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PETITIONER: VASUDEV GOPALKRISHNA TAMWEKAR

       Vs.

RESPONDENT: THE BOARD OF LIQUIDATORS HAPPYHOME CO-OPERATIVE HOUSING SOCI

DATE OF JUDGMENT: 10/05/1963

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1967 AIR  369  CITATOR INFO :  RF         1981 SC 537  (20)

ACT:   Co-operation-Arbitration-House    building    society-Non- compliance  with  terms of the  Agreement-Agreement  whether executory  contract  or  one creating  Landlord  and  Tenant relationship-Jurisdiction  of Arbitrators under  Bombay  Co- operative Societies Act (Bom. 7 of 1925), s.54-Bombay Rents, Hotel  and  Lodging  House Rates Control Act,  (Bom.  57  of 1947), s. 28.

HEADNOTE:   The respondent obtained a lease of land to be allotted  to its  members  for building purposes and advanced  loans  for construction.   The premium in respect of the land  and  the loan  advanced,  together with interest, were  repayable  in monthly  installments.  Through the agency of  the  society, the  appellant completed the construction and  occupied  the building.   An  agreement  between  the  appellant  and  the society  was  duly registered which provided that  the  loan advanced  to the appellant should be paid in 366 or  smaller monthly  installments,  and after the entire amount  of  the loan had been repaid, the society would execute a  sub-lease in  respect of the plot in favour of the appellant.  In  the event of default in the payment of an installment, fixed  in the  agreement, the society hand the right to determine  the agreement,  and thereupon any amount already paid  would  be forfeited  to the society, and the member was  to  surrender the  property and give vacant possession of the premises  to the  society.   In  view  of  the  default  in  payment  and persistent refusal of the appellant to comply with the terms of  the  agreement the society referred the dispute  to  the Registrar,  Co-operative Societies, for decision by  himself or his nominee.  The Committee of Arbitrators, appointed  by the Registrar, gave an award in favour of the society asking the  appellant to deliver vacant possession of the plot  and the  house  to  the  society and  to  pay  compensation  for unauthorised  use and occupation of the premises and to  pay costs of the arbitration proceedings.  Against the aforesaid order,  the  appellant’s  revisional  application  was  also dismissed by the Tribunal.  The

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965 award was certified and filed in the Bombay City Civil Court for  execution.  The appellant, thereupon, took out  chamber summons for stay of the execution proceedings on the  ground that the Award made by the Arbitrators was without jurisdic- tion  for  the reason that under the agreement  between  the society  and  the appellant a relationship of  landlord  and tenant  was created and that under the Bombay  Rent  Control Act  57/47  the  Court  of  Small  Causes  was  vested  with exclusive jurisdiction to decide claim for recovery of  rent or possession.  The learned judge made the summons absolute. On appeal by the society, the High Court set aside the order and  directed  the execution of the Award  to  proceed.   On appeal by certificate this Court.    Held, (i) on a proper construction of the agreement as  a whole,  it  was an executory contract and on  the  appellant fulfilling  his  obligations to the society,  including  the payment  of the entire dues, the society would  execute  the sub-lease  in  his  favour subject to  the  consent  of  the Government  who held the first mortgage on the entire  land. Until the sub-lease was executed no relationship of landlord and tenant subsisted between the parties.  As the  appellant failed  to fulfill his part of the agreement, the  law  laid down  in  the  Act,  in order to realise  the  dues  of  the society,  had  to  be put into operation.   The  Award  was, therefore,  a  valid  Award  and  there  was  absolutely  no justification  for the plea that the appellant was a  tenant governed by the provisions of the Rent Control Act.    (ii)   in  order that the jurisdiction of an  arbitrator, appointed  under the Bombay Co-operative Societies  Act,  be excluded,  the  proceedings  before  him  must  be   between landlord  and tenant, and relate to the recovery of rent  or possession  of any premises to which the provisions of  Part II of the Act applied.  The exclusion of the jurisdiction of courts  other  than those named in s. 28 of the  Bombay  Act 1947  arose only if the claim of the applicant or  plaintiff was  based  on  the  allegation that  between  him  and  the respondent  or  the defendant there was  a  relationship  of landlord and tenant and the relief sought was one that we  s referred to in that section.    Babulal  Bhuramal  v. Nandram Shivram A.I.R. 1958  S.  C. 677, held inapplicable.

