EBRAHIM SALEJI Vs. ABDULLA ALI REZA

JUDGEMENT

(1.) THE short question which this revn. appln. raises relates to the scope and proper effect of the provisions of Sections 28 and 29, Bombay Act LVII [57] of 1947. It is a question of considerable importance because it affects a large number of ejectment proceedings pending in the Court of Small Causes at Bombay. This question arises in this way: The opponents had made an appln. in the Ct. of Small Causes at Bombay under Section 41, Presidency Small Cause Courts Act against the petr. Their case was that the petr. opponent was in occupation of the premises in question by their leave and licence and that he refused to vacate the premises though called upon to do so after the opponents had withdrawn their leave and licence. The petr. 's defence was that he was in occupation of the premises not by leave and licence of the opponents, but as their tenant and that he was ready and willing to pay the rent and as such was entitled to the protection of the provisions of Bombay Act LVII [57] of 1947. The learned trial Judge came to the conclusion that the premises in question were given to the petr. by the opponents by leave and licence and that the petr. was not the opponents' tenant. On that view the petr. was directed to vacate the premises by 31-3-1950. Against this order the petr. went in appeal to a Bench of two Judges of the Ct. of Small Causes, Bombay. But the appellate Ct. dismissed his appeal on the ground that the appeal was incompetent. The view which prevailed with the appellate Ct. was that the present proceedings did not attract the provisions of Section 28 of Bombay Act LVII [57] of 1947 and as such an order made in the said proceedings was not appealable under Section 29 of the said Act. It is this view of the appellate Ct. which the petr. seeks to challenge before me in the present revn. appln. The petrs'. contention is that in rejecting his appeal as incompetent the appellate Ct. in the Ct. of Small Causes has misconstrued the provisions of Section 28 of Bombay Act LVII [57] of 1947. He argues that the present proceedings do fall within the purview of Section 28 of the said Act, and as such the order passed by the trial Ct. in these proceedings was appealable under Section 29.

(2.) NOW, before Bombay Act LVII [57] of 1947 was passed recovery of possession of immovable property through the Ct. of Small Causes, Bombay, was governed by the provisions contained in Chap. VII, Presidency Small Cause Courts Act. This Chapter contains nine sections which provide for the procedure to be adopted by persons claiming possession of immovable property from their tenants or licensees. Section 41 authorises the landlord or licensor to apply for a summons for possession against his tenant or licensee in respect of any immovable property of which the annual value at a rack-rent does not exceed two thousand rupees. Section 42 provides for the service of summons and under Section 43 the Ct. is given jurisdiction to issue an order addressed to the bailiff of the Ct. directing him to give possession of the property to the appct. in case the Ct. is satisfied that the appct. is entitled to such an order. Section 47 permits the occupant of the premises to move the Ct. to stay the execution proceedings of the order passed under Section 43 and he can do so if he binds himself with two sureties to institute without delay a suit in the Ct. of competent jurisdiction for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given against him. If the requirements of Section 47 are satisfied, it is obligatory for the Ct. of Small Causes to stay the proceedings as claimed by the occupant. If the occupant succeeds in obtaining a decree in his suit, such decree shall supersede the order made by the Ct. of Small Causes under Section 43. Section 48 provides for the application of the provisions of the Code of Civil Procedure "as far as may be and except as herein otherwise provided". Section 49 provides that the order made for the recovery of possession under Section 43 would be no bar to the institution of a suit in the H. C. or the City Civil Court as the case may be. Thus, it would be clear that in all cases where the owner of any immovable property claimed to recover possession of his property from the occupant on the ground that the occupant was either his tenant or his licensee, it was open to him to apply to the Ct. of Small Causes and obtain an order for ejectment. "the proceedings thus instituted by him by means of an appln. made under Section 41 did not constitute a suit properly so-called and an order made in those proceedings was liable to be challenged by a suit as provided under Section 47 and Section 49 of the said Act.

