Kirti Natwarlal Thakkar vs J.D. Jamdar and Others and M.G. Mehta and Others

V.S. Kotwal, J.—To fulfil construction activities on a plot in Juhu Parle Scheme in Vile Parle area of this metropolis the respondent herein who is owner of the said plot was in need of finance and thus was responsive to the willingness of the intending persons to offer loans with a stipulation that they would get the flats on rental basis after completion of the building. The petitioner herein is one of such needy persons who was on the look out for accommodation. After being posted with the knowledge of this project and having realised that the proposed building was to be located in the close proximity of the present residence the petitioner felt that it would be an ideal accommodation for himself and his brother. With this desire he approached the respondent in February 1980 and after negotiations between the plaintiff and his brother and the respondent an agreement was arrived at between the parties under which the respondent agreed to give on rent the second and the first floor in the proposed building after construction to the petitioner and his brother for which the petitioner agreed to advance a loan of Rs. 45,000/- per floor thus totalling to the tune of Rs. 90,000/- for the two flats for the two brothers. This was obviously to get the label of construction loan. The respondent on his part agreed to construct the said building and let it out on rental to the petitioner the second floor therein at the standard rent that was to be mutually fixed after completion of the building.

In pursuance of this agreement the petitioner and his brother advanced a total amount of Rs. 90,000/- ranging between 11th of January, 1980 and 21st of May, 1980. In fact the petitioner paid Rs. 80,000/- while his brother paid Rs. 10,000/-. The excess amount of Rs. 35,000/- which was paid by the petitioner was agreed to be treated as payment received by the respondent on behalf of the petitioner''s brother vis-a-vis the first floor. According to the petitioner, they were anxious to get the agreement reduced to writing. However, the respondent shelved the obligation under some camouflage. However, he was successful in instilling a sense of confidence and trust in the mind of the petitioner which lured him not to insist on a written agreement, though according to the petitioner at that point of time he had no inkling about the evil design of the respondent not to honour the agreement but to grab the amount which feature came on the forefront subsequently. The petitioner would have it that the building was near completion and as such he was pressing the respondent to finalise the tenancy transaction and to execute a writing in that behalf. The petitioner was more determined to get the things straight and to have a written agreement and, therefore, he and his father met the respondent on September 7, 1981 pressing their demands in that behalf. It is at that point of time that it came as a rude shock to them when the respondent according to the allegations, not only refused to execute any writing but flatly declined to give any flat to the petitioner or his brother unless an exorbitantly high amount of premium was agreed to be paid to him. No doubt the respondent, according to the petitioner, made a show of being charitable in that he agreed to refund the amount of Rs. 90,000/- which he had received so far if his term for higher premium was not acceptable. The petitioner claims that by this event it was manifestly revealed to him about the dishonest intention on the part of the respondent and he also realised that he did not want to honour the word and gentlemen''s agreement and wanted to dispose of the flats to other persons on getting more profit. The money greed, therefore, according to the petitioner, brought about the change of mind for the respondent. The petitioner further contended that the respondent made no secret about the petitioner being caught in a vulnerable situation as there was no writing about the agreement and also for the purpose of showing that it was the loan advanced for taking the two floors on rent. The respondent also made known to the petitioner that he may have file the suit for getting back the said amount. According to the petitioner in that embarrassing situation he felt that he had no option but to accept the refund though he did not want to give up or abandon his claim under the agreement and, therefore, he stumbled against an idea so that his object could be achieved.

The respondent then drafted a letter addressed to the petitioner recording payment of Rs. 90,000/- without interest by two cheques and asked a letter to that effect from the petitioner. The petitioner, however, was able to convince the respondent that he should return the amount with the letters addressed to him and his brother recording the purpose of the advance or otherwise it would be difficult for both of them to offer any plausible explanation to the Income Tax Authorities for the repayment without interest. The respondent agreed being more anxious to get rid of the agreement so as to have a more profitable transaction and gave another letter recording that the amount was repaid as the petitioner had abandoned his interest in taking the premises. On this and on the insistence of the defendant the petitioner was obliged to issue a letter for the release of the claim of the petitioner as also of his brother over the premises. As the petitioner''s brother was out of station a writing was executed by the petitioner vis-a-vis his premises only.

In pursuance of this event the petitioner received from the respondent a cheque of Rs. 80,000/- drawn in his favour and a cheque of Rs. 10,000/- drawn in favour of his brother on 7th of August, 1981. The petitioner made it clear that the entire exercise was mainly to extract some writing from the respondent so as to substantiate his claim about the agreement arrived at between the parties for accepting the loan for construction and for creating tenancy rights in favour of the petitioner and his brother vis-a-vis the two flats in the proposed building. Consequently, therefore, even though he received those two cheques from the respondent the plaintiff did not encash the same on the legal advice. Immediately the petitioner retaliated and informed the respondent that he was not bound by the said writing which was extracted under coercion or undue influence and on account of the thrust of circumstances which was deliberately created by the respondent. The petitioner thus disowned all these agreements as not being genuine or voluntary, According to the petitioner there was a concluded agreement between him and the respondent in that behalf. There has been some exchange of correspondence between the parties which was a preclude to the suit ultimately filed by the petitioner in the Small Causes Court for specific performance of the said agreement to let to the petitioner on rent the second floor of the building that was constructed by the respondent on the said plot being R.A. Declaratory Suit No. 6916 of 1981. It may be observed that during the pendency of the suit the petitioner-plaintiff on advance intimation to the respondent-defendant encashed the said cheque as otherwise the encashment would have been barred by time and deposited the said amount in the Court-thereby reiterating his bona fides and assertion that he never intended to give up his claim over the premises under the agreement. A separate suit has been filed by the petitioner''s brother in the same Court for identical relief in respect of the same transaction in which his brother was concerned.

On the basis of this suit a notice of motion was taken out for injunction restraining the respondent, his agents and servants from entering into an agreement renting out the suit premises to any other person or creating any third party interest therein or parting with possession thereof in favour of any other person. This was obviously as it was apprehended by the petitioner that the respondent may dispose of the said flat or create third party interest which would create complications.

The learned trial Judge granted ad-interim injunction. The respondent, however, contested that same on merits and also raided a preliminary question suggesting that the Small Causes Court has no jurisdiction to entertain the said suit and, therefore, no interim relief could be granted by the said Court on any count. This was essentially on the basis of the interpretation of section 18(3) and section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as "the Act") mainly contending that the transaction, the suit and the relief in the suit are not embraced by the said provisions as in fact the claim arises dehors the said provisions entirely on the basis of the alleged agreement and it has nothing to do with the concept that would arise out of the said Act.

The learned trial Judge negatived the respondent-defendant''s contention in that behalf and held that the Small Causes Court has jurisdiction to entertain and decide the said suit. On merits he held that a prima facie case for injunction was made out. In keeping with these findings the ad interim injunction was confirmed.

The respondent-defendant challenged this order in Appeal No. 230 of 1983 before the Appellate Bench of the Small Causes Court reiterating the same contentions about the lack of jurisdiction and no prima facie case having been made out. The learned Appellate Judges, however, were persuaded to up-hold the validity of both the contentions and the findings were recorded in favour of the respondent-defendant on both these counts holding that the Small Causes Court has no jurisdiction to entertain the suit and, therefore, there was no question of grant of injunction and even otherwise on merits also it was held that no case for injunction was made out. It is this order that is being placed under challenge in this writ petition under Article 227 of the Constitution of India on behalf of the petitioner-original plaintiff.

There is, however an off-shoot which is the subject matter of the companion petition. It so happened that when the appeal in the main matter was dismissed non suiting the petitioner on the ground of lack of jurisdiction by the order dated 19th of October, 1983, on the motion on behalf of the petitioner the interim injunction that was granted by the trial Court was allowed to remain in force till 25th of October, 1983 so as to enable the petitioner to move this Court. Several events occurred which would be elaborately discussed at the appropriate point of time. Suffice it is to observe at this juncture that the respondent herein has filed a caveat in person in this Court on 21st of October, 1983 apprehending the obvious move on the part of the petitioner to challenge the order of the Appellate Court. The writ petition was filed by the petitioner on 24th of October, 1983 because he could not get even an ordinary copy of the judgment earlier and it was taken up for admission on 25th of October, 1983. In spite of frantic efforts by the petitioner the respondent could not be served of the notice though according to the petitioner that was a calculated move on the part of the respondent. An ad-interim injunction was granted by this Court pending admission on the 25th of October, 1983 and according to the petitioner the respondent was fully aware of that order. Inspite of that knowledge and being fully conscious of the fact that this Court had restrained him, according to the petitioner a show was made to induct respondent No. 2 as a tenant in the said premises which were really earmarked for the petitioner and thus third party interest was sought to be created. It is on the basis of this and other allied features that the petitioner filed the contempt petition against both the respondents for wilfully disobeying the directions of this Court. Notices were issued to both the respondents in that proceeding which is the subject matter of companion petition namely Contempt Petition No. 16 of 1984. When the matter was placed before the learned Single Judge for hearing it was felt that since the petition involves disputed questions of facts and as no conclusion could be arrived at one way or the other in the absence of proper evidence, the learned Single Judge directed the Small Causes Court to record the evidence in this petition that would be adduced by both the sides and to transmit and certify the said record without recording any finding as such to this Court. In pursuance of these directions the matter was sent back to the trial Court which recorded the relevant evidence that was adduced by both the sides and certified the record to this Court which now forms part and parcel of the proceedings of contempt petition. With the consent of both the sides both the petitions which were heard together can conveniently be disposed of by common judgment which obviously would not cause any prejudice to either of the sides. The parties have expressly agreed to this course also being adopted.

In the nature of things and in the context of the thrust of the controversy it would be more appropriate to decide the first question that is being raised at the threshold itself about the jurisdiction of the Small Causes Court to entertain the suit in question.

The learned trial Judge has negatived the contention of lack of jurisdiction whereas a contrary view was taken by the Appellate Bench of the Small Cases Court holding that the Small Causes Court has no jurisdiction to entertain that suit. This point is prominently agitated in this petition on behalf of the petitioner as according to Shri Gumaste the learned Counsel, the Appellate Bench of the Small Causes Court had thoroughly misconstrued the relevant provisions of the Rent Act in the context of the correct nature of the suit and the reliefs claimed thereunder and consequently the finding is wholly un-sustainable. According to him, having regard to the relevant provisions of the Act and in particular provisions of section 18, the suit obviously furnishes a claim or a question which is required to be dealt with which obviously arises out of the Rent Act or any of its provisions and consequently as per the mandate of section 28 of the Act it is only the Small Causes Court in Greater Bombay that would have jurisdiction to try the case. Shri Abhyankar, the learned Counsel for the respondent, no doubt countered this contention and submitted that this does not pertain to any claim or question arising out of the provisions of the Act but is really dehors of the said provisions and exclusively flows out of the so-called agreement and that the suit is essentially for specific performance of the said agreement which cannot be embraced under the special jurisdiction vested in the Small Causes Court u/s 28 of the said Act. Both the sides placed reliance on certain ratios.

While embarking on a detailed examination of this problem is the context of the relevant provisions of the Act and various ratios enunciated in that field, reference can be made to a point raised by Shri Abhyankar, the learned Counsel for the respondent, suggesting hat the controversy no more exists as the chapter has been concluded by the judgment of the learned Single Judge of this Court in Writ Petition No. 3813 of 1983 decided on August 21, 1984 by Lentin, J. The peculiarity is that the said proceedings pertains not only to the same question involved but the facts are also identical. This is obviously because, as was disclosed through the narration of the factual aspect that the agreement was arrived at between the respondent and the petitioner and his brother vis-a-vis two flats in the same building which was to be constructed and for which in all Rs. 90,000/- was being agreed to be paid as consideration loan by the two brothers, the break-up being Rs. 45,000/- by the petitioner an equal amount by is brother. On the same set of facts and circumstances which are blended together the petitioner''s brother was already denied his flat in question just as petitioner was denied accordingly. The net result was that both the brothers filed two separate suits in the Small Causes Court on identical reliefs and the contest between the parties was also on the same pattern. The suit filed by the petitioner''s brother by name Nitin Thakkar met with the same fate as the Appellate Bench of the Small Causes Court by common judgement decided both the appeals, one filed by the petitioner and the other by his brother Nitin, non-suiting both of them on the ground that the Small Causes Court has no jurisdiction to entertain the suit. Both the brothers filed separate writ petitions in this Court challenging the validity of the said order. Writ Petition No. 3813 of 1983 was filed by the petitioner''s brother Nitin and that came to be decided by Lentin, J., who held that the Small Causes Court has no jurisdiction to entertain the said suit. Shri Abhyankar, the learned Counsel, obviously wanted to rely on this decision contending that the issue is concluded and no more open for contest. Shri Gumaste, the learned Counsel, has however submitted that the situation is not that apparent in view of certain obvious features. I have perused the said judgment, with respect I am however not in agreement with the ration therein. In view of this situation I have given an anxious thought as to what course could be aptly adopted keeping in view the concept of judicial propriety so as to decide whether it was necessary to refer the matter to a larger Bench. However, even the plain reading of the said judgement brings two features on the forefront, the first which is very relevant is that the tenor thereof un-mistakable indicates that the learned Counsel for the petitioner therein had practically conceded that the Small Cases Court may not have jurisdiction or at any rate the petitioner had un-equivocally informed the learned Judge not the proceed with the said judgment as the petitioner desired to withdraw the petition so that on the return of the plaint the petitioner would present the petition in the proper Court different from the Small Causes Court. It is true that this request was perhaps made in the mid-stream of the judgment. However, the situation does indicate that the petitioner did not seriously contest and prosecute that petition on merits and ultimately almost surrendered and the said concession very much prevailed upon the learned Judge to wind up the proceeding allowing the petitioner to withdraw the petition granting liberty to the petitioner to apply to the Small Causes Court for return of the plaint for presentation to the proper Court. In fact the interim injunction granted in the writ petition at the time of admission was continued upto 18th of September, 1984 giving enough margin of time to the petitioner to move in the matter and to present the plaint in the proper Court. Thus it is manifest that there was a concession; that the petition was not seriously contested and in fact it was allowed to be withdrawn and the proceeding as also the judgment was wound up. The second feature also is quite relevant. As indicated there does not appear to be much of serious contest on merits of the petition and the learned Single Judge only on the basis of the reading of the provisions contained in section 18(3) of the Act held that since the agreement in question was neither written nor registered as required under the said provision the petitioner''s suit could not fall u/s 18(3) of the Act so as to invest jurisdiction in the Small Cases Court. It is on this short and the only premise with very short observations contained in one paragraph that the opinion was expressed. It does appear that since the petitioner was in mood to seek liberty to withdraw the petition all the facets of the controversy and all the relevant provisions of the act as also various ratios were not placed before the Single Judge or otherwise there would have been detailed discussion before reaching a conclusion one way or the other. With respect, therefore, I cannot persuade myself to accept the said decision enunciated under those peculiar circumstances where the petition was allowed to be withdrawn as laying down as an authoritative ratio on a full dressed hearing and contest. With respect, therefore, I am not in agreement with Shri Abhyankar, the learned Counsel, that the issue is closed on that point. I am therefore, inclined to proceed with this matter with full justification on its own merits.

