SABHARWAL BROTHERS Vs. GUNA AMRIT THANDANI OF BOMBAY

JUDGEMENT

(1.) This is an appeal be special leave from a judgment and order of the Bombay High Court in a Special Civil Application from a decision of the Court of Small Causes Bombay in exercise of its revirsionary jurisdiction. The revisional court had reversed the decision of the trial court and remanded the matter for disposal of the issues other than issue 2 to 8 tried as preliminary issues and decided in favour of the plaintiffs before the Court of Small Causes.

(2.) The facts are as follows Respondent No. 1 was the owner of a flat on the second floor of Block No. 8 'Shyam Niwas', Warden Road, Bombay. She was a member of a Co-operative Housing Society and had acquired the flat from the said society. In 1959 she had put the appellant Sabharwal Brothers is possession of the flat for a period of 11 months on payment of Rs. 510/- per month. There was an agreement in writing which purported to show that the possession was to be on leave and licence basis. This agreement was signed by a partner of Sabharwal Brothers who also became members of the said Co-operative Society. There were repeated renewals of the said agreement until on 25th October, 1962 when the first respondent asked the appellants to vacate possession on the ground that she required the flat for her personal occupation. As this was not complied with, she filed a statement of claim before the Registrar of Co-operative Societies on the ground that there was a dispute within the meaning of S. 91 (1) of the Maharashtra Co-operative Societies Act (hereinafter referred to as the 'Act') which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, by the appellants. The proceedings before the nominee went on for some time and on July 3, 1964 the nominee made an award to the effect that the appellants were occupying the flat on leave and licence basis. Anticipating the award the appellants filed a suit in the Court of Small Causes Bombay stating that they were in occupation of the flat as tenants and as such entitled to protection under the Bombay Rent Act, 1947 and the first respondent had no right to evict them. In her written statement the defendant denied that the plaintiffs were tenants contending, inter alia, that the plaintiffs were occupying the flat only on leave and licence basis etc. that the dispute between the parties had been referred to the Registrar of Co-operative Societies for disposal and finally that the Court of Small causes had no jurisdiction to entertain and try a suit involving such a dispute. The Small Cause Court framed no less than twelve issues of which issues 2 to 8 related to the maintainability of the suit and the jurisdiction of the Court in view of the provisions of Section 91 (1) (d) of the Act. The Small Causes Court held that the suit was maintainable and answered the other preliminary issues in favour of the plaintiff. The matter was taken in revision to a Bench of the said Small Causes Court. The Bench took a different view holding that the Registrar's nominee did have jurisdiction to try the dispute between the parties and remanded the proceedings to the trial court for disposal of the suit after deciding an issue as to res judicata by reason of the award of the nominee.

(3.) The High Court dismissed the Special Civil Application of the plaintiffs holding that the revisional Court of the Small Causes was justified in coming to the conclusion that it was not open to the plaintiffs to contend that the Registrar or his nominee had no jurisdiction to entertain the dispute on the two grounds on which it was challenged.