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PETITIONER: RAIZADA TOPANDAS & ANR.

       Vs.

RESPONDENT: M/S.  GORAKHRAM GOKALCHAND

DATE OF JUDGMENT: 22/04/1963

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1964 AIR 1348            1964 SCR  (3) 214  CITATOR INFO :  R          1978 SC1217  (35)  RF         1980 SC1605  (16)  RF         1981 SC 537  (19)  RF         1991 SC1494  (7)

ACT: Jurisdiction  of Court-Suit filed in City Civil Court  alle- ging  that defendant was a licensee-Prayer  for  injunction- Defendant  alleging relation of landlord and  tenant-Whether small causes court has exclusive jurisdiction-Bombay  Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom.   LXII of 1947), ss.28,29,29A.

HEADNOTE: The respondent Is a partnership firm.  It instituted a  suit in  the Bombay City Civil Court against the  appellant.   It was  alleged  in the plaint that by virtue of  an  agreement appellant  No. I appointed the respondent as his  commission agent for the sale of his cloth in the shop which was in the possession  of the respondent.  The agreement was to  remain in  force  for four years.  Persuant to  the  agreement  the appellants,  their family members, servants and agents  were allowed  by  the respondent to visit the shop only  for  the purpose of looking after the business of commission  agency. On the expiry of the agreement the appellants had no further rights to enter into the shop.  The respondent prayed for  a declaration  that it was in lawful possession of  the  shop, for  an injunction restraining the appellants, their  family members, servants and agents from entering into the shop and for  an  amount  of  commission  payable  to  it  under  the agreement.  The plaint proceeded on the footing that  215 during  the  period of agreement the  appellants  were  mere licensees  and after the expiry of the agreement  they  were mere  trespassers.   The  plaint  in  terms  negatives   any relationship  of landlord and tenant as between the  parties to  the  suit.  The defence of the appellants was  that  the respondent had sublet the shop to them at a certain  monthly rent.  But since no subletting is possible under the  Bombay Rents,  Hotel  and Lodging House Rates  Control  Act,  1947, without  the  consent of the land-lord the  parties  entered

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into  a sham agreement which was never acted upon and  which was  only  a cloak to conceal the  true  relationship.   The relationship  was that of a land-lord and tenant.  On  these averments  in the written statement the appellants took  the plea  that  the  Court  of Small  Causes  Bombay  alone  had jurisdiction to try the suit. The  City  Civil Court relying on a decision of  this  Court upheld  the contention of the appellants and made  an  order that  the plaint be returned for presentation to the  proper court.  The respondent thereupon appealed to the High Court. The High Court held that on a correct interpretation of s.28 of  the Act the suit out of which the appeal had arisen  was not a suit within the exclusive jurisdiction of the Court of Small Causes Bombay and setting aside the order of the  City Civil  judge directed that it should dispose of the suit  in accordance  with  law.   The present appeal  is  by  way  of special  leave.  In the appeal the same question as  to  the jurisdiction of the City Civil Court was raised. Held  (per S.K. Das and M. Hidayatullah, JJ.) that S. 28  no doubt  gives  exclusive jurisdiction to the Court  of  Small Causes  to entertain and try a suit or proceeding between  a landlord  and  a  tenant relating to  recovery  of  rent  or possession of any premises to which any of the provisions of Part   II  of  the  Act  apply;  it  also  gives   exclusive jurisdiction to decide any application under the Act and any claim  or  question  arising out of the Act or  any  of  its provisions. Section  28 does not invest the Court of Small  Causes  with exclusive  power  to try questions of title as  between  the rightful  owner  and a trespasser or a  licensee,  for  such questions  do  not arise under the Act.   If  therefore  the plaintiff  in  his plaint does not admit  a  relation  which would attract any of the provisions of the Act on which  the exclusive  jurisdiction  given  under  S.  28  depends,  the defendant by his plea cannot force the plaintiff to go to  a forum where on his own averments he cannot go.  If the  suit as framed is by a land-lord or a tenant and the relief asked for is in the nature of a claim which arises 216 out  of the Act or any of its provisions then only  and  not otherwise will it be covered by S. 28.  The City Civil Court had  jurisdiction to entertain the suit and the  High  Court correctly came to that conclusion. Ananti  v.  Ghhannu,  (1929) I.L.R. 52  All.  501  Govindram Salamatrai  v.  Dharampal,  (1951) 53 Bom.   L.R.  386,  and Jaswantlal  v.  Western Company, India (1959), 61  Bom.L  R. 1087, approved. Babulal  Bhuramal  v.  Nandram Shivram  [1959]  S.C.R.  367, explained. Per Sarkar, J. The suit is not one between a land-lord and a tenant  for  recovery of possession of premises  and  there. fore  it  does  not come under the  first  kind  of  matters mentioned  in  s. 28(1).  The suit does not come  under  the second  kind  mentioned in that section as that  deals  with certain applications only. Section 28 thirdly provides that no court other than a Court of  Small  Causes shall have jurisdiction to deal  with  any claim   or  question  arising  under  the   Act   concerning properties in Greater Bombay.  This part of the section does not purport to affect any court’s jurisdiction to  entertain and  try  a suit but it only prevents a court  from  dealing with  certain claims and questions.  Therefore a  court  may try  a  suit in so far as it does not thereby have  to  deal with a claim or question arising out of the Act. It  is unnecessary to decide the dispute whether it is  per-