In view of this situation the so-called embargo that was sought to be created is completely lifted out and therefore, this is the apt point of time to examine the thrust of the controversy and to resolve the same on its own merits. As I have already indicated the nature of the controversy revolving around the question as to whether the suit as framed by the petitioner can be said to raise any claim or question arising out of the Rent Act or any of its provisions as stipulated u/s 28 of the Rent Act in the context of the provisions contained in section 18(3) of the said Act.

Section 18 consists of four clauses or sub-sections along with certain explanations. The first clause relates to prohibition and the consequences of unlawful charges that could be received by the landlord. In terms it stipulates that any fine, premium, deposit or any consideration other than the standard rent or permitted increases in respect of the lease of any premises either for its grant, renewal or its continuance or for giving his consent to the transfer by sub-lease is expressly prohibited and accepting such an amount under these circumstances is liable for criminal prosecution and conviction. The second clause is a follow up of the first giving right to the tenant who is the victim of such payments to recover the said amount or value thereof from the landlord though it is qualified that it can be done within the period of six months and which would be without prejudice to the additional remedy of the tenant under which he can deduct the said amount from the rental. Thus two modes are being prescribed.

It would be necessary to produce the provisions of section 18(3) at this point of time, which provisions read as---

"Nothing in this section shall apply to any payment made under any agreement entered into before the first day of September 1940 (or to any payment made by any person made by any person to a landlord by way of loan, for the purpose of financing the erection of the whole or part of a residential building or a residential section of a building on the land held by him as an owner, a lessee or in any other capacity, entitling him to build on such land under an agreement which shall be in writing and shall, notwithstanding anything contained in the Indian Registration Act, 1908, be registered. Such agreement shall inter alia include the following conditions, namely :---

(i) that the landlord is to let to such person the whole or part of the building when completed for the use of such person or any member of his family;

(ii) that the rate of interest on such loan shall not be less than four per cent per annum;

(iii) that such loan shall be repayable by the landlord within a period of ten years from the date of the execution of the agreement or within a period of six months from the date of the termination of the tenancy by the landlord, whichever period expires earlier;

(iv) that the amount of the loan shall be a charge on the entire building and the entire interest of the landlord in the land on which such building is erected;

Provided that if the loan has been advanced by ore than one person all such persons shall, notwithstanding anything contained in any law for the time being in force, be entitled to a charge on the entire building and the entire interest of the landlord in such land rateably according to the amount of the loan advanced by each or such person;

(v) that the landlord shall use the amount of the loan for the purpose of erecting the whole or part as the case may be, of the residential building and for no other purpose; and

(vi)(a) that the erection of the building shall be completed within a period of two years from the date of the execution of the agreement or if the agreements executed are more than one from the date of execution of the first such agreements;

Provided that the said period of two years may be extended to a further period of not exceeding one year with the sanction of the Collector:

(b) that if the erection of the building is not completed within the period of two years or within the extended period specified in the proviso to clause (a), the loan shall be repayable forthwith to the person advancing the same with interest at the rate of four per cent, per annum."

Sub-section (4) of section 18 which is closely connected with sub-section (3) stipulates that the landlord who has received a construction loan as permissible under sub-section (3) and if he contravenes without any permissible excuse, any of the conditions stipulated in that sub-section, his lapse or the act can be made punishable by recording a conviction against him.

The provisions of section 28 in so far as are relevant which are to be read in juxtaposition can well be reproduced---

(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reasons, 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) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court, and

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situated or if there is no such Civil Judge, the Court of Civil Judge (Senior Division) having ordinary jurisdiction,

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 (or between a licensor and a licensee relating to the recovery of the license or charge) 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 (subject to the provisions of sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

The main plank of the argument Shri Abhyankar, the learned Counsel, touches some factual aspects. According to him, it is the petitioner''s case himself that an agreement was entered into between him and respondent under which the said amount was paid with further stipulation agreed upon that on the completion of the building the flat on one particular floor was to be rented out to the petitioner creating tenancy rights in his favour though the rental was to be fixed mutually as per the standard rent and that relief claimed in prayer Clause (b) of paragraph 16 of the plaint is very precise as---

"The defendant be ordered and decreed to specifically perform the agreement to let to the plaintiff second floor in the building being constructed on Plot No. 55......."

This was obviously preceded by prayer Clause (a) as---

"That it may be declared that the defendant agreed to let to plaintiff the second floor on the building being constructed on Plot No. 55......."

Two fold contentions, therefore are based on this factual foundation by Shri Abhyankar, namely that in first instance the cause of action arises only on the so called agreement between the parties and secondly the relief claimed is for declaration to that effect and also for a decree for specific performance of that agreement to let the premises. Consequently, therefore, the whole transaction flows out of the agreement and the plaint and the reliefs therein are founded entirely on that agreement asking for a particular relief of specific performance of the said agreement and if that be so then it is obviously dehors of the provisions contained in section 18(3) of the Act and consequently it cannot embrace the requirement of section 28 of the Act as it does not pertain to any claim or question arising out of the Act or any of its provisions. This is obviously countered by Shri Gumaste, the learned Counsel for the petitioner, and in my opinion rightly so. On the factual aspect restricting to this limited field it is apparent that a specific agreement was struck between the parties for payment of certain amount which was admittedly as construction loan so as to enable the respondent to complete the building. Therefore, it was not an amount unconnected with the main aspect about the nature of the advance. This part, therefore, squarely falls within the requirement of section 18(3) of the Act. It was further agreed that as consideration of payment of the said amount of construction loan an obligation is cast on the respondent first to complete the building and on its completion to let out creating tenancy rights in favour of the petitioner vis-a-vis one flat which was being ear-marked at the inception of the transaction itself even before the completion of the building. This part also thus squarely falls within the requirement of section 18(3) of the Act. The third stipulation was a that the rental was to be fixed at the standard rent to be mutually agreed upon after completion of the building. This also equally falls within those provisions. Then the correct construction of the relief claimed in the suit which are to be examined in the context of these terms of the agreement would be that the petitioner desired to compel the respondent to honour the said agreement and thereby rent out to him the first floor as the building was complete and further wanted premises on the rent that was to be mutually agreed upon. This relief in my opinion as rightly contended by Shri Gumaste, the learned Counsel, is integrally blended with the requirement prescribed in section 18(3) of the Act and it is really futile to contend that it is dehors of the said provisions but is entirely out of the agreement. Basically, therefore initially there are negotiations and then there is an agreement. Thereafter the agreement was obviously acted upon and the petitioner performed his part of the obligation by paying Rs. 90,000/- to the respondent. Which those funds along with others the construction activity started and the building was completed. The flat on the first floor was ear-marked even before the building was completed for the petitioner. The respondent no doubt discharged the obligation to complete the building though the evidence shows that it was not within the prescribed period. Once the building was complete the force of the agreement which had continued came on the forefront by casting further obligation on the respondent to hand over possession of one flat to the petitioner creating tenancy rights and the rental was to be fixed by mutual agreement as per the standard rent. Superimposing the recitals and reliefs claimed in the plaint on the terms of the agreement and the parties acting upon the same it would become manifest that there is hardly any variance between the two and these features which are rolled up together if read in juxtaposition of the provisions of section 18(3) of the Act it would further become manifest that both are identical, the net result would be inescapable that all these features can never be dehors of the said provisions of section 18(3) of the Act but would be inseparable and integral part of the requirement of the said provisions.

Even on cursory perusal of the scheme of section 18 with the arrangement of the four sub-sections thereunder would make the situation further clear. The first sub-section acts as a complete embargo or prohibition for a landlord from accepting unlawful charges either in the shape of fine, premium or any other like sum or deposit or any other consideration other than the standard rent or the permitted increases and it also envisages that it may be for a particular object of giving consent to the transfer by sublease and it very much pertains in respect of the grant, renewal or even continuance of lease. Breach of these provisions is made punishable, the object is apparent so as to protect the tenants from paying and prevent the landlord from accepting any such amounts and thereby placing the tenants in a vulnerable situation and convert them into victims of circumstances. In addition to the said being made punishable, right is created in favour of the tenant or any other person who had paid such unlawful charges to recover the said from the landlord for which tow different modes are prescribed. However, on realising that to encourage building activities which itself would be beneficial even to the prospective needy tenants, a permissibility is carved out for any such person to advance and for the landlord to accept such amount which would be used exclusively for the construction of the building by way of loan and that amount would get the label as "construction loan" which would serve as a finance for erecting the building. For that purpose no; doubt there will have to be an agreement and the stipulations are envisaged by the Legislature itself which are listed under that sub-section. This permissibility pertains to the construction loan for financing the erection of the whole or part of a residential building on the land by the landlord and after completing the completion of the building to rent out some portion of the premises to the person from whom the loan was received. The object and the legislative intent behind adding this clause is well apparent. The statement of objects and reasons makes the situation quite clear suggesting that there was the prohibition for the landlord from recovering any sum of money other than standard rent. It was however felt as:---

"There may, however, be certain cases in which a landlord having valid land but no means with which to build on it, is approached by a person badly in need of accommodation who is willing to advance a loan to the landlord for building a house on that land on condition that he will be allowed to occupy the house on completion."

The Statement of Objects and Reasons further recites as:---

"Under section 18 as it now stands, a landlord would be prohibited from accepting such a loan. It is felt that the removal of the bar against acceptance of such loans by landlords, who may have no means to build houses themselves on their vacant lands, would encourage building operations. Section 18 is, therefore being amended for this purpose."

This would further reinforce the conclusion that the transaction essentially and wholly flows out of these provisions of section 18(3) of the Act though the agreement in the manner in which the arrangement is being manifested and it is also required under those provisions. To reiterate, it was a construction loan; it was advanced as the landlord had not enough resource and required some one to finance for erection of the building; that the petitioner advanced that amount for the specified purpose and thus it was nothing but loan for construction and that it was clearly agreed that the petitioner was to be inducted as a tenant in the premises after completion of the building. This arrangement was actually acted upon by the parties. Thus the agreement, its terms, the recitals in the plaint, the reliefs claimed in the plaint and the provisions of section 18(3) of the Act are practically replace of each other at least, in substance. It is also apparent that the object of advancing loan ipso facto carries with it the further unavoidable obligations, such as the loan must be used only for building construction and that on its completion the person advancing the amount who till then was the intending tenant was required to be included as the tenant. The said amount of loan thus has on other independent existence but must be annexed with such obligatory stipulations. Consequently, therefore, it is futile to contend that the agreement is the foundation so much so that the transaction and the consequence of the breach flow exclusively out of the said agreement and further the suit is filed only for the specific performance of the agreement as this is an incorrect reading of the situation apparently in isolation or vacuum, it must be read in the context of the recitals in the plaint which are in consonance with the provisions of section 18(3).

Once this premise is accepted then it follows as a logical corollary that the question of the issue flowing out of the plaint unmistakably relates to a claim or a question arising out of the Rent Act and particularly the provisions of the Rent Act contained in section 18(3). On the proper analysis of section 28 any such situation is fully covered by that section. This is on the apparent breaking up of different clauses of the substantive provisions of section 28. To reiterate, the proper break-up of sub-section (1) of section 28 makes it clear that one part pertains to a suit or proceeding and in that category the parties arranged as opponents would be a landlord and a tenant or a licensor or a licensee and the purpose would be to recover rent or possession or to recover licence fee or charge as the case may be. The second part which is obviously distinct covers within its fold other type of proceeding which would be in the nature of an application made under this Act. The last part which is more material which again is a distinct one which is more generalised in its application relates to dealing with "any claim or question arising out of the Act or any of its provisions". The necessity that there must be a suit or proceeding or the necessity of the respective parties must have the capacity as the landlord of licensor and tenant of licensee is not transplanted into this part and it also takes within its sweep any claim or question which arises out of any of the provisions of the Act. Adding the two conclusions vis-a-vis the sections 18(3) and 28 as discussed herein above, therefore, a feature emerges in a bold manner that the adjudication of this issue and thus entertaining of the suit would be fall in exclusive jurisdiction of Small Causes Court in Greater Bombay and thereby ousting the jurisdiction of any other Court as prescribed by clause (a) of sub-section (1) of section 28 of the Act.

