KAVASJI PESTONJI DALAL Vs. RUSTOMJI SORABJI JAMADAR

JUDGEMENT

(1.) This is a suit filed by the plaintiff to eject his tenant. The defendant has pleaded the protection of the Rent Restriction Act. At the hearing; of the suit before Mr. Justice Desai attention was drawn to the relevant provisions. of Bombay Act LVII of 1947 under which all pending suits relating to recovery or fixing of rent or possession of premises to which that Act applied had to be transferred to and continued before the Court of Small Causes, Bombay. It was then contended both by the plaintiff and the defendant that Secs.28, 29 and 50 of that Act were ultra vires of the Provincial Legislature and were also repugnant to existing law and void and of no effect. Mr. Justice Desai directed that the plaint should be amended to make the necessary averments and that the Province of Bombay should be made a party to the suit. Consequently the plaint was amended and para, 2-A was added, containing the relevant averments and the Province of Bombay was made a party defendant to the suit. As the questions raised were of onsiderable importance, Mr. Justice Desai requested me to constitute a divisional bench to hear the suit. I thereupon directed that the suit should be placed before me and my brother Tendolkar J. and it has now come on for hearing.

(2.) The contention that Secs.28, 29 and 50 of Act LVII of 1947 were repugnant to any existing law and therefore void and of no effect was not pressed at the hearing and in fact given up. Therefore, two of the three preliminary issues which arise survive and have to be considered by us, and these are whether Secs.28, 29 and 50 are ultra vires of the Provincial Legislature and whether this Court has jurisdiction to try the suit.

(3.) Act LVII of 1947 is an amending and consolidating Act relating to the control of rents and repairs to certain premises and of rates of hotels and lodging houses and of evictions. In order to determine whether the impugned Secs.28, 29 and 50 are ultra vires of the Provincial Legislature, we have to consider not the form of these sections but their pith and substance. The effect of these sections is that in Greater Bombay the Court of Small Causes and elsewhere in the Province the Court of the Civil Judge (Junior Division) are constituted the sole Courts for trying suits or proceedings between a landlord and tenant relating to the recovery of rent or possession of any premises and of deciding any application made under the Act and for dealing with any claim or question arising out of the Act. It is provided that an appeal shall lie in Greater Bombay from a decree or order made by the Court of Small Causes to a bench of two Judges of the same Court which bench is not to include the Judge who passed such decree or order and elsewhere an appeal is provided to the District Court from a decree or order made by a Civil Judge. It is also provided that all suits and proceedings other than execution proceedings and appeals of the nature cognisable by the Small Causes Court and the Court of the Civil Judge (Junior Division) under Section 28 pending in any Court are to be transferred to and continued before those Courts.