Anjanabai Hanumantrao Sonawane vs Hindustan Construction Co. Ltd.

K.R. Shriram, J.—Whether this Court should hear and dispose of this suit or the suit has to be tried by the Court of Small Causes, Mumbai is the issue. It is the case of the defendant that this Court does not have jurisdiction in view of Section 41 of the Presidency Small Causes Court Act 1882 (for brevity referred as ''the said Act'') and therefore, the plaint has to be returned to the plaintiffs under Order VII Rule 10 of Code of Civil Procedure, 1908 and to be presented to the appropriate forum, viz., the Court of Small Causes at Bombay.

The plaintiffs have filed an affidavit in reply opposing the chamber summons whereby the stand is that the present suit is not between the lessees/landlord/tenants and therefore, this Court has jurisdiction.

The case of the defendant, in short however, is that, the plaint as it reads clearly shows that the dispute raised by the plaintiffs is for possession of the suit property and that the plaintiffs'' wish to be declared as lessees of the suit property. Hence, the plaintiffs claim to be a tenant, the issue is a dispute between the land-lord and the tenant for possession and therefore this Court has no jurisdiction. This being a short point, before we proceed further, let us examine what the plaint states. It should also be kept in mind that while deciding the jurisdiction of the Court at this stage, we need to look into only the averments in the plaint taking them to be true. The admitted position in the plaint is that the defendant is the owner of the suit property.

According to the plaintiffs, one Hari Fakira Kharvi (the said Fakira) was, prior to 1946, cultivating the land belonging to the defendant. Sometime, in the year 1954, the said Fakira leased the suit land and put one deceased Hanumantrao Phakdu Sonawane in possession of the suit land along with existing structure thereon. In 1969, when the defendant filed a suit against the said Fakira in this Court, consent terms were arrived at between the parties to the suit whereby the defendant is alleged to have conceded that the said Hari Fakira was lessee and has got right of lease to sublet the suit land. The said Fakira allegedly let out the suit land for 999 years in perpetuity to the said Hanumantrao Phakdu Sonawane and one Kishan Tatoba Jadhav namely plaintiff No. 5. The plaintiffs also stated that prior to execution of the said Lease Deed, the said Hanumantrao Phakdu Sonawane and after his death, the plaintiffs have been in exclusive use, occupation and possession of the suit land as lessees and have been exercising all rights as lessees in respect of the suit land. It is also the case of the plaintiffs that the said Hanumantrao Sonawane was acting as a lessee to the knowledge of the defendant. With this background, the plaintiffs are seeking a declaration that the plaintiffs are lessees of the suit land and owners of the structure standing thereupon. The plaintiffs have also alleged that the defendant is trying to wriggle out of their obligations as owners of the property leased to the plaintiffs'' predecessors in title.

For the purposes of this chamber summons, it is better to reproduce paragraphs 14 and 15 and prayer clause (a) of the plaint :

14) Plaintiffs submit that as admitted by the defendants in the said Consent Terms, said Fakira was a lessee and had right to sublet the land and to receive the lease money and also transfer his rights to any person. The said Suit No. 431 of 1969 filed by defendants herein in which aforesaid Consent Terms were executed at the stage of Notice of Motion and thereafter the said suit was dismissed for default. Defendants herein though aware of the dismissal have not taken any steps for revival of the suit. Defendants are bound by the admissions made by them in the said Consent Terms. Pursuant to the said confirmation, said Fakira executed lease of suit in favour of Hanumantrao and sadi Kishan Tatoba Jadhav (Plaintiff No. 5) on 23rd May 2974 and the said Indenture was duly registered with Sub Registrar of Assurances. Defendants as owners of land are bound by the said Indenture of lease executed by Lessee of Defendant. Attempt on the part of the defendants by their Advocates letter dated 28th February 2008 to purport to terminate the lease, is illegal and malafide. Defendants have no right to terminate the lease on the alleged grounds mentioned in their Advocates letter dated 28th February 2009 or otherwise at all.