JUDGMENT:    CIVIL  APPELLATE JURISDICTION: Civil Appeal  No.  578  of 1961.   Appeal from the judgment and decree dated March 12,  1959. of the Bombay High Court in First Appeal No. 685 of 1956. 966    W.     S.  Barlingay  and  A.  G.  Ratnaparkhi,  for  the appellant.    B.R. Naik, M. R. Krishna Pillai and K. R. Chaudhuri,  for the respondent.     1963.  May 10.  The judgment of the Court was  delivered by     SINHA C. J.-This appeal on a certificate granted by  the High  Court of Judicature at Bombay is directed against  the judgment and order of a Division Bench of that Court,  dated March  12,1959, reversing those of the judge of  the  Bombay Civil Court, passed in Chamber Summons, in Arbitration  case No. A.B.N./C.H.O.-2310/88 of 1954-55.    It is necessary to state the following facts in order  to bring  out  the points in controversy between  the  parties.

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The   Happy   Home  Cooperative  Housing  Society   Ltd   -- hereinafter  referred  to as the Society was  registered  in February  1949.   It  obtained a lease of a  piece  of  land measuring about 12 thousand sq. yards situate at Nehru Road, Vile  Parle  (East) Bombay.  The Society divided  this  land into 17 plots to be allotted to each one of its members  for building  purposes.   A member was under the  obligation  of payment  of  premium,  annual rent of  Re.  1/-,  and  other incidental  charges  and to construct a house on  the  plot. The Society advanced loans to the members to enable them  to construct their houses.  The premium in respect of the  land and the loan advanced, as aforesaid, together with interest, was  repayable in monthly installments.  Accordingly,  Plot. No.  10,  measuring about 676 sq. yds. was allotted  to  the appellant, and other plots were similarly allotted to  other members  for constructing their respective houses.   Through the agency of the Society, the appellant constructed a house on  his  plot.   The  construction  was  completed  and  the appellant  967 occupied  the building on or about May 1, 1951.  The sum  of Rs.  26,922/-  odd  was  advanced by way  of  loan,  to  the appellant.   An agreement dated March 26, 1952  was  entered into between the appellant and the Society in respect of the loan aforesaid, and the document was duly registered on  May 27,  1952.   The  agreement between the  appellant  and  the Society provided that the amount of loan aforesaid  advanced to the appellant should be repaid in 366 or smaller  monthly instalments and after the entire amount of the loan had been repaid, the Society would execute a sub-lease in respect  of Plot  No.  10 in favour of the appellant.   It  was  further stipulated that in the event of default in the payment of an instalment,  fixed  in the agreement, the  Society  had  the right to determine the agreement; and thereupon any  amounts already  paid  would  be forfeited to the  Society  and  the member  was  to  surrender  the  property  and  give  vacant possession of the premises to the Society.  It appears  that no instalment was paid by the appellant with the result that on August 26, 1954, the Society gave notice to him,  calling upon him to give vacant possession of the premises, but  the appellant  did not comply with the notice.  In view  of  the persistent refusal of the appellant to comply with the terms of the    agreement,  the Society referred to  dispute  with the appellant    under  s.  54 of  the  Bombay  Co-operative Societies   Act (Bombay Act VII of 1925)  which  hereinafter will  be  referred  to  as the Act,  to  the  Registrar  for decision  by himself or his nominee.  The said  dispute  was heard  and decided by a Committee of Arbitrators,  appointed by  the  Registrar, Co operative  Societies,  consisting  of three gentlemen. (1) a nominee of the Society as  plaintiff, (2) nominee of the Appellant, as defendant, and (3)  nominee of  the  Registrar, who was to be the Chair man.   The  said Committee  of  Arbitration, by majority, gave  an  award  in favour  of the Society to the effect that the  appellant  do deliver vacan 968 possession  of  Plot, No. 10, alongwith the  house,  to  the Society  and  pay Rs. 150/- per month  as  compensation  for unauthorised use and occupation of the premises from October 1,  1954, to the date of the delivery of vacant  possession. The  appellant was also made liable for payment of costs  of the arbitration proceedings.  Thereupon the appellant made a revisional application to the Bombay Co-operative  Tribunal, contending that the dispute between the Society and  himself was  essentially  a  dispute  between  landlord  and  tenant

