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Judgment
Abhilasha Kumari, J.—By filing this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 15.04.2013, passed by the learned 9th Additional District Judge (Adhoc), Vadodara, in Civil Miscellaneous Appeal No. 373 of 1999, whereby, the said appeal filed by the respondent has been allowed. On 04.10.2013, this Court issued notice for final disposal. Learned counsel for the respective parties have consented that the petition may be heard and decided finally, at this stage.
Briefly stated, the facts of the case are that, the respondent is the original plaintiff (landlord) who has instituted Regular Civil Suit No. 1575 of 1997, against the petitioners, before the Court of learned Joint Civil Judge, Senior Division, Vadodara ("the Civil Court" for short). The prayer made in the suit is for possession of the suit premises and mesne profits, on the ground that the petitioners (tenants) have disclaimed the title of the landlord u/s 111(g)(2) of the Transfer of Property Act, 1882 ("the T.P. Act" for short). As per the respondent, he is the owner of the suit premises. The petitioners deny that they are tenants of the suit premises and claim ownership of the suit property.
The respondent-plaintiff filed an application under Order 7 Rule 10 of the Code of Civil Procedure, 1908 ("the Code" for short), for return of the plaint as, according to the respondent, the Civil Court has no jurisdiction to try the suit wherein the relationship of landlord and tenant is to be decided. The said application, Ex. 33, came to be rejected by the Trial Court vide order dated 20.09.1999, on the ground of delay. According to the Trial Court, the respondent had participated in the proceedings of the suit for two years, therefore, it was not open to him to say that the suit is not properly instituted. Aggrieved by the said order, the respondent preferred an appeal before the District Court. The said appeal has been allowed by the impugned order dated 15.04.2013. Aggrieved thereby, the petitioners have approached this Court by filing the present petition.
Mr. Kanjibhai M. Bhut, learned advocate for the petitioners, has submitted as below:
(i) The Rent Court cannot give possession of the tenanted premises to the respondent-plaintiff, therefore, the question of returning the plaint does not arise. That can only be done if the relationship of landlord and tenant is established, which is not so in this case.
(ii) The suit has been filed under the provisions of Section 111(g)(2) of the T.P. Act, therefore, the Civil Court would have jurisdiction to try the same.
In support of this submission, reliance has been placed upon a judgment of the High Court of Bombay in Dinkar S. Vaidya Vs. Ganpat S. Gore and Others, .
(iii) Even if the plaint is sent to the Small Causes Court, that Court would not be empowered to pass a decree, because the disclaimer of the title of a landlord cannot be filed by a tenant.
In support of this submission, learned advocate for the petitioners has relied upon a judgment of the Patna High Court in Kantilal Kachhi Vs. Smt. Ashokalata Devi and Others, .
(iv) The possession of the property cannot be demanded on the ground of denial of title by the tenant, as held in Gandabhai Ranchhodji Gandhi Vs. Noshir Ka Vasji Sabowala and Others, .
(v) The Appellate Court ought not to have permitted the return of the plaint. If it is ultimately found that the Civil Court has no jurisdiction, the suit would have to be rejected.
In addition to the above judgments, the learned advocate for the petitioners has placed reliance upon the following judgments, as well:
(1) Nanavati Jayantilal Chunilal Vs. Shah Ashabhai Mahijibhai P.A.H. For Shah R.A.,
(2) Abdulla Bin Ali and Others Vs. Galappa and Others,
(3) Jagannath Keshavlal Barot Vs. Rasiklal Somalal Pandya, .
The petition has been strongly opposed by Mr. Harshadray A. Dave, learned advocate for the respondent. His submissions are briefly recorded hereinbelow:
(a) The suit was instituted by the respondent-landlord on the ground that the petitioners-tenants had disclaimed his title and had thereby, committed a breach of the vital conditions of the rent agreement. The prayer made in the suit is for possession of the suit premises and mesne profits. At the relevant point of time, the respondent-plaintiff was under the impression that the suit would lie before the Civil Court; however, later, the plaintiff came to know that the Civil Court would have no jurisdiction and it is the Small Causes Court that would have the jurisdiction to try the suit.
(b) That, the jurisdiction of Courts is laid down in Section 28 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 ("the Rent Act" for short), and as per sub-section (1), clause (aa), the jurisdiction would be that of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887. As per Section 16 of the Provincial Small Cause Courts Act, 1887, the Court of Small Causes would have exclusive jurisdiction to try a suit cognizable by the Court of Small Causes.
(c) That, the suit is not regarding the title of the respondent-landlord to the suit property, but is regarding the breach of the conditions of the rent agreement by the tenants on the ground of disclaimer of the title of the landlord u/s 111(g)(2) of the T.P. Act. The mere mention of this provision of law at the head of the plaint does not confer jurisdiction upon the Civil Court when the subject-matter of the suit is such that can be decided only by Small Causes Court.
(d) That, it is clearly recorded in the impugned order of the District Court that the tenants have claimed that they are the tenants of the suit property. On one hand, they claim to be tenants and on the other, they disclaim the title of the landlord. As per the principles of law laid down in Nanduben Dayalji Vs. Bhatia Ranchhoddas Lalji and Another, , Section 111(g) of the T.P. Act clearly provides that the lease of the immovable property determines in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. Acceptance of this relationship is most implicit between the landlord and the tenant. If the tenant denies the landlord''s title, it is not necessary that the landlord has to file a suit based on title. The moment the title of the landlord is disputed, the tenant loses the protection u/s 12(1) of the Rent Act and the Rent Control Court has jurisdiction to hear such a suit.