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missible  under  the  section to look  at  the  defence  for ascertaining  whether  a claim or question  under  the  Act, arises  in the suit because even the defence in the  present case  does  not raise any claim or question under  the  Act. The defence really is that the appellants arc not licensees. That  being so, the only question that the suit involves  is whether  the  appellants are licensees of the  shop.   Quite clearly,  such a question is neither a question nor a  claim arising  out of the Act.  Neither is a question whether  the appellants  are sub-tenants one arising out of the  Act  for the Act says nothing as to the creation of a tenancy. No  discussion of any question or claim arising out  of  the Act is necessary for deciding the suit.  217

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 75 of 1962. Appeal  by special leave from the judgment and decree  dated October 19, 1959, of the Bombay High Court in Appeal No. 152 of 1959. N.   C.  Chatterjee,  J.B.  Dadachanji,  O.  C.  Mathur  and Ravinder Narain, for the appellants. A.   V. Viswanatha Sastri and D. D. Sharma, for respondents. 1963.  April 22.  The judgment of S.K. Das and Hidayatullah, JJ. was delivered by Das J... Sarkar J., delivered separate, judgment. S.K.  DAS J.-The only question which arises in  this  appeal is,  whether  on  a proper interpretation of s.  28  of  the Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947  (Bombay  Act LVII of 1947) the Court of  Small  Causes Bombay had exclusive jurisdiction to deal with the suit  out of which this appeal has arisen.  The respondent before us is a partnership firm.  It was  in possession as a tenant of a shop No. 582/638, at Mulji Jetha Market,  Bombay.   It instituted a suit in the  Bombay  City Civil  Court  (to be distinguished from the Court  of  Small Causes, Bombay) in which it asked for (1) a declaration that it  was  in lawful possession of shop No. 582/638  at  Mulji Jetha  Market, Bombay and that the present  appellants  (who were  the defendants in the suit) or their  family  members, servants  or agents had no right to enter into or remain  in possession  of  the  said  shop  ;  (2)  for  an  injunction restraining  the present appellants, their  family  members, servants  and agents from entering into the said shop ;  and (3)  for  an  amount of commission payable to  it  under  an agreement 218 dated June 23, 1955.  The main averments in the plaint  were that  by the aforesaid agreement defendant No. 1,  appellant No. 1 before us, appointed the respondent as his  commission agent  for the sale of the appellants’ cloth in the shop  in question.  The agreement was to remain in force for a period of  four years expiring on June 30, 1959.  Pursuant  to  the agreement,  the appellants, their family  members,  servants and agents were allowed by the respondent to visit the  shop only  for  the  purpose of looking  after  the  business  of commission  agency.   On  the expiry of  the  agreement  the appellants  had no further right to enter into the shop  and in  paragraphs 10 and 11 of the plaint  the  respondent-firm -alleged  that some commission was due to it and further  it asked  the  appellants  not to disturb  the  possession  and peaceful  enjoyment of the shop by the respondent ; but  the appellants, their servants and agents were visiting the shop