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regarding the possession of the premises and the recovery of rent and that the only Court that had jurisdiction to decide such  a  controversy was the Small Causes Court  in  Greater Bombay,  in  view of s. 28 of the Bombay  Rents,  Hotel  and Lodging  House  Rents Control Act (Bombay Act 57  of  1947). After  hearing  the  parties,  the  Tribunal  negatived  the contention  raised on behalf of the appellant and  dismissed the  revisional application.  After the Award was  certified under  s. 59 of the Act, the Award was filed in  the  Bombay City  Civil  Court for execution.  Thereupon  the  appellant took  out a Chamber Summons against the Society for stay  of the execution proceedings.  The learned Judge who heard  the Chamber Summons held that the Award made by the  Arbitrators was without jurisdiction, in view of the provisions of s. 28 of the Rent Control Act.  Accordingly, the summons was  made absolute  on October 16, 1956.  From that order the  Society came  up in appeal to the High court.  The High Court, on  a consideration  of the terms of the agreement  aforesaid,  of March 26, 1952, and after elaborate arguments raised by  the parties as to the legal effect of that document came to  the conclusion  that it was only an agreement to lease,  binding the  Society to grant a sub-lease only after  the  appellant had fully paid all the instalments due, and fulfilled  other conditions  of  the  agreement, as  stipulated  between  the parties.   In that view of the matter, the High  Court  held that there was no  969 relationship of landlord and tenant between the parties.  In the  result,  the learned judges set aside the  order  under appeal  before them, and directed that the execution of  the Award  be proceeded with in accordance with law, with  costs to the Society in both the Courts.  It is from this judgment and  order that this appeal has been brought to this  Court, on a certificate being granted by the High Court.    The main question in controversy in this case is  whether the  Award made under the Act, which became a decree of  the Civil  Court, under the certificate of the Registrar;  under s.  59, was without jurisdiction, and, therefore,  incapable of execution.  The answer to this question depends upon  the answer  to  the other question whether the appellant  was  a ’tenant’  under  the  Society, by virtue  of  the  agreement aforesaid  of  March  26,  1952.  If it  is  held  that  the agreement  aforesaid  did  not create  the  relationship  of landlord and tenant, but that the appellant continued to  be the  debtor of the Society until all the outstanding  amount advanced to him in respect of the plot and the structure bad been  liquidated, the Rent Control Act, and s.  28  thereof, will  be out of the way of the parties.  In that  case,  the proceedings   before  the  Registrar,  the  Award   of   the Arbitrators  and the execution proceedings taken out by  the Society  would all be adjudged to be valid and binding  upon the parties.    It  is  noteworthy that though the determination  of  the appeal depends upon the terms of the agreement of March  26, 1952,  it has not been included in the  printed  paper-book. We have, therefore, to depend upon the extensive  quotations of  the terms of the document as contained ;In the  judgment under  appeal.   It is common ground that all  the  relevant terms of the document, beginning from the preamble to almost the  end of it, have been quoted in different parts  in  the judgment of the High Court, 970 and that these are sufficient to give us a complete idea  of the  terms  of  the  agreement.   The  agreement  has   been described  by  the Society in the plaint  filed  before  the