The next limb of the argument of Shri Abhyankar and which has generated quite a sharp controversy relates to the question as to what would be the effect if the agreement in question is not written nor it is registered or either of these two elements is missing. In effect, Shri Abhyankar contended that the agreement at hand being oral one and thus being not written and registered, the integral requirement of section 18(3) of the Act is not complied with and if that is so then the provisions of section 28(1)(a) of the Act are obviously not attracted as the claim or the question cannot be said to be arisen out of the provisions of the Act. According to Shri Abhyankar, non compliance of this requirement amount to non-fulfilment of this condition as prescribed in section 18(3) and, therefore, it is really not necessary to consider any other features arising out of that provision. Shri Gumaste, the learned Counsel, submits obviously to the contrary. According to him in the first instance that is not a condition as such which could be incorporated in section 18(3). Further it is really speaking for the benefit of the parties and it merely prescribes the mode under which the parties can agree to the construction loan being advanced and accepted, but the converse cannot be said to be correct in as much as it the landlord deliberately avoids to write down the agreement and to register it, on the basis of the construction as put by Shri Abhyankar, the landlord can get all the benefits of the finance received by him with no corresponding obligation or liability and thus with impunity he can avoid the consequences and which situation according to Shri Gumaste would be destructive of the legislative intent. The other incidental question, which Shri Abhyankar submitted that the relationship of the landlord and the tenant had not come into existence at this stage, which is again controverted by Shri Gumaste, as according to him, the last part of section 28 dispenses with such a requirement.

Shri Abhyankar, the learned Counsel, obviously sought to rely on the decision of the learned Single Judge, Lentin, J., in Writ Petition No. 3813 of 1983 cited supra wherein the learned Judge has held that since the agreement therein was neither written nor registered but was oral agreement, the petitioner could not fall within section 18(3) of the Act so as to bring his suit in the Court of the Small Cases and it is on that sole ground that the petitioner-plaintiff therein was non-suited holding that the Small Causes Court had no jurisdiction. I have already indicated the circumstances in which the said matter came to be decided though in fact it was really not decided but the petition was allowed to be withdrawn and the proceeding was wound up without there being any contest and correspondingly without there being any discussion on other relevant aspects. The said decision, as stated earlier, cannot serve, with respect, as the authoritative pronouncement of the decision. Even otherwise, with respect to the learned Single Judge, I am not in agreement of the said conclusion at all.

Before embarking on the inquiry on the other points, I may incidentally refer to one another aspect about the purpose of incorporating sub-section (3) in section 18 and as to whether it serves as an exception to section 18(1). In The Commissioner of Commercial Taxes and Others etc. Vs. R.S. Jhaver and Others etc., the Supreme Court, though being required to consider the relevant provisions of the Sales Tax Act referred to this aspect also to find out whether a proviso to the substantive provision necessarily serves as an exception or can be treated as the substantive provision itself, held that in a given case, though exceptional may be, such a situation may arise where the proviso can be treated as substantive provision and not an exception. It was observed therein as---

"Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be substantive provision itself."

It was accepted with approval that---

"Though ordinarily a proviso restricts rather than enlarges the meaning of the provision to which it is appended, at times the legislature embodies a substantive provision is a proviso."

Ultimately it was observed as---

"In exceptional circumstances a proviso may not be really a proviso in the accepted sense but may be substantive provision itself."

This Court had an occasion to consider in term the nature of sub-section (3) of section 18 of the Rent Act in Narendrakumar Bhogilal Shah Vs. State, . Vimadalal, J., on survey of certain decisions in terms held as---

"It appears that sub-section (3) has been framed in the form of a proviso to sub-section (i) ex majore cautela for the purpose of clarification as indicated by the Supreme Court itself......or is in the nature of an explanation and is not an exception."

Since this point has been elaborately considered by the learned Single Judge wherein reliance was placed on certain ratios, re-stating of the reasons is un-necessary. With respect I am in agreement that sub-section (3) of section 18 does not serve as an exception in the generally excepted sense to section 18(1) but it is really a clarification or an explanation and thus in that form it can be treated as the substantive provision itself accepting permissibility on advancing loan for construction.

Reverting to the main aspect about the impact of the agreement being not written and registered, on which count the bulk of the controversy has generated, it is relevant to refer to ratio in Smt. Sulochana Ganpat Rege v. Madan Dattatray Wadke, 72 BLR 351. Therein a construction loan was advanced and after completing the building the intended tenant was inducted therein creating tenancy rights in his favour. The amount was being adjusted in part from the rent. The successors of the landlord refused to accept the said arrangement which entailed into filing a suit for eviction for arrears of rent and water charges. The main question agitated therein on behalf of the landlords that they were not bound by that agreement under which the construction loan was obtained and tenancy was created subsequently only on the ground that it was not in accordance with the provisions of section 18 inasmuch as tough the agreement was in writing it was not registered. Bal, J., dealt with this aspect quite exhaustively and made certain relevant observations as---

"Section 18 of the Act does not prohibit advancing of loans to landlords by tenants or intending tenants but only casts certain obligations on landlords who obtain such loans. It is not therefore, possible to accept the contention urged that the agreement in respect of the loan is a void one or that it cannot be taken cognizance to by the Court and cannot be enforced."

The learned Judge on the careful analysis of all the facets of the controversy in the context of the provisions of section 18(3) observed as---

"Thus the loan transaction is a fait accompli and what remains to be seen is whether the landlord has complied with the obligations which are cast on him by the different clauses of the section 18(3) and is hence entitled to the benefit of the loan for the full period. If he has not, all that follows as a consequence is that he is punishable for the breach and is not entitled to retain and use the amount according to the terms of the agreement. It does not affect the validity of the loan or the right of the tenant to enforce the agreement."

As regards the effect of the non-registration of the agreement, the learned Judge considered the relevant provisions under the Act as also of the Registration Act and observed as ---

"Non-registration of a loan agreement, though, it may amount to non-compliance by the landlord with the requirements of section 18(3) will not, therefore, make the document inadmissible in evidence."

The admissibility as also the enforceability of such an agreement which may not adhere to the form as prescribed u/s 18(3) is thus manifest as per this ratio and there is no reason as to why it should not be extended even to an agreement which is not in writing. The reasons assigned by the learned Single Judge would squarely apply even to such a situation.

In Narendrakumar''s case cited supra the landlord was convicted under sub-section (4) of section 18 for breach of conditions which are prescribed in section 18(3). Therein the landlord had failed to incorporate in the agreement the material condition of the loan amount creating a charge on the building and on the interest of the landlord. Therein also the agreement though in writing was not registered and the building was not erected within the statutory period of two years. The learned Single Judge on the survey of several decisions in that field reached the conclusion that the conditions prescribed under sub-section (3) of section 18 ipso facto come into existence by operation of law, meaning thereby that even if those are not specifically included in the agreement between the parties, their incorporation shall be presumed by operation of law. Thus it was held that the six conditions mentioned in section 18(3) can be effectively and bodily transplanted in any such loan agreement even though the agreement does specifically refer to all or some of the conditions. It is in that context that the learned Judge held that these six items are not he conditions as such as contemplated by sub-section (4) of section 18 for inviting criminal prosecution because the omission to incorporate them in the agreement does not amount to committing the breach unless the breach is established on facts. It is on that basis that the learned Judge held that the landlord who was an accused therein could not be convicted treating it as a breach of condition for not incorporating the condition of the charge being created in the agreement because omission is inconsequential since its existence is by operation of law. However, the landlord was found to have committed breach of the two conditions namely that the building was not completed within the stipulated period and on the second count because the agreement was not registered. In that context the learned Single Judge held that though the form of the agreement that it should be written and registered is not clubbed together with six conditions and though it falls in the substantive part of the sub-section, still that should be treated as the condition by itself on par with the other conditions and should be deemed to have been clubbed with other conditions and, therefore by not creating the agreement in writing and registering the same lapse amounts to the breach of the conditions which would entail in penal consequences as envisaged by sub-section (4). The learned Single Judge in Smt. Sulochana''s case cited supra however took the contrary view holding in terms that the conditions as stipulated under sub-section (3) are only those six which are expressly prescribed as being the conditions and since the form of the agreement being not included in those conditions, the agreement being required to be written and registered does not form the condition by itself. The learned Judge indicated this on the basis on the terminology used and observed that if the legislative intent was otherwise then it would have prescribed that such agreement shall be deemed to include the following conditions. Instead of merely saying that those shall include the following conditions. It was held that it was for the landlord to include such a condition in the agreement but on his failure to do so the law does not imply that condition. Apparently there is a conflict in these two decisions. It is however, even without resolving that conflict in this proceeding the conclusion would remain intact and therefore a detailed probe is not necessary since that aspect does not squarely arise for my decision in this proceeding. However, I may indicate that the view taken in Smt. Sulochana''s case cited supra may create some difficulties. Thus for instance, a shrewd landlord would meticulously avoid to incorporate in the agreement some material conditions such as creating a charge on the building or completing the building within the stipulated period etc., and can successfully escape liability on the ground that the agreement did not contain any such conditions and thus can take full benefit of the amount received by him for the purpose of construction of the building and yet can lightly get out of the clutches of his obligation. Similar would be the case where he dies not incorporate the basic condition that the amount was to be utilised exclusively for building construction whereby the very purpose and the foundation of the loan can be frustrated while the landlord can use it for any other purpose and then compel the tenant to knock the doors of the Court for recovery of that amount or otherwise in a different set of circumstances he would have been compelled to refund the amount of loan forthwith if the building was not complete within the stipulated period. A shrewd landlord thus may dictate his terms while a needy prospective tenant may have to surrender to it. From this angle the ratio enunciated in Narendrakumar''s case may be more acceptable

In my opinion even if the apparent conflict in the two decisions on the nature of conditions as to whether their express incorporation in the agreement is necessary or whether it can be implied by operation of law is not resolved still the common under-current would furnish a clue to the problem at hand. As I have already indicated Bal, J., in Sulochana''s case expressly held that the enforcement of an agreement cannot be ousted only because it is not registered and which can certainly be extended even to the category that if the agreement is oral. This is notwithstanding the terminology used while describing the form of the agreement. Even one accepts the part of the observations made by Vimadalal, J., in Narendrakumar''s case that the conditions as prescribed in sub-section (3) can well be implied by operation of law the breach of which would entail in penal consequences in sub-section (4), still the part that is germane to this proceeding is, with respect, difficult to be up-held in its entirety. It is true that if a landlord is allowed to escape any liability under this calculated design of deliberately not incorporating some of these conditions in the agreement then he can successfully retain the benefit without incurring any liability. Thus for instance he can dispute the right of interest or even granting of interest itself if it is not included in that behalf. The loan amount not creating a charge on the building or on the landlord can also take an advantage of by its omission in the agreement. The conditions listed in Clauses (i) to (vi) would obviously further the legislative intent and the object behind amending this provision or otherwise a needy prospective tenant who advances loan would land himself in a vulnerable situation with the loss of amount with no corresponding gain. The conditions prescribed are quite wholesome and appear to be the very integral part of the concept of advancing loan for construction so that both the parties would get benefits, the landlord being able to construct the building by that finance while the tenant being able to get accommodation. A question can be legitimately posed that if in the agreement the landlord does not include any condition including the basic condition of letting out the premises to the person who advances the loan after completion of the building could it be said that by reason of this omission the prospective tenant loses all his claim over the premises in the constructed building. All these conditions are inseparably blended with the concept of loan and the object of its user. The condition stipulates as already discussed, that the said person is entitled to get premises on rent; and that the loan amount is to be utilised only for that purpose; that the amount is recoverable under certain mode; the building is to be completed within a prescribed period and further the loan amount would form a charge on the interest of the landlord and also on the building and sub-clause (b) of clause (6) of the said conditions further stipulates that the said person gets a right for refund of the loan amount forthwith with interest if the building is not completed during the prescribed period. All these conditions thus afford protection to the person giving loan and put restrictions on the person accepting the loan so as to compel him to use the loan for the specific purpose and on completion of the building to be obliged to do certain things and the further protection is provided that it would create a charge on the building. Thus in a given case the calculated design by a shrewd landlord after pocketing the benefit of the loan and depriving the prospective intended tenant of his rightful dues as consideration for the loan is controlled by these conditions. It would obviously not be proper to extend impunity to the landlord by getting out of the clutches after getting the benefit of the loan and thereafter dishonouring the agreement by simple device of not putting any or all such conditions in the agreement which he could manage to do by the force of circumstances compelling the needy tenant to agree to the same. However, the basic foundation that the loan is advanced for construction must ipso facto carry all these conditions which would be implicit and envelope therein so as to make the landlord''s escape closed. To that extent, therefore, I am inclined to agree with the view taken by Vimadalal, J., in that field

