JASWANTLAL JAGJIVANDAS AND CO. Vs. WESTERN COMPANY, INDIA

JUDGEMENT

(1.) THE respondents are a company incorporated in the State of Delaware in the United States of America and have a place of business in Bombay at Metro House, Mahatma Gandhi Road, Bombay 1. The respondents were the tenants of a godown situate at 51, Dockyard Road, Mazgaon, Bombay. On December 1, 1955, the respondents purported to create a sub -tenancy in favour of the appellants in respect of the eastern portion of the godown at 51, Dockyard Road, on certain terms and conditions as set out in the letter which they wrote to the appellants on December 1, 1955. In respect of the goods stored in the godown there was an insurance effected by the respondents and they were paying certain insurance premium. It appears that as a result of the use made by the appellants of the portion sub -let to them the insurance premium which the respondents had to pay was increased. Therefore, on January 5, 1956, the respondents asked the appellants to remove storing of rice bags and also stop -polishing of rice which they were alleged to be doing in the sub -let portion of the godown. The appellants denied the correctness of the facts alleged by the respondents with the result that the respondents informed the appellants by their letter dated January 30, 1956, that the purported sub -tenancy did not create any rights in their favour and they were, therefore, trespassers and called upon them to vacate the premises occupied by them by the end of February 1956. The appellants claimed protection under the Bombay Rent Act. This led to some further correspondence between the parties and a meeting was fixed to see if the matter could be settled. However, the meeting did not materialise and after some further correspondence the respondents filed a suit in the City Civil Court, out of which the present appeal arises, alleging that the appellants were trespassers having no right to continue in possession or in the alternative they were at best licensees in respect of the eastern portion of the godown and their licence was validly revoked and terminated by the respondents. In the suit which they filed, the respondents claimed to recover possession with mesne profits and costs.

(2.) THE defendants resisted the suit contending that there was a valid contract of sub -tenancy subsisting between the parties; that the said sub -tenancy had not been legally and validly terminated and the plaintiffs were not, therefore, entitled to the relief of possession. They also contended that the suit was one which fell within the purview of Section 28 of the Bombay Bent Act and was not, therefore, capable of being entertained by the City Civil Court and could be entertained only by the Court of Small Causes, Bombay. The defendants denied that they were trespassers and contended that they had paid all dues payable by them up to and inclusive of May 1956. They further denied that they had committed any acts contrary to the terms of the sub -tenancy and also denied that there was any nuisance of rats because of the storage of rice. They also denied having polished the rice in the godown and that their acts were responsible for the increase in the premium rates. It was also contended by the defendants that even if the contract of sub -tenancy was unlawful, the plaintiffs were not entitled to sue them in ejectment by taking advantage of their own wrong. The defendants contended that the letter of December 1, 1955, did not create only a licence in their favour, and even if it created a licence in their favour, the said licence was not validly revoked nor had they committed any breach of the terms and conditions of the licence. They denied their liability to pay any extra premium and further contended that the sum of Rs. 1,200 which they had kept with the plaintiffs could not be treated as deposit because of the provisions of the Bombay Rent Act.

