TMI Blog2009 (9) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as `the suit premises') had been let out to one Dosabai, the brother of Ms. Dhanbai Batliwala, (hereinafter referred to as the `deceased-tenant'), on a monthly rent of ₹ 104.10 paisa. Dhanbai was staying with her brother in the suit premises. After the death of her brother in the year 1953, Dhanbhai became the tenant of the suit premises by virtue of Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (`the Act' for short). She expired on 17.12.1963. It appears that the deceased tenant in her last will dated 24th April, 1959 had appointed the trustees and executors of her will. Sometime in the early part of the year 1965, the original owner had sent notice to the trustees and executors of the will of the deceased tenant to hand over the vacant possession of the suit premises and also to pay the arrears of rent alleged to be due from 01.11.1964. Since the trustees and executors of the will failed to vacate the suit premises, the original owner filed Suit No.310 of 1967 before the Court of Small Causes at Bombay, against the trustees and the respondent in this appeal, inter-alia seeking recovery of possession of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the tenancy rights either of the residential premises or of shop premises cannot be given effect to, unless the concerned person satisfies the requirement of Section 5(11)(c)(i) of the Act and lastly the defendants 1 to 4 have not produced any evidence to show that the adoption is unknown to Parsis. In view of the above findings the appellate court had dismissed the appeal. 6) Against the decision of the Appellate Court, the appellant filed writ petition before the High Court. The learned single Judge dismissed the writ petition, being of the opinion that there is no perversity in the findings and the conclusions reached by the Trial Court and the first appellate court and also has observed that no exception can be taken to the findings recorded by the trial court that the respondent would inherit the tenancy of the suit premises as she was residing with the tenant as a member of the family of the tenant. 7) Since the aforesaid order had been passed without hearing the learned counsel for the petitioner, an application for review came to be filed by the petitioners to review the order passed in the Writ Petition. It was dismissed vide order dated 30.08.2001. 8) Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rent Control Act would apply. 14) Apart from others, it was the defence of the defendant No.5 (respondent in this appeal), that the Small Causes Court, Bombay does not have jurisdiction to try the suit, if the plaintiff were to assert that she is not the tenant of the suit premises. 15) To decide the issues which have been raised for our consideration and decision, it is necessary to notice the definition of tenant and jurisdiction of courts under the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. Section 5(11) of the Act reads : (11) tenant means any person by whom or on whose account rent is payable for any premises and includes,- (a) xx xx xx xx [(aa) xx xx xx xx (b) xx xx xx xx [(bb) xx xx xx xx [(bba) xx xx xx xx [(c) (i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978, any member of the tenant's family residing with the tenant at the time of his death or, in the absence of such member, any heir of the deceased tenant, as may be decided in defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Causes Courts Act, 1887 and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area.] (b) Where any suit, proceeding or application has been withdrawn under clause(a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceedings or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn. (c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes.] Explanation- In this Section proceeding does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act. 18) Section 28 of the Act begins with a non-obstante clause. By Section 28 of the Act, the legislature has designated certain courts to entertain and try any suit or proceeding b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely ousted. A landlord must be very ill-advised to start proceedings under the Act, if there is no relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the civil courts, untrammeled by the provisions of the Act. It is only when he happens to be the tenant of the premises in an urban area, the provisions of the Act are attracted. Mere denial of relationship of landlord and tenant cannot oust the jurisdiction unless it is specifically provided in the Statute. If the Rent Controller finds that the opposite party is not a tenant of the landlord, he must dismiss the landlord's application for eviction, but if he finds that such a plea by the opposite party is not true and that the opposite party is a tenant of the landlord, then, if the ground of eviction is proved, he must order eviction of the tenant. 21) Section 28 of the Bombay Rent Act deals with the jurisdiction of the Courts, to decide on issues arising out of the Act. In a suit relating to possession of the premises where the relationship of landlord and tenant admittedly subsists between the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief, which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties. It would be useful at this stage to refer to the observations made by this Court in the case of Teri Oat Estates (P) Ltd. vs. U.T. Chandigarh [(2004) 2 SCC 130], sympathy or sentiment by itself cannot be a ground for passing an order in relation to where the appellants miserably fail to establish a legal right. Despite an extraordinary constituted jurisdiction contained in Article 142 of the Constitution, the Supreme Court ordinarily would not pass an order which would be in contravention of a statutory provision. 24) In view of the aforesaid settled legal principles, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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