(3.) WHEN Bombay Act LVII [57] of 1947 came to be passed it purported to confer wider jurisdiction on the Ct. of Small Causes in the matter of suits for ejectment against tenants or licensees. The proceedings which the Ct. of Small Causes was authorised to entertain under the provisions of this Act now became suits, with the result that the decrees passed in such suits were conclusive between the parties, subject of course to the decision of the appellate or the revisional Ct. Section 28 of the Act provides that notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or of any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, in Greater Bombay, the Ct. 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 of which any of the provisions of this Part apply and to decide any appln. made under this Act and to deal with any claim or question arising out of this Act or any of its provisions; and no other Ct. shall have jurisdiction to entertain any such suit, proceeding or appln. , or to deal with such claim or question. It would be noticed that the first part of Section 28 confers jurisdiction upon the Ct. of Small Causes, Bombay to deal with suits falling under this section notwithstanding the fact that the value of the immoveable properties involved in such suits may exceed Rs. 2,000. In other words, the limitation imposed upon the jurisdiction of the Ct. of Small Causes by Section 41, Presidency Small Cause Courts Act, would be no bar where the Ct. of Small Causes, Bombay, is exercising jurisdiction under Section 28 of Bombay Act LVII [57] of 1947. It is quite clear that if the landlord files a suit to eject his tenant the Ct. of Small Causes would try such a suit under the provisions of Section 28 and a decree passed by the trial Ct. in such a suit would be appealable under Section 29. Section 29 provides for an appeal in Greater Bombay from a decree or order made by the Ct. of Small Causes, Bombay, exercising jurisdiction under Section 28 to a Bench of two Judges of the said Ct. which shall not include the Judge who made such decree or order. There is no doubt that if the suit in terms purports to be by a landlord against his tenant it would fall under Section 28 and the decree passed in the suit would clearly be appealable under Section 29. The pltf's claim for ejectment may, however, not always be made in this simple and straightforward form. He may ask for a decree for ejectment on an alternative basis. He may allege that the deft. is in possession of the premises by his leave and license and the same has been revoked; or he may say that he is entitled to a decree for ejectment under the provisions of Section 13 of Bombay Act LVII [57] of 1947 even on the footing that the deft. is a tenant. While dealing with such an alternative claim the trial Ct. may have to frame issues on both the pleas. If at the trial the pltf's case of leave and license fails and the trial Ct. proceeds to deal with his claim on the basis that the deft. is a tenant, whatever decree may be passed at the end would clearly fall within Section 28 and as such it would be appealable under Section 29. That would be so because whatever be the nature of the trial Ct. 's. decision, it would be based upon the provisions of Bombay Act LVII [57] of 1947, and as such the decision would be in exercise of the jurisdiction conferred by Section 28. This position is not disputed before me by Mr. Chhatrapati for the opponents. He, however, suggests that if in such a suit the trial Ct. rejects the deft's contention that he is a tenant and accepts the pltf's version that the deft. is in possession by leave and license, the proceedings would cease to be governed by Section 28 and the order made in such proceedings would not be appealable under Section 29. I find considerable difficulty in accepting this contention. It seems to me that if in trying any suit the Ct. of first instance is called upon to deal with issues or questions arising under any of the provisions of Bombay Act LVII [57] of 1947 the said suit or proceedings must be deemed to fall within the provisions of Section 28 and the nature of the jurisdiction exercisable under Section 28 would not vary according as the decision is one way or the other. There is yet a third category of cases in which the pltfs. ' claim for possession may be based solely on the ground that the deft. is in occupation by leave and license. In such a case the deft. may claim the protection of Bombay Act LVII [57] of 1947 by denying the pltf's. allegation of leave and license and by pleading that he is in occupation as a tenant. In such a case again, Mr. Ghhatrapati contends that if the pltf's. plea of leave and license fails and the deft's. plea of tenancy succeeds, an appeal would lie against the decree dismissing the pltfs. ' suit; but no appeal would lie if the pltfs. ' plea succeeds and the deft. 's plea fails. Mr. Chhatrapati says that such a case cannot attract the provisions of Section 28: it is not a suit or proceeding between a landlord and tenant, nor is it an appln. made under the provisions of this Act; and his argument is that the nature of the suit or proceeding must be determined by the allegations in the plaint. In fact this is the view which the Ct. of Appeal has accepted. In their judgment the learned Judges have observed that in dealing with the question as to whether such a suit or proceeding falls under Section 28