C K TALWAR Vs. RALLIS INDIA LTD

JUDGEMENT

(1.) WILL this Court turn a Nelson's eye to a class of litigation that is unnecessarily throttling the functioning of the justice dispensation system which itself is groaning under unbearable arrears and virtually gasping for breath ? For too long has it been the order of the day in and around the city of Bombay, particularly for persons in unjustified occupation of premises, to litigate virtually for decades together and use this time period as an umbrella for continuation of such illegal activities. Pendency of a litigation based on such claims invariably couched in a vanear of profoundness, are used as the justification for such wrongful retention of the premises, thereby defeating the possessory rights of the owner. In the process, it is the Courts at whom an accusing finger is pointed as the institutions that have permitted this state of affairs to flourish. The modus operandi, invariably, is the institution of one or more litigations and the filing of appeals therefrom, or the starting of parallel proceedings when one of them has failed. The present petition before me is an amen more classic illustration of how judicial process is sought to be used as a cover for the perpetuation of such a situation where the solitary plea canvassed is that dehors the merits of the case or, for that matter, even the ethics involved, the proceeding started in one Court in 1989 should be dismissed, and that it should be commenced in another Court. A solitary issue of jurisdiction canvassed in this case, in view of its far-reaching consequences in numerous proceedings of such type, requires to be decided on merits, since it has been agitated with some degree of vehemence. An application having been presented before me by the respondent-Company containing a grievance that the petitioner has been refusing to restore possession of valuable residential premises, occupation of which was permitted to him while an employee of the Company, which status had ceased since the middle of the year 1986, it did appear necessary that this petition, which has come up to the High Court at an interlocutory stage, requires immediate disposal. Inter alia, the Company contended that whereas it is required to pay an amount of Rs. 2,000. 00 per month to the original owner of the premises, that the petitioner ex-employee has been occupying the premises after resigning from services of the Company, for the last 5 1/2 years without having paid a single rupee. The Company had instituted recovery proceedings before the Court of Small Causes at Bombay in 1989. The petitioner ex-employee filed this petition contending that the City Civil Court and not the Court of Small Causes was the proper forum, and the petition having been admitted, pending proceedings have been stayed and the petitioner continues in occupation, free of charge for several years to come. The facts appear gross and in order to prevent the continuation of this unsatisfactory state of affairs, the petition was taken up for hearing forthwith.

(2.) THE petitioner before me, Mr. G. A. Talwar is an ex-Executive of the respondent, M/s. Rallis India Ltd. , a large and well-established public limited Company at Bombay. The Company had acquired in January 1972 from the landlord, Flat no. 35 in Venus Apartments at Worli Sea Face, Bombay, together with a garage attached to the premises. Over the years, the Company appears to have been accepted as a tenant in respect of the premises and the rent payable thereof was mutually increased from time to time until it reached a sum of Rs. 1,600. 00 per month excluding the society's bills, which come to about Rs. 550. 00 per month on an average. Apart from this, the Company has also been making certain payments towards repairs, etc. This flat was acquired by the Company for purposes of providing residential accommodation to its officers.

(3.) THE petitioner before me was appointed on 15-6-1973 as a management trainee and absorbed in the managerial cadre with effect from 15-5-1974. Under an agreement dated 28/07/1978, between the Company and the officer, he was allotted the flat by the Company for residence of himself and his family members. The Officer tendered his resignation from service vide his letter dated 30-5-1986, accepted by the Company on 4-6-1986, the resignation being effective from end of August 1986. The Company, by its letter dated 21/08/1986, requested the officer to hand over the vacant possession of the premises by 31/08/1986; whereupon he wrote back to the Company on 29/08/1986 claiming tenancy in respect of the premises and refusing to hand over the possession. Certain correspondence ensued between the parties, but the officer, taking advantage of the fact that he has been in possession of the flat continued to reside there and the Company was finally forced to file a case bearing No. 20/s of 1986 under Section 630 of the Companies Act read with Sections 406 and 408 of the Indian Penal Code against the officer in the Court of the Metropolitan Magistrate, 7th Court, Dadar, Bombay. That proceeding is still pending for the last five years. In April 1989, the Company filed a suit before the Court of Small Causes at Bombay under Section 41 of the Presidency Small Cause Courts Act, 1882, for recovery of possession as also the arrears of compensation for the use and occupation of the premises until the date of recovery of possession. The Company also prayed for certain ancillary reliefs, such as the appointment of a Receiver, etc. The Court of Small Causes granted an ad interim injunction restraining the officer from parting with possession of the premises or inducting any third party therein. At this stage, the officer who is the present petitioner, namely, the defendant to that proceeding, challenged the jurisdiction of the Court to entertain the proceedings, principally, on the ground that the decision of this Court in the case of Vishwanath v. Gandabhai, 1990 Mah LJ 1145, was applicable and that, according to him, the proceeding was in the wrong Court. The limited ground canvassed was that the plaintiff Company had styled the present petitioner as a trespasser and that in such circumstances, it was the City Civil Court at Bombay, namely, the ordinary Civil Court which could entertain such a dispute and that the jurisdiction of the Court of Small Causes, which is a forum whose jurisdiction is confined only to the limits conferred on it by special statute, was precluded from trying the dispute and, therefore, barred in law from entertaining the proceeding. The learned trial Judge by his order dated 14/ 28/06/1991 rejected this contention and held that the Court was competent to entertain this suit. It is against this order that the present petition has been filed. Though at an interlocutory stage, it is contended that the challenge being to the jurisdiction of the Court u/s. 9, C. P. C. fundamentally attacks the institution of the proceeding and, therefore, requires determination. Inevitably, therefore, such determination would require an examination of the facts and the law and a decision on issues material to those canvassed before me. The petitioner having carried the proceeding to a higher forum shall, therefore, not be entitled to contend that the observations or findings recorded by this Court ought not to bind him in the proceedings that are still pending.