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Bombay High CourtIndian Cases

Ismail Gafoor Sarang Abbas Husain … vs Ismail Gafoor Sarang on 14 November 1991

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Bombay High Court
Ismail Gafoor Sarang Abbas Husain … vs Ismail Gafoor Sarang on 14 November, 1991
Equivalent citations: 1991(4)BOMCR419
JUDGMENT

S.M. Daud, J.

1. This appeal takes exception to orders emanating from two notices of motion taken out by the respondent-plaintiff.

2. The plaintiff instituted a suit against the appellants-defendants in the City Civil Court at Bombay seeking an injunction to restrain the appellants-defendants from dispossessing and/or interfering with plaintiffs peaceful possession and enjoyment of the suit premises being two galas with open space admeasuring 50 ft. x 20 ft. at Kopergaon Estate described with sufficient precision in para 1 of the plaint. His case was that defendants were his first cousins and the owners of the suit premises. His firm was inducted into the premises some 20 years ago and he had been paying rent regularly at the rate of Rs. 250/- per month. Receipts for the rent paid had neither been passed nor insisted upon having regard to the mutual confidence between the parties. On 19-7-1983 defendant No. 1 accompanied by three others had threatened to take forcible possession of the premises unless plaintiff vacated quietly and without demur. A report of this occurrence had been given at the Byculla Police Station who had directed plaintiff to approach a Court for redress. Defendants had no right to dispossess him and as they had threatened to do the contrary, he was constrained to file the present suit. Para 4 of the plaint is important and for that reason is set out in full. It recites:—

“The plaintiff says and submits that he is filing the present suit for a simiplicitor injunction and he is not agitating his title in respect of the suit premises but he is filing the suit purely on the basis of possessory title and hence this Honourable Court has jurisdiction to entertain and try the suit.”
Alongside the institution of the suit plaintiff took out a motion to secure an interim injunction to protect his alleged possession over the suit premises. An ad-interim injunction was issued and defendants noticed to show cause why the same should not be made absolute pending the disposal of the suit. After some days plaintiff came with another motion complaining of dispossession despite the prevalence of the interim injunction.

3. Defendants in reply raised various defences the principal one being that the suit as framed was not within the jurisdiction of the City Court. It was contended that plaintiff had never been in possession and therefore no question arose of protecting his possession. In fact others were in occupation of the premises and they were there in their own rights and had not come into occupation on or after the dispossession of the plaintiff.

4. The learned Judge hearing the motions held that plaintiffs possession as on the date of the suit was established and that there had been a breach of the ad-interim injunction by the defendants. The order passed was a direction for the appointment of a Receiver with a mandate that he restore possession of the suit premises to the plaintiff and next a deferment of the consideration of the motion complaining of breach of the interim injunction. Aggrieved by the order, defendants have come in appeal.

5. Plaintiff though noticed is not present today nor represented by a Counsel. Mr. Dalvi submits that the learned Judge was in error in relying upon the entries in the account books allegedly maintained by the plaintiff and also in the construction he placed upon the letter dated 14-7-1978. The suit as laid was not within the jurisdiction of the civil Court and that was reason enough for dismissing the main motion. Learned Counsel is right and I allow the appeal for the reasons given below.

6. The plaint has been summarised in one of the paragraphs afore-mentioned. Therefrom it is clear that plaintiff claims to be a tenant of the premises his contention being that the landlords are the defendants. True in paragraph 4 of the plaint there is the averment that he is not agitating his title vis-a-vis the suit premises but is claiming a bare injunction on the basis of a possessory title. Can this disclaimer confer jurisdiction upon a Civil Court regard being had to section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as the “Act”? Section 28 to the extent reads as follows:—

“Notwithstanding anything contained in any law and notwithstanding that by reason of the amount or 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 ….
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 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… no other Court shall have jurisdiction to entertain any such suit proceeding or application or to deal with such claim or question.”

Fairly read the plaint indicates the stand of the plaintiff about his being a tenant and the defendants being the landlords. The suit is in relation to premises allegedly leased out by the defendants to the plaintiff. The claim or question arising in the suit is the entitlement of the plaintiff to continue in possession and the corresponding liability of the respondents to respect that continuance and desist from any unlawful act. A mere disclaimer that plaintiff is not agitating his title as a tenant and that he is claiming a prohibitory injunction on the strength of his possessory title is not enough to exclude the operation of section 28. Once it be shown that the suit is by a landlord or tenant as the case may be, that it is against a landlord or tenant and that it relates to a claim or question referable to the Act or any of its provisions, the jurisdiction of Courts other than the Small Causes Court in respect of the premises situated in Greater Bombay is ousted. The abandonment or foregoing of the suitor’s claim to rest his suit qua his status as a landlord or a tenant is not enough to bring back the jurisdiction of the excluded Courts. That exclusion is absolute and does not depend upon the readiness or otherwise of either party. On the analogy of the principle that even by agreement the parties cannot confer jurisdiction upon a Court which otherwise does not have jurisdiction the forbearance of a landlord/tenant would not confer upon a Civil Court the jurisdiction which is otherwise conferred exclusively upon the Court mentioned in section 28 of the Act. Unfortunately, this aspect of the matter has not been considered at all by the learned Judge hearing the motions. If the City Court had no jurisdiction to entertain the suit it could not pass an order of injunction whether interim or ad-interim.

7. Further it does appear that plaintiff was not entitled to interim relief on the scanty material placed on record. The plaint was not accompanied by any list of documents. There was a list of reliance filed alongwith the plaint and the two documents relied upon were a complaint lodged at the Byculla Police Station and some correspondence prior to the suit. In this list there was no reference to account books. The letter dated 14-7-1978 was also not referred. In respect of account books, defendants grievance was that though called upon to give inspection, plaintiff had studiously refrained from so doing for a long time. This led defendants to infer that the account books relied upon were fabrications. Possibly an exaggeration, but nonetheless it should have made the learned Judge cautions about the account books tendered by the plaintiff. The mere fact that defendants were first cautions of the plaintiff was not enough to explain the omission of rent receipts. Next, the letter dated 14-7-1978 is neither here nor there. As worded it gives the impression of plaintiff being requested to allow the bearer of the letter to take away some machine lying at the Kopergaon Estate godown. For all we know plaintiff may have been present at the godown for reasons other than his having tenancy rights there over at the time the letter was addressed to him. The scantiness of the material is evident and did not justify the direction for restoration of possession to be plaintiff through a Receiver. Consequently the appeal has to be and is hereby allowed. The impugned order directing restoration of possession coupled with reiteration of the interim injunction is hereby quashed. The consequence is that the other motion for taking action against defendants for having breached the interim injunction does not survive. Appeal allowed as above with costs in this Court left to be costs in the cause.