# s.c.k SUP~EME COURT REP6RTS BHATIA CU-OPERATIVE HOUSING SOCIE'l'Y L1'D v. D. C. PATEL. •

- **Citation:** [1953] 1 S.C.R. 185
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Case number:** Civil Appeal No. 18 of 1952
- **Bench:** Mehr Chand Mahajan, Das, Vivian Bose, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-c-k-sup-eme-court-rep6rts-bhatia-cu-operative-housing-socie-l-y-l1-d-v-d-c-120
- **Pages:** 13

## Headnote

is5
Bombay Rents, Hotel and Lodaing House Rates Control Act
(LVII of 1947) s. 4 (1)-Suit by lessee of premises belonging to
Govermnent or local cmthority aaainst sub-lcssee-Appliwbili111 of
Act-Jurisdiction of City Civil Court-Construction of leaseOwnership of bu-ilding put up by lessee-Jurisdiction of Courtslnherent power to decide question of jurisdiction.
Section 4 of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 194 7, which provides that the Act shall not
apply to premises belonging to the Government or a local authority applies not only to suits between the Government or a local
authority as a landlord against the lessee, but also to suits
by a lessee of the Government or a local authority against his sublessee.
The indemnity conferred is in respect of premises uelonging to the Government or a local authority.
A building site was auctioned to a person by the City Improvement Trust of Bomlmy with a condition that the bidder was
to put up a building of a certain description at a cost of not less
than Rs. 50,000 and after the completion of the building, the site
and the building were to be leased to the bidder for a period of
999 years at a fixed yearly rent.
Held, on a construction of the lease-deed that the building
put up by the bidder belonged to the '!_'rust and not to the bidder
and a suit by the lessee against his sub-lessee was not governed
by the Bombay Bents, Hotels_ and Lqdging House Rates Control
Act, 194 7, as the premises belonged to a local authority within
the meaning of s. 4 (1) of the Act, and the suit could accordingly
be instituted in the City Civil Court of Bombay.
A civil Comt has inherent jurisdiction to decide the question
of its own jurisdiction and to entertain a suit although as a result
of the inquiry it may turn out that it has no jurisdiction.

## Text

s.c.k
SUP~EME COURT REP6RTS
BHATIA CU-OPERATIVE HOUSING
SOCIE'l'Y L1'D.
v.
D. C. PATEL.
•
[MEHR CHAND MAHAJAN, DAS, VIVIAN BOSE
and GHULAM HASAN JJ.]
is5
Bombay Rents, Hotel and Lodaing House Rates Control Act
(LVII of 1947) s. 4 (1)-Suit by lessee of premises belonging to
Govermnent or local cmthority aaainst sub-lcssee-Appliwbili111 of
Act-Jurisdiction of City Civil Court-Construction of leaseOwnership of bu-ilding put up by lessee-Jurisdiction of Courtslnherent power to decide question of jurisdiction.
Section 4 of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 194 7, which provides that the Act shall not
apply to premises belonging to the Government or a local authority applies not only to suits between the Government or a local
authority as a landlord against the lessee, but also to suits
by a lessee of the Government or a local authority against his sublessee.
The indemnity conferred is in respect of premises uelonging to the Government or a local authority.
A building site was auctioned to a person by the City Improvement Trust of Bomlmy with a condition that the bidder was
to put up a building of a certain description at a cost of not less
than Rs. 50,000 and after the completion of the building, the site
and the building were to be leased to the bidder for a period of
999 years at a fixed yearly rent.
Held, on a construction of the lease-deed that the building
put up by the bidder belonged to the '!_'rust and not to the bidder
and a suit by the lessee against his sub-lessee was not governed
by the Bombay Bents, Hotels_ and Lqdging House Rates Control
Act, 194 7, as the premises belonged to a local authority within
the meaning of s. 4 (1) of the Act, and the suit could accordingly
be instituted in the City Civil Court of Bombay.
