Importers and Manufacturers Ltd. Vs.
Pheroze Framroze Taraporewala& Ors [1952] INSC 74 (10 December 1952)
DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 73 1953 SCR 226
CITATOR INFO :
RF 1971 SC1495 (18) R 1973 SC1099 (3) R 1980
SC1605 (14)
ACT:
Bombay Rents, Hotel and Lodging Rates Control Act,
1947, s. 28-Sub-lease by tenant in contravention of term of lease- Suit by
landlord against tenant and sub-tenant for possession and compensation for use
and occupation- Jurisdiction of Small Causes Court -Construction of s. 28-
Impleading of sub-tenant, effect of.
HEADNOTE:
Where a lease of a flat situated within the
City of Bombay contained a term that the tenant shall not assign, sub-let or
re-let the premises, without the previous consent of the landlord and the
tenant, in contravention of this term sub- let the flat, and the landlord
instituted a suit against him and the sub-tenant in the Court of Small Causes
Bombay, for possession and compensation for use and occupation of the premises,
and the sub-lessee contended that the Court of Small Causes had no jurisdiction
so far as he was concerned inasmuch as the suit was not one between a landlord
and a tenant nor, one for rent within S. 28 of the Bombay Rents, Hotel and
Lodging Rates Control Act, 1947:
Hold, (i) that the suit was clearly one for
possession and the claim for compensation wag merely an incidental claim;
(ii) s. 28 of the Act conferred jurisdiction
on the Court of Small Causes not only to entertain and try any suit or
proceeding between a landlord and tenant for recovery of rent or possession,
but also "to deal with any claim or question arising out of this Act or
'any of its provisions"' and s. 28 was thus wide enough to cover the question
raised as between the plaintiff and the sub-lessee ;
(iii) in any event, though the sub-lessee was
not a necessary party to the suit he was a proper party, and the joinder of
such a party cannot alter the nature of the suit and make it any the less a
suit between a landlord and tenant or take it out of s. 28.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 172 of 1952.
Appeal by special leave from the Judgment and
Decree dated January 25, 1952, of the High Court of Judicature at Bombay
(Chagla C.J.) in Revision Application No. 1119 of 1951 from the Judgment and
Decree dated August 10, 1951, of the Court of Small Causes at Bombay in Appeal
No. 355 of 1950, arising out of Judgment and Decree dated 227 December 18,
1950, of the Court of Small Causes in Suit No. 1055/7943 of 1948. B. H. Lulla
for the appellants.
C. H. Daphtary (Solicitor-General for India) (B.B. Adhyarujina, with him) for the respondents Nos. 1, 2 and 3.
1952. December 10. The Judgment of the Court
was delivered by DAS J.-This is an appeal by special leave from the judgment
and order of the High Court of Judicature at Bombay passed on January 25, 1952, in Civil Revision, Application No. 1119 of 1951. It arises out of a suit
filed in the Bombay Small Causes Court under section 28 of the Bombay Rents,'
Hotel and Lodging House Rates Control Act, 1947, for ejectment from and
compensation at the rate of Rs. 370 per month from November 1, 1947, for the
use and occupation of the second floor flat of Sunama House situate in Cumballa
Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D. B.
Taraporewala deceased and as such the owners of the Sunama House. The
defendants are two in number, namely, the first defendant Mrs. Dinbai K. Lala
to whom the said flat was let out by the plaintiffs on or about September 1,
1942, at Rs. 370 per mouth and the second defendant a limited company to whom
the first defendant had sublet the said flat as from November- 16, 1947, at the
same rent. The defendants contested the suit on a variety of grounds, but the
trial Court by its judgment dated October 18, 1950, rejected all-the pleas and
passed a decree directing both the defendants to vacate the flat by March 31,
1951, and awarding, only as against the first defendant, Rs. 3,317-10-8 for
compensation from November 1, 1947, till July 31, 1948, and thereafter at Rs.
370 per month from August 4, 1948, till delivery of possession besides the
costs of the suit. The defendants preferred an appeal under section 29 of that
Apt. Besides the various pleas put forward 228 before the trial Court, the
defendants, before the Appellate Bench, put forward an additional plea, watch
was not pleaded in their written statements, namely, that the Small Causes
Court had no jurisdiction to entertain the suit in so far as it concerned the
second defendant. The Appellate Bench of the Small Causes Court dismissed the
appeal with costs. The second defendant thereafter moved the High Court in
revision under section 115 of the Code of Civil Procedure which was also
dismissed with costs. The second defendant has now come up in appeal before us
after having obtained special leave of this Court.
The only contention urged before us is that
the Small Causes Court had no jurisdiction to entertain this suit. The relevant
portions of section 28 of the Act are as follows:- "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 with in 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 to decide any application made under this Act and to deal with'
any claim or question arising out of this Act or any of its provisions ; and no
other Court shall have jurisdiction to entertain any such suit, proceeding or
application or to deal with such claim or question." It was not disputed
that the provisions of Part II of the Act apply to the premises. The contention
of the appellant is that the suit as against it was not a suit between a
landlord and a tenant and that, in so 229 far as it claimed compensation for
use and occupation, it was not a suit for recovery of rent and, therefore,
section 28 had no application, and the Court of Small Causes had no
jurisdiction to-entertain this suit. In view of this plea it is necessary to
refer to the plaint in this suit. After setting forth their title as owners of
the Sunama Houses trustees under the will of Framroze D. B. Taraporewala the
plaintiffs plead that the second floor flat was let out to first defendant on
or about September 1, 1942, at Rs. 370 per month on terms and conditions
printed on the back Of the rent bill form which were shown to and accepted by
the first defendant. In paragraph 5 of the plaint is set out one of those
terms, namely, that the tenant shall not assign, sublet or re-let the premises
without the previous written consent of the landlords. In paragraph 7 reference
is made to the notice given by the plaintiffs to the first defendant on October
17, 1946, to vacate the flat at the end of November, 1946, on the ground that
the same was required reasonably and bonafide for the use of two of the
beneficiaries under the will. Then, after referring to an unsuccessful attempt
on the part of the plaintiffs to obtain a certificate under section 9 of the
Act ' the plaintiffs refer to a letter dated November 16, 1947, written by the
first defendant to the plaintiff8 intimating that she had from that day sublet
the flat to the second defendant. It is stated in para,graphs 12 and 13 of the
plaint that on December 19, 1947, the second defendant sent a cheque for Rs.
