(1.) THIS is a reference made by Naik J. in First Appeal No. 434 of 1963 and Appeals from Orders Nos. 166 and 170 of 1963, which were placed for hearing before him, he was of the opinion that the decisions of this Court on questions, which arose in these appeals were conflicting. These decisions are Abdul Kayum v. Ebrahim, 61 Bom. LR 1223 : (AIR 1960 Bom 338); Ranjit Patiraj v. Beharam, 65 Bom. LR 464 and Ramkishore v. Vijayabahadursingh, 65 Bom. LR 712 : (AIR 1964 Bom 85) Mr. Justice Naik, therefore, directed that the papers may be placed before the Chief Justice to enable him to refer the matter to a Full Bench. Mr. Justice Naik has not formulated the questions, which have to be considered by the Full Bench. In consultation with, the learned advocates who appears for the parties and the Government Pleader, who has appeared in this reference to assist us, we have formulated the following questions for our consideration. (1) Whether the City Civil Court, Bombay has jurisdiction to entertain a suit for a declaration that a sub-tenancy was created in favour of the plaintiff by the defendant tenant before the commencement of the Bombay rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, and for an injunction restraining the defendant from interfering with his possession as a sub-tenant? and
(2.) WHETHER the City Civil Court, Bombay has jurisdiction to entertain a suit for a declaration that the plaintiff is a tenant or sub-tenant of the defendant and for an injunction restraining the defendant from proceeding with or from obtaining an order for eviction of the plaintiff in the application made by the defendant under section 41 of the Presidency Small Cause Courts Act or from executing the order for eviction obtained by him in such application? (2) In order to answer these questions it is necessary to refer to the relevant provisions of law. These are contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, referred to in the judgment hereafter as the Rent Act, and the Presidency Small Cause Courts Act. The Rent Act was enacted in 1947 and came into force on 13th January 1948. The object of this Act as stated in the preamble is to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. One of the objects of the Act therefore is to control the evictions of tenants. The terms "landlord" and "tenant" have been defined in clauses (3) and (11) of section 5 of the Act and have given wider meanings than they bear under the ordinary law. The term "landlord" as defined means any person who is for the time being receiving, or entitled to receive, rent in respect of any premises whether on his own account or an account of or on behalf of any other person. The term "tenant" has been defined as meaning any person by whom or on whose account rent is payable for any premises and includes (a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959, (aa) any person to whom interest in premises has been transferred under the proviso to sub-section (1) of section 15, and (b) any person remaining, after the determination of the lease, in possession with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959. It is not necessary to refer to the other parts of the definitions of these terms. Section 6 to 31 are contained in Part I of the act, which applies to residential and other premises. Section 7 lays down that it shall not be lawful for any landlord to claim or receive on account of rent for any premises any increase above the standard rent, except in certain circumstances specified in the section. Sub-section (1) of section 12 provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. Sub-section (2) of this section states that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act. Section 12 therefore imposes restrictions on the right of a landlord to obtain possession of any premises from his tenant. Section 13 specifies the grounds which entitle a landlord to recover possession of any premises. Section 14 provides where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. Section 16 provides for an application by the tenant for being placed in occupation of the premises or part thereof of which he has given possession to the landlord in order to enable the landlord to carry out repairs. Section 17 provides for an application by a tenant for restoration of possession to the tenant if after taking possession of the premises on the ground that he requires them bona fide for occupation by himself or by any person for whose benefit the premises were held or for the purpose of erecting a new building the landlord keeps the premises unoccupied or relates them or does not commence the work of erection within a period of one month from the date on which he recovered possession. Similarly section 17a enables a tenant to make an application for restoration of possession if the landlord has obtained possession of the premises for the purpose of demolishing them and fails to commence the work of demolishing within the period specified in clause (b) of sub-section (3a) of this section. Sub-section (1) of section 28 is in the following terms:
(3.) CHAPTER VII of the Presidency Small Cause Courts Act containing sections 41 to 49 provides a summary procedure for obtaining expeditious possession from a tenant whose tenancy had been terminated or from a licensee whose license had been revoked. Section 41 states that when any person has had possession of any immovable property. . . . . . . . . . . . . . . . as the tenant or by permission of another person or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause why he should not be compelled to deliver up the property. In view of the exclusive jurisdiction conferred on the Small Cause Court under section 28 of the Rent Act in respect of a suit for possession between a landlord and a tenant, no application can now lie under this section against a tenant for possession of premises to which Part II of the Rent Act applies. For the same reason the application made under this section must be dismissed, if the opponent proves that he is a tenant of the premises. Section 43 provides for an order on the application made under section 41. Section 46 states that nothing herein contained shall be deemed to protect any applicant obtaining possession of any property under Chapter VII from a suit by any person deeming himself aggrieved thereby, when such applicant was not at the time of applying for such order entitled to the possession of such property. The latter part of this section states that when the applicant was not at the time applying for such order entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant. Mere filing of an application for possession by a person not entitled to it is therefore deemed to be an act of trespass, even if possession is not actually taken. Section 47 states that where on an application being made under section 41 of the occupant binds himself to institute without delay a suit in the High Court or the Bombay City Civil Court against the applicant 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 for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of and that if the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order made under section 43, S. 49 provides that recovery of the possession of any immovable property under this chapter shall be no bar to the institution of a suit in the Bombay City Civil Court or the High Court as the case may be for trying the title thereto, The occupant is therefore given two options under this chapter, He may apply for a stay of the hearing of the application under section 41 on his executing a bond to file a suit in the City Civil Court or in the High Court under Section 47 or he may file a suit on title in case the application under section 41 is decided against him.