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PETITIONER: BABULAL BHURAMAL AND ANOTHER

       Vs.

RESPONDENT: NANDRAM SHIVRAM AND OTHERS

DATE OF JUDGMENT: 31/03/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P. SUBBARAO, K.

CITATION:  1958 AIR  677            1959 SCR  367

ACT:        Bombay  City Civil Court, Jurisdiction of-Suit to  establish        status  as  tenants  and  sub-tenants  for  Protection  from        eviction  Whether  can  be  entertained  Rents,  Hotel   and        Lodging House Rates Control Act, 1947 (Bom.  LVII Of  1947),        SS. 28 and 29A.

HEADNOTE: A  who was a tenant of N sub-let the premises to B and 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 provisions of the Bombay Rents,  Hotel  and Lodging House Rates Control Act, 1947, 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 held that  the City  Civil Court had no jurisdiction to entertain the  suit and dismissed the appeal without going into the merits : Held, that the High Court was right in holding that s. 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, 368 and   expressly   prohibits  any  other   court   exercising jurisdiction with respect thereto.  In the present suit  the claim  being one  which arose out of the Act, and  the  City Civil  Court not being a court specified in s. 28, it  could not  entertain  the suit.  Though S. 29A of the  Act  allows questions  of  title to be regarded in a   civil  court,  it applies only to titles which do not arise out of the Act  or any  of  its  provisions; and titles  which  could  riot  be established  outside  the  Act but  which  arose  under  the provisions  of the Act by virtue of a claim made  thereunder must be determined by a court specified in S. 28.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: 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 I. N. Shroff, for the appellants. Purshotam Tricumdas and C. P. Lal, for the respondents. 1958.   March 31.  The following Judgment of the  Court  was delivered by IMAM J.-The sole question considered and decided by the High Court  was whether the suit filed by the appellants  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 Court 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 con- sideration  in  this  appeal  is  whether  the  High   Court correctly   decided  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 premises were sublet by 369 the first plaintiff.  The first defendant as landlord of the premises in suit gave notice to quit to the first  plaintiff on  December  6,  1947.   Thereafter,  he  filed  suit’  No. 483/4400  of  1948 in the Court of Small  Causes  Bombay  on April  29,1948,  whereby  he  sought  to  evict  the   first plaintiffs  To that suit the first defendant also  made  the second  and the third plaintiffs parties alleging that  they were  trespassers  and had no right to be on  the  premises. The  Small  Cause  Court  held that  the  second  and  third plaintiffs 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 summarily 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 declara- tion that the first plaintiff was a tenant of the 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 entitled 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  bad 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.  VII 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 dismissed.  The High Court disagreed with the view of   the  Judge  of  the  City  Civil  Court  that  he   had

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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 47 370 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.  The entire  provisions of  the Act read as a whole show that the Act was passed  to achieve that purpose.  The Act defines " landlord " to  mean "  any  person  who is for the  time  being,  receiving,  or entitled to receive, rent in respect of any premises whether on  his own account or 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 were 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 derived title under a tenant before the coming  into operation  of this Act, (a) any person to whom  interest  in premises  has 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 operation 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  grounds 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 371 sublet  before the coming into operation of this  Act  shall subject  to the provisions of this Act, be deemed to  become the tenant of the landlord on the same terms and  conditions as  he  would have held from the tenant if the  tenancy  had continued." Section 28 of the Act deals with jurisdiction of courts  and it states: " (1) Notwithstanding  anything  con- tained -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 jurisdiction 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  possession of any premises to which  -any  of  the provisions of this Part apply and to decide any  application

