JAMNADAS DHARAMDAS Vs. JOHN JOSEPH FERREIRA

JUDGEMENT

(1.) [His Lordship after stating the facts, proceeded]. It is convenient first to deal with the questions raised on behalf of the plaintiffs in the Civil Revisional Application. The first contention made by the plaintiffs is that the lower appellate Court has failed to exercise jurisdiction which it had under the Rent Act when it held against plaintiffs that it had no jurisdiction to grant the decree in ejectment in respect of the two buildings constructed by the defendant on plot No. 12. In that connection reference was made to Section 28I of the Act which inter alia provides. 28. (1) 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, (aa) ... (b) ... 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 subject to the provisions of Sub -section (2), no other court shall have jurisdiction to entertain any such suit, ... The submission was that the two buildings constructed by the defendant on plot No. 12 were 'premises' within the meaning of that phrase as denned in Sub -clause (b) of Sub -section (8) of Section 5 of the Act. This Sub -clause (b) of Section 5(8) provides : 'Premises' means - (a) ... (b) any building or part of a building let separately... The submission was that these two buildings must be held to be the 'premises' within the meaning of the above definition. It should be held that the suit filed by the plaintiffs was between landlords and tenant. The suit was relating to recovery of possession of the premises -buildings mentioned in the plaint and erected on the plots mentioned in the lease. The submission was that the right to recover possession of the building was claimed under the forfeiture clause agreed to between the parties under the above lease. Having regard to the findings of the two Courts below there was no dispute that the plaintiffs were entitled to possession of the two plots mentioned in the lease. There can be, in law, therefore, no dispute that in execution of the decree for possession of the lands of the two plots under Sub -clause (h) of Clause II of the lease the executing Court would be bound to direct the defendant to remove the two buildings from the plots so that the decree in ejectment in respect of the plots could be completely carried out. The submission was that the rent Court -the Court of Small Causes, which thus would have jurisdiction in executing a decree in ejectment of the defendant from the two plots must be held to have jurisdiction to deal with these buildings under the forfeiture clause IV which entitled the plaintiffs to possession thereof. The submission was that if the Court, as executing Court, had jurisdiction to deal with the buildings constructed on the plot by the defendant, the finding of the appellate Court that in considering the parties' rights under the forfeiture clause that very Court had no jurisdiction to decide the questions arising between the parties was not correct. The submission was that this question was directly in relation to recovery of possession of the demised plots since the buildings were standing on the demised plots. In that connection by relying upon the authorities, which we will presently mention, the submission was that the phrase 'relating to the recovery of rent or possession of any premises' as contained in Section 28 gives wider jurisdiction to the Court of Small Causes than merely jurisdiction to eject parties from the premises let. The Court is empowered in connection with ejectment of a party from the premises let to deal with all incidental and ancillary disputes and questions which arise for decision between the parties. These submissions were denied on behalf of the defendant and the argument was that jurisdiction of the rent Court is confined to delivery of possession of premises demised under a lease and premises in possession of a tenant as tenant. There was no jurisdiction in Court to deal with premises specifically not demised under a lease to a lessee. The larger submission was that the claim for possession of the buildings, which were not demised, was a claim in respect of personal obligations undertaken by the defendant and had nothing to do with the tenancy of the defendant. For this reason, the submission was that the finding of the lower appellate Court that it had no jurisdiction to give decree in ejectment in favour of the plaintiffs in respect of the two plots should be accepted as correct.

(2.) NOW , the submissions made on behalf of the plaintiffs are based on the decision of this Court in the case of Mehersingh Sethi v. Khurshed Satarawalla (1954) 50 Bom. L.R. 540, and the decision of the Supreme Court in the case of Importers v. Phiroze : [1953]4SCR226 . Reliance was also placed on the decision of the Full Bench of this Court in the case of Daitatraya Krishna v. Jairam Ganesh : AIR1965Bom177 , and on a decision of a Division Bench of this Court in Mirabelle Hotel v. Mann Subedar. On behalf of the defendant reliance was placed on the decisions of the Supreme Court in the case of Dr. K.A. Dhairyawan v. J.R. Thakur (1958) 61 Bom. L.R. 548.

(3.) THE Division Bench referred to the previous decision in the case of Importers v. Phiroze which we will presently refer. As regards the question of enforcement of charge by the rent Court, the observation was (p. 550) : -. If a claim for compensation is incidental and ancillary to a claim for possession, the claim for a charge in respect of a decree for arrears of rent is also incidental and ancillary to that decree. If the Court has jurisdiction to pass a decree for rent, the Court must have equally jurisdiction to determine the mode in which the plaintiff can recover the decretal amount.