TMI Blog1979 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... his servants and agents and their furniture and fixtures and would give vacant possession of the said premises to the Plaintiff. On the expiry of the period of the said agreement a fresh agreement was arrived at between the Plaintiff and the Defendant on July 4, 1969 under which the said licence was renewed for a further period of 11 months from July 1, 1969 upon the same terms and conditions, except that the monthly licence fee was reduced to ₹ 375. The said second agreement expired by efflux of time on May 31, 1970. 3. On April 14, 1978 the Plaintiff through his advocates called upon the Defendant to remove himself from the said flat. By his advocates' reply dated May 17, 1978 the Defendant alleged that before the expiry of the said second agreement in or about January 1970 an oral agreement was arrived at between the Plaintiff and the Defendant under which it was agreed that the Defendant would continue as a licensee for so long as he desired and that the said licensee was subsisting on February 1, 1973, on which date by reason of the amendment of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by Mah. Act XVII of 1973, the Defendant became a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate in Greater Bombay, and, therefore, this Court had no jurisdiction to entertain or try this Suit. In view of the provisions of Section 9-A inserted in the Code of Civil Procedure, 1908 by Mah. Act XXV of 1970, Bharucha, J., before whom this Notice of Motion reached hearing, decided to try this question as a preliminary issue. Subsequently he referred this question to a Division Bench for determination. When this matter came before, us, we accordingly framed the necessary issue with respect to this question and tried it as a preliminary issue. This issue is: Whether by reason of the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882, as substituted by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Mah. Act XIX of 1976), this Court has jurisdiction to entertain and try the Suit? 6. By the said Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Mah. Act XIX of 1976), Chapter VII of the Presidency Small Cause Courts Act, 1882, was substituted by a new Chapter consisting of Sections 41 to 46. We are concerned in this matter with Section 41 as so substituted. The said Section 41 provides as follows: 41. Suits or Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted did not contain any words excluding the jurisdiction which the Civil Courts till then possessed. He argued that the section did not provide that the Presidency Small Cause Court at Bombay alone would have jurisdiction or that no other Court would have jurisdiction to try suits of the nature specified in the said section. He sought support for his arguments from the language of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which provides at the end of Sub-section (1) thereof, no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. In Mr. Sanghavi's submission the absence of a clause like the one in Section 28 of the Bombay Rent Act set out above clearly indicated that this High Court and the Bombay City Civil Court continue to have concurrent jurisdiction in respect of all suits of the nature specified in the said Section 41. The arguments of Mr. Sanghavi, however, overlook two very important statutory provisions, namely, the amendment to clause 12 of the Letters Patent of this High Court and Section 3 of the Bombay City Civil Court Act, 1948. The extent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch suit or proceeding may be within the pecuniary jurisdiction of the City Civil Court. In order to obviate any argument that even after the setting up of the City Civil Court the High Court continued to have jurisdiction in respect of civil suits cognizable by the Bombay City Civil Court, the Legisla-lature of the Province of Bombay enacted the said Bombay High Court Letters Patents (Amendment) Act, 1948 (Bombay Act XLI of 1948), making the amendment set out earlier to clause 12 of the Letters Patent. At the same time the Legislature took the opportunity by this amendment to abolish the concurrent jurisdiction which this High Court possessed in suits of which the subject-matter exceeded one hundred rupees in value and which were triable by the Bombay Presidency Small Cause Court. The Bombay City Civil Court Act, 1948, and the Bombay High Court Letters Patents Act, 1948, were both brought into force simultaneously on August 16, 1948 by notifications dated August 14, 1948. Thus, after the amendment to clause 12 of the Letters Patent this High Court had no jurisdiction to entertain and try or, to use the language of clause 12, to receive, try and determine any suit which is cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of licence fee or charges may lie either when a licence subsists or after it has come to an end, and similarly a suit for the recovery of rent may lie either when the tenancy subsists or after it has come to an end, but it is difficult to envisage a case where during the subsistence of a licence a licensor can file a suit for the recovery of immovable property from the licensee or where during the subsistence of a tenancy a landlord can file a suit against his tenant for the recovery of immovable property given on tenancy to his tenant. If a licensor or a landlord wants te recover possession of the property, his right to do so arises only on the termination of the licence or the tenancy, as the case may be, or upon the licence or the tenancy determining by efflux of time subject to the provisions of the Bombay Rent Act. Mr. Sanghvi, however, submitted that so far as licensors and licensees were concerned, a suit for the recovery of possession could be filed by a licensor even during the subsistence of the licence where the licence was revocable at will and had not been determined by a prior notice given by the licensor to the licensee, in which case, in Mr. Sanghavi&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than use the word 'lessee' while the lease subsists and a clumsy terminology or a circumlocution to describe the same person after the leasa has determined, following the well-settled legislative drafting practice, clauses (h) and (i) of Section 108 refer to that person in both eventualities by the word 'lessee'. Similarly, in various Matrimonial Acts when dealing with the grant of permanent alimony to a wife after divorce, these Acts provide that the Court may grant such alimony to the wife either at the time of the passing of the decree for divorce or on a subsequent application made to it for that purpose. The words used in the sections of the Matrimonial Acts are 'husband' and 'wife', even though after divorce the relationship of husband and wife between the divorced parties does not subsist. Examples of this will be found in Section 37 of the Special Marriage Act, 1954; Section 25 of the Hindu Marriage Act, 1955; Section 37 of the Indian Divorce Act, 1869; and Section 40 of the Parsi Marriage and Divorce Act, 1936. Words which describe a person's legal character -- the character which he either holds or has once held -- are used in stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as follows: 19. Suits in which Court has no jurisdiction. The Small Cause Court shall have no jurisdiction in - xxxx (i)Suits to obtain an injunction; xxxx (s) Suits for declaratory decrees; The first question which arises is whether this is really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction. The words which Clause (s) of Section 19 uses are suits for declaratory decrees. Suits for declaratory decrees are governed by Chap. VI of the Specific Relief Act, 1963. When declarations can be granted is provided for by Section 34 of that Act, which occurs in that Chapter. Under the said Section 34 Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or rght. Now, here at no stage has the defendant denied or been interested in denying the plaintiff's title to the said flat. On the contrary, his case as set put in his said affidavit in reply and in the correspondence proceedings the suit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the character of a licensor and licensee, which relationship having come to an end according to the plaintiff, the plaintiff has become entitled both in law and under the agreement of licence to recover possession of the property from the defendant, his licensee. 11. Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of ₹ 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of ₹ 375 per month and for a sum of ₹ 375 per month from the date of the suit till possession of the said flat is handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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