A civil Comt has inherent jurisdiction to decide the question
of its own jurisdiction and to entertain a suit although as a result
of the inquiry it may turn out that it has no jurisdiction.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 18 of 1952.
Appeal from the Judgment and
Order dated December 12, 1949, of the High Court
of Judicature at Bombay (Weston and Shah JJ.) in
First Appeal No. 456 of 1949, arising out of J udgment and Decree dated January 24, 1949, of the
1952
lv~ov. 5 .
i86
SUPREME COURT REPOR'l'S
[1953j
1952
Bombay City Civil Court in Civil Suit No. 106
of 1948.
J1hatiri
Go-operati'.e
JYI.. 0. Setalvad, Attorney-General for India, (8. B.
IIonsmgSomety Jathar with him) for the appellant.
Ud.
N
v.
. P. Engineer (K. H. Bhaba with him) for the
n. c. Patel.
respondent.
1952.
November 5.
'l'he Judgment of the Court
was delivered by
DAS J.-'l'his is an appeal filed with the special
leave of this Court. It is directed against the judgment and decree passed on December 2, 1949, by a
Division Bench (Weston and Shah JJ.) of the Bombay High Court reversing, on the ground of absence
of jurisdiction, the judgment and decree for possession
passed on January 24, 1949, by the Bombay City
Civil Court and directing the return of the plaint fot·
presentation to the proper Court.
There is no dispute as to the facts material for the
purposes of this appeal.
On or about April 15,
1908, the Board of 'l'rustees for the Improvement of
the City .of Bombay pnt up to auction plots Nos. lG,
17 and 18 of new snrvey Nos. 8234, 8235 and 8244
situate on .the Princess Street Estate of the Board
containing an area of 2235 square yards for being let
on certain conditions. One Sitaram Luxman was the
highest bidder and was declared the tenant at an
annual rent per square yard to be calculated at the
rate of 41! per cent. of Rs. 29 per square yard and he
signed the memorandum of agreement incorporating
the conditions upon which the auction was held and
by which he agreed to be bound.
He deposited the
moneys in terms of clause 3 of the conditions, and
upon such payment entered into possession of the
plots.
By clause 7 Sitaram Luxman agreed, within
the time specified therein, to build and complete at a
cost of not less than Rs. 50,000 a building consisting
of 5 floors with suitable offices, drains etc. according
to plans and specifications to be made by an approved
architect and approved by the Board.
l3y clause 17
..
S.C.R,.
SUPREME COURT REPORTS
187
be agreed, so soon as the main building should be
1952
roofed ii;i, to insure i~ the joint na_mes of the Board
Bhatia
and of himself and, until the grantrng of the lease
co-operat·ive
4
,
tbereinafter provided, keep insured the buildingff an.d Ho,.sing Society
works on the plots for the full value thereof.
Clause
Ltd.
18 of the conditions was as follows:-
v.
D. 0. Patel.
"18.
The lease. Immediately after the completion
within the time limited by condition 7 of the said
Das J.
buildings and works to the satisfaction of the Trust
:::;
Engineer testified by bis certificate the 'l'rustees will
if the contract has not previously been determined
grant to the tenant or his a pp roved nominee who shall
accept the same a lease of the said plot with buildings
thereon for the term of 999 years from the date of the
auction at the yearly rent calculated in accordance
with the accepted bidding for the plot."
Ola use 25 gave power to the Board, if the buildings
were not completely finished within the stipulated
time and on certain other contingencies, to forfeit the
deposit and to enter upon and retain possession of
the plots and all buildings and works then standing
thereon.