(e) That, the judgment in Nanavati Jayantilal Chunilal v. Shah Ashabhai Mahijibhai P.A.H. For Shah R.A. (supra), cited on behalf of the petitioners has been overruled by a Division Bench of this Court in the above judgment. Therefore, as per the position of law prevailing as of date, it is only the Rent Control Court that would have jurisdiction to hear the present suit and not the Civil Court. In this view of the matter, the Appellate Court has rightly accepted the appeal of the respondent and permitted the return of the plaint under the provisions of Order 7 Rule 10 of the Code.
Reliance has been placed on behalf of the respondent on a judgment of the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Valllabh Glass Works Ltd., , wherein it has been held that when a Court arrives at a conclusion that it has no jurisdiction to try a suit, the proper order to pass is not dismissal of the suit but return of the plaint for presentation to the proper Court. The next judgment relied upon on behalf of the respondent is that in the case of DIC-NCC (JV) - A Joint venture of M/s. Daelim Industrial Co. Vs. M. Sahai and Associates Pvt. Ltd., , wherein this Court has held that parties cannot lawfully confer jurisdiction on the Court which does not possess it under the Code.
It is submitted that in view of the above position of law, the petition may be rejected being devoid of merit.
This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.
The District Court has opined, after taking into consideration the judgment in the case of Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra), that if the tenant denies the title of the landlord, it is not necessary for the landlord to file a suit based upon title and if the tenant disputes the relationship of landlord and tenant, he is held to have committed a breach of the essential conditions of the tenancy. Based on the above, such a suit could be filed by the landlord before the Rent Court.
It has been clearly mentioned in the impugned order that in proceedings before the Trial Court and from the documents produced before such Court, it has come on record that the defendants have themselves claimed to be the tenants of the suit property.
As such, the position of law enunciated by this Court in Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra) would prevail as it is an accepted position that the judgment relied in Nanavati Jayantilal Chunilal v. Shah Ashabhai Mahijibhai P.A.H. For Shah R.A. (supra), relied upon by the learned advocate for the petitioners, wherein a different view was taken, has been overruled in Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra).
The Appellate Court has further taken into consideration that the provisions of Order 7 Rule 10 of the Code, which provides that the plaint can be returned at any stage of the suit, to be presented to the Court in which the suit should have been instituted. It has held that once it has come to the notice of the Court that it has no jurisdiction to try the suit, the Court would have to return the plaint for presentation to the proper Court, instead of dismissing the suit. This observation of the Appellate Court is in consonance with the principles of law enunciated by the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. (supra). For the above reason, the submissions advanced by the learned advocate for the petitioners, that the plaint could not have been returned but the suit ought to have been dismissed for lack of jurisdiction, has no substance.
The Appellate Court has further noted in the impugned order that while rejecting the application of the respondent, the Trial Court has not come to a conclusion that only the Civil Court would have jurisdiction to try the suit. There is no finding in this regard in the order of the Trial Court. The application has been rejected merely on account of delay. However, looking to the provisions of Order 7 Rule 10 of the Code, the plaint can be returned at any stage of the suit.
Having perused the order of the Appellate Court, we may now refer to the relevant provisions of Order 7 Rule 10 of the Code:
Order 7 Rule 10: Return of plaint.--(1)[Subject to the provisions of rule 10A, the plaint shall] at any stage of the suit be returned to be represented to the Court in which the suit should have been instituted.
[Explanation.--For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]
(2) Procedure on returning plaint.--On returning a plaint, the Judge shall endorse thereon the day of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
Sub-rule (1) of Rule 10 provides that if at any stage of the suit, the Court finds that it has no jurisdiction, either territorial or pecuniary, with regard to the subject-matter of the suit, it would return the plaint to be presented to the proper Court in which the suit ought to have been instituted. Rule 10 of Order 7 of the Code enables the Court to return the plaint to be presented to the proper Court at any stage of the suit subject to the provisions of Rule 10-A of the Code. In its order, the Trial Court has not gone into the question of jurisdiction, at all. The Appellate Court has taken into consideration the aspect that there is a relationship of the landlord and tenant between the parties and that the suit has been instituted as the tenants have disclaimed the title of the landlord.
As has been held in Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra), a suit for disclaimer of the title of the landlord would lie before the Rent Court. This position also flows from the provisions of Section 28 of the Rent Act and Section 16 of the Provincial Small Cause Courts Act, 1887. It has been specifically noted by the Appellate Court in the impugned order that the defendants have themselves claimed before the Trial Court that they are tenants of the suit premises.
From the above factual and legal position, it cannot be said that the Appellate Court has committed any error of law in allowing the appeal of the respondents and directing the return of the plaint, for presentation to the proper Court.
Insofar as the judgments cited by the learned advocate for the petitioners are concerned, apart from the one in Nanavati Jayantilal Chunilal v. Shah Ashabhai Mahijibhai P.A.H. For Shah R.A. (supra) that has been expressly overruled in Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra), the other judgments would not be relevant at this stage as they relate to a dispute regarding the title of the suit property and do not pertain to disclaimer of the title of the landlord u/s 111(g) of the T.P. Act. This Court, therefore, does not consider it necessary to deal with each one separately. The judgments in Dinakar S. Vaidya v. Ganpat S. Gore (supra) and Kantilal Kachhi v. Smt. Ashoklata Devi and others (supra) only have persuasive value and in the face of the judgment in Nanduben Dayalji v. Bhatia Ranchhoddas Lalji (supra), wherein the legal position has been made clear and explicit, no further elaboration is required.
The cumulative effect of the above discussion is that the impugned order, being legal and valid, does not deserve interference from this Court under its writ jurisdiction. The petition is devoid of merit and deserves to be rejected. It is, accordingly, rejected. Notice is discharged.