SHIVJI BHARA AND CO Vs. KANJI VASANJI

JUDGEMENT

(1.) THE only question that arises in this appeal is whether the suit filed by the plaintiffs is maintainable in this Court or it should be transferred to the Court of Small Causes under the provisions of Bombay Act LVII of 1947. It would appear that the plaintiffs were the tenants of the defendants who are trustees of a charitable trust in respect of three godowns for some time prior to the explosion that took place in Bombay on April 14, 1944. In the explosion two of the godowns were destroyed. THE plaintiffs vacated the third godown as it was required by the defendants for storing certain articles. THEreafter the plaintiffs wanted to resume possession of the third godown, and according to the plaintiffs the defendants agreed to give possession of the third godown provided the plaintiffs not only paid the rent of Rs. 125 which was the proper rent, but also a pugree aggregating to Rs. 5,200 worked out on the basis of Rs. 400 being paid per month for a period of 13 months during which the tenancy was to continue. According to the plaintiffs it was also agreed that with regard to the tenancy of certain months anterior to the explosion for which the plaintiffs had not paid rent, they should pay a pugree of Rs. 60 a month for 5-ir months, which came to Rs. 345. According to the plaintiffs, they paid these two pugrees and went into possession of the godown and they filed the present suit for recovering that amount.

(2.) NOW, the learned Judge held that this suit was not a suit for recovery of the pugree, but it was a suit for the recovery of excess rent paid by the plaintiffs, and, therefore, this Court had no jurisdiction to try the suit but the suit was triable by the Court of Small Causes. It is rather significant to note what the defence of the defendants was with regard to the claim of the plaintiffs. Defendant No.1 took no part in the proceedings. Defendant No.2's contention was that these amounts claimed by the plaintiffs were pugrees, but they were paid to defendant No.7 and that defendants Nos. 5, 6 and 7 had on different occasions admitted that this pugree had been received from the plaintiffs. With regard to defendants Nos. 3 to 7, who put in a joint written statement, their contention was that after the tenancy terminated on the explosion having taken place, the plaintiffs were no longer the tenants of the defendants but they were mere licensees, and the defendants required the plaintiffs as a term of the license to contribute the sums of Rs. 5,200 and Rs. 345 as a donation to a charity fund which had been set up. Therefore, it is important to note that it was the case neither of the plaintiffs nor of any of the defendants that the sum that the plaintiffs were claiming was excess rent or an amount paid as rent in addition to the rent chargeable under the Rent Restriction Act. The plaintiffs' case was it was pugree. The case of defendant No.2 was it was pugree. The case of defendants Nos. 3 to 7 was that there was no tenancy, the plaintiffs were merely the licensees, and the amount paid was certainly not rent but a donation paid to a charity fund. At the hearing counsel for defendants Nos. 3 to 7 gave up the contention that the plaintiffs were the licensees. He admitted the position taken up by the plaintiffs that they were the tenants. Then the learned Judge, without there being any specific issue on the point and without there being any proper pleadings as I have pointed out, on his own as it were came to the conclusion that what the plaintiffs claimed in the suit was not pugree but excess rent. It seems to us that the learned Judge was in error in coming to that conclusion. But even assuming that the learned Judge was right, as in my opinion the matter is concluded by a proper construction of Section 50 of Bombay Act LVII of 1947, it is unnecessary to go further into this question.

(3.) IN my opinion, therefore, this is clearly a suit which does not fall within the purview of Section 50 of Bombay Act LVII of 1947 and, therefore, this Court has jurisdiction to try the suit. The order, therefore, made by the learned Judge that this suit should be transferred to the Small Causes Court is erroneous and must be set aside.