Pursuant to this agreement the said Sitaram Luxman erected on those plots a building which has since
come to be known as the New Sitaram Building. On the
completion of the building, by an Indenture of lease
made on April 19, 1916, between the Trustees for
the Improvement of the City of Bombay and one
Rustomji Dhunjibhoy Sethna the receiver of the
•
estate of Sitaram Luxman appointed by the High
Court in Suit No. 720 of 1913, the Trustees, pursuant
to the said agreement and in consideration of the
monies which had been expended in the erection of
the buildings and of the rent and the covenants
thereinafter reserved and contained, demised unto the
lessee all that piece of land situate on their Princess
Street estate together with the buildings erected
thereon to hold the same for 999 years from
April 15, 1908, ps.ying therefor up to ·January,15,
l\;109, the rent of Re. 1 and during the remainder of
188
SUPREME COU·RT REPORTS
[1953)
1952
the term the yearly rent of Hs. 2,!116 by equal quarBhatia
terly payments.
By the said Indenture the lessee
co-operative covenanted to pay all rates and taxes, not to use or to
Hansina Society permit to be used, without the lessor's consent, the
Ltd.
portion of land not built upon except as open space,
v.
not to pull down, add to or alter the buildings without
D. 0· Patel.
such consent, to keep in repair all drains, sewers etc.,
Da.<.T.
to repair, pave, cleanse and paint and amend all the
buildings, walls etc., to permit the lessors and their
employees to enter upon the premises to inspect the
conditions thereof on 48 hours' notice, to use the
demised premises for residential purposes or as offices
and schools only and not as a public house Gr liquor
shop or for any business or trade, throughout the term
to keep the buildings insured against fire in the joint
names of the lessor and the lessee and to rebuild or
reinstate and repair the building if destrnyed or
damaged by fire or otherwise.
There was a proviso
for re-entry for non-payment of rent for 30 day5 or
for breach of any of the lessee's covenants.
In 1925 all the properties of the Trustees for the
Improvement of the City of Bombay vested in the
Bombay Municipality under and by virtue of Bombay
Act XVI of 1925. By a deed of assignment made on
April 26, 1948, Shri Bhatia Co-operative Housing
Society Tjimited, a society registered under
the
Bombay Co-operative Societies Act, VII of 1921, the
appellant before us, acquired the lessee's interest in
the demised premises.
On June 29, 1948, the appellant served a notice
on the respondent before us who was a monthly tenant
in occupation of Block No. B/2 on the ground floor
of the New Sitarani Building at a monthly rental of
Rs. 52-5-9 to quit and vacate the same on J nly
31, 1948.
By his advocate's reply the respondent
maintained that he had been paying the rent regularly and otherwise performing the terms of his tenancy
and claimed the protection of the Bombay Rents,
Hotel and r_,odging House Rates Control Act, 1947
(Act LVII of 1947).
S.C.R.
SUPREME COURT REPORTS
189
The respondent not having vacated the block under
1952
his occupation on the expiry of the notice to quit, the
.
appellant filed summary Suit No. 106 of 1948 against
0 Bhati~·
the respondent in the City Civil Court at Bombaj for Ho;;:,~;r;0;~:ty
vacant possession of the said Block No. B/2 on the
Ltd.
ground floor of the said New Sitaram Buildings and
v.
mesne profits from August 1, 1948, until delivery of
D. c. Patel.
possession.
After stating the material . facts, the
Das J.
appellant submitted that the Bombay Act LVII of
1947 did not apply to the demised premises.
The
respondent filed his written statement maintaining
that under section 28 of the Bombay Act the City
Civil Court had no jurisdiction to entertain the suit.
He averred that he had performed and observed all
the conditions of his tenancy and was ready and willing to do so, that the New Sitaram Building had
been constructed at the expense of the appellant's
predecessor
in
title
and
that
the
premises
belonged to the appellant and not to the Government or a local authority and that the respondent
was entitled to the protection of
the
Bombay
Act LVrI of 1947. Leaving out the issue as to
whether the appellant was entitled to any compensation, there were 4 issues raising in effect two
points, namely, (1) whether the Court had jurisdiction and (2) whether the Bombay Act LVII of 1947
applied to the premises in suit.
The learned City Civil Court Judge in a well-considered and careful judgment answered the issues in
favour of the appellant and decreed the suit.