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daily  and preventing the respondent from having  access  to its  various  articles  such  as  stock-in-trade,  books  of account,  furniture, fixtures etc.  On these  averments  the respondent-firm  asked  for  the reliefs to  which  we  have earlier referred.  The plaint proceeded on the footing  that during the period of the agreement the appellants were  mere licensees,  and after the expiry of the agreement they  were trespassers and had no right to be in the shop.  The  plaint in  terms negatives any relationship of landlord and  tenant as between the parties to the suit. The  substantial  defence  of the appellants  was  that  the respondent-firm  had sublet the shop to the appellants at  a monthly  rent of Rs. 500/ ; but as no sub-tenancy  could  be legally  created  at the time, without the  consent  of  the landlord,  by  reason  of the provisions  of  the  Act,  the respondent-firm  with  a view to safeguard its  position  in regard  to  the  penal provisions of the  Act  required  the appellants to enter into a sham agreement in the shape of  a letter dated June 30, 1952.  The agreement was never acted  219 upon  and  was intended to be a cloak to  conceal  the  true nature  of the transaction.  The appellants further  alleged that  the  agreement  dated  June 23,  1955,  was  also  not operative between the parties, and the true relation between the  parties  was  that of landlord and  tenant.   On  these averments  in the written statement the appellants took  the plea  that as the question involved in the suit  related  to the  possession  of premises as between a landlord  and  his tenant,  the  Court  of  Small  Causes,  Bombay,  alone  had jurisdiction to try the suit. On  these pleadings a preliminary issue as  to  jurisdiction was  framed by the City Civil Court, Bombay and  this  issue was in these terms: "Whether  this court has jurisdiction to entertain  and  try this suit ?" The  learned  judge  of the City Civil Court  relying  on  a decision  of  this  court in  Babulal  Bhuramal  v.  Nandram Shivram (1), decided the preliminary issue in favour of  the present   appellants.    He  held  that  in  view   of   the observations of the Supreme Court in the aforesaid decision, an  earlier decision of the Bombay High Court  in  Govindram Salamatrai  v.  Dharampal (2), which had taken  a  different view  was  of no assistance to the present  respondent,  and must be deemed to have been over-ruled by the Supreme  Court decision.  We may state here that the decision in  Govindram Salamatrai  (2) , had itself over-ruled an earlier  decision of the same court in Ebraham Saleji v. Abdulla Ali Raza (3), where Gajendragadkar J. (as he then was) had taken the  view that  s. 28 of the Act included within its jurisdiction  all suits and proceedings where the trial court has to  consider all  claims  or questions arising out of the  Act.,  and  it makes  no difference whether such claim or  question  arises from the allegations made in the plaint or those made in the (1) [1959] S.C.R.  367. (2)(1951) 53 Bom.  L.R, 886, (3)  (1950) 52 Bom.  L.R. 897 , 220 written  statement.   The learned judge of  the  City  Civil Court accordingly made an order that the plaint be  returned to  the present respondent for presentation to  tile  proper court. An  appeal was taken by the present respondent to  the  High Court of Bombay from the decision of the learned City  Civil judge.   The  High Court pointed out in its  judgment  dated October  19,  1959, that the ratio of the decision  of  this

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court   in  Babulal  Bhuramal’s  case  (1),  was   correctly explained  in a later decision of the Bombay High  Court  in Jaswantlal v. "Western Company, India" (2) and on a  correct interpretation  of  s.  28 of the Bombay  Rents,  Hotel  and Lodging Houses Rates Control Act, the suit out of which this appeal  has  arisen  was not a  suit  within  the  exclusive jurisdiction of the Court of Small Causes, Bombay.  The High Court  said that the decision in Babulal Bhuramal  (1),  did not in effect hold, nor did it justify any interpretation to the effect, that s. 28 of the Act made a departure from  the general principle that governs the question of jurisdiction, which  is  that jurisdiction at the inception of,  the  suit depends  on  the  averments made in the plaint  and  is  not ousted by the defendant saying something in his defence.  In this  respect, the High Court accepted as correct  the  view expressed  by  Chagla C. .J. in  Govindram  Salamatrai  (3), rather than the view of Gajendragadkar, J. in Ebrahim Saleji (4).   In this view of the matter the High Court  held  that the City Civil Court has jurisdiction to try the suit out of which  the appeal has arisen.  It, therefore, set aside  the order  of the learned City Civil judge and directed that  it should now dispose of the suit in accordance with law.   The appellants  then asked for special leave to appeal  to  this court  from the judgment and decree of the High  Court,  and having  obtained  special leave have preferred  the  present appeal. (1) [1959] S.C.R. 367        (2) (1959) 61 Bom.  I.h. 1087, (3) (1951) 53 Bom, L.R       (4) (1950) 52 Bom.  L,R. 997,  221 The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was enacted, to amend and consolidate the law  relating to the control of rents and repairs of certain premises, of. rates of hotels and lodging houses and of evictions, In Part II of the Act there are provisions which make rent in excess of standard rent illegal, provisions relating to increase of rent,   provisions  as  to  when  a  landlord  may   recover possession,  when  a sub-tenant becomes a  tenant,  unlawful charges  by landlord etc.  All these proceed on the  footing that  there  is  or was, at the  inception,  a  relation  of landlord  and tenant between the parties.  In the same  Part occur  ss.  28.  29 and 29-A.  Section  28  which  we  shall presently  read  deals with jurisdiction of courts ;  s.  29 deals  with  appeals, and s. 29-A is a section  which  saves suits   involving   title.   The  particular   section   the interpretation  of which is in question before us is  s.  28 and we shall read only sub-s. (1) thereof in so far as it is relevant for our purpose.  This subsection reads...               "28. (1) Notwithstanding anything contained in               any law and notwithstanding that by reason  of               the  amount of the claim or for any other  re-               ason,  the suit or proceeding would  not,  but               for    this   provision,   be    within    its               jurisdiction.               (a)   in  Greater Bombay, the Court  of  Small               Causes, Bombay,               (aa) xx           xx         xx                (b)  xx          xx         xx.........  shall have jurisdiction to entertain and  try               any  suit or proceeding between a  land.  lord               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               222               decide any application made under this Act and               to deal with any claim or question arising out

