RAJRUPSINGH RAMDULARSINGH Vs. CHHOTALAL MAKHANLAL

JUDGEMENT

(1.) This first appeal has arisen in peculiar circumstances. The appellant Rajrupsingh Ramdularsingh filed Suit No. 6929 of 1973 against the respondent Chhotalal Makhanlal in the City Civil Court, Bombay, for setting aside the order dated December 13, 1962, passed by the Court of Small Causes in Obstructionist Notice No. 676 of 1962 in Ejectment Application No. 689/E of 1959, and for the consequential relief of permanent injunction restraining the respondent from executing the warrant of possession against the appellant pursuant to the aforesaid order dated December 13, 1962. According to the plaint, the appellant claims to be in occupation of the suit room being Room No. 8 in Sind Mercantile Syndicate Building, situated at 311-331, New Charni Road, Bombay, as the sub-tenant of one Dwarkaprasad Joshi. The respondent filed Ejectment Application No. 686/E of 1959 against one Khiliram Badri and Lajjaram under the provisions of section 41 of the Small Causes Courts Act in the year 1959. In this Ejectment Application No. 686/E of 1959, an ex parte order for delivery of possession was passed in favour of the respondent on September 8, 1961. According to the appellant, neither the respondent who had obtained the ejectment order nor the alleged licensee were residing in the suit room at the time of the filing of the ejectment application. His case is that he has been in exclusive possession of the suit room since the year 1957 and has been paying the rent thereof to the landlord. In substance, the plaint recites that the appellant is in possession of the suit room as a lawful sub-tenant of the original tenant Dwarkaprasad Joshi, and neither the respondent nor his alleged licensee had any right or possession in the suit room when the ejectment application was very filed by the respondent. According to him, the order passed in ejectment application is not binding on him and the respondent has no right to execute the order in ejectment application against him.

(2.) After the obstructionist notice of motion taken out by the respondent against the appellant was made absolute, the appellant filed a substantive suit under Order 21, Rule 103 of the Code of Civil Procedure, viz. Suit No. 5973 of 1962 in the Court of Small Causes on the basis of his title as a sub-tenant of Dwarkaprasad Joshi claiming that the ex parte order dated September 8, 1961 in Ejectment Application and the order dated December 13, 1962 on the Obstructionist Notice were not binding on him and praying for setting aside the said order and for an injunction restraining the respondent from executing the aforesaid order. By its order dated August 4, 1964, the Court of Small Causes returned the plaint for presentation to the proper Court holding that the Small Causes Court had no jurisdiction to try the suit. The appellant, therefore, filed the said plaint in the City Civil Court which was numbered as Suit No. 4560 of 1964. By his order dated August 12, 1961, Judge Suresh of the City Civil Court directed that the plaint should be returned to the plaintiff-appellant for presentation in the property Court. He took the view that the order passed in the Ejectment Application Court not be set aside the without the plaintiff proving his title, and since that title is the title of lawful sub-tenancy within the meaning of the Rent Act, the City Court would have no jurisdiction to entertain and try the suit. In short, he held that it was the Court of Small Causes which could entertain the suit. The appellant, therefore, again filed the plaint returned by the City Court to the Small Causes Court. This plaint was numbered as Declaratory Suit No. 845/4839 of 1971. The Small Causes Court again took the view that it had no jurisdiction to try the suit and passed an Order directing return of the plain to the appellant for presentation in the proper Court. The plaintiff preferred an appeal to the Appellate Bench of the Court of Small Causes which was numbered as Appeal No. 246 of 1972. On August 14, 1973, the Appellate Bench on a consideration of the averments in the plaint came to the conclusion that the suit was outside the purview of the provisions of section 28 of the Rent Act, and, therefore, confirmed the order of the return of the plaint passed by the Small Causes Court. This order of the Appellate Bench was challenged in a writ petition filed by the plaintiff in this Court under Article 227 of the Constitution. This writ petition was summarily dismissed by Nathwani, J. on 3-9-1973. The plaintiff, therefore, again refiled the plaint in the City Court which was numbered as Suit No. 6929 of 1973. By the order dated January 28, 1974, the City Court rejected the plaint on the ground that it had no jurisdiction to entertain the suit. The Court felt bound by the previous order in the earlier suit wherein the Court had already taken the view that it had no jurisdiction to entertain and try the suit. It is this order passed by the City Court which has been challenged by the appellant in this appeal.

(3.) Mr. Garg the learned Counsel appearing for the appellant, contended before me that the City Court had jurisdiction to entertain and try the plaintiffs suit. He submitted that the previous decision of the City Court in the earlier suit could not operate as a bar for filing the present suit as the Court then had wrongly held that it had no jurisdiction to try the suit on an erroneous interpretation of the provisions of the Rent Act. In this connection, he relied on the decision of the Supreme Court in (Mathura Prasad v. Dossibai) A.I.R. 1971 S.C. 2355. On the other hand, Mr. Shetty, the learned Counsel for the defendant-respondent, supported the view taken by the trial Court and contended that the decision of the City Court in the previously instituted suit would operate as res judicata against the plaintiff. In any event, he submitted that on the averments of the plaint, it must be held that it is only the Rent Court which will have jurisdiction to try the suit and the suit filed in the City Civil Court is misconceived.