The
respondent appealed to the High Court. 'fhe High
Court reversed the decision of the trial Judge and
holding that the Bombay Act LVII of 1947 did apply
to the premises and consequently that the City Civil
Court, by virtue of section 28 of that Act, had no
jurisdiction to entertain the suit, directed that the
plaint be returned to the appellant for being filed in
the proper Court. The High Court having declined
to grant leave to the appellant to appeal to this Court,
the appellant applied for and obtfl.ined special lefl.ve
25
190
SUPREME COURT REPOR'rS
[1953]
1952
of this Court to prefer this appeal and filed this appeal
pursuant to such leave.
Bhatia
co-operative
I~earned counsel for-the respondent took a preliHo1<sing Society minary objection, founded on the provisions of secr,ta.
tion 28 of the Bombay Act, that the City Civil Court
v.
bad no jurisdiction to entertain the suit, for that section
D. 0 · Patel.
clearly states that in Greater Bombay the Court of
Das J.
Small Cayses alone shall have jurisdiction to entertain and try any suit between a landlord and a tenant
relating to the recovery of rent or possession of any
premises to which any of the provisions of that Part
of the Act applied and to decide any application made
under the Act and to deal with any claim or question
arising out of the Act and no other Court should
have jurisdiction to entertain any suit or proceeding
or to deal with such claim or question. If, as contended for by the appellant, the Act does not apply to the
premises, then section 28 which is an integral part of
the Act and takes away the jurisdiction of all Courts
other than the Small Causes Court in Greater Bombay
cannot obviously be invoked by the respondent. The
crucial point, therefore, in order to determine the
question of the jurisdiction of the City Civil Court to
entertain the suit, is to ascertain whether, in view of
section 4 of the Act, the Act applies to the premises
at all: If it does, the City Civil Court bas no jurisdiction but if it does not, then it has such jurisdiction.
'rbe question at once arises as to who is to decide this ·
point in controversy. It is well settled that a Civil
Court bas inherent power to decide the question of
its own jurisdiction, although, as a result of its enquiry,
it may turn out that it has no jurisdiction over the
suit.
Accordingly we think, iu agreement with the
High Court, that this preliminary objection is not
well founded in principle or on authority and sbonld
be rejected.
The main controversy between the parties is as to
whether the Act applies to. the demised premises.
'l'be solution of that controversy depends upon a true
construction of section 4 (1) of the Bombay Act L vn
of 1947, ,,vbicb rqqs as follows;~
;+
•
' .
-
S.C.R.
SUPREME COURT REPORTS
191
"4. (1) 'rhis Act shall not apply to any premises
i 9s2
belonging to the Government or a local authority or
Bh 1.
apply as against the Government to any tenancy or
co-op:r:~ive
other like relationship created by a grant from"the Housing Society
Government in respect of premises taken on lease or
Ltd.
requisitioned by the Government; but it shall apply
v.
in respect of premises let to the Government or a
D. c. Patel.
local authority."
Das J.
It is clear that the above sub-sectionJ:i.as three parts,
namely-
( I) This Act shall not apply to premises belonging
to the Government or a local authority,
(2) This·Act shall not apply as against the Government to any tenancy or other like relati-0nshi p created
by grant from the Government in respect of premises
taken on lease or requisitioned by the Government,
(3) This Act shall apply in respect of premises let
out to the Government or a local authority.
The contention of the appellant Society is that the
demised premises belonged to the Trustees for the
improvement of the City of Bombay and now belong
to the Bombay Municipality both of which bodies are
local authorities and, therefore, the Act does not ·
apply to the demised premises. Learned counsel for
the respondent, however, urges that the object of the
Act, as recited in the preamble, is inter alia, to control rent. It follows, therefore, that the object of the
legislation was that the provisions of the Act would
be applicable only as between the landlord and tenant.
Section 4 (1) 'provides 'for an exemption from or exception to that general object.