However the further extension of the said ratio, that such an agreement must be written and registered should also be treated as condition though not clubbed together along with the conditions (i) to (vi) is, with respect, open to serious debate and I cannot persuade myself to accept the same. Some questions logically come on the surface in this field. The ratio in Narendrakumar''s case in its entirety even to the extended limit vis-a-vis the requirement of nature of agreement is to be read in the context of the express findings of the learned Judge that the conditions prescribed in sub-clauses (i) to (vi) are presumed to exist in any such agreement by operation of law notwithstanding their omission in the agreement and if so a question of law naturally occurs that when such conditions are presumed to exist in law, would it make any difference if the agreement is oral. In other words if such conditions are required to be presumed dehors of their exclusion from such an agreement then agreement being un-written and thus un-registered or the agreement being un-registered that is being oral can it be said that it would not include such conditions which inclusion is the creation of the law and not of the agreement, Can it, therefore, be held that even though these conditions come into existence by operation of law dehors of the contents of the agreement, the moment it is found that the agreement is oral coming into existence of these conditions by operation of law are withdrawn. By this process the said ratio really speaking tends to knock out the basic finding that these conditions are the creation of the law which are presumed to exist in any such agreement. Examination of the other side of the coin also may be considered. Suppose in a given case the agreement though oral is either accepted or ultimately established fully containing stipulations as per all the conditions (i) to (iv) can the impact of such oral agreement which is capable of being construed on evidence containing such conditions is so damaging against on the tenant and protective for the landlord to the effect that the said agreement cannot be enforced even though admittedly the money payment was a construction loan only. It is true as held by the learned Judge in that case that failure to have a written and registered agreement amounts to breach of condition entailing into rigorous consequences under sub-section (4). However, it would stop at that meaning thereby that even after the conviction the said agreement cannot be enforced and the conviction of the landlord would not solve the fundamental of the problem as in that event also the intending tenant would be equally loser, since the tenant may not be so much interested in the prosecution of the landlord as he would be in getting the premises on rent. The landlord may be too willing to refund the amount even with interest which rate is quite marginal as by then he had used the amount to complete the construction and he would easily get an offer on more lucrative terms thereby making much profit, It is apparent that the threat of the prosecution as contemplated under sub-section (4) would be in addition to deter and thereby compel the landlord to honour the agreement but not he only consequence of the breach, Consequently, therefore as indicated earlier even though such conditions can be presumed to exist in law if their enforcement would be difficult as the agreement is oral, then the very basic purpose of advancing loan for construction would be frustrated. It is true that sub-clause (b) of condition (6) prescribes an inbuilt remedy if the building is not constructed within the prescribed period. However it restricts only to the extent of getting refund of the loan amount and no further. Thus a tenant can be disadvantageously deprived of the benefit of the terms themselves which was the sole desire at the time of advancing the loan as he may not be interested merely to get back the refund of the loan amount even with interest. Alternatively, even restricting to the remedy of getting refund, it is clear that it is only under the condition that the tenant can get back the said amount with interest forthwith instead of approaching a Court under the regular jurisdiction merely treating it as an ordinary-money claim. It, however, cannot be over-looked that right and remedy to get refund is restricted only to one condition where the building is not completed within the prescribed period though it is an option for the tenant and thus the basic requirement to honour and enforce the agreement in general is manifested suggesting that mere refund can hardly be an adequate compensation. Incidentally, if the agreement is in writing expressly containing all these conditions, but is not registered, then can it be said that the tenant can be just a helpless spectator not being able to get any advantage under even the written agreement. Such a situation where the agreement is in writing but not registered and thereby becoming unenforceable even though it contains all the necessary conditions would be most irrational and odd.

The other tinge to this aspect, therefore, in my opinion is more germane and relevant. On a proper analysis of all these provisions and in the context of the scheme and the object thereof along with the legislative intent that an endeavour to further the said object should harmoniously result in the conclusion that conditions (i) to (vi) which are separately carved out and clubbed together only should be treated as conditions, whereas the requirement that the agreement should be in writing and registered under this Act, should be kept in a separate compartment and further such a requirement and the nature of the agreement may indicate the method and the mode manifesting the nature of the agreement and it may halt at that only so that even if that requirement is not strictly satisfied but the existence of an agreement may be oral, or may be written but not registered, still the consequences of not honouring such an agreement also would be the same on par with the consequences of not honouring a written and registered agreement. In other words, it is the impact and the consequence which is more predominant as its implementation is absolutely essential to further the object and the scheme of that provision, whereas the form or the frame of the agreement would be secondary with its only purpose being to initiate the flowing out of the said consequences against the landlord once the amount is accepted as loan for construction. Thus the form of the agreement in reality cannot be said to be the condition but it is only the means to create the necessary consequences and once that starting point is brought into existence by an agreement in any form the conditions would follow and the consequences also must follow. Though it may seem on the superficial reading of that provision that the said means or method creating that consequence would come into existence only under provision and thus if the prescribed form of those means are satisfied, still on the broader consideration the conclusion that is being reached shall not be affected thereby. I am also tempted to indicate yet another facet of this controversy. Even assuming as held in Narendrakumar''s case that the agreement being written and registered it is deemed to be a condition just as the conditions (i) to (vi) annexed to sub-section (3) of section 18 and assuming further that not fulfilling this requirement about the form of the agreement by not reducing it into writing and thus not registered would entail in penal consequences under sub-section (4) on the footing that is amounts to breach of conditions of sub-section (3) itself, still it can be validly argued that notwithstanding such a conviction or even addition to such a conviction the consequences at the foundation of extending advantage of all those conditions under that agreement to the intending tenant who has advanced loan would remain intact meaning thereby assuming that original prosecution may be one of the consequences against landlord still the enforcement of even such an agreement with the said conditions would remain in force because the agreement was entered into for the protection of the parties and thus for the intending tenant who advances the loan so as to get the due return. Looked at from this angle also the conclusion gets reinforced. This is on the basis of the reading of the ratio in Narendrakumar''s case. The ratio in Smt. Sulochana''s case, which, with respect, is being accepted, would make the position much stronger as indicated therein that the form of the agreement would not make any difference at all vis-a-vis the question of its enforcement though the ratio may tend to prescribe that the conditions as indicated in Clauses (i) to (vi) cannot be presumed to exist by operation of law if those are not expressly included in the agreement. The situation is not difficult to be conceived of an oral agreement containing all or any of such conditions which ultimately could be established on evidence. In other words, therefore, the basic aspect of the enforcement of the agreement of any form would not get any dent under that ratio. The said ratio thus affords a strong pointer and valuable support to the conclusion vis-a-vis enforceability of an agreement which is not in consonance with the requirement under sub-section (3) in its form. This decision, therefore, obviously is in favour of the view as suggested on behalf of the petitioner and which deserves to be accepted. With respect, I accept that ratio at least in that field. A further question would arise as to which conditions are to be implemented if those are not specifically included under the agreement. Thus under that ratio if the evidence disclosed that the parties agreed only to one condition of letting out the premises to the intending tenant on completion of the building the same can be enforced even if the agreement may not be written and thus not registered. The conclusion so reached will not have to be incorporated in the provisions of section 28(1)(a) to find out whether it deals with any claim or question arising out of the Rent Act or any other provisions. It thus follows as a logical corollary that whatever may be the nature of the controversy it should be made to fall in the field that the enforcement of an agreement to let out the premises as the advance for construction of the building has been made permissible u/s 18(3) and squarely be equated with the concept that it very much deals with any claim or question arising out of the provisions of section 18(3) and thereby arising out of the provisions of the Rent Act. The term is specifically included in the agreement that on completion of the building the premises are to be let out to the intending tenant who advances loan for the construction of the building as the said advance could be on no other count and for no other consideration. This squarely flows out of the provisions of section 18(3). It is really fallacious to contend that it flows exclusively out of the agreement. The agreement is just the method or mode of invoking the said provision and the foundation is the said provisions itself. In such a contingency where the term to let out the premises on completion of the building is expressly incorporated it is a self contained agreement and affords no difficulty so as to fall within the purview of section 28(1)(a) as it obviously deals with the claim or question under the provisions of the Rent Act, At least this condition of letting out the premises after completion of the building would be inevitable feature of any such agreement otherwise that agreement has no meaning though all other conditions or some of them may not have been specifically included by the parties. Even assuming otherwise and there is omission in that behalf, still it is established in the minimum that under the agreement such an amount was advanced as loan for construction of the proposed building the condition that on completion of the building some of the premises are to be let out to the person who advances the loan creating tenancy rights in his favour ipso facto comes into existence. If the ratio in Narendrakumars case is to be accepted then such a condition can be presumed to exist by operation of law even if it is not included in the agreement. In that event also the situation does not change because when recourse is taken to the operation of law it inevitably means the application of the provisions contained in section 18(3) of the Rent Act and thus operation under the Act or under the provisions of the Act. In that event it squarely falls within the purview of section 28(1)(a) of the Act manifesting itself as dealing with the claim or question arising out of the Act. In both the cases the form of the agreement is secondary while the substance thereof and its consequences is primary and that its enforcement is not affected by its form. Any deficiency in the form or frame of the agreement does not make its substance cease to be a claim or question arising out of the Act. The net result is by engrafting this conclusion and concept in section 28(1)(a) read in the context of section 18(3) of the Act it becomes inescapable that in any event and in any form of the agreement it falls nothing short of treating it to deal with any claim or question arising out of the Rent Act. This is in my opinion would be harmonious construction of the said provisions.

Heavy reliance was placed by Shri Gumaste, the learned Counsel for the petitioner, on the ratio and the observations in Sushila Kashinath Dhonde and Others Vs. Harilal Govindji Bhogani and Others, . On a proper reading of the observations therein, in my opinion, the same lend quite a formidable and substantial support to the conclusion that is being reached in this proceeding on this count and the said ratio also squarely answers the other two contentions raised by Shri Abhyankar namely that the relationship of the landlord and tenant must come into existence before the suit is filed and that the cause of action arises exclusively out of the agreement. In that case some of the respondents were the owners of an open plot of land in Greater Bombay. The plaintiff applied to the defendants to let to him, on the basis of a monthly tenancy a portion of the building to be constructed as soon as the building was ready for possession to which first four defendants agreed on the plaintiff advancing a sum of Rs. 12,500/- as construction loan. The agreement was thus arrived at and the plaintiff paid Rs. 12,500/- to those defendants who executed a deed of charge in favour of the plaintiff and the same was registered. Even though the building was completed the defendants failed to let out the premises to the plaintiff though on the contrary they let out the same to third party. The original defendants 1 to 4 had failed to carry out the obligation on cast on them, the plaintiff had become entitled to the return of the sum with interest whereas the defendants 5 to 7 had purchased the property from defendants 1 to 4 and those defendants were sought to be held liable to pay the amount to the plaintiff since there was charge on the property. On the basis of these allegations the plaintiff filed the suit in the Small Causes Court at Bombay for a declaration that the sum of Rs. 12,500/- given by him as construction loan shall be a charge on the land as well as on the building and that the plaintiff is entitled to recover from the defendants the said amount with further interest in default of which the property be sold. Other consequential reliefs were also claimed. Some of the defendants from the first batch contested the suit and denied the transaction as also the receipt of the amount and the execution of the deed of charge was criticised as being a colourable document. The other defendants contended that they had no privity of contract with the plaintiff as they subsequently purchased the property and they were not aware of any charge. Competency of the Small Causes Court on the ground of jurisdiction was challenged by the defendants. The trial Court negatived all these contentions of the defendants and decreed the suit as prayed for holding in terms that the suit for recovery of the construction loan was cognizable u/s 28 of the Rent Act being a claim arising out of the provisions of section 18(3) of the said Act and thus held that the Small Causes Court has jurisdiction. Challenge to that decree in appeal before the Appellate Bench of the Small Causes Court and thereafter on this forum under Article 227 of the Constitution of India met with no success and the findings and the decree were confirmed against which the said civil appeal was preferred in the Supreme Court. Two main contentions were canvassed on behalf of the appellants-original defendants namely, that (1) An application or a claim to be cognizable by the Special Court which had been conferred jurisdiction u/s 28 of the Act, must be a proceeding between a landlord and a tenant and since in that case that relationship did not exist, the Court of the Small Causes had no jurisdiction to entertain the suit (2). The claim for a charge over the properties as alleged by the plaintiff arises under a deed of contract and hence the proceedings initiated by the plaintiff before the Small Causes Court cannot be considered to relate to any claim or question arising out of that Act or any of its provisions and therefore, that Court had no jurisdiction u/s 28 to entertain and deal with that proceeding. Both these contentions were expressly negatived for which purpose a resume of several ratios in that field was taken in the context of the relevant provisions of the Rent Act including sections 18(3) and 28(1)(a) and which would be relevant in the instant proceeding also.

While negativing the first point during the course of the judgment the Supreme Court observed as :---

"Having due regard to the aspects mentioned above and the provisions of sections 18(3) and 28(1) in our opinion it is not necessary that there should be a relationship of landlord and tenant in respect of all the matters covered by section 28(1) of the Act, so as to give jurisdiction to the Court of Small Causes."

The said provisions were analysed holding that one type of proceeding may contemplate such relationship as it seeks possession but it is not so in respect of other when it is observed as---

"...but in respect of the other matters dealt with in that sub-section, it is not necessary that the relationship of landlord and tenant should exist between the parties before the Court."

It is on the basis of various aspects considered therein the Supreme Court ultimately answered the first point in the negative against the appellants holding in terms that the existence of the relationship between the parties as landlord and tenant is not a sine qua non for filing of the suit and that there is no reason to hold that any claim or question must necessarily be one between the landlord and the tenant. Obviously, therefore, a distinction was made in the various parts of section 28(1)(a) and vesting of jurisdiction in the Small Causes Court was accepted in respect of any aspect which deals with any claim or question arising out of the said Act.