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Arbitrators  as  ’a  lease’  and  the  appellant  has   been described as a ’tenant’, and if the case were to be  decided on  the so called admissions in the plaint,  the  conclusion could easily be arrived at that the relationship between the parties was that of landlord and tenant.  But as pointed out by the High Court, if we refer to the terms of the agreement itself,  it  will  be  abundantly clear  that  on  a  proper construction  of  those terms, there was no  executed  lease between  the  parties,  but that it was  only  an  executory contract  entitling  the  appellant to a  sub-lease  by  the Society, which was itself a lessee, upon payment of all  the dues  of  the Society in respect of premium,  principal  and interest,  advanced towards the cost of construction of  the premises  and fulfillment of all other conditions  contained in  the  agreement.   It  consists of  14  clauses,  as  the judgment  of the High Court says.  It further  appears  from the  said judgment that the agreement starts by saying  that it  has  been entered into between the Society  of  the  one part, and the appellant, hereinafter called the ’tenant’  of the  other  part.  In Part II of the preamble it  is  stated that the ’tenant’ has applied to the Society for Plot No. 10 and for permission to erect a dwelling house thereon and for a  loan  from the Society.  The preamble also  mentions  the fact that the Society itself had taken a lease of the entire open  piece of land, of which plot No. 10 was a part, for  a term of 999 years from March 17, 1950, at the annual rent of Rs. 6,264/-.  Part III of the preamble proceeds to say  that the  Society has already spent money on development  of  the land and laying out roads, etc., and that it had been agreed between  the Society and the ’tenant’ that the  letter  will pay  a  sum of Rs. 10,020/- in instalments for  transfer  of Plot No. 10, and that the society shall grant a loan to  the ’tenant’, not exceeding Rs. 16,980/- for erecting  971 the  structure on that plot, to be advanced  in  instalments and repayable in instalments, as hereinafter provided.  Part V  of the preamble is important in so far as it has  stated, in clear terms, that whenever the ’tenant’ shall have repaid to  the Society all the outstanding dues, either in  equated monthly instalments or in one lumpsum, at the option of  the "tenant’, the Society, with the consent of the Government as mortgagee,  shall grant to the ’tenant’, a sublease  of  the said  Plot No. 10. free from all encumbrances for a term  of 998  years commencing from Match 17, 1950.  Then follow  the clauses   of  the  agreement.   The  first   clause   grants permission  to the ’tenant’ to enter upon the said plot  for erecting  a  dwelling  house in accordance  with  the  plan, elevation  and estimates, previously approved in writing  by the Society.  Then clause 3 follows, which is  substantially in  the same terms as Part V of the preamble.  It  makes  it absolutely   clear  that  only  upon  payment  of  all   the outstanding  dues of the Society, in respect of premium  for the  plot  and  advance made for  building  the  residential house, alongwith interest accrued thereon, the Society shall grant and the "tenant’ shall accept a sub-lease of the  said Plot  No. 10.  It maybe mentioned here that the mortgage  in favour of the Government has reference to the advance by the Government  of  a large sum of money to the Society  with  a view to financing its building activities.  For securing the payment of that lumpsum, the entire area of land was mortga- ged  to the Government.  Hence, it was necessary  to  obtain the  previous consent of the Government as mortgagee to  the execution  of the sub-lease, contemplated by Part V  of  the preamble  and  clause 3 of the agreement.  And  then  follow details  of how the installments have to be paid.  Clause  8