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             of  this  Act  or any of  its  provisions  and               subject to the provisions of sub-section  (2),               no  other  court shall  have  jurisdiction  to               entertain any suit, proceeding or  application               or to deal with such claim or question.  "               S.29-A also has some relevancy and may be  set               out here...               "Nothing  contained in section 28 or 29  shall               be deemed to bar a party to a suit, proceeding               or  appeal  mentioned  therein  in  which   -a               question  of title to premises arises  and  is               determined, from suing in a competent court to               establish his title to such premises." Leaving  out  what is unnecessary for  our  purpose  s.28(1) states  that notwithstanding anything contained in  any  law and  notwithstanding  that by reason of the  amount  of  the claim or for any other reason, the suit or proceeding  would not, but for this provision, be within its jurisdiction, the Court   of  Small  Causes  in  Greater  Bombay  shall   have jurisdiction  to  entertain and try any suit  or  proceeding between a landlord and a tenant relating to the recovery  of rent  or  possession  of any premises to which  any  of  the provisions  of this Part (meaning thereby Part II apply  and to  decide  any application made under the Act and  to  deal with any claim or question arising out of the Act or any  of its provisions and no other court shall have jurisdiction to entertain  any  such suit, proceeding or application  or  to deal  with any such claim or question.  It is to be  noticed that  the  operative part of the subsection  refers  to  two matters: (a) any suit or proceeding between a landlord and a tenant  reletting to the recovery of rent or  possession  of any premises to which any of the provisions of Part II apply and (b) any application made under the Act or any claim or  223 question  arising out of this Act or any of its  provisions. What is the true effect of sub-s.(I) of s.28 with regard  to the  aforesaid  two  matters?   Does it  mean  that  if  the defendant raises a claim or question as to the existence  of a  relationship of landlord and tenant between him  and  the plaintiff,  the  jurisdiction  of the City  Civil  Court  is ousted  even  though the plaintiff pleads that there  is  no such  relationship, and the only court which  has  exclusive jurisdiction  to try the suit is the Court of Small  Causes, Bombay ? That is the question before us. In answering this question it is perhaps necessary to  refer to  the  general  principle  which  admittedly  governs  the question  of jurisdiction at the inception of  suits.   This general principle has been well explained in the Full  Bench decision of the Allahabad High Court, Ananti v. Chhannu (1), and bag not been disputed before us.  It was observed there:               The plaintiff chooses his forum and files  his               suit.   If he establishes the  correctness  of               his  facts  he will get his  relief  from  the               forum  chosen: If ... he frames his suit in  a               manner  not warranted by the facts,  and  goes               for  his relief to a court which cannot  grant               him relief on the true facts, he will have his               suit   dismissed.   Then  there  will  be   no               question   of   returning   the   plaint   for               presentation  to  the proper  court,  for  the               plaint, as framed, would not justify the other               kind    of    court   to   grant    him    the               relief............... ... If it is found, on a               trial  on the merits so far as this  issue  of               jurisdiction  goes, that the facts alleged  by

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             the  plaintiff  are  not true  and  the  facts               alleged  by the defendants are true, and  that               the case is not cognizable by the court, there               will be two kinds of orders to be passed.   If               the  jurisdiction  is  only  one  relating  to               territorial  limits or pecuniary  limits,  the               plaint  will  be ordered to  be  returned  for               presentation to the               (1)   (1929) I. L R. 52 All, 501.               224               proper  court.  If, on the other hand,  it  is               found that, having regard to the nature of the               suit, it not Cognizable by the class of  court               to  which the court belongs,  the  plaintiff’s               suit   will  have  to  be  dismissed  in   its               entirety." Having  regard  to the general principle  stated  above,  we think that the view taken by the High Court in this case  is correct.  S. 28 no doubt gives exclusive jurisdiction to the Court  of  Small  Causes  to entertain and  try  a  suit  or proceeding  between  a  landlord and a  tenant  relating  to recovery of rent or possession of any premises to which  any of the provisions of Part II apply; it also gives  exclusive jurisdiction to decide any application under the Act and any claim  or  question  arising out of the Act or  any  of  its ’provisions---all this notwithstanding anything contained in any  other  law.  The argument of learned  counsel  for  the appellants  is  that  the  section  in  effect  states  that notwithstanding   any  general  principle,  all  claims   or questions  under the Act shall be tried exclusively  by  the courts  mentioned  in the section, e.g. the Court  of  Small Causes in Greater Bombay, and it does not matter whether the claim  or  question  is  raised  by  the  plaintiff  or  the defendant.  ’The argument is plausible, but appears to us to be  untenable on a careful scrutiny.  We do not  think  that the  section  says or intends to say that the  plea  of  the defendant  will determine or change the forum.  It  proceeds on  the  basis that exclusive jurisdiction is  conferred  on certain  courts to decide all questions or claims under  the Act   as  to  parties  between  whom  there  is  or  was   a relationship  of  landlord and tenant.  It does  not  invest those courts with exclusive power to try questions of title, such  as  questions  as between the  rightful  owner  and  a trespasser  or a licensee, for such questions do  not  arise under  the Act.  If, therefore, the plaintiff in his  plaint does  not  admit a relation which would attract any  of  the provisions of the Act on which the exclusive jurisdiction  225 given  under  s.  28  depends, we  do  not  think  that  the defendant  by  his plea can force the plaintiff to go  to  a forum   where   on  his  averments  he   cannot   go.    The interpretation  canvassed  for by the appellants  will  give rise to anomalous results; for example, the defendant may in every  case force the plaintiff to go to the Court of  Small Causes  and  secondly, if the Court of  Small  Causes  finds against  the  defendant’s plea-, the plaint may have  to  be returned  for presentation to the proper court for a  second time.  Learned counsel for the appellants has argued in  the alternative  that the Court of Small Causes need not  return the  plaint a second time, for his contention is that  Court has  "exclusive" jurisdiction to decide the case whenever  a claim  is made under the Act even though the claim is  found to be false on trial.  We do not think that this  contention can  be accepted as correct, for to do so would be  to  hold that the Court of Small Causes has exclusive jurisdiction to