In regard to the second point that the claim arises out of the deed of contract and thus does not relate to any claim or question arising out of the Act, the Supreme Court expressly negatived the same and considered all the facets in that controversy including the meaning of that phrase as discussed in various ratios and as to how the said claim would arise only our of the Act or any of its provisions and not out of the contract. Some of the observations in that behalf can be reproduced in that context as---

"Having due regard to the nature of the transaction..... and the provisions of section 18(3) read with section 28 of the Act, we are of opinion that the subject-matter of the proceedings initiated by the plaintiff relates to claims or questions arising out of the Act. The question regarding the nature of the transaction, whether it is saved by section 18(3) of the Act, and the nature of the reliefs to be granted to the plaintiff are all claims or questions arising out of the Act and can be dealt with only by the Special Court constituted u/s 28 of the Act."

The Supreme Court then considered the meaning of the term "arising out of the Act or any of its provisions" and also considered in that field various ratios including some decisions of English Courts. Thus for instance in a case where terminology used that the compensation was paid under the Act it was observed as---

"It is clearly part of the scheme of the Act that the parties may agree, and agreement is one of the modes of settlement under the Act... An agreement to pay compensation being one of the methods contemplated by the Act, payment under such an agreement is payment of compensation under the Act."

In yet another decision it was also indicated that the term "arising out of" is very much wider than "under" the agreement when it was held that everything which is claimed in that arbitration could be said to be a dispute or difference in relation to something "arising out of" the agreement.

In paragraph 27 the observations are quite relevant which read as---

"Further we are not inclined to accept the contention of Mr. Hattangadi that the rights of the plaintiff flow not from the Act or any of its provisions but from the contract, namely the deed of charge. The registered agreement entered into between the parties regarding the construction loan, it must be pointed out, is the method contemplated by section 18(3) of the Act. The payment made by the plaintiff under such an agreement is in our view, an advance of a construction loan by the plaintiff in accordance with the Act and the relief for a charge as well as for the recovery of the amount are all claims arising out of the Act. In fact the claim made by the plaintiff in the suit could never have arisen and the transaction in question could not have taken place, but for the Act."

On this analysis the Supreme Court concluded with very relevant observations offering a valuable support to the findings in this proceeding also as---

"In view of the discussion contained in the above decisions and the reasons given by us earlier, it follows that the reliefs asked for by the plaintiff in the suit and the controversy raised by the defendants regarding the plaintiff''s right to obtain those reliefs, all relate to "claims or questions arising out of this Act or any of its provisions" and therefore, the Court having jurisdiction is the Special Court u/s 28 of the Act. The mere fact that the parties had entered into an agreement by way of a deed of charge, does not affect the question because, as already stated the Act permits the advancing of a loan for the purpose of financing the erection of the whole or part of a building under an agreement entered into in accordance with section 18(3) and any claim or questions raised, though with reference to the agreement, are really "claims or questions arising out of this Act or any of its provisions."

It is true that the question at hand did not figure specifically for decision before the Supreme Court in that case and it is equally true that the agreement therein was both written as also registered. However, some of the relevant observations do strongly tend to support the view which I have taken suggesting that "agreement is one of the modes of settlement under the Act" or that the agreement "is the method contemplated by section 18(3)" and that the payment made and the reliefs claimed obviously are "all claims arising out of the Act which could have never arisen and the transaction in question could not have taken place but for the Act". Similarly the Supreme Court accepted that the bare fact of agreement by way of deed of charge does not affect the basic question and remains intact and though a claim is referable to the agreement it really arises out of the Act or any of its provisions. This really speaking would reinforce the view that the agreement furnishes only the mode or method of manifesting the nature of transaction but the claim in the suit would be dehors thereof though referable to the agreement as it would exclusively arise out of the Act or its provisions. If that be so, then any deficiency in the form of the agreement would not wipe out this consequence which is a consequence under the statute. In any event, therefore, the form of the agreement would be secondary and any deficiency in that form would not create a corresponding deficiency in completely wiping out the said consequences. From that point of view it cannot be said to be an integral condition as such but appears to be a procedural formality and such a formality prescribed under the procedure cannot be elevated to that pedestal of the substance which very much requires enforcement of even such an agreement to achieve the harmonious result. Even if thereby that is treated as a condition still its non-compliance would be merely an irregularity not affecting the substantial part of the provisions and further the insistence on particular form of the agreement would really be for the benefit of the parties. Ratio in Narendrakumar''s case whether accepted in its entirety or in part or even rejected fully hardly changes the complexion, whereas the decision in Smt. Sulochana''s case as also the findings and observations in Smt. Sushila''s case firmly reinforce this view. In substance, therefore, it does not cease to be a claim or question arising out of the Act even though the form or the frame of the agreement may not comply with the procedural requirement as prescribed in section 18(3). It is not the form but the substance which is decisive.

Shri Abhyankar, the learned Counsel, wanted to place reliance on an unreported decision in Appeal From Order No. 170 of 1959 decided by Patel J., on 7th of September, 1960 wherein the learned Single Judge held that the City Civil Court for Greater Bombay had the jurisdiction to try the said suit where also figured the transaction of construction loan. That was the case of oral agreement no doubt. The suit was for a declaration of the plaintiff''s charge on the property for the balance of money due to him and for a decree requiring the defendant to execute the document embodying the terms agreed between them. The City Civil Court felt that it would be the Small Causes Court who would have jurisdiction and, therefore, the plaint was returned. This view was upset by the learned Single Judge holding otherwise. The learned Judge in that behalf observed as---

"The rights would be the creation of the agreement between the parties dehors the Rent Act, and cannot be said to arise out of the Act."

It is true that it was felt that the declaration sought was for specific performance of the oral agreement by requiring the landlord to sign and execute the document as required by law and which was held to be not arising out of the Act. The position here is not identical as the relief claimed is something else. It is not that the learned Single Judge held so because the agreement was not in writing and registered. Further the observations that the rights would come into existence on the basis of the agreement dehors of the Rent Act cannot be accepted as an authority in view of the ratio of the Supreme Court in Sushila''s case cited supra.

Endeavour was made on behalf of the respondent to place reliance on the decision in Govindji Vanmalidas v. Makbai Ladhabai and others, Civil Revision Application No. 616 of 1972 (With C.R.A. No. 617 of 1972 with A.O. Nos. 145 and 146 of 1975), a judgement delivered by the Division Bench of this Court on July 16 and 17, 1975. Though the question arose as to whether the suit would lie within the special jurisdiction of the Small Causes Court u/s 28 on the ground that the question arises out of the Rent Act or whether it was dehors of the same and thus would lie to the City Civil Court, still the facts were obviously distinguishable. In short, in an earlier suit consent terms were arrived at under which the tenants who were occupying the old tenements were promised alternate accommodation in the new construction after it is completed and it is only thereafter that the old tenements were to be vacated and demolished. The Division Bench formed the view that no tenancy rights came to be created between the parties vis-a-vis the new building as at the most those people could be said to be tenants in the old building and secondly it was held that on the plain reading of the plaint it was a suit for specific enforcement of the contract of lease and it is only thereafter on passing of a decree that the plaintiffs would get a right to execute the decree and to enter upon the property and it is only thereafter that they would become tenants of the said premises. It is predominantly on this basis on the construction of the said plaint that it was held that it would not fall u/s 18(3) of the Rent Act and, therefore, not u/s 28 and consequently it would be the Small Causes Court which would have jurisdiction. The ratio of the Supreme Court in Sushila''s case cited (supra) was referred to in that judgement. However, the said Division Bench has no analogy on facts and thus, therefore, does not help the respondents.

Shri Abhyankar, the learned Counsel, further submitted that the transaction in question relates only to an executory agreement and, therefore, this is an additional ground for not attracting the provisions of the Rent Act. Support was sought to be extracted from the ratio in Tolaram Relumal v. The State of Bombay, 56 BLR 1206. The Supreme Court, however, therein was concerned with the provisions of section 18(1) and the conviction was recorded against the accused therein for having received certain amounts as premium in respect of the grant of lease in a building that was under construction. The Supreme Court while allowing the appeal and setting aside the order of conviction construed the provisions of section 18(1) in the context of the agreement and felt that no lease had come into existence by then and as such relationship of landlord and tenant had also not come into existence. It is on that basis that it was indicated that the section does not make receipt of money on an executory contract punishable but it only makes receipt of money on the grant, renewal or continuance of the lease of any premises punishable and unless the lease comes into existence no offence is committed by receiving the money. It was further indicated that there should be nexus with the lease and the receipt of money. It was ultimately held that the language of the said section "in respect of grant, renewal or continuance of a lease" envisages existence of the lease and the payment of the amount in respect of that lease or with reference to that lease and without existence of a lease there can be no reference to it. It is predominantly on this count and exclusively on the construction of section 18(1) only that the said finding was given. The provisions of section 18(3) were considered though incidentally and in that behalf it was observed that these provisions were added subsequent to the agreement in question and, therefore, for the purpose of section 18(1) it should be read ordinarily as it stood in the Act when the offence was committed. It was further indicated that the legislature intents that the agreements of the nature as per sub-section (3) were never intended to be included in section 18(1). The argument, that but for this exception under sub-section (3) the executory agreement would be included within the mischief of section 18(1) and unless such agreements were within such mischief there would have been no point in exempting them from its provisions, was repelled. On the contrary these observations though incidentally indicate the apparent difference in the terminology used in sections 18(1) and 18(3). This analogy therefore has no application and the argument of Shri Abhyankar that the agreement is executory and, therefore, does not fall u/s 18(3) has also no substance. The plain reading of this provision makes the situation very clear against the validity of this argument.

The basic facts relating to the transaction in question are practically admitted. The first respondent decided to construct a building on the said Plot No. 55 and the building was expected to be of three floors. It is in the year 1980 in the month of February that the first respondent was approached by the petitioner and his father since two flats were required for the two brothers i.e. the petitioner and his brother and those were most suitable since those were close to the residence where they were already staying. The first respondent agreed to give on rent to the petitioner and his brother the second and the first floor respectively on completion of the building and the rental was to be fixed mutually as per standard rent. The petitioner in turn agreed to advance the construction loan which was settled at Rs. 90,000/- for two flats. Rs. 80,000/- were paid by the petitioner on various dates in between 11th of January, 1980 and 21st of May, 1980 while his brother paid Rs. 10,000/-. The excess amount paid by the petitioner was to be treated as the amount having been paid by him on behalf of his brother. The petitioner insisted on the respondent to execute a written agreement which however he put off on some pretext but was successful in creating confidence in the mind of the petitioner and it cannot be over-looked that the petitioner was in dire need of an accommodation. According to the petitioner, the building was nearing the completion while the petitioner was pressing first respondent to finalise the tenancy transaction and to execute the agreement. The petitioner and his father contacted the first respondent on that mission on 7th of September, 1981 and it is at that time according to the petitioner-plaintiff, that the first respondent came out with his true colours and the concealed intention thus came on the surface when he flatly declined to execute any agreement and also suggested that unless the petitioner was agreeable to pay high premium he would not get any flat, though was willing to refund the amount of Rs. 90,000/-. According to the petitioner, he realised the vulnerable situation in which he was placed, more so as there was no written agreement and in addition the first respondent further pressurised him indicating that otherwise it would not be easy for the petitioner even to recover the amount, once the matter goes to a Court of law. The petitioner claims that he had surrendered to the dictates of the first respondent who prepared a letter addressed to the petitioner recording the payment without interest of Rs. 90,000/- by plaintiff and asked a letter from the plaintiff to the same effect. The petitioner suggested that the amount should be returned with separate letters addressed to the two brothers so that they could explain to the Income Tax Authorities about the repayment without interest to which the respondent agreed and recorded in a letter that the amount was being repaid as the petitioner had no more interest in taking the premises. Similar letter writing was demanded from the brother but as the brother was not available it was given by the petitioner on his behalf. Accordingly the petitioner received a cheque for Rs. 80,000/- on 7th of August, 1981 and another cheque of Rs. 10,000/- drawn in favour of his brother. According to the petitioner apart from the thrust of the situation on account of which he was forced to accept the said cheques and signed the letters which were prepared by respondent himself, he had also an inner desire to get some writing from the first respondent which would wipe out the deficiency that there was no evidence about the initial payment made by the petitioner and the purpose thereof. To some extent this plan succeeded or otherwise there was hardly any evidence. However, the said cheques were not encashed. As per the record the said two cheques came to be encashed sometime in the month of January 1982 and the petitioner informed the respondent accordingly which according to the petitioner was because otherwise the encashment would have been barred by time. This was no doubt after the filing of the suit. The petitioner''s conduct in writing that letter is quite relevant and became still more relevant by the fact that on 5th of March, 1983 the petitioner deposited the entire amount of Rs. 90,000/- under the said two cheques in the Small Causes Court in the suit.

As stated, the basic fact is accepted by the first respondent in his say and the written statement. According to him, the petitioner''s father approached his father in February 1980 with a request to give the flat and they offered to pay the loan. The respondent then in terms admits as-

"After discussion it was agreed that the defendant would let out to the plaintiff second floor of the building which was under construction as and when the same was completed. The plaintiff''s father also agreed to pay a sum of Rs. 90,000/- by way of loan by instalments and accordingly he made payment by four cheques on different dates between February and May 1980. It now appears that three of the cheques totalling to Rs. 80,000/- were drawn by the plaintiff and one cheque for Rs. 10,000/- was drawn by the plaintiff''s brother Nitin. The said cheques were duly deposited in defendant''s Bank account."