370 for rent , for the month of November, 1947, but the plaintiffs declined to
accept the same or to recognise the second defendant as a lawful occupant as
subtenant or otherwise. It is also alleged that on January 23, 1948, the
plaintiffs gave a notice to both ,the Codefendants to vacate the premises at
the end of February 29, 1948. In paragraphs 14 and 15 the plaintiffs formulate the
grounds for ejectment, ,namely, (1) that the alleged subletting by the first
,defendant to the second defendant was wrongful, illegal and in breach of the
terms of the tenancy and 30 230 (2)that the plaintiffs required the premises
reasonably and bona fide for the use and occupation of two of the
beneficiaries. The plaintiffs prayed that both the defendants be ordered to
vacate the -premises and that both of them be ordered to pay to the plaintiffs
compensation for the use and occupation of the premises at Rs. 370 per mouth
from November 1, 1947, till delivery of vacant possession.
The appellant points out that on the face of
the plaint the plaintiffs declined to recognise it as a lawful occupant as
subtenant or otherwise and treated it as a mere trespasser having no lawful
claim to the demised flat and, therefore, the suit, in so far as it was one
between the plaintiffs and the appellant (the second defendant), cannot be said
to be a suit between a landlord and a tenant and that the suit in so far as it
claimed compensation from him cannot be said to be a suit for recovery of rent.
The last part of the contention need not detain us long, for the suit was
undoubtedly one for possession of the flat and the claim for compensation was
only incidental and ancillary to the claim for possession. Jurisdiction to
entertain a suit for possession will empower the Court not only to pass a
decree for possession but also to give directions for payment of mesne profits
until delivery of possession. Such direction for payment of mesne profits is
usually an integral part of the decree for possession. The only question for
consideration, therefore, is whether the suit was one between a landlord and a
tenant.
The respondents (the plaintiffs) do not
contend that the appellant (the second defendant) is a 'tenant" as defined
in section 5 (11) of the Act. The appellant, on the other hand, does not and,
indeed, cannot ;deny that, as between the plaintiffs and the first defendant,
the suit is one between a landlord and a tenant and as such the Small Causes
Court is, under section 28 of the Act, the only Court competent to entertain
the suit. Section 28 confers jurisdiction on the Court of Small Causes not only
to entertain and try any suit or proceeding between a landlord and a 231 tenant
relating to the recovery of rent or possession of the premises but also
"to deal with any claim or question arising out of this Act or any of its
provisions. There is no reason to hold that' "any claim or question"
must necessarily be one between the landlord and the tenant. In any case, once
there is a suit between a landlord and a tenant relating to the recovery of
rent or possession of the premises the Small Causes Court acquires the
jurisdiction not only to entertain that suit but also "to deal with any
claim or question arising out of the Act or any of its pro- visions" which
may properly be raised in such a suit. The plaintiffs in this suit claimed that
the purported subletting by the first defendant to the second defendant was
unlawful both because it was a breach of the terms of the tenancy and also
because as the statutory tenant after the determination of the contractual
tenancy the first defendant was not entitled to create a sub-tenancy and they
questioned the validity of the second defendant's claim to any protection under
the Act. The claim or question as to the respective rights of the plaintiffs
and the second defendant thus raised in the plaint certainly arises out of the
Act and the language of section 28 appears to be wide enough to cover the same.
Apart from that section, under the ordinary law a decree for possession passed
against a tenant in a suit for ejectment is binding on a person claiming title
under or through that tenant and is executable against such person whether or not
he was or was not a party to the suit. The non-joinder of such a person does
not render the decree any the less binding on him. It is in this sense,
therefore, that he is not a necessary party to an ejectment suit against the
tenant. It is, however, recognised that such a person is, nevertheless, a
proper party to the suit in order that the question whether the lease has been
properly determined and the landlord plaintiff is entitled to recover
possession of the premises may be decided in his presence so that he may have
the opportunity to see that there is no collusion between the landlord 232 and
the tenant under or through whom he claims and to seek protection under the
Act, if he is entitled to' any. Such a person may be joined as a party to the
suit from the beginning of the suit or at any later stage of the suit if the
Court thinks fit to do so. The joinder of such a proper party cannot alter the
character of the suit and does not make the suit any the less a suit between
the landlord and the tenant or take it out of section 28 of the Act. To hold
otherwise will be to encourage multiplicity of suits which will result in no
end of inconvenience and confusion. In our view the decision and the reasoning
of Chagla C.J. are substantially correct and this appeal must fail. We,
therefore, dismiss the appeal with costs.
Appeal dismissed.
Agent for the appellants: Rajinder Narain.
Agent for respondents Nos. 1, 2 & 3: B.
A. Gagrat.
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