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decide  question of title, which is clearly negatived by  s. 29-A.   Anomalous results may not be a conclusive  arguments but  when  one has regard to the provisions in  Part  11  it seems  reasonably  clear  that  the  exclusive  jurisdiction conferred  by  s.28 is really dependent on  an  existing  or previous relationship  of landlord and tenant and on  claims arising under the Act as between such parties. Dealing with a similar argument in Govindram Salamatrai  (1) Chagla, C.J. said :               "There  can be no doubt that when a  plaintiff               files a suit against a defendant alleging that               he is his licensee, it is a suit which  cannot               be  entertained and tried by the Small  Causes               Court  because  it  is not a  suit  between  a               landlord  and  a tenant, and  judging  by  the               plaint  no  question arises out  of  the  Rent               Control  Act  or any of its  provisions  which               would  have to be determined on the plaint  as               it stands.....................               (1)   (1951) 53 Bom L. R, 886               226               It  cannot  be suggested  that  the  plaintiff               should  anticipate any defence that  might  be               taken up by the defendant that he is a  tenant               or  that  the initial jurisdiction  which  the               Court had or which the Court lacked should  be               controlled  or  affected  by  any   subsequent               contention  that  might  be taken  up  by  the               defendant.   The  jurisdiction of a  Court  is               normally  and ordinarily to be  determined  at               the   time  of  the  inception  of   a   suit.               Therefore when a party puts a plaint on  file,               it  is  at  that time that the  Court  has               to consider whether the Court had jurisdiction               to entertain and try that suit or not.  But it               is  argued that although the Court might  have               had  jurisdiction when the suit was filed,  as               soon  as the defendant raised  the  contention               that he was a tenant the Court ceases to  have               jurisdiction   to  try  that  suit  and   that               contention  could only be disposed of  by  the                             Small Causes Court by virtue of the pr ovisions               of s. 28.               Therefore, the question that I have to address               myself  to  is  whether  the  question  as  to               whether  the  defendant  is  a  tenant  or   a               licensee is a question which arises out of the               Act  or any of its provisions.   Really,  this               question  is not a question that has  anything               to  do with the Act or any of its  provisions.               It is a question which is collateral and which               has got to be decided before it could be  said               that the Act has any application at all." We  are in agreement with these observations, and we do  not think  that s. 28 in its true scope and ---- effect makes  a departure from the general principle referred to earlier  by us.  Nor do we think that the right of appeal given by  s.29 affects  the position in any way.  In respect of a  decision given  by  a Court exercising jurisdiction under s.  28,  an appeal is provided for in certain circumstances  227 under  s.29.  This does not mean that s-28  has  the  effect contended for on behalf of the appellants. As to the decision of this Court in Babulal Bhuramal (1), we

