statutory tenant after the determination of the con·
tractual tenancy the first defendant was not entitled
to· create a sub-tenancy and they questioned the
validity of the second defendant's claim to any
protection under the Act.
The claim or question as to the respective rights of the plaintiffs
and the second defendant thus raised in the plaint
certaintly arises out ot the Act and the language of
section :28 appears to be wide enough to cover the
same.
Apart from that section, under the ordinary
law a decree for
pos~ession passed against a tena.nt
in a suit for ejectment is binding on a person claiming
title under or through that tenant and is executable
against such person whether or not he was or was not
a party to the suit. The non-joinder of such a person
does not render the decree any the less binding on
him. It is in this sense, therefore, that he is not a
necessary party to an· ejectment suit against the
tenant. It is, however, recognised that such a person
is, nevertheless, a proper party to the suit in order
that the question whether the lease has been properly
determined and the landlord plaintiff is entitled to
recover possession of the premises may be decided in
his presence so that he may have the opportunity to
see that there is no collusion between the landlord
19511
Importers (J.nd
ll!lanufacturdrs
Lt1l.
v,
Pheroze
B,rn11u·oee
Taraporewal'J
and Others.
Das J.
1951!
lfitporters and
Man1,facturdr1
Ltd.
v.
P.herote
Framroze
Tai·aporewala
and Others.
1952
Nov. 'l.
233
SUPREME COURT REPORTS
(1953j
and the tenant under or throi;rgh whom he claims aud
to seek protection under the Act, if he is entitled to
any.
Such a person may be joined as a party to the
suifl' from the beginning of the suit or at any later
stage of the suit if the Court thinks fit to do so. The
joinder of such a proper party cannot alter the
character of the suit and does not make the suit any
the less a suit between the landlord and the tenant or
take it out of section 28 of the Act.
'ro hold other·
wise will be to encourage multiplicity of suits which will
result in no end of inconvenience and confusion.
In
our view the decision and the reasoning of Chagla
C.J. are substantially correct and this appeal must
fail.
We, therefore, dismiss the appeal ·with costs.
Appeal dismissed.
Agent for the appellants: RaJinder Narain.
A.gent for respondents Nos. 1, _2 & 3 : R. A. Ga.grat.
RAJ BAJRANG BAHADUR SINGH
v . .
THAKURAIN BAKHTRAJ KUER.
[MuKHERJEA, CHANDRASEKHARA A!YAH and
BHAGWATI JJ.J
OudhEstates Act (I of 1861>) s.14-Will of Taluqdar-Bequest
as "absol~tte owner" without right to transfer-Validity-Succession
to legatee whether governed by Act or ordinary law-C1·eation of
su .. ccessive estates - Validity-Rule aaainst perpetuities-Construction
-
11Ma1ik Kamil", "Naslan bad naslan".
The Oudh Estates Act (Act,! of 1869) does not interdict
the creation of future estates and limitations provided they do not
transgress the rule of perpetuities and where a disposition by a
will made by a taluqdar does not make the legatee an absolute
owner but gives him only an interest for life which is followed by
subsequent interests created in favour of other persons the rule of
succession laid down in s. 14 of the Act will not apply on the death
of the donee and the property bequeathed to him will pass accord·
in~ to the 1'rill to the next person entitled to it under the will.