RANCHHODLAL MANEKLAL VYAS Vs. MANEKLAL PRANJIVANDAS SHAH

JUDGEMENT

(1.) THIS is an appeal against a decree passed by the Third Joint Civil Judge, Senior Division, Ahmedabad, in a suit which the plaintiff filed in ejectment. The few facts that are necessary for the purpose of disposing of this appeal are these. On January 5, 1939, the defendant passed a rent -note in respect of the suit property in favour of the plaintiff -appellant. After the expiry of five years, he passed another rent -note on February 6, 1944. The rent reserved was Rs. 183 per month. The tenancy actually began on January 3, 1944. The rent -note made a provision for the giving of one month's notice for the purpose of obtaining possession. On October 2, 1945, the plaintiff gave a notice to vacate. As the defendant did not vacate, the plaintiff filed a suit, No. 1770 of 1945, against the present defendant on December 12, 1946. In the written statement, which the defendant filed in that suit, the defendant contended that the suit property belonged not to the plaintiff, but to Chaturbhuj Temple of which the plaintiff was only an officiating vahivatdar. He added that so long as the plaintiff did not establish his title relating to the suit property, the plaintiff's suit in ejectment was not maintainable. The plaintiff's suit actually came to be dismissed on September 27, 1947, because the Court held that the notice to quit which had been given by the plaintiff was not in order and because the notice had been served not on the defendant himself, but on his constituted attorney. When the plaintiff found that his title was denied by the defendant, he gave a notice on November 10, 1947, forfeiting the lease on account of the disclaimer of the title on the part of the defendant. To that notice the defendant gave a reply on November 27, 1947, in which he stated that he did not intend to disclaim the plaintiff's title and that the statement made in the earlier suit was made under a mistaken belief. Thereupon the present suit was filed by the plaintiff on December 1, 1947, basing his cause of action on the disclaimer of title by the defendant.

(2.) IN answer to this suit, the defendant raised several contentions. He stated that the disclaimer had been made under a mistaken belief, that the disclaimer had subsequently been waived by the plaintiff, and that there was no subsisting cause of action at the date of the suit as the disclaimer had been subsequently retracted by the defendant. All these issues were found against the defendant. But there was one defence which was put forward by the defendant and that was based on the Bombay Rent Control Act of 1947. The defendant alleged that by reason of the Act, he was a statutory tenant and that under Section 12(1) of the Act, he was not liable to be evicted so long as he was ready and willing to pay the rent which was fixed.

(3.) THE first point which has been raised by Mr. Shah on behalf of the appellant, and which goes to the very root of the matter, is that the suit has been tried by a Court which has no jurisdiction to try it. The suit was decided on October 1, 1948. At that time the Bombay Rent Control Act of 1947 was in force. Under Section 28 of the Act, only certain Courts had jurisdiction to try the suits under the Act. Section 28 is in the following terms : - Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of 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; (b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate, or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, 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 this Part apply.