Upto this portion both sides go on parallel tracks, though the deviation comes thereafter. According to the respondent some months before September 1981 the plaintiff''s father requested defendant''s father to expedite the work of construction in which behalf defendant''s father expressed inability and thereupon a further discussion ensued and ultimately the petitioner''s father suggested to cancel the agreement and this was agreed between the parties. It is under these circumstances as the move came from the petitioner''s side that he was allowed to withdraw from the agreement and the correspondence was exchanged and two cheques were issued by him to the petitioner. He further says that after the cancellation of the contract by the petitioner he had no alternative but to enter into an agreement of letting out the said premises to respondent No. 2. According to him, respondent No. 2 paid him Rs. 1,00,000/- on 12-8-1981. It is thereafter that on 26th of October, 1983 at about 7-30 a.m. when the injunction was exhausted by 25th night that the second defendant was put in possession. The second respondent has asserted more or less on the same lines.

It would, therefore, be manifest that the basic agreement between the parties of advance of construction loan in lieu of which the tenancy rights were to be created in favour of the petitioner and his brother vis-a-vis two flats in the building that was to be constructed is admitted by the two parties. In pursuance thereof full amount of Rs. 90,000/- for the two flats as the construction loan was paid by the petitioner and accepted by the respondent. Admittedly with that and other funds the building was constructed. Though the divergence is subsequent as to whether the petitioner himself backed out or whether it was so manipulated by the first respondent would be a matter of evidence. However, it sounds very odd that the petitioner and his brother who were in dire need of accommodation and when the building was most convenient for their residence and when they had invested large amount of Rs. 90,000/- only for that purpose and when it is not even remotely suggested that by then they had acquired any other suitable accommodation, it does not sound to be probable at least ex facie that the petitioner and his father would so meekly suggest by themselves and agree to withdraw from the contract. On the contrary, the statement and the affidavit of the first respondent makes the situation more difficult for the first respondent when he admits as---

"Some months before September 1981 the plaintiff''s father requested defendant''s father to expedite the work of construction."

This would mean that prior to September 1981 the petitioner not only desired to continue with the agreement but insisted on the same. As to when this query was made has been obviously kept vague. The very next sentence in the written statement however suggests that when the defendant''s father expressed his inability to do so the petitioner and his father immediately suggested to cancel the agreement, and this was very conveniently accepted by the respondent. This does not fit in with the probabilities and the nature of evidence. There is enough substance in the further contention of Shri Gumaste, the learned Counsel, that according to the written statement the second respondent had given about Rs. 1,00,000/- to the first respondent "on or about 12-8-1981". It is in this context that the vagueness in the earlier statement as to how many days prior to September 1981 that the petitioner''s father approached the respondent assumes importance. Shri Gumaste, therefore, cannot be said to be unjustified in his submission at least in this prima facie field that there are reasons to believe that the first respondent had already entered into an agreement with the second respondent accepting a more lucrative offer and thereafter to retain the benefit of that offer the respondent has made out this case that the petitioner and his father themselves withdrew from the agreement so that he was free to go ahead with the agreement with respondent No. 2 and pocket the extra profits. This submission deserves serious consideration which however can be properly done only when the entire evidence is led before the Court.

The minimum that can be done with utmost degree of certainty on the admitted facts that construction loan was advanced by the petitioner and his brother under an agreement that both of them were to be accommodated as tenants on the two floors after the completion of the building; that the respondent accepted the money, used it for construction and the building was completed. This is admitted by the respondent and is also manifested through the exchange of correspondence which no doubt came into existence subsequently. From that point of view Shri Gumaste submitted that the agreement came to be made in writing though subsequently reflecting the existence of oral agreement arrived at in the beginning and the deficiency if any was thus wiped out. This situation at least ex facie is supported by the petitioner''s claim as to why he agreed to give the writing and to insist on letter from the respondent under which respondent had accepted about the existence of the agreement and receipt of amount as construction loan. In fact the respondent either expressly or at least by implications accepted these terms of the agreement and its purpose but came out with a positive case that that agreement was got cancelled by the petitioner and, therefore, he was relieved of the responsibility. The cancellation of the agreement is a point in dispute, whereas the existence of the agreement is thus not in dispute and therefore if ultimately the petitioner is able to establish on evidence that the theory of cancellation of agreement is un-sustainable then the consequence would be obviously against the respondent. This, therefore, manifests the transaction which could arise only through section 18(3) of the Act though it may be merely referable to the agreement. Viewed from this angle on the foundation of facts also it become absolutely rational to hold that only the Small Causes Court would have jurisdiction u/s 28 of the Act to entertain this suit.

Even independent of all other features one additional aspect becomes quite relevant which by itself would be sufficient to support this conclusion. This would be irrespective of the question as to whether all these stipulations u/s 18(3) can be styled as conditions or otherwise. The foundation which is firmly established relates to the transaction as a whole wherein loan for construction was granted with a clear agreement that it was to be used for that purpose only and that the petitioner was to be inducted as tenant on fixing the monthly rental. Both parties agreed and actually acted on this. The building was constructed with the same funds and obviously the petitioner was entitled to get possession of the suit premises. It would, therefore, be manifest that this entire episode which is rolled into one shall have to be accepted as one transaction and therefore, irrespective of other considerations including about the form of the agreement and the nature of the conditions that this transaction wholly and exclusively arises out of the provisions of section 18(3) and thus have no independent existence. If that be so, and which is inevitable, then as the Supreme Court has observed in Smt. Sushila''s case---"In fact the claim made by the plaintiff in the suit could never have arisen and the transaction in question could not have taken place, but for the Act." and therefore, this transaction taken as one bundle would arise exclusively out of the said Act and consequently the claim in the suit also would arise exclusively out of the said Act. Viewed from this angle also the conclusion is reinforced.

All said and done it cannot be over-looked, as rightly submitted by Shri Gumaste, that the question at this stage is still at the threshold about the jurisdiction of the Small Causes Court and not about the merits of the matter. In other words, the learned Counsel submits that as to whether the petitioner would succeed in the suit in view of the contest by the respondent on various counts would not be so germane for being adjudicated upon in this proceeding as the only relevant question is as to whether the Small Causes Court has jurisdiction to entertain such a suit on the ground that the transaction deals with the claim or question arising out of the Act. This submission is well founded and, therefore, is an additional ground for answering that point in favour of the petitioner. The respondent can still agitate all these contentions on merits. For the purpose of exonerating him from the liability which however would be an entirely different question from the basic question about the jurisdiction of the Court. On the material therefore, at least the basic question of jurisdiction will have to be answered in favour of the petitioner even may be all other points including various aspects relating to section 18(3) of the Act being left open. From that point of view the observations and discussion herein above even in regard to some facets of the provisions of section 18(3) should not be treated as having concluded the issue on all counts and the learned Judge in charge shall be at liberty to decide all these questions on their merits in his un-fettered discretion. The observations are, therefore, restricted only to the limited question of deciding whether the Small Causes Court has jurisdiction or not.

In this view of the matter the first point will have to be decided in favour of the petitioner holding that the Small Causes Court has jurisdiction to entertain and try the suit as it falls squarely within the provisions of section 8(1)(a) read in the context of the provisions of section 18(3) of the Rent Act. The learned Single Judge of the Small Causes Court has taken the correct view in that field whereas the Appellate Bench of the Small Causes Court was in error in taking a contrary view. This would complete the discussion and conclusion in Writ Petition No. 3762 of 1983.

The companion contempt petition now requires consideration on its own merits as this is a second chapter of the whole proceeding. I have already indicated as to how this proceeding arises in view of certain events that came into existence after the appeal before the Appellate Bench of the Small Causes Court was dismissed. To recapitulate, after the said appeal was allowed on 19th of October, 1983 though the injunction was continued upto 25th of October, 1983. The companion writ petition was filed on 24th of October, 1983 and the next day, i.e. 25th of October, 1983 ad interim injunction pending admission was granted. The petitioner would have it, that the respondent had full knowledge not only of the filing of the petition but also of the interim injunction order that was passed against him restraining from transferring the flat or from creating third party interest therein and inspite of that a show was made to induct respondent No. 2 on the 26th though in fact according to the petitioner it was done much later even after the injunction order was formally served on him. The petitioner, therefore, contended that if his submission is accepted that the flat was transferred several days after the service of injunction order then there is a clear contempt and even assuming that it was so done on the 26th, at least the knowledge of the injunction order that was passed on the earlier date i.e. 25th can be legitimately posted to both the respondents inspite of which they entered into the said transaction. On this basis it was contended that both the respondents have committed Contempt of Court in wilfully violating the order of this Court. This in short is the gist of that proceeding. Both the respondents obviously denied these allegations. According to the respondent he had filed the caveat in defence on the 21st. However, he was not served with the notice of injunction and thus he had no knowledge either of filing of the petition or the date on which it was being circulated for admission in this Court. It was specifically stated that he had not even the knowledge of any order having been passed by this Court putting restraint on him vis-a-vis the flat in question. Since the injunction was continued by the Appellate Bench of the Small Causes Court upto 25th and since by then he did not receive any communication from the petitioner even of filing of the petition he felt free to induct respondent No. 2 in the premises in question as according to him the agreement between him and respondent No. 2 was arrived at long back but its implementation had to be postponed because of the suit and the injunction. It is in the early hours of 26th morning that respondent No. 2 was put in actual possession of the flat in question. Respondent No. 2 has substantially raised the same contentions in defence and thus the repetition is unnecessary. Both the respondents, therefore, categorically assert that not only no order was served on them but they had not even the knowledge that any such order was passed and in fact they had not even the knowledge that any such petition was actually filed in this Court and consequently there is no question of they wilfully disobeying any orders of this Court and thereby being made liable u/s 2(a) of the Contempt of Courts Act, 1952.

The narration of several events from the date of filing of the suit till the filing of the writ petition and occurring of he events thereafter can well be appreciated if those events are reflected in a short catalogue without placing those in a narration form.

6-10-1981 : The petitioner filed R.A. Declaratory Suit No. 6917 of 1980 for declaration of his tenancy and for specific performance of the agreement to let and also prayed for injunction.

7-10-1981 : Ex parte injunction was granted by the trial Court in Interim Notice No. 6778 of 1981.

23-4-1982 : Affidavit in reply along with written statement filed by first respondent.

1-3-1983 : Ad interim injunction was confirmed by the trial Court holding that the Small Causes Court had jurisdiction to try the suit and prima facie case was made out for injunction

5-3-1983 : Petitioner deposited the amount of the cheques which he had encashed in Court. On the same day first respondent preferred Appeal No. 230 of 1983 before the Appellate Bench of the Small Causes Court challenging confirmation of injunction.

19-10-1983 : Appellate Court allowed the appeal holding that the Small Causes Court had no jurisdiction to try the suit and even on merits vacated the inj- unction. However that injunction was allowed to remain in force upto 25th of October, 1983.

21-10-1983 : First respondent filed caveat in person in this Court. Petitioner obtained ordinary copy of judgment on that day which was a Friday. Two persons namely Rashmi Jhaveri and Naresh Godiawala met petitioner''s Advocate in his office and told him that they have been asked by the first respondent to negotiate.

Further meeting was arranged and scheduled on 23-10-1983.

23-10-1983 : Further meeting held in Pam-Grove Hotel, though the respondent did not attend. But the other two persons namely Jhaveri and Godiawala attended.

Therein both of them were informed by the petitioner that the writ petition against the order of the Appellate Bench of the Small Causes Court no suiting the petitioner on the ground of jurisdiction was being filed in this Court on the same day or on the next day and would be taken up for admission on 25th.

24-10-1983 : The said Writ Petition No. 3762 of 1983 was filed in this Court and moved at 2-45 p.m. for circulation.

The petitioner''s Advocate gave copy of writ petition to the petitioner for serv -ice on first respondent. At 4-30 p.m. petitioner went to the residence of the first respondent. However, the house was closed though he waited upto 5-45 p.m. but could not meet the respondent.

Petitioner then phoned his Advocate about this situation and was advised to give copies to the respondent''s Advocate Shri Gandhi who had appeared in the lower Court.

Petitioner, therefore went to the office of Shri Gandhi who however refused to accept service. At about 8-30 p.m. petitioner phoned respondent No. 1 at his residence but was informed by his servant that respondent No. 1 was out of station.

At about 9-25 p.m. petitioner sent a telegram to first respondent.

25-10-1983 : At about 9-30 a.m. petitioner again went to the residence of the first respondent.

At about 11-00 a.m. the writ petition was placed before the learned Single Judge of this Court for admission and urgent interim orders. Ad interim injunction pending admission was granted by this Court. No one on behalf of respondent No. 1 was present but it is alleged that an Advocate working as junior to Shri Gandhi Advocate who was representing first respondent in the Small Causes Court was present, though this is denied by the first respondent and no such Advocate has been examined to substantiate that claim.

At about 2-00 p.m. the postman tried to serve telegram of 24th but the house was closed.

At about 5-00 p.m. petitioner''s Advocate enclosed a copy of the petition for service to respondent No. 1 and the petitioner took the same to the residence of the respondent but the house was closed.

At about 10-10 p.m. Petitioner sent another telegram to first respondent intimating about the order of this Court.