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of the agreement provides that the proposed sub-lease  shall be  in the form now approved and signed by and on behalf  of the parties, and when the said principal money and  interest have been fully paid, the necessary 972 document shall be executed by the Society.  Further,  clause 9  of  the agreement provides that as from the date  of  the agreement,  the ’tenant’ shall punctually and regularly  pay to  the Society, without any deductions, firstly, a rent  of one  rupee per annum, if demanded, secondly a  proportionate amount  of rent payable to the superior landlord in  respect of Plot No. 10, thirdly a proportionate amount of assessment rates  and taxes paid by the Society in respect of Plot  No. 10, fourthly, a sum equal to the amount spent by the Society for  insuring  the building with reference to Plot  No.  10, and.,  lastly, such further sum as may from time to time  be certified by the Society as the contribution by the occupier of  Plot No. 10 towards the general expenses of  management, maintenance   and  development  costs,  including   expenses incurred  on  roads,  sewers, drains  and  other  amenities. Clause 10 provides for the penalty in the event of a default made  by  the  ’tenant’ in respect of any  sums  payable  as aforesaid.   It says that in the event of a default  by  the "tenant’  the Society shall be entitled to serve  notice  in writing   determining  the  agreement  and   thereupon   all installments and other moneys paid by the "tenant’ under the agreement shall be forfeited to the Society and shall become the  absolute property of the Society.  And what follows  is most  important. it says that upon the determination of  the agreement,  the ’tenant’ shall forthwith surrender and  give to  the  Society  vacant possession of  the  said  premises. Clause  11  makes reference to the fact that  premises  were mortgaged  to  the  Governor of Bombay to  secure  the  loan advanced to the Society by the Government of Bombay, and  so long  as  the mortgage remains subsisting, the  Governor  of Bombay  shall be a necessary party to any such sublease,  to be hereinafter executed as aforesaid,, and no such sub-lease shall  be valid unless and until the same shall be  executed by  the Registrar of Cooperative Societies on behalf of  the Governor of  973 Bombay.  And lastly, clause 12 says that the "tenant’  shall accept the title of the Society to grant the said  sub-lease without   any  questions  or  making  any  requisitions   or objections with regard to the title.   It  was argued in the High Court though not in  the  Trial Court,  that  on  the terms aforesaid of  the  agreement,  a present  demise of the land had been executed in  favour  of the  appellant.   This argument was thought of in  the  High Court.   In the lower Court, the Appellant’s counsel  relied on s. 27-A of the Specific Relief Act, and it was  submitted that  the  defendant was entitled to defend  his  possession even  though no lease had been executed and  registered,  as required by law.  The argument that the appellant had become the  ’tenant’ of the land in question under the Society  was thought of because, in the agreement, he was referred to  as the  ’tenant’.  In our opinion, the High Court  is  entirely correct  in taking the view that was a mere description,  or misdescription,  of  the  appellant and that,  in  law,  the appellant could not claim that relationship of landlord  and tenant  had  been created by virtue of  the  agreement,  the terms of which have been referred to in some detail in order to  bring  out the weakness of the argument based  upon  the description of the appellant as ’tenant’.    It is well-settled that the real nature of a  transaction