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do  not think that it assists the appellants.   We  consider that  the  Bombay High Court correctly understood  it  in  - Jaswantlal  v.  "Western Company, India"  (2).   In  Babulal Bhuramal’s  case  the facts were these.   A  landlord  after giving  a notice to quit to his tenant on December 6,  1947, filed  a  suit  against him in the Court  of  Small  Causes, Bombay,  joining  to  the suit two other  persons  who  were alleged  to  be sub-tenants of the tenant.   The  landlord’s case  was  that  the  tenancy  of  his  tenant  was  validly terminated and he was entitled to evict his tenant; that the alleged  sub-tenants of the tenant were trespassers who  had no right to be on the premises.  The suit succeeded in  -the Small  Causes Court, the Court holding that  the  subtenants were  not lawful sub-tenants, the sub-letting by the  tenant to  them  being contrary to law.  The  Small  Causes  Court, therefore,  passed  a decree against the plaintiff  and  the alleged  sub-tenants.  Thereafter, the tenant  as  plaintiff No. I and the alleged sub-tenants as plaintiffs Nos. 2 and 3 filed  a suit against the landlord in the City  Civil  Court for  a declaration that plaintiff No. I was a tenant of  the defendant and was entitled to protection under the Rent  Act and that plaintiffs Nos. 2 and 3 were lawful sub-tenants  of plaintiffs  No,  I  and  were  entitled  to  possession  and occupation  of  the  premises  as  sub-tenants  thereof.   A question  was raised in the City Civil Court as  to  whether the City Civil Court had jurisdiction to entertain the suit. The  City  Civil  Court held that  it  had  jurisdiction  to entertain  the  suit, but dismissed it on  merits.   In  the appeal  which  was filed in the High Court, the  High  Court dismissed  the appeal holding that the City Civil Court  had no  jurisdiction  to entertain the suit and  therefore,  the suit filed by the plaintiffs in the City (1) [1959]    367, (2) (1939) 61 Bom.  L.R. 1037. 228 Civil Court was not maintainable.  It was from this decision of  the High Court that an appeal was filed in  the  Supreme Court  and  the  question which the  Supreme  Court  had  to consider was whether the second suit filed by the plaintiffs was within the jurisdiction of the City Civil Court.  It was urged  before  the  Supreme Court that the  suit  was  main- tainable under s. 29-A of the Bombay Rent Act which provided that  nothing contained in ss. 28 or 29 should be deemed  to bar a party to a suit, proceeding or appeal mentioned  there in  which  a  question of title to premises  arises  and  is determined, from suing in a competent Court to establish his title to such premises.  The Supreme Court held that a  suit which  was competent to establish title under s. 29-A was  a suit to establish title de hors the Bombay Rent Act and  not a suit which sought to establish title which required to  be established  under the Rent Act itself.  It is obvious  that in the suit before the Court of Small Causes, it was open to the  tenant to claim protection under the Act and by  reason of s. 28 no other Court had jurisdiction to try that  claim; therefore,  the  Supreme Court held that s.  28  barred  the second  suit  and s. 29-A did not save it, because  it  only saved  a  suit  to establish title de  hors  the  Act.   The observations  made  in that decision on  which  the  present appellants rely were these               "Do the provisions of s. 28 cover %case  where               in  a  suit one party alleges that he  is  the               landlord  and  denies that the  other  is  his               tenant or vice versa and the relief asked  for               in the suit is in the nature of a claim  which               arises   out  of  the  Act  or  any   of   the

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             provisions?    The  answer  must  be  in   the               affirmative on a reasonable interpretation  of               s. 28."               We  agree  with  the  High  Court  that  these               observation merely show this that in order  to               decide whether a suit comes within the purview               of s. 28 what must                229               be  considered is what the suit as  framed  in               substance  is  and  what  the  relief  claimed               therein  is.   If the suit as framed is  by  a               landlord or a tenant and the relief asked  for               is  in the nature of a claim which arises  out               of the Act or any of its provisions, then only               and not otherwise will it be covered by S. 28.               The High Court has rightly said :               "A  suit which is essentially one between  the               landlord and tenant does not cease to be  such               a suit merely because the defendant denies the               claim  of the plaintiff.  In the same  way,  a               suit  which  is not between the  landlord  and               tenant  and in which judging by the plaint  no               claim or question arises out of tile Rent  Act               or  any  of its provisions does not  become  a               suit covered by the provisions of s. 28 of the               Act   as  soon  as  the  defendant  raises   a               contention that he is a tenant." For  the  reasons given above we hold that  the  City  Civil Court  had jurisdiction to entertain the suit and  the  High Court  correctly  came to that conclusion.   Therefore,  the appeal fails and is dismissed with costs. SARKAR J.--I agree that this appeal fails. The  City Civil Court, Bombay held that in view of s. 28  of the  Bombay Rents Hotel and Lodging Rates Control Act,  1947 it  had no jurisdiction to entertain and try the Suit  which the  respondent  had filed against the  appellants  in  that Court  and  directed  the  plaint  to  be  returned  to  the respondent for being filed in the proper Court indicated  by that  section,  namely) the Court of Small  Causes,  Bombay. The City Civil Court had tried the question as a preliminary issue in the suit.  There was an appeal to the High Court of Bombay from this decision and the High Court took a contrary view holding that 230 the City Civil Court’s jurisdiction to entertain and try the suit  had  not  been taken away by s. 28 of  the  Act.   The matter is now before this Court in further appeal. The  suit asked for a declaration that the  appellants  were not  entitled  to enter into or remain in  possession  of  a certain   shop  in  Greater  Bombay  and  for  a   permanent injunction  restraining  them from entering  the  shop’  The allegations  on which the claim to these reliefs  was  based were  that the appellants had been granted a licence to  use the  shop of which the respondent was the tenant  under  the owner  and  that the appellants were  wrongfully  continuing there  in spite of the termination of the licence  and  were thereby  preventing  the , respondent from carrying  on  its business  in  the  shop.   The suit,  therefore,  was  by  a licenser against a licensee for certain reliefs based on the termination of the licence. The  defence  of the appellants to this suit  was  that  the relationship  between the parties was not that  of  licenser and  licensee but that the shop had in fact been sub-let  to the  first  appellant  and that the  agreement  between  the parties had been given the form of a licence only as a cloak

