GOVINDRAM SALAMATRAI Vs. DHARAMPAL AMARNATH

JUDGEMENT

(1.) THE plff's. filed the suit against the defts. alleging that they were licensees of certain property in the possession of the plffs. , that the license had been properly and legally terminated and that they were entitled to an order of eviction against the defts. The contention of the defts, was that they were not licensees but tenants and therefore were protected under the Rent Restriction Act. The main and substantial issue which Shah J. had to determine was whether the defts. were licensees as alleged by the plffs. or tenants as alleged by them. The learned Judge came to the conclusion that the defts. were licensees and not tenants and thereupon passed a decree for ejectment in favour of the plffs. It is from this decree that this appeal is preferred.

(2.) BEFORE I deal with the merits of the case, there is a preliminary question that has got to be considered and decided and that is whether this Court had jurisdiction to try this suit. It is contended on behalf of the defts. that in view of Section 28, Bombay Act LVII (57) of 1947 this Court had no jurisdiction to try this suit and the suit should have been tried and disposed of by the Small Causes Court. Turning to Section 28, it confers upon the Court of Small Causes, Bombay, in Greater Bombay an extended jurisdiction. That extended jurisdiction is 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 Part II apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions; and the section further provides that no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Therefore, to the extent that the Small Causes Court has been conferred this special or extended jurisdiction, the jurisdiction of the High Court has been undoubtedly ousted. It is necessary to remember that under the Presidency Small Causes Court Act under Chap. VII the Small Causes Court had been given jurisdiction with regard to property of a certain value to pass orders of eviction in favour of owners of property who wanted to eject either their tenants or their licensees. Applications under Chap. VII of that Act were not suits and the orders passed by the Small Causes Court were not decrees and the parties affected by the order made under that Chapter had the right expressly reserved to them to litigate the question of their title in the High Court. By reason of Section 28, to the extent that the applications under Chap. VII were between landlords and tenants and to the extent that the landlords sought ejectment against their tenants, these applications no longer continued to remain applications under that Chapter, but under Section 28 of the Rent Control Act they become suits and the suits result in decrees which are binding as between parties and are also conclusive subject to right of appeal under Section 29. Therefore to the extent that suits are between landlords and tenants, the jurisdiction of the High Court which had been expressly reserved under Chap. VII has been taken away and a new extended and special jurisdiction has been conferred upon the Small Causes Court again as far as suits between landlords and tenants are concerned.

(3.) NOW, what is urged on behalf of the defts. is that Section 28 does not merely confer jurisdiction upon the Small Causes Court 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, but it also confers jurisdiction upon the Small Causes Court to deal with any claim or question arising out of the Rent Control Act, and it is therefore urged that a question as to whether the deft. is a tenant or a licensee is a question that arises out of the Rent Control Act. There can be no doubt that when a pltf. files a suit against a deft. 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. Equally so, in a suit so framed the only Court that would have jurisdiction would be the High Court because the jurisdiction of the High Court to deal with suits against licensees has not been taken away by any provision of the Rent Control Act. It cannot be suggested that the pltf. should anticipate any defence that might be taken up by the deft. 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 deft. The jurisdiction of a Court is normally and ordinarily to he determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to consider whether the Court had jurisdiction to entertain and try that suit or not. But it is argued that although the Court might have had jurisdiction when the suit was filed, as soon as the deft. raised the contention that he was a tenant the Court ceases to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the provisions of Section 28.