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has  to  be  determined  on a  proper  construction  of  the document  as a whole and not upon any particular words  used in the document.  The agreement construed as a whole  leaves no  manner  of doubt that it was an  agreement  between  the appellant  and the Society to grant a sub-lease of Plot  No. 10  only after the appellant had fulfilled his part  of  the agreement, namely, had paid all the outstanding amounts  due to  the Society in respect of the premium on the  plot,  the amounts advanced for 974 construction of the house and the interest accrued due until the entire amount had been liquidated.  The sub-lease  would have  to  be executed by the Registrar of  the  Co-operative Societies  in  token  of the consent of  the  Government  of Bombay,  which was a condition precedent to the validity  of the  sub-lease.   The  agreement  in  question,   therefore, evidences  nothing more than an executory contract  that  on the  appellant  fulfilling his obligations to  the  Society, including  the  payment of the entire  dues  aforesaid,  the Society would execute the sub-lease in his favour subject to the  consent  of Government of Bombay, who  held  the  first mortgage on the entire land, including Plot No. 10.   It would thus appear that the entire transaction was  that practically a permanent lease had been taken by the  Society in  respect of the open area, which was sub-divided  into  a number of plots for building purposes.  Those plots were  to be allotted to the members of the Society in order to enable them  to  erect their own residential houses, on  the  terms that the Society would grant to the members such amounts  by way of loan as would cover the premium on the plot  allotted to  them and further sum for building a house at  a  certain rate  of  interest.   On the completion of  the  house,  the members  would  occupy  the premises  and  start  paying  in monthly   instalments  the  dues  of  the  Society   towards principal  and interest until the last instalment will  have been  paid  and  all the outstanding  dues  of  the  Society liquidated.   Upon the happening of that event, the  Society undertook to execute in favour of the members sub-leases  in respect  of their respective plots on which they  had  built their  residential-houses.   As  the  whole  scheme  of  the Society  was  financed  by the  Government  of  Bombay,  the Government   was   naturally  a  necessary  party   to   the transaction.   In  the first instance, the  whole  plot  was mortgaged to the Government and that mortgage was to subsist until  the  Government dues had  been  entirely  liquidated. Therefore,  it became necessary that the Registrar,  as  the agent of the Government, should be a necessary party to  the execution of the sub-leases in favour of the members to whom the several plots had been allotted and the houses built  on advance made by the Society out of the funds made  available to it by the Government.    It has not been contested on behalf of the appellant that he did not pay any instalment in respect of the  transaction in  his favour.  He had, therefore, not qualified for  being granted  a lease of Plot No. 10, which had been allotted  to him, under the building scheme of the Society.  Upon his de- fault  there  was  no  option left to  the  Society  but  to determine  the agreement and to call upon him  to  surrender vacant  possession  of the property.  Hence, though  he  was characterised  as a ’tenant’ under the agreement, it  really meant  the ’proposed tenant’.  It was merely descriptive  of the appellant for the sake of convenience of expression.  He would have become a tenant only if he had paid all the dues, as aforesaid., of the Society and had taken a sub-lease duly executed and registered in accordance with the terms of  the

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agreement, referred to above in detail.  As he failed to  do that, the laws laid down in the Act, in order to realise the dues  of  the Society, had to be put  into  operation.   The Award was, therefore, a perfectly valid Award and there  was absolutely  no  justification  for the  plea  taken  by  the appellant  that  he  was a tenant who was  governed  by  the provisions of the Rent Control Act (Bombay Act 57 of 1947).   But the appellant contended that whatever view we may take of the relation created by the document, by virtue of s.  28 of  Bombay  Act  57 of 1947  the  Committee  of  arbitrators appointed  under the Bombay Cooperative Societies Act  7  of 1925 had no jurisdiction to adjudicate upon the question 976 whether  the appellant was a tenant of the premises  of  the society,  and  reliance in that behalf was placed  upon  the judgment  of  this  Court in  Babulal  Bhuramal  v.  Nandram Shivram  (1).  In considering that argument  attention  must first  be  invited to Section 28 of Bombay Act 57  of  1947, which in so far as it is material, provides :               "(1) Notwithstanding anything contained in any               law and notwithstanding that by reason of  the               amount  of the claim or for any other  reason,               the suit or proceeding would not, but for this               provision, be within its jurisdiction,               (a)   in  Greater Bombay, the Court  of  Small               Causes, Bombay;               (aa) x x x x               (b) x x x x               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  subject               to the provisions of sub-section (2), no other               court shall have jurisdiction to entertain any               such  suit,  proceeding or application  or  to               deal with such claim or question." It was urged that as before the Committee of arbitrators the Society  had claimed that the appellant was a tenant of  the Society,  and  relief  for possession of  the  premises  was claimed   on   that  footing’,  the   arbitrators   had   no jurisdiction  to grant relief for possession.  But there  is no  warrant  for  the submission that  the  Society  claimed before the arbitrators that (1)  A.I.R. (1959) S.C. 677.  977 the appellant was a tenant and on that basis claimed  relief for  possession.  The pleadings before the  arbitrators  are not  included in the record, and on a reasonable reading  of the award also no such inference can be raised.  Before  the Committee  of arbitrators the Society had alleged  that  the appellant  had made persistent defaults in repayment of  the loan  due  by  him and had claimed a  declaration  that  the appellant  had ceased to be a member of the Society, and  an Order  for  delivery of vacant possession  of  the  premises belonging  to the Society.  It was, it appears, not  alleged that any relation of landlord and tenant had ever  subsisted between  the Society and the appellant, and the plea of  the appellant that he was a tenant in respect of the premises in dispute  could not affect the jurisdiction of the  committee of arbitrators.  No useful purpose will therefore be  served by  entering upon a discussion whether the provisions of  s.