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to  protect the respondent from ejectment under the  Act  by its  landlord  on the ground of unlawful  sub-letting.   The appellants contended that as they were really tenants, their landlord,  the respondent, was not entitled to  remove  them from possession in view of the provisions of the Act. The question is, how far the suit is affected by  s.   28 of the Act.  I proceed now to set out the terms of   that section omitting the unnecessary portions.               S. 28 (I)-"Notwithstanding anything  contained               in any law                231               (a)   in  Greater Bombay, the Court  of  Small               Causes, Bombay,               shall  have jurisdiction to entertain and  try               any suit or proceeding between a landlord  and               a  tenant relating 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  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." The  section  deals with three different kinds  of  matters, namely,  (1) suits or proceedings between a landlord  and  a tenant  relating  to  the recovery of rent  or  recovery  of possession  of premises, (2) an application made  under  the Act  and (3) a claim or question arising out of the  Act  or any of its provisions.  It provides that no court except the Court  of  Small  Causes, so far as  properties  in  Greater Bombay  are concerned, shall have jurisdiction to  entertain and try any suit or proceeding or to decide any  application or  lastly to deal with any claim or question of any of  the said three kinds mentioned in it. I  think it is fairly clear that the suit of the  respondent does  not  fall  within  the  first  two  kinds  of  matters contemplated  by  the section mentioned  in.  the  preceding paragraph  and I did not understand learned counsel for  the appellants  to contend to the contrary.  The suit  obviously does  not come within the second kind for that  consists  of applications  under the Act only and a suit is,  of  course, not an "application".  Turning now to the first kind, it has to be 232 observed  that it deals with two varieties of suits  between landlord and tenant, namely, a suit for rent and a suit  for possession of premises.  Obviously the respondent’s suit  is not a suit for rent for no rent is claimed at all.  Nor do I think  it  possible to say that the suit is  one  between  a landlord  and  a  tenant  for  recovery  of  possession   of premises.   I suppose whether a suit is of this kind or  not will  have to be decided by the frame of the suit, that  is, by reference to the plaint for the suit is by the  plaintiff and  it must be as lie has decided it shall be.   Admittedly the plaint that the respondent filed does not show that  the suit filed by it is between landlord and tenant nor does  it contain any claim for recovery of possession of premises. That  brings me to the third class of matters  mentioned  in the section namely, claims and questions arising out of  the Act.  The section provides that no court other than a  Court of  Small  Causes shall have jurisdiction to deal  with  any claim   or  question  arising  under  the   Act   concerning properties in Greater Bombay.  It is important to note  here

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that this part of the section does not purport to affect any court’s jurisdiction to entertain and try a suit but it only prevents  a  court  from  dealing  with  certain  claims  or questions.   Therefore, a court may try a suit in so far  as it  does not thereby have to deal with a claim  or  question arising  out of the Act.  If the other claims and  questions arising  in the suit cannot be tried without dealing with  a claim or question arising out of the Act, then of course the practical  result would be to prevent the court from  trying the suit at all. Therefore,  it  seems to me that the real question  in  this case is whether the City Civil Court had no jurisdiction  to try  the respondent’s suit as a whole or in part because  it would  thereby be dealing with a claim or  question  arising under the Act.  Does the  233 decision  of  the suit then require any  claim  or  question arising  out of the Act to be dealt with ? If it  does  not, the  City  Civil Court would be absolutely free to  try  the suit. Now, if one considers the plaint only, then of course it  is clear  that  the present suit raises no  claim  or  question arising  out of the Act.  But it is said by  the  appellants that  the  defence  raises such a claim  or  question.   The respondent  answers that the section contemplates claims  or questions  raised  by  the  plaint  only,  for  the  section determines the jurisdiction of a court to entertain and  try a  suit  and this must be done when the suit  is  instituted and, therefore, it is irrelevant to consider what  questions the defence raises. I  think it unnecessary to decide the dispute whether it  is permissible  under  the section to look at the  defence  for ascertaining  whether  a  claim or question  under  the  Act arises in the suit.  As at present advised, I do not want to be  understood  as  assenting  to  the  proposition  that  a reference to the written statement is not at all permissible for  deciding  whether a court has  jurisdiction  under  the section to deal with claims or questions of a certain  kind. It is important to remember that the question now is whether a  court has jurisdiction to deal with a claim  or  question and  not  whether a court has jurisdiction  to  entertain  a suit. I  think it unnecessary to decide the dispute because in  my view even the defence in the present case does not raise any claim  or  question tinder the Act.  The defence  really  is that  the  appellants  are  not  licensees.   No  doubt  the appellants have gone on to say that they are sub-tenants but they say that only to show why they are not licensees; apart from that-it is irrelevant to enquire whether they are  sub- tenants or not.  I think the defence is only one of 234 a traverse ; it is that the appellants are not licensees  as the  plaint alleges.  That being so, the only question  that the suit involves is whether the appellants are licensees of the  shop.   If they are not licensees, then the  suit  must fail.   No  other question would fall for  decision.   Quite clearly,  a  question whether a defendant is a  licensee  or not, is not a question nor is it a claim arising out of  the Act. Assume  however  that  the defence by  contending  that  the appellants  are not licensees as they are  subtenants,  also raises the question whether the appellants are  sub-tenants. Even so, it does not seem to me that is a question or  claim arising  out  of  the  Act.  The Act  does  not  create  any tenancy.   That  has  to  be created  by  a  contract.   The