26-10-1983 : At about 10-30 a.m. packet containing the order of injunction was lodged in the Small Causes Court for service on respondent No. 1.

At about 3-30 p.m. Bailiff from the Small Causes Court and the petitioner went to the house of the first respondent reaching there at about 4-15 p.m. The door was closed. They were told that the first respondent and his family were out. They therefore, went to the shop premises at Dadar where first respondent is a partner. The first respondent however was not present there and other partner informed them that respondent was out since two days and his whereabouts were not known. Petitioner''s Advocate''s letter to respondent No. 2 was delivered to respondent No. 2 at 4-45 p.m.

27-10-1983 : Morning-Bailiff went to the house of respondent No. 1 but the door was closed.

At about 1-15 a.m. respondent No. 2 was served of injunction order and notice of writ petition.

At about 4-25 p.m. respondent No. 1 was served of injunction order and notice of writ petition.

14-11-1983 : Writ petition came up for admission. No Vakalat-nama was filed on behalf of the first respondent till 7th of November, 1983 but it is agreed that a Counsel was engaged who however could not remain present as was busy in other Court.

No statement was made that possession was delivered on 26th of October. Because of this, this Court directed the first respondent to file an affidavit in that behalf.

21-11-1983 : Writ petition was admitted, rule was granted and interim injunction as per prayer Clause (b) was granted restraining the first respondent from letting out the second floor in the building and from creating any interest therein or parting with possession thereof in favour of third person.

30-11-1983 : Accordingly affidavit was filed by the first respondent reiterating these features.

9-2-1984 : Contempt petition was filed.

22-2-1984 : That petition was admitted and rule was granted.

13-3-1984 : The learned Single Judge of this Court directed the trial Court to record evidence in that contempt petition and certify the said record to this Court with out re cording any finding as the learned Judge felt that the matter involves disputed questions of fact which cannot be properly decided one way or the other without recording evidence. The trial Court accordingly recorded the evidence and certified record to this Court.

This completes the catalogue of events which are relevant to dispose of the contempt motion. These facts are either admitted or thus can be deemed to have been substantially established on record through the evidence of the parties and the witnesses as also through the documents filed on record. The denial on some aspects on facts by the two respondents does not carry conviction in view of the cogent evidence of the petitioner himself supported by other witness including the bailiff Shri Sonavane, Public Relation inspector from the Post Office Shri Desai, Telegraph Assistant Shri Kalimulla Khan and various documents produced in that behalf. The first respondent has examined himself and has also examined an officer from the Bank of India Shri Mishra and Ward Inspector from the Municipal Corporation Shri Tarachandani while the second respondent has examined himself though no other evidence was adduced on his behalf. Suffice it is to observe that the allegations that the first respondent was not available at his residence or even at the shop premises though repeated attempts were made by the petitioner are practically accepted by the respondent, though according to the first respondent it was not a deliberate move on his part but he was required to go out for his domestic work. According to him he filed the caveat on the 21st of October. On 24th of October he went to work as usual. In the afternoon he came home and had lunch. At about 3-00 P.M. he along with his entire family went to his sister''s house at Ghatkopar and had dinner there. He returned home at about 10-00 p.m. During this time the house was locked. On the 25th of October he went to attend his cloth shop, went home and had lunch and again attended the shop and returned home at about 8-30 p.m. His wife was present in the house. He further stated that on 24th of October in the morning his father was at his residence but in that afternoon he also went to his sister''s house. He continued to be there on 25th but returned on 26th night. According to him, it is for the first time on the 27th evening that he learnt about the injunction. He admits that he met Rashmi Jhaveri who is his friend a week after 27th of October who told him that a meeting took place but the demands of the petitioner were un-reasonable. He, however, denied that he had asked Jhaveri to negotiate on his behalf. According to him further he met second respondent on 25th of October in the evening. He had consulted his Advocate Shri Gandhi earlier on 19th of October and was told that since the injunction was in force upto 25th he could give possession to respondent No 2. on 26th if injunction was not continued thereafter. He thus put respondent No. 2 in possession at about 7-30 a.m. on 26th contacting him on the previous evening and respondent No. 2 paid Rs. 4320/- as an advance for three months. Respondent No. 2 has stated that he learnt about the injunction for the first time on 27th of October, 1983 when he went to his residence and to his office on that evening and he came across the two telegrams one addressed to his father and one to him which were received by his mother on the afternoon of 26th. According to him, he was told by the first respondent on 25th evening that injunction stands vacated on 26th morning and, therefore, possession was given to him at about 7-30 a.m. on the 26th.

On the basis of this evidence Shri Gumaste, the learned Counsel for the petitioner, contended that really speaking it should be held that the order of injunction that was passed on 25th was actually served on the first respondent or at any rate the circumstances fully established that he had complete knowledge that such an order was passed and inspite of that he deliberately and thus wilfully disobeyed the direction of order of this Court and as such he would be guilty for committing civil contempt within the meaning of section 2(b) of the Contempt of Courts Act which defines civil contempt as wilful disobedience to any judgment decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. Shri Abhyankar, however, submitted that in the first instance some part of this evidence may not be accepted. However, even if it is accepted in its entirety, still it cannot be held that both the respondents or either of them had even the knowledge of the order passed by this Court on 25th, much less they were served with the order, as according to him the evidence may suggest that the first respondent avoided service of the notice of the writ petition before it was filed or taken up for admission but the two cannot be confused.

As regards the evidence as it stands there is hardly any reason to distrust or discard the same. The evidence is quite cogent and there is nothing in the cross-examination of all these witnesses examined on behalf of the petitioner to dislodge them. Many of the items in the evidence are accepted by the respondent himself. I have already given in details as to how events occurred, which makes the repetition unnecessary. That would show that the first respondent had filed his caveat in person on 21st; the writ petition was filed on 24th and ad interim injunction was granted on 25th while the possession is alleged to have given on 26th. Admittedly the first respondent could not be personally served with the notice of writ petition as per the caveat in spite of repeated efforts by the petitioner, his Advocate as also other agencies. It is also not established conclusively that the telegrams which were sent to him and to respondent No. 2 intimating about the posting of petition for admission and thereafter about the order recorded by this Court were actually received by these respondents before 26th. The second respondent stated that he learnt about the injunction for the first time on 27th when he went to his residence and to his office in the evening where he came across two telegrams one addressed to his father and one to himself and which were received by his mother on the afternoon of 26th meaning thereby though the telegrams were received by his mother on the 26th he actually got those on the 27th. The first respondent has stated that he learnt about the injunction for the first time on the 27th evening. That he was absent from his house repeatedly on 24th and 25th as also some part of 26th is categorically asserted by the first respondent. The evidence adduced on behalf of the petitioner also substantiates that on 24th the petitioner himself had gone to the residence of the first respondent but the house was closed. He telephoned first respondent at his residence but was informed by his servant that the respondent was out. On the 25th there was repeat performance when the petitioner visited respondent''s residence in the morning but the house was closed. On the same evening petitioner once again tried his luck but the respondent was out. The first telegram was despatched on 24th while the second was on 25th, the first obviously regarding the filing of the petition which was to be posted on the next day and second after the order was passed. Even on the 26th afternoon when the petitioner had gone along with the bailiff the first respondent was out with his family and when they went to his business premises they were told by the partner that the respondent was out for quite some time. On the 27th morning the bailiff once again tried to effect the service but the respondent''s house was closed and it is in the afternoon the respondent No. 2 was served while in the evening the first respondent was served of the injunction order by the bailiff. Thus the actual service by the bailiff was on the 27th, whereas on the earlier occasions between 24th and 26th both the respondents could not be contacted and that it cannot be conclusively held that the telegrams which were despatched earlier on the 24th were actually received by these two respondents prior to 26th, though those might have been lying at the premises. However, the residence of the first respondent was closed and he was also not available at his business premises. On the 25th in the afternoon the postman tried to serve the telegram of the 24th but the house of the first respondent was closed. An attempt to serve the notice to the Advocate Shri Gandhi who had appeared on behalf of the first respondent in the trial Court was frustrated because Shri Gandhi flatly refused to accept the notice on the ground that he had no instructions. No doubt the statement is made by the petitioner that the junior Advocate who was working with Shri Gandhi was present in the Court room when ad interim injunction was granted by this Court. This has been denied and the said Advocate has not been examined and, therefore, it would not be proper to hold in that matter as suggested by the petitioner. Even otherwise it cannot be over-looked that the said Advocate even assuming that he was present, though it is not proved, he may be so for any other reason and there was no engagement, no knowledge can be posted to the first respondent on that count through him. That item, therefore, cannot be taken into consideration at all. It is significant that the evidence of the bailiff has practically gone unchallenged. However, that falls short of the requirement in law inasmuch as his evidence merely established that he had gone with the petitioner on 26th afternoon but the first respondent was out and he also could not contact him in his business premises. Same thing repeated on the 27th morning when he was informed by the neighbour that the respondent was out. As regards the evidence of the petitioner about the meeting held between the petitioner and his Advocate and two persons Rashmi and Naresh Godiawala wherein they told the petitioner and his Advocate that they were asked by the first respondent to negotiate and the further meeting was arranged and scheduled on 23rd, remarkably there is hardly any cross-examination on the crucial point. Further meeting between them was held on 23rd in Palm-Grove Hotel when the respondent however did not attend. The said two persons Jhaveri and Godiawala were informed by the petitioner that the writ petition was being filed in this Court positively on the next day. i.e. 24th and it would be taken for admission on 25th. Significantly, this statement has practically gone unchallenged. The respondent, it appears did not realise the implications of these two meetings. In that behalf, however some statements in the evidence of the first respondent are very relevant which read as---

"I know Mr. Rashmi Jhaveri. He is my friend. I have never asked him to intervene in this matter or to negotiate, or to do any settlement on my behalf. My friend Rashmi Jhaveri stays near Shanmukhanand Hall. He is my friend since couple of years prior to 1983. .....It is not true that I had asked him to negotiate on my behalf. On 27-10-1983 in the evening I came to know about the injunction. I met Rashmi Jhaveri after about a week or so after 27-10-1983. He told me that some meeting took place but the demands were un-reasonable."

He was pursued further in cross-examination and a question was sought to be asked that it is because of the unreasonable nature of the demands that Jhaveri did not contact him for further settlement. This question was however, he reiterated as---

"I have already stated that Rashmi Jhaveri told me that since the demands were unreasonable, the meeting did not proceed further."

Rashmi Jhaveri is thus admitted to be the friend of the first respondent and equally admitted that he had at least one meeting with the petitioner and his Advocate though it sounds more probable that they had two meetings as suggested by the petitioner. Further if the first respondent had not deputed Rashmi Jhaveri to negotiate on his behalf in that meeting and if Jhaveri had no knowledge about the transaction and the terms on which the first respondent was inclined to settle, it is really problematic as to how the said Jhaveri could decide by himself without contacting the first respondent that the terms suggested and demands made by the petitioner were un-reasonable. This was made known by Jhaveri to the first respondent on his own admission. It is thus satisfactorily established that Jhaveri did not have meetings with the petitioner and his Advocate and he was negotiating on behalf of the first respondent on instructions and he must have been told by the first respondent as to how far he could go to accept the terms and he must have contacted the first respondent and then decide that the terms were unreasonable or even on his own he could decide so as he could not go any further. It is not clarified whether this happened in the meeting on 21st or 23rd because it is in the meeting of 23rd, that he was told that the petition would be filed on 24th. However, assuming that this discussion occurred in the meeting of 23rd, it was only in relation to filing of writ petition on 24th and getting circulated for admission on 25th and thus was before passing of any interim order.

