BURJOR PESTONJI SETHNA Vs. NARIMAN MINOO TODIWALLA

JUDGEMENT

(1.) THIS appeal raises a question of jurisdiction of this Court to try a suit tiled in this Court. The learned Judge below held that as the subject-matter of the claim was below Rs. 25,000, the High Court had no jurisdiction and that the suit should have been instituted in the City Civil Court which has now been invested with jurisdiction to try suits up to Rs. 35,000 which were at one time triable by the High Court on its Original Side. It may be mentioned that the plaintiff himself valued the relief sought by him at more than Rs. 25,000.

(2.) THE plaintiff is a tenant of a room on the third floor of a property known as Mazda Mansion situated at Warden Road, and the plaintiff's case is that his tenancy comprises in addition to the flat on the third floor a terrace and a room on the terrace which is above the third floor. The defendants purchased the property in question in May 1949 and the plaintiff's grievance in the suit is that by various acts the defendants deprived the plaintiff of the use and enjoyment of the terrace and the room on the terrace. The plaintiff says that in the first Instance the defendants locked the room of his flat from inside which led to the terrace and the terrace room. When the plaintiff succeeded in getting that lock removed and again obtained access to the terrace and the terrace room, according to the plaintiff, the defendants barricaded the door which led to the terrace from outside and thus prevented the plaintiff from having access to the terrace and the terrace room. Under these circumstances the plaintiff sought for a declaration that the terrace and the room thereon were comprised in the plaintiff's tenancy, for a mandatory injunction against the defendants for removing the barricade, and for a permanent injunction restraining the defendants from obstructing or interfering with the plaintiff's exclusive use and enjoyment of the terrace and the terrace room.

(3.) THE learned Judge below has taken the view that the suit falls under Section 7 (xi) (e) of the Court-fees Act, and according to him the suit should be valued as laid down in that section according to the amount of the rent of the property to which the suit refers, payable for the year next before the date of presenting the plaint, and on that valuation clearly the value of the suit is far below Rs. 25,000. So the first question we have to consider is whether the learned Judge below was right in coming to the conclusion that the suit fell under Section 7 (xi) (e) of the Court-fees Act. In order that the suit should fall under that sub-section the tenant must be illegally ejected by the landlord and the tenant must be suing to recover the occupancy of the property from which he has been ejected. In other words, it must be a suit for possession by a tenant against his landlord. In order to decide whether this is a suit for possession, the question is whether on the averments in the plaint it could be said that the plaintiff was not in possession at the date when he filed the suit. If the plaintiff was not in possession, then the only substantial relief he can obtain in the suit is the relief of possession. We agree with Mr. K. T. Desai when he contends that what we must look at is not the form of the plaint but its substance, and if in substance the plaintiff was not in possession at the date of the institution of the suit, he cannot convert a suit for possession into a suit for a declaration and injunction merely by giving to the plaint the necessary form and inserting in it the necessary averments.