15 In the aforesaid facts and circumstances, Plaintiffs submit that Plaintiffs are entitled to a declaration that Plaintiffs are lessees of suit land and owners of structures standing thereupon and more particularly described in Ex.''A; hereto under Indenture dated 23rd May 1975, registered with Sub Registrar of Mumbai under No. BOM/S 2030/1975 and that the said Indenture is valid, subsisting and binding on the defendants and that the notice of termination dated 28th February 2008 is illegal, bad in law and is not binding upon the plaintiffs. Plaintiffs further say that the defendants are trying to wriggle out of their obligations as owners of the property leased to the Plaintiffs'' predecessors in title pursuant to Consent Terms in High Court suit No. 431 of 1969. Plaintiffs and their predecessors have been in exclusive possession of the suit property since 1954. The plaintiffs, therefore, pray that :--

(a) That it be declared that Plaintiffs are Lessees of suit land bearing Survey Nos.33/4, 46, 48/1, 49/1, 49/3, 50, 51/1, 52/1 corresponding to C.T.S. No. 228, 199, 148, 189, 188, 198, 153 and 145 situate at Navjivan Estate, village Hariyali, Taluka Kurla, Vikhroli (East), Mumbai Suburban District admeasuring 13 Acres 30-3/4 Gunthas and along with structures standing thereupon, more particularly described in Ex.''A'' hereto under Indenture dated 23rd July 1975 registered with Sub Registrar of Mumbai under No. BOM/S 2030/1975 and that the said Indenture is valid, subsisting and binding on the defendants and that the notice of termination dated 28th February 2008 is illegal, bad in law and is not binding upon the plaintiffs and that the same does not effect the right of the Plaintiffs and that the same does not effect the right of the Plaintiffs;

Prayer (a) is the main prayer. Prayers (b), (c) and (d) only follow from prayer (a).

Section 41 of the said Act reads as under :

RECOVERY OF POSSESSION OF CERTAIN IMMOVABLE PROPERTY AND CERTAIN LICENCE FEES AND RENT

Suits or 41. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court

(1) Notwithstanding anything contained elsewhere in this Act [****] but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to landlords and the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

(2) Nothing contained in sub-section (l) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act [the Maharashtra Housing and Area Development Act, 1976 or any other law for the time being in force, apply.

Therefore, where it is a suit or proceedings between licensor and licensee or between a landlord and a tenant and that the suit or proceedings relates to recovery of possession of any immovable property situated in Greater Bombay or is relating to the recovery of the license fee or charges or rent therefor, the jurisdiction of regular competent Civil Court is ousted and only Court of Small Causes at Bombay shall have jurisdiction. This Court, in the matter of BPM Industries Limited (Formerly known as Bharat Pulverizing Mills Ltd.) Vs. Samartha Development Corporation, has held where there is a dispute between the licensor and licensee or a dispute or a suit where it is for a declaration as a licensee, the suit is between a tenant and land-lord. The Apex Court and a Full Bench of this Court have also held that the provisions of Section 41(1) of the said Act are sweeping provisions and a dispute between a land-lord and a tenant would be covered u/s 41 of the said Act. The Full Bench of our Court, in the matter of Central Warehousing Corporation Vs. Fortpoint Automotive Pvt. Ltd., has even held that even if there is an arbitration clause between a licensor and licensee, the exclusive jurisdiction of Court of Small Causes, Bombay in terms of Section 41 of the said Act is not ousted.