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28  of Bombay Act 57 of 1947 override the provisions of  the Bombay  Co-operative  Societies  Act  7  of  1925,  as   was suggested at the Bar.    Alternatively, it was contended that even if the  Society claimed  to obtain an order for possession on  some  footing other than the relationship of landlord and tenant, when the appellant raised the contention that he was a tenant and the relationship of landlord and tenant was put into issue,  the Court of Small Causes, Bombay, alone was competent to decide that  question.   Section  298  of Bombay  Act  57  of  1947 excludes the jurisdiction of all courts other than the Court of  Small Causes to try any suit, proceeding or  application between a landlord and a tenant and to deal with any  claims ’or questions as are referred to in the section.  Even if it be granted that an arbitrator appointed under the Bombay Co- oprative  Societies Act is a Court, on this question  we  do not  deem it necessary to express any opinionin  order  that his jurisdiction be excluded the proceeding before him  must be between landlord and 978 tenant,  and relating to the recovery of rent or  possession of  any premises to which the provisions of Part II  of  the Act  apply.   The  exclusive jurisdiction of  the  Court  of Small  Causes  arises  only  if  the  person  invoking   the jurisdiction of the Court alleges that the other party is  a tenant  or  a  landlord and the question  is  one  which  is referred to in s. 28.  Where the person so invoking does not set  up  the  claim that the other party is a  tenant  or  a landlord  the  defendant  is not entitled  to  displace  the jurisdiction of the ordinary court by an allegation that  be stands in that relation qua the other and on that ground the Court  has no jurisdiction to try the suit or proceeding  or an  application.  There is nothing in the judgment  of  this Court  in  Babulal Bhuramal’a Case (1), which  supports  the view that by merely setting up a Plea that he is a tenant in respect of the premises in dispute, the jurisdiction of  the ordinary Courts to decide a suit, proceeding or  application would be displaced.  The facts which gave rise to the appeal decided by this Court in Babulal’s case (1), may be noticed. The  landlord filed in the Court of Small Causes a  suit  in ejectment against the tenant, after terminating the tenancy, and  to  that suit impleaded two persons  who  the  landlord alleged had no right to be on the premises.  The Court  held that  those two persons were not lawful sub-tenants and  had no  right to remain in the premises and passed a  decree  in ejectment  against the three defendants.  The  three  defen- dants then commenced an action in the Bombay City Court  for a  declaration  that the first of them was a tenant  of  the landlord, and the other two were lawful sub-tenants and were entitled  to the protection of Bombay Act 57 of  1947.   The City  Court held that it had jurisdiction to try  the  suit, but  dismissed it on the merits.  The High Court  of  Bombay confirmed  the  decree holding that the City  Court  had  no jurisdiction to entertain the suit, but expressed no opinion on  the  merits.  This Court affirmed the view of  the  High Court.  The Court in that case was considering (1)  A.1,R. (1958) S.C. 677.  979 the  true  effect of s. 28 of Bombay Act 57 of 1947  in  the light  of the averments made by the plaintiffs  who  alleged that  they  were  tenants and the denial  by  the  defendant landlord  of the tenancy set up.  The Court observed  on  p. 681 :               "The suit did not cease to be a suit between a               landlord  and a tenant merely because the  de-

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             fendants  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  pro-               per interpretation of the provisions of s.  28               one  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." There  is nothing in these observations to support the  plea that  the jurisdiction of the ordinary courts to try a  suit or  proceeding  relating to recovery of  possession  of  any premises  to which Part 11 of the Act applies  is  displaced as,  soon  as the contesting party raises a plea  about  the relationship of a landlord and a tenant.   In  the  result the appeal fails and is  hereby  dismissed with costs. Appeal dismissed. 980