TMI Blog1963 (4) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 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 notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 incepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aises 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 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 certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 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 decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the Act is necessary for deciding the suit. Learned counsel for the appellants referred to Babulal Bhuramal v. Nandram Shivram ([1959] S. C. R, 367), 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 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 howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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