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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 subsection (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  the 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 in 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  to  the second,  and  third  plaintiffs and that there  had  been  a lawful subletting of the premises to them.  It 372 was not necessary for the first plaintiff to comply with the provisions  of  s.  10 of the Bombay Rents  Act,  1944.   It further  alleged  that the Appeal Court of Small  Causes  of Bombay  erred  in  holding that the  first  plaintiff  could sublet  the  premises  only  if he  had  complied  with  the provisions  of  s. 10 of the aforesaid  Act.   According  to para.  11  of the plaint the plaintiffs asserted  that  they were always ready and willing to pay the rent in respect  of the  said premises and to observe and perform the terms  and conditions   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 1947,  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 prayer in cl. (c) of the defendants, their  plaintiffs respectively.   The para an injunction against  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  the 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 operation  of  the Act, sublet the premises or  assigned  or transferred in any other manner his interest therein.  The 373 Act,  however, saved a subletting before  its  commencement, provided  the premises had been lawfully sublet.  "Tenant  " in the Bombay Rents Act, 1944, means " any person by whom or on  whose  account  rent is payable for  any  premises,  and includes  every  person I from time to time  deriving  title under  a  tenant.  " It was never pretended here or  in  the High Court, as indeed it could not be, that outside the  Act

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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 conditions 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  allowed 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 specified 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  possession  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 374 courts  specified in s. 28 and no other.   All  applications made  under the Act are also to be entertained and  disposed of  by the courts specified in s. 28 and no other.   In  all such  suits  or proceedings the courts  specified  in  s. 28 also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions.  The  words employed in s. 28 make this quite clear.  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  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 premises 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 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  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

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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 375 lawfully sublet the same to the second and third plaintiffs. The  City Civil Court, therefore, had to  determine  whether the  plaintiffs  had  established  their  claim  to  be   in possession of the premises in accordance with the provisions of the Act.  As the tenancy of the first plaintiff had  been terminated  by  the landlord, this  plaintiff  could  resist eviction  only  if he established his right to  continue  in possession  under  the  provisions  of  the  Act.   On   the termination  of the tenancy of the first plaintiff,  outside 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 words, 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  obviously contemplates the filing of  any  suit relating to possession. of any premises to which any of  the provisions  of Part 11 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 11 of the Act apply and in that suit claims and questions  arising out  of  the Act or any of its provisions 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  the 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 City 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 essentially  a  suit between a landlord and a  tenant.   The suit  did  not cease to be a suit between a landlord  and  a tenant merely because the defendants denied the claim of the plaintiffs.   Whether the plaintiffs were the tenants  would be a claim or question arising out of the Act or any of  its provisions  which had to be dealt with by the  court  trying the  suit.  On a proper interpretation of the provisions  of s.  28 the suit contemplated 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 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

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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  com- petent  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 determination 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 band,  in  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  which  could  not  be established outside the Act but 377 which  arose under the provisions of the Act by virtue of  a claim  made  thereunder  must  be  determined  by  a   court specified  in  s.  28 and a title de hors  the  Act  may  be determined  in  any other court of  competent  jurisdiction. The Act purported to amend and consolidate the law  relating to  the  control  of  rents  of  certain  premises  and   of evictions.  It defined " landlord " 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 Act 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 any 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 no 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 48 378 immovable  property from a person including a  tenant.   The provisions  of  s. 41 onwards prescribe a summary  mode  for recovery  of  possession which could even be stayed  by  the Small  Cause Court if the provisions Of s. 47 were  complied

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with.   Indeed,  under  s.  41  no  claims  or  rights   are determined.    In   such   a   situation   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 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 be executed for a fortnight ".  In granting  special leave this Court had granted  an  ex-parte stay,  staying  the  execution of the  decree  in  suit  No. 483/4400 of 1948 of the Court of Small Causes, Bombay  until the 16th day of January, 1956 and had directed that the stay application  be  posted for hearing on that date.   On  that (lay 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 them  that  they would deliver forthwith possession  of  the premises to the respondents in 379 the  event of the appeal being dismissed or decided  against them.  -Having regard to the undertaking given, as also  the fact  that execution of the decree in suit No.  483/4400  of the  Court  of Small Causes, Bombay has  been  delayed  long enough., we are unable to accede to the request made by  the appellants. The appeal is accordingly dismissed with costs.                                             Appeal dismissed.