'rhe purpose of the
first two parts of section 4 (1) is to exempt two cases
of relationship of landlord and tenant from the operation of the Act,-namely, (1) where the Government
or a local authority lets out premises belonging to it,
and (2) where the Government lets out premises taken
on lease or requisitioned by it. It will be observed that
the second part of section 4 (1) quite clearly exempts
"any tenancy or other like relationship" created
by the GoYernment bi1t the first part makes no
192
SUPREME COURT REPORTS
[1953j
1952
reference to any tenancy or other like relationship at
Bh t·
all but exempts the premises belonging to the Govern0 _
•r:~iv• ment or a local authority. If the intention of the first
Ho:,:,i:; society par~ were as formulated in item (1), then the first
Ltd.
part of section 4 (1), like the second part, would have
v.
run thus :-
D. 0 · Patel.
'l'bis Act shall not apply to any tenancy or other
Das J.
like relationship created by Government or local
authority in re~pect of premises belonging to it.
The Legislature was familiar with this form of expression, for it adopted it in the second part and yet
it did not use that form in the first.
The conclusion
is, therefore, irresistible that the Legislature did not
by the first part intend to exempt the relationship of
landlord and tenant but intended to confer on the
premises belonging to Go~ernment an immunity from
the operation of the Act.
•
Learned counsel for the respondent next contends
that the immunity given by the first part should be
held to be available only to the Government or a
local authority to. which the premises belong. If that
were the intention then the Legislature would have
·used phraseology similar to what it did in the second
part, namely, it would have expressly made the Act
inapplicable "as against the Government or a local
authority". This it did not do' and the only inference
that can be drawn from this circumstance is that this
departure was made deliberately with a view to exempt
the premises itself.
It is said that if the first 'part of the section is so
construed as to exempt the premises from the operation of the Act, not only as betwelln the Government
or a local authority on the one ha.nd and its lessee on
the other, but also as between that lessee and his subtenant, then .the whole purpose of the Act will be '
frustrated, for it is well known that most of the lands
in Greater Bombay belong to the G overnmellt or one
or other local authority, e.g., Bombay Port Trust and
Bombay Municipality and the greater number of tenants will not be able to avail themselves of the benefit and protection of the Act.
In the first place, the
S.C.R.
SUPREME COURT REPORTS
i93
preamble to the Act clearly shows that the object of
w52
the Act was to consolidate the law relating to the
Bl
.
control of ren.ts and repairs o~ certain premises and not
00_0;:~:~ivo
of all premises.
The Legislature may well have Housing Society
t.hought that an immunity given to premises belonging
Ltd.
to the Government or a local authority will facilitate
v.
the speedy development of its lands by inducing !esD. c. Patol.
sees to take up building leases on terms advantageous
Das J.
)
to the Government or a local authority. Further, as
pointed out by Romer L.J. in Glarkv. Downes(1), which
case was approved by Lord Goddard C.J. in Rudler v.
Franks( 2 ) such immunity will increase the value of the
right of reversion belonging to the Government or a
local authority.
The fact that the Government or a
local authority may be trusted to aet fairly and
reasonably may have induced the Legislature all
the more. readily to give such immunity to premises belonging to the Government or a local
authority but it cannot be overlooked that the primary
object of giving this immunity was to protect the interests of the Government or a local authority. This
protection requires that the immunity should be held
to attach to the premises itself and the benefit of it
should be available not only to the Government or a
local authority but also to the lessee deriving title
from it. If the benefit of the immunity was given only
to the Government or a local authority and not to its
lessee as suggested by learned counsel for the resp on·
dent and the Act applied to the premises as against
.Jthe lessee, then it must follow that under section 15
of the Act it will not be lawful for the lessee to sublet
the premises or any part of it. If such were the consequences, nobody will take a building lease from the
Government or a local authority and the immunity
given to the Government or a local authority will, for
all practical purposes and in so far at any rate as the
building leases are concerned, be wholly illusory and
worthless and the underlying purpose for bestowing
such immunity will be rendered wholly ineffective. In
our opinion, therefore, the consideration of the
(1) [1931) 145 L.T. 20.