Paragraph 40 and 41 of the judgment read as under :-

40 In summation, we would hold that Section 41(1) of the Act of 1882 is a special law which in turn has constituted special Courts for adjudication of disputes specified therein between the licensor and licensee or a landlord and tenant. The effect of Section 41(2) of the Act of 1882 is only the suits or proceedings for recovery of possession of immovable property or of licence fee thereof, to which, the provisions of specified Acts or any other law for the time being in force apply, have been excepted from the application of non-obstinate clause contained in Section 41(1) of the Act. The expression "or any other law for the time being in force" appearing in y Section 41(2) will have to be construed to mean that such law should provide for resolution of disputes between licensor and licensee or a landlord and tenant in relation to immovable property or licence fee thereof, to which immovable property, the provisions of that Act are applicable. The Act of 1996 is not covered within the ambit of Section 41(2) in particular the expression "or any other law for the time being in force" contained therein. The question whether the exclusive jurisdiction of the Small Causes Court vested in terms of Section 41 of the Act of 1882 is ousted, if an agreement between the licensor and licensee contains a clause for arbitration, the same will have to be answered in the negative. For, Section 5 of the Act of 1996 in that sense is not an absolute non-obstante clause. Section 5 of the Act of 1996 cannot affect the laws for the time being in force by virtue of which certain disputes may not be submitted to arbitration, as stipulated in Section 2(3) of the Act of 1996. We hold that Section 41 of the Act of 1882 falls within the ambit of Section 2(3) of the Act of 1996. As a result of which, even if the Licence Agreement contains Arbitration Agreement, the exclusive jurisdiction of the Courts of Small Causes u/s 41 of the Act of 1882 is not affected in any manner. Whereas, Arbitration Agreement in such cases would be invalid and inoperative on the principle that it would be against public policy to allow the parties to contract out of the exclusive jurisdiction of the Small Causes Courts by virtue of Section 41 of the Act of 1882.

Accordingly, we answer the question referred to us in the negative. We, therefore, hold that inspite of Arbitration Agreement between the parties and non- obstante clause in Section 5 of the Act of 1996, the exclusive jurisdiction of the Small Causes Court to try and decide the dispute specified in Section 41 of the Act of 1882 is not ousted.

[emphasis supplied]

In the matter of Mansukhlal Dhanraj Jain and Others Vs. Eknath Vithal Ogale, the Court held that where the action is to restrain the licensor/land- lord by a permanent injunction from evicting the licensee/tenant except by due process of law, Section 41 of the said Act will still be applicable. The Apex Court confirmed that jurisdiction of the Court has to be decided on the averments in the plaint on demurrer taking them to be true. The Apex Court held that because of the non-obstante clause contained in the section, even if a suit may otherwise lie before any other Court, if such a suit falls within the sweep of Section 41(1) it can be entertained only by the Court of Small Causes. Paragraph 11, 12, 16, 19, 20 read as under :

In order to resolve the controversy posed for our consideration, it will be appropriate to note the relevant statutory provision having a direct bearing on this question. Section 41(1) of the Small Causes Courts Act reads as under :

"41(1). Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force but subject to the provisions of Sub- section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the license fee or charges of rent thereof, irrespective of the value of the subject matter of such suits or proceedings."

A mere look at the aforesaid provision makes it clear that because of the non-obstante clause contained in the section, even if a suit may otherwise lie before any other court, if such a suit falls within the sweep of Section 41(1) it can be entertained only by the Court of Small Causes. In the present proceedings we are not concerned with the provisions of sub- section (2) of Section 41(1) and hence we do not refer to them. For applicability of Section 41(1) of the Small Causes Courts Act, the following conditions must be satisfied before taking view that jurisdiction of regular competent civil court like City Civil Court is ousted :

(i) it must be a suit or proceeding between the licensee and licensor; or

(ii) between a landlord and a tenant;

(iii) such suit or proceeding must relate to the recovery of possession of any property situated in Greater Bombay; or

(iv) relating to the recovery of the licence fee or charges or rent thereof.

It is, therefore, obvious that the phrase ''relating to recovery of possession'' as found in Section 41(1) of the Small Causes Court Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee plaintiff would squarely be covered by the wide sweep of the said phrase, Consequently in the light of the averments in the plaints under consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits could lie within the exclusive jurisdiction of Small Causes Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits.

The situation in the present case is almost parallel. The plaintiffs- licensees claim their right as licensees to protect possession of the suit premises from licensors by invoking the help of the Court. Such suits obviously would have to be styled as suits relating to recovery of possession, on a party of reasoning which appealed to the three-Judge Bench of this Court in Babulal''s case (supra).