(3.) MR . Sakhardande, who appears for the defendants -appellants, has urged before us that the lower Court has erred in holding that it had jurisdiction to try the suit. According to Mr. Sakhardande, this was a suit which fell within the purview of Section 28 of the Bombay Rent Act and was within the exclusive jurisdiction of the Court of Small Causes, Bombay. Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, so far as it is material, provides: Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay,... shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply...and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of Sub -section (2), no other Court shall have jurisdiction to entertain any such suit,... or to deal with such claim or question. In order that the provisions of this section may apply, the suit must be between a landlord and a tenant. It must relate to the recovery of rent or possession of any premises to which any of the provisions of Part II of the Act apply and in which any claim or question arising out of the Act or any of its provisions must arise. Now, in the present case, the suit relates to the recovery of possession of premises to which the provisions of Part II of the Act apply. What must, however, be found, is whether it is a suit between a landlord and a tenant. The words 'landlord' and 'tenant' are both defined under the Act, and we have to see whether the parties to the present suit are within those definitions. The word 'landlord' which is defined in Section 5(3) includes in respect of his sub -tenant a tenant who has sub -let any premises, and the word 'tenant' which is defined in Section 5(11) states, so far as is material for our purposes, that a 'tenant' means 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 coming into operation of this Act,... It will be seen from the provisions of the Act that a sub -tenant whose subtenancy is created after the coming into operation of the Act is not recognised at all. It is only those sub -tenants, who have derived their title as sub -tenants before the coming into operation of the Rent Act, i.e., before February 13, 1948, that are included within the inclusive part of the definition of the word 'tenant'. The word 'tenant' therefore, in Section 28 must mean, so far as sub -tenants are concerned, only a sub -tenant whose sub -tenancy is created prior to February 13, 1948. A person in whose favour a sub -tenancy is created after February 13, 1948, is not a tenant within the definition of the word 'tenant' in the Rent Act at all and no provisions of the Rent Act can apply to such a person. In the present case, it is admitted that the sub -tenancy on which the defendants rely has been created for the first time on December 1, 1955. They are, therefore, not a 'tenant' within the meaning of the word as used in Section 28 and the suit against the defendants, therefore, is not a suit between a landlord and a tenant so as to be triable exclusively by the Court of Small Causes, Bombay. Therefore, the provisions of Section 28 do not apply to the present case, and the suit, is not within the exclusive jurisdiction of the Court of Small Causes, Bombay. Moreover, the suit which has been filed in the present case is on the basis of title by an owner against a trespasser or alternatively on the basis of a license by a licensor against a licensee. No doubt, the letter of December 1, 1955, which purports to create a sub -tenancy has been referred to in the plaint, but it has been referred to not with a view to admit that the plaintiffs are landlords and the defendants tenants but to emphasise that the defendants are trespassers or at best licensees. The suit, therefore, is a suit as against a trespasser or licensee, on the plaint which the plaintiffs have filed, and such a suit is certainly not one which is within the jurisdiction of the Court of Small Causes, Bombay. The jurisdiction of the Court has to be decided initially at the time of the inception of the suit, and on the plaint which the plaintiffs have filed, there is no doubt that the suit is within the jurisdiction of the City Civil Court. It is, however, contended that although the plaintiffs have filed their suit on the basis of a suit by an owner against a trespasser or alternatively on the basis of a suit by a licensor against a licensee, the defendants have set up a contention of tenancy and, therefore, the suit is one which is governed by Section 28 of the Bombay Rent Act. Now, the question whether a suit, in which the plaintiff alleges that the defendant is a trespasser or a licensee but the defendant contends that he is a tenant, is a suit which can be tried only by the Special Court under the Bombay Rent Act has been the subject -matter of decision of a division bench of this High Court in Govindram Salamatrai v. Dharampal : AIR1951Bom390 . In that case, a suit was filed on the Original Side of this High Court by the plaintiff alleging that the defendant was a licensee. The defendant contended that he was a tenant entitled to protection of the Rent Act. It was urged that the question whether the defendant was a tenant or a licensee was one which arose under the Bombay Rent Act, and since Section 28 of the Bombay Rent Act conferred exclusive jurisdiction on the special Courts under the Act to deal with any claim or question arising out of the Bombay Rent Act it was the Small Causes Court alone and not the High Court which had jurisdiction to deal with and dispose of the question whether the defendant was a tenant or not. In negativing this contention the division bench held that when a plaintiff files a suit against a defendant alleging that the defendant is a licensee or a trespasser it is a suit which cannot be entertained by the Small Causes Court, because it is not a suit between a landlord and a tenant, and judging by the plaint no question arises out of the Rent Act or any of its provisions which would have to be determined on the plaint as it stands. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of the suit and a suit by a plaintiff against the defendant alleging that the defendant is a licensee or a trespasser is at its inception within the jurisdiction of the High Court or the City Civil Court and not in the Small Causes Court. The Court in which the suit is filed does not cease to have jurisdiction as soon as the defendant raises a contention that he is a tenant. The question which such contention raises is a jurisdictional question which has got to be determined in order to decide whether the particular Court in which the suit is filed has or has not jurisdiction to try the suit and Section 28 of the Rent Act does not deal with jurisdictional questions which have got to be decided in limine before matters arising under the Act can be decided by the Court. It was held that there was nothing in Section 28 of the Rent Act to warrant the contention that the High Court had been deprived of its jurisdiction in all suits for possession wherever the defendant took up the contention that he was a tenant. The jurisdiction was deprived in cases where the landlord filed a suit against a tenant and the tenant claimed protection under the Rent Act or in cases where although the plaintiff alleged that the defendant was a trespasser or a licensee but it ultimately turned out that the defendant was not a trespasser or a licensee but a tenant and that he was entitled to the protection of the Rent Act. In view of this decision, which is directly in point, Mr. Sakhardande's, contention that the present suit was not within the jurisdiction of the City Civil Court cannot succeed.