(2) (1947) l K.B. 530.
194
SUPREME COURT REPORTS
[1953]
1953
protection of the interests of the sub-tenants in preBhatia
n:iises belonging t? the Gov~rnment ?r a local authoGo-operativ• nty cannot ovetnde the plam meanmg of the preHo .. sing Society amble or the first part of section 4 (1) and frustrate the
Ltd.
real purpose of protecting and furthering the interv.
ests of the Government or a local authority by con·-
n. c. Pate!. !erring on its property an immunity from the operaDas J.
· ti on of the Act.
Finally, learned counsel for the respondent urges
that the words "belonging to" have not been used in
. a technical sense and should be read in their popular
sense. It is pointed out that it was the. lessee who
erected the building at his own cost, he is to hold it
for 999 years, he has the right of subletting the
building in whole or in part on rent and terms to be
fixed by him, of ejecting sub-tenants, and of assigning the lease.
'I'herefore, it may fairly be said that
the premises or, at any rate, the building belongs to
the lessee and the rights reserved by the lease to the
lessor are only by way of security for th~ preservation
of the building which, on the expiry or sooner determination of the lease, will vest in the lessor.
This
line of reasoning has found favour with the High
Court which has. held that although in form the
building belongs to the Bombay Municipality who are
the successors in interest 0£ the lessors, in substance
the building belongs to the appellant, the assignee of
the lessee, and not to the Bombay Municipality.
We
are unable to accept this reasouiug, for we see no
reason to hold, in the circumstances of this case, that
the substance does not follow the form. By the operative patt of the lease the demise is not only of the
land but· also of the building standing thereon.
This
demise is certainly an act of ownership exercised by
the lessor over the land as well as the buildings.
Under s@Ction 105 of the Transfer of Property Act a
lease is a transfer only of a rig lit to enjoy the demised
premises, but there is no transfer of ownership or
interest in the demised premises to the lessee such as
there is in a sale (section 54) or a mortgage (section
58).
In the present case, the lessee cannot, on his
;t
•
t
S.C.R.
SUPREME COURT REPORTS
195
own co\renant, use the buildings in any way he likes.
1952
He has to use the same only as offices or schools or
B'
.
f
"d
. I
d
t
. h
h
,1atia
or res1 ent1a purposes an
canno , wit out t e
co-operative
lessor's consent, use them for purposes of any trade or Housing society
business. He cannot pull down the buildings or make
Ltd.
any additions or alterations without the lessor's conv.
sent.
He cannot build upon the open space.
He
D. o. Patel.
must, if the premises are destroyed by fire or otherwise,
Das J.
reinstate ·it.
The lessor has the right to enter upon
and inspect the premises at any time on giving 48
hours' notice.
All these covenants clearly indicate
that the lessor has the dominant voice and the real
ownership. What are called attributes of ownership
of the lessee are only the rights of enjoyment which
are common to all lessees under well drawn leases, but
the ownership in the land and in the building is in
the lessor. It is true that the lessee erected the
building at his own cost but he did so for the lessor
and on the lessor's land on agreed terms.
The fact
that the lessee incurred expenses in putting up the
building is precisely the consideration for the lessor
granting him a lease for 999 years not only of the
building but of the land as well at what may, for all
we know, be a cheap rent which the lessor may not
have otherwise agreed to do.
By the agreement the
building became the property of the lessor and the
lessor demised the land and the building which, in the
circumstances, in law and in fact belonged to the
lessor.
The law of fixtures under section 108 of the
Transfer of Property Act may be different from the
English law, but section 108 is subject to any agreement that the parties may choose to make. Here, by
the agreement the building became part of the land
and the property of the lessor and the· lessee took a
lease on that footing.
The lessee or a person claiming title through him cannot now be heard to say that
the building does not belong to the lessor. Forfeiture
does not, for the first time, give title to the lessor.
On forfeiture he re-enters upon what has all along
been his own property.