The same phraseology employed by section 28 of the Bombay Rent Act, namely, suits relating to recovery of possession'' also came up for consideration before a latter- Judge Bench of this Court in the case of Natraj Studios (P) Ltd. Vs. Navrang Studios and another, In that case the facts were that there was a leave and licence agreement the parties. By virtue of section 15A of the Bombay Rent Act, a licensee in occupation on 1.2.1973 became a deemed tenant. The appellant-licensee filed a declaratory suit praying for a declaration that the plaintiff-appellant was a monthly tenant of the two studios and all other structures and open land covered by the agreement. It was submitted by counsel for the appellant that the essence of the dispute between the parties was the right to possession of the two studios. This Court, speaking through Chinnappa Reddy, J., held at page 477 as follows :

"We may now proceed to consider the submission that the Court of Small Causes alone has exclusive jurisdiction to resolve the dispute between the parties. S. 28(1) of the Bombay Rent Act, positively confers jurisdiction on the Court of Small Causes to entertain and try any suit or proceeding between landlord and tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee relating to the recovery of license fee or charge and to decide any application made under the Act and to deal with any claim or question arising out of the Act of any of its proceedings, and negatively it excludes the jurisdiction of any other Court from entertaining any such suit, proceeding or application or dealing with such claim or question".

After analysing the previous decisions of this Court in Babulal Bhuramal, Raizada Topandas etc., this Court held at page 483B as follows :

The relationship between the parties being that of licensor-landlord and licensee-tenant and the dispute between them relating to the possession of the licensed-demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the Arbitrator has none to adjudicate upon the dispute between the parties."

[emphasis supplied]

Therefore, what we need to enquire at this stage is to find out from the averments in the plaint as to whether the suit is between a landlord and tenant and whether it relates to recovery of possession of the immovable property situated in Greater Bombay. The admitted position is that the property is situated in Greater Bombay. Prayer (a) in the plaint requires this Court to declare the plaintiffs as lessees. Prayer (b) requires this Court to grant permanent order and injunction restraining the defendant in any manner interfering with use occupation, possession and enjoyment of the suit property. Prayer (c) and (d) are not really relevant as it only seeks an injunction restraining the defendant from dealing with any of the tenants or occupants of the suit property other than the defendant. Therefore, it is quite clear that the suit filed is relating to recovery of possession of the immovable property and therefore, Section 41 of the said Act will be squarely applicable.

The counsel for the defendant also submitted that even assuming that the plaintiffs claimed protection under Maharashtra Rent Control Act, 1999, still, even that issue has to be decided only by the Court of Small Causes, Bombay and this Court does not have jurisdiction. Section 33 of the Maharashtra Rent Control Act, 1999 read with Section 28 of the Bombay Rents, Hotel and Lodging Rent Control Act, 1947 (Bombay Rent Control Act) provides for exclusive jurisdiction of Court of Small Causes, Bombay. Section 28 of the Bombay Rent Control Act was considered in the case of Natraj Studios (P) Ltd. Vs. Navrang Studios and another, where the Court held that wherein the essence of the dispute between the parties was the right to the possession of the property, the Small Causes Court will have jurisdiction. The relevant portions are reproduced above with the Mansukhlal Dhanraj Jain matter (supra).

Therefore, even under these provisions, the dispute between the plaintiffs and the defendant can be dealt with only by the Small Causes Court.

In the circumstances, in the light of the averments in the plaint under consideration and the prayer sought therein, as per Section 41 of the said Act, the present suit would lie within the exclusive jurisdiction of Court of Small Causes, Bombay.

Hence, the chamber summons is allowed in terms of prayer clause (a) and disposed of accordingly.

Certainly, rights of the plaintiffs and the defendant are kept open and it is also clarified that this order should not be construed as commenting the merits of either party''s case.

The plaint and proceedings be returned to the plaintiff to be presented to the appropriate forum.