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question whether the appellants are sub-tenants, that is  to say, tenants of a certain kind, is really a question whether a  contract of tenancy was made between the  appellants  and the respondent.  That question is not one arising out of the Act for the Act says nothing as to the creation of a tenancy and  is only concerned with the regulation of the  relations between a landlord and tenant in a tenancy the existence  of which is otherwise brought about. The appellants no doubt say that the respondent cannot evict them  because they are tenants whose right to possession  is protected by the Act.  They say that, therefore, a  question arises whether they are entitled to remain in possession  as subtenants  by  virtue  of the provisions  of  the  Act  and without the decision of that question the respondent’s  suit cannot be decided.  I am entirely unable to see ’that such a question  arises  in the suit or that it cannot  be  decided without a decision of that question.  As soon as it is  held that  the  appellants  are licensees, the  suit  has  to  be decreed.   When it is so held it has also  been  necessarily held  235 that  the  appellants are not tenants,  and,  therefore,  no further question as to rights of tenants under the Act falls to  be decided.  If however it is held that  the  appellants are not licensees but tenants, then on that ground alone the suit  has to be dismissed for the claim is not based on  any ground  other than that the appellants are  licensees  whose licence has expired.  It would not in such an eventuality be necessary  further  to consider whether the  appellants  who have  been found to be tenants, are entitled  to  protection from  eviction under the Act for the suit involves no  claim whatever  for  ejectment  of the  appellants  considered  as tenants.  No question, therefore, can possibly arise in  the suit  as  to whether the appellants are entitled  to  be  in possession  as  tenants by virtue of rights created  by  the Act.   Looking at the matter from whatever point of  view  I do,  I  am wholly unable to think that the decision  of  any question  or claim arising out of the Act is  necessary  for deciding the suit. Learned  counsel  for  the appellants  referred  to  Babulal Bhuramal   v.  Nandram  Shivram  (1),  in  support  of   the proposition  that the claim or question arising out  of  the Act  mentioned  in  the section may be one  where  only  the defence  gives rise to it.  I find it wholly unnecessary  to discuss whether this case supports that proposition for,  as I  have  said in the case in hand, even the defence  of  the appellants does not raise any such claim or question. I think it right before concluding to refer to s. 51 of  the Act  under which reference to suits and proceedings  in  the Act  are to include reference to proceedings  under  Chapter VII of the Presidency Small Causes Court Act, 1882.  Chapter VII  of the Presidency Small Causes Court  Act  contemplates proceedings for the recovery of possession of premises  from licensees  after  the  termination of  licences  in  certain cases.  Whether the present case is of that (1)   [1959] S. C. R, 367 236 type  or not is not known.  If it is of that type,  then  it may be that the City Civil Court would have no  jurisdiction to  deal  with it and only the Court of Small  Causes  would have jurisdiction to do so in view of s. 28.  As however  no argument  was advanced by counsel for the appellants on  the basis  of s. 51 nor the facts necessary for its  application appear  on the record, I do not feel called upon to  express any  opinion on the matter.  I only draw attention to it  to

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show  that  if  the question does arise that  has  not  been argued  nor decided in this case. I think it also  right  to point out that it may be a    moot   question  whether   the appellants, having on    their own statement entered into an agreement to defraud, in a manner of speaking, the  superior landlord  of  his  rights  arising under  the  Act  from  an unlawful sub-letting, can be permitted to say that the  real transaction  between  them  and the respondent  was  a  sub- tenancy. For  these  reasons I concur n i the order’ proposed  by  my brother Das.                      Appeal dismissed.  237