Said Lord Macnaghten in
Heritable Reversionary Company v. Mullar(1):--
(1) (1892] A.C. 598 at p. ()u 1
1952
Bhatia
Co-operative
Housing Society
Ltd.
v.
D. C. Patel.
196
SUPREME COURT REPORTS
[1953]
"The words 'property' and 'belonging to' are
not technical words in the law of Scotland.
They
are to be understood, I think, in their ordinary significatio"n.
They are in fact convertible terms; you can
hardly explain the one except by using the other.
A
man's property is that which is his own, that which
belongs to him.
What belongs to him is his property."
In our opinion the interest of the lessor in the
demised premises cannot possibly be described as a
contingent interest which will become vested on the
expiry or sooner determination of the lease, for then
the lessor could not have demised the premises including the building as he did or before the determination o'f the lease exercise auy act of ownership or any control over it as he obviously has
the right to do under the covenants referred to
above.
The truth is that the lessor, after the
building was erected, became the owner of it and
all the time thereafter the demised premises which
include the building have belonged to him subject to
the right of enjoyment of the lessee in terms of the
lease. If it were to be held that the building belonged
to the lessee by reason of his having put it up at his
own cost and by reason of the attributes of ownership
relied on by learned counsel, then as between the local
authority (the lessor) and the lessee also the building must for the same reason founded on what have
been called the attributes of ownership be held to
belong to the lessee and the Act will apply.
Surely
that could not possibly be the case, for it would mean
that the Government or a local authority will always
be bound by the Act in respect of the building put up
by the lessee uhder building leases granted by it in
respect of land belonging to it.
In that case the
immunity given to the Government or a local authority will be wholly illusory and worthless. In our
view in the case before us the demised premises including the building belong to a local authority and are
outside the operation of the Act.
This Act being
out of the way, the appellants were well within their
-
...
"' -
-+
,+
. .
S.C.R.
SUPREME COURT REPORTS
197
rights to file the suit in ejectment in the City Ci vi!
Court and that Court had J. urisdiction to entertain
1952
Bhatia
the suit and to pass the decree that it did.
•
co-operativa
The result, therefore, is that we allow this appeal, Housing Society
set aside the judgment and decree of the High Cou-rt
Ltd.
and restore the decree passed by the City Ci vii Court.
v.
The appellant will be entitled to costs throughout in
D. c. Patel.
all Courts.
Appeal allowed.
Agent for the appellant: P. G. Gokhale.
Agent for the respondent: S. P. Varma .
•
NEMI CHAND AND ANOTHER
v.
THE EDWARD MILLS CO. LTD.
AND ANOTHER
/·
[MEHR CHAND MAHAJAN, DAS, VIVIAN BOSE
and GHULAM HASAN JJ.]
Court-Fees Act (VII of 1870), s. 12-Givil Procedure Gode,
1908, s. 2(ii), 0. VII, r. 11-Decision as to court-fee-FinalityScope of s. 12-Dismissal for non-payment of court-fee-Power of
appellate Court to c011sider whether decision abo·ut court-fee was right
- Declaratory suit with prayer for conseqne11tial relief-Appeal
giving up prayer for conseq1iential relief-J.Iaintainability-GonrtDqs J,
1952
Nov. 10.
,,_
fee.
-
+
In a plaint the following reliefs were asked for, viz., (i) that it
be declared that the appointment of defendant No. 2 as chairman
of the board of directors of a company is illegal, invalid and ultra
vires and that he has no right to act as chairman, managing
director etc., and (ii) that a receiver be appointed to take charge
of the management of the company.
The plaint bore a court-fee
stamp of Rs. 10 only but, on the objection of the defendants, ad
valorem fee was paid on Rs. 51,000 which was the valuation of the
suit. The suit was dismissed and the plaintiff preferred an appeal
giving up the second relief and paying a court-fee of Rs. 10 only.
The ll.lll\Bllate Court ordered payment of ad valorem court-fee and
on non-compliance rejected the memorandum of appeal.
On
further appeal;
·
~I!