Shri Gumaste, the learned Counsel, also made a grievance that the possession was not actually given on the 26th morning as contended by both the respondents though a show was made by manufacturing the receipts for the rental amount as according to the petitioner for days together thereafter at least upto 14th of November he used to visit the premises at least form out side and he could notice that those were not occupied by any one. On that basis it was suggested further that possession was handed over in fact some time after 14th of November and that is why according to Shri Gumaste no statement was made before this Court and in particular on the 7th of November that possession was already handed over on 26th October. Shri Gumaste sought to rely on the receipt in question purported to have been received by the first respondent in favour of the second respondent dated 26th of October under which rental for three months to the tune of Rs. 4320/- was paid in advance. The affidavit filed by the respondent in connection with the writ petition did not make reference to this receipt. The rent was fixed at Rs. 1450/- per month. The first respondent admitted that he has been passing the rent receipts to the occupant of the third floor in the same form in which it was issued to respondent No. 2. He possessed printed book of rent receipts. He has then admitted that for each floor there is a separate rent receipt book. The first counter-foil is of 25th of October, 1983 while the next is of 28th of July, 1984, though he stated that both were prepared at the same time. He has then admitted that the same practise of maintaining separate rent receipt book for each tenant or floor was not followed in respect of other property at Matunga. The evidence of both the respondents and the receipts shows that the rental of January to April 1984 was made on 28th of July, 1984; these are the only receipts in the book; rental for further period was admittedly not paid; that the endorsement on the reverse of the counterfoil of 26th that possession was given on that day apart from striking as odd is treated as agreement as there is no other document of agreement; that it is cryptic and does not contain details; the payment was supposed to have been made in the premises and receipt was prepared at that time. There is difference in ink in the counterfoils and the receipts. These receipts are not referred to in their affidavits. No doubt, several questions would logically emerge on the basis of this rent receipt book and the statement of the first respondent in the context of the contentions raised by Shri Gumaste on behalf of the petitioner and the respondent will have to satisfy about the same. However, as the material stands it would be rather risky to conclusively accept the contention raised by Shri Gumaste in that behalf. The first respondent would have it that he deposited the said amount is his Bank account on the very next day i.e. 27th of October and he has actually produced the pass-book and he has examined the official from the Bank Shri Mishra who has proved that entry. He also informed the Municipal Corporation on 31st of October, 1983 that the suit premises were occupied from the 26th of October. The office copy of that letter is produced. He has examined the Ward Inspector Shri Tarachandani who has proved this fact of having received the letter from the first respondent and the original letter was also produced on record. There is positive assertion of both the respondents that possession was given on 26th morning and it would not be proper to discard that assertion in the context of the documents. It cannot be overlooked that the interim injunction that was granted by the trial Court was allowed to remain in force by the lower Appellate Court upto 25th of October so as to enable the petitioner to move this Court. Unfortunately the petitioner could not get a copy of the judgment till 21st which was a Friday and, therefore, he could not file the petition and get appropriate orders before 25th as in that event this complication would not have arisen. The first respondent also asserts that he took advice from his Advocate Shri Gandhi who told him that the injunction would exhaust itself by the end of 25th and if no fresh injunction is granted then he would be at liberty to hand over the possession to the second respondent on 26th and that is what has been precisely done by the respondent as per his evidence. The second respondent also says that he was contacted by the first respondent on 25th evening and told him that he would get possession on the next morning as by that time no injunction was granted or atleast they had no knowledge of the same. It is true that it sounds quite odd that possession was handed over at 7.00 or 7.30 a.m. on the 26th. However, Shri Abhyankar submits that this could be so because the injunction had exhausted by that time and they had no knowledge of any fresh order and they thus carried an impression that as injunction had come to an end possession could be handed over. Even assuming otherwise that the first respondent could have the knowledge at least about the possibility of writ petition being filed in this Court either on the 24th or 25th, he could be apprehensive that there was likelihood that some order may be sought for by the petitioner hurriedly may be on 26th because by 25th he had not received any intimation and, therefore, he was anxious to give possession before 11.00 a.m. that is before the Court hours.

All these circumstances and the evidence in that behalf even taken at the maximum cannot positively and conclusively spell out the requirement of Contempt of Courts Act. Not only there should be disobedience to the directions or the orders of the Court but the same should be wilful. Therefore, two things or at least either of them is absolutely essential to be established namely that the order of injunction should actually served on the first respondent before 26th or at least be established alternatively that at least the first respondent was posted with the knowledge before 26th about the passing of injunction order by this Court. If the evidence falls short of either of these two features then I am afraid notwithstanding the dubious conduct of the first respondent it would be difficult to hold him in contempt. In the first category it is to be borne in mind that in respect of service it must be properly established on evidence which may not be difficult. In the instant case this has admittedly not been done. However, for the purpose of posting knowledge it is well settled that the evidence in that behalf also must be quite convincing and conclusive and the matter cannot be made to rest only on inferences or conjectures. In the third category it cannot be lightly brushed aside that a distinction will have to be made between a case where a person deliberately avoids to effect service on himself and about the filing of the petition but that does not necessarily mean that thereby he deliberately avoids service of the order itself. In the last category it cannot be over-looked that even otherwise a distinction will have to be made that even assuming that a person deliberately avoids service not only of the petition but also of the likelihood of the service of the order apprehending that any such order could have been passed even then it cannot be confused as either wilful disobedience of the order as also imputing knowledge to him about such an order. In this category it is apparent that if he has the knowledge of passing of the order then the question of his avoiding service would pale in the background. However, if he has no knowledge about the order but he is only apprehensive that a petition may be filed then his avoiding service of such a petition by itself cannot be equated to posting with the knowledge that the petition was actually filed and that in that petition an order of injunction was actually passed. These things are distinct though the distinction is subtle. The requirement of law would be satisfied only in the event if the order is actually served or the person has full knowledge that such an order was passed and both these features are to be established conclusively. The mere conduct of running away from the place so as to be made available for effecting any service does not necessarily mean that he has the knowledge of the order. This again becomes relevant feature because he might have that intention in his mind to run away from the reality of the situation in which event order cannot be obviously served on him and equally knowledge to him cannot be impugned with the degree of certainty unless the evidence is otherwise. Shri Abhyankar also submitted that under the Caveat Rules, as framed by this Court in Order XL-A, it is indicated that when the caveat is filed in person the notice will have to be served on him before any orders are passed though it is made permissible that in case of an urgent matter if the Court feels that the object of granting ad interim relief would be defeated by delay, then it may grant ad interim relief till further orders after giving the an opportunity thereafter. This feature would not create much difficulty because the learned Judge of this Court was impressed by the apparent urgency of the matter and, therefore, rightly granted ad-interim injunction as otherwise the very purpose of the petition would have been frustrated though it was sought to be frustrated by the conduct of the respondent in giving possession to respondent No. 2. Two eventualities, therefore can be visualised---(1) no caveat is filed and the respondent is not either genuinely or deliberately available for service as he goes out of station, and (2) the caveat is filed in person but the respondent deliberately goes out and makes himself non-available for service. The explanation that the first respondent had visited his sister''s place repeatedly for two or three days is ex facie rather difficult to be accepted. This would, however only mean that the reason given for his being away from the house is artificially created though the main purpose is to avoid service. However, even on the petitioner''s own showing the first respondent was out of his house on all these three days. Therefore, in such two cases which are indicated earlier if the notice cannot be served on the party though even assuming that he deliberately makes himself non-available for that purpose, can it thereby be said that he must have at least the knowledge of an order being passed by the Court. As stated, a distinction though subtle will have to be kept in mind and a dubious conduct of a person cannot be made a ground by itself to go to the length of imputing knowledge of the order to him. Such a knowledge must be established conclusively by cogent evidence and unfortunately that part is missing in this proceeding.

Shri Gumaste, the learned Counsel, placed reliance on the ratio in Ram Charan and others v. Debi Dayal Dube, AIR 1955 All 482. Therein no doubt the contemner was held guilty of contempt for wilful disobedience to the injunction order and it was also indicated that knowledge of such an order will also be sufficient. However, the facts were entirely different. Temporary injunction was granted during the pendency of the suit restraining the Municipal Board relating to a certain construction of sheds at the back of the applicant''s shop. The temporary injunction came to an end on the suit being dismissed and the construction was resumed. The applicant took the matter to the High Court of Allahabad where notice was issued and ex parte injunction was granted pending admission. The applicant furnished a certified copy before the President of the Board along with an application hardly within two days after the injunction was granted by the High Court. The President refused to act on it on the ground that he was not bound to do so until injunction order was formally served on him through Court. Subsequently the order was sent to the President through process served but even then he refused to accept it on the ground that it was not addressed to him in his personal capacity and, therefore, it could be served on him only in the office of the Municipal Board. An attempt to serve it in his office was frustrated as the other officials refused to accept the same. The President once again declined to accept the service outside the office though it was ultimately served on him subsequently from which point of time no doubt the work was stopped. The President was held guilty of contempt as it was held he had the full knowledge on three different dates about the injunction order which was sought to be served on him and yet he disobeyed the same though he was bound to comply with it. Further there was no just cause for him to refuse to accept the service. It was held that it was immaterial in which capacity he was required to obey the order. The High Court observed that it is not necessary that the order should be actually served on a person in the formal manner through Court but that he becomes aware of its being passed and such an order takes effect as soon as it is passed, its efficacy is not postponed till the service of it in a formal manner. It was indicated that a person who knows that an order binding him to do a certain act is passed cannot disobey it on an excuse that the order is not served upon him formally. It was indicated that in a given case a copy that is furnished to him may create a doubt in his mind about the genuineness and that would be a different category. It was also indicated that a person cannot shirk his liability on the ground that though he derived knowledge through other source the same was not through Court and, therefore, was not bound to comply with the same and it is in that context that it was observed that absence of mens re does not include ignorance of law since his liability is a question of law and knowledge being posted to him is the main criteria. A distinction was made of deliberate disobedience which is different from not disobedience with the particular motive and it is the act of disobeying the injunction which must be done wilfully or deliberately though it is not necessary that it must done with a criminal intention or motive. It was further indicated that refusal to accept, or evade service of a summons may not be contempt, as the party is at liberty not to appear in Court as the suit can proceed ex parte. The refusal to accept or evade service of injunction order is contempt because of the fundamental difference between the two and such a refusal amounts to interference with the course of justice by refusing to acquire the knowledge without which the Court''s order cannot be complied with. Consequently, therefore, it is on these facts the contemner was held guilty. The facts are obviously distinguishable because there was clinching evidence posting knowledge to him about the passing of the injunction order and actually the order was being served not only by private party but also by the process server. Though he wilfully avoided, still he had enough knowledge about the passing of that order. Consequently, this ratio is not applicable to the facts of the instant case though this ratio also lays down that at least knowledge of the passing of the order is the requirement if law before a person can be held to be guilty for contempt. This on the contrary would support the plea canvassed by Shri Abhyankar that such knowledge is a must which cannot be dispensed with.

In Bunna Prasad and Others Vs. The State of U.P. and Another, as relied upon by Shri Abhyankar it has been held that although service of order on person against whom it is granted need not be proved, "its knowledge by such person must be proved", it was further observed that a bona fide belief of such person that source of information about existence of such order is not authentic, would not make him liable for contempt. The knowledge no doubt can be imputed through different agencies and media such as telegram, newspaper or otherwise on which basis it would be safe to infer that he knew about the order. Several contingencies are envisaged such as he consented to the order or he was present in the Court when the order was pronounced or when the motion was made although he was there before the order was pronounced. However, in such a contingency it has been specifically held as---

"In such a case those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with contempt of Court."

Therein though a proceeding before a Nyaya Panchayat was stayed by the High Court the party without furnishing copy of the telegram sent by his Advocate or even without any affidavit made an application for stay without giving any details and without even mentioning the date of the stay order on which basis the officials felt that it was not proper to rely on such information and they were held not guilty and it was observed in that behalf as---

"Contempt of Court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of Court for disobeying its orders unless there is impeachable evidence that the judicial officer had knowledge of the order of the High Court."

In The The Aligarh Municipal Board and Others Vs. Ekka Tonga Mazdoor Union and Others, the Supreme Court reiterated this principle. Therein no doubt the facts were quite glaring. Therein a dispute occurred on account of the realisation of fees claimed by Municipal Board for use of Municipal Stand on account of which writ petition was filed in the High Court at Allahabad and an interim order of stay was passed. Its certified copy was handed over to the office with a letter. The Executive Officer directed the Demand Inspector to note and comply and sent it for report and Officer In-charge directed that the High Court''s order should be obeyed. This repeated, inspite of which the Demand Inspector refused to comply with the same on some pretext or the other and which conduct was condemned obviously because not only there was knowledge of the order but even the officials had directed him to comply with that order and yet he deliberately refused. In that behalf while holding him guilty but exonerating the others the Supreme Court observed as---

"Knowledge of exact order is sufficient while official communication is not a condition precedent when there is no reason to doubt its authenticity."

The Supreme Court reiterated the earlier principle by observing as---

"Those who assert that alleged contemners had knowledge of order must prove this fact beyond reasonable doubt. In case of doubt benefit ought to go to person charged".

This ratio again is in favour of the proposition that at least knowledge must be imputed and that knowledge must be established beyond reasonable doubt.

In view of this dictum in this field it becomes apparent that the actual service of the order may not be necessary, but at least the knowledge of passing such an order is absolutely essential and further imputing such knowledge must be conclusively established by reliable evidence and circumstances and consequently it there remains any element of doubt about this knowledge then its benefit must be extended to such a person. This in effect is the under-lined principle of these ratios. Applying this principle to the facts of the instant case notwithstanding the highly dubious conduct of the respondents as also several disturbing features unmistakably suggesting a calculated move on their part, the evidence falls short of the degree required under the law so as to conclusively post them with the knowledge of passing of such an order of injunction by this Court and a possibility otherwise would exist of their not getting the knowledge and if that be so then they would be entitled to the benefit and thus cannot be held liable for contempt for wilful disobedience of the order of injunction recorded by the learned Single Judge of this Court on 25th of October, 1983. That issue, therefore, will have to be answered against the petitioner and in favour of the respondents which answer becomes inescapable.

Before however concluding this chapter it would not be irrelevant to emphasise that the conduct of both the respondents and in particular respondent No. 1 in the entire episode in glaringly dubious and it is backed up by a very calculated design. Various events have already been reproduced in the catalogue mentioned earlier and the nature of evidence and the infirmities in the case of the respondents have also been elaborately discussed. A detailed reference, therefore, is unnecessary and reference to a few features would suffice to high-light this aspect. To start with, the first respondent filed a caveat in person in this Court after the appeal in the Small Causes Court was decided in his favour. This by itself may ostensibly create an impression that he had every desire to participate in this proceeding in this Court even at the stage of admission. However, this is only the deceptive reading of the situation because the caveat was filed perhaps to serve as a prospective defence and protection for himself but the move behind the caveat in person could not be accidental. Once however after having filed the caveat the further conduct belies that claim about his to participate in the proceeding. It is very unfortunate that the petitioner could not procure even an ordinary copy of the judgment of the Appellate Bench of the Small Causes Court so as to enable him to move this Court in writ petition and this delay has created all these complications or otherwise the petitioner would have been able to move this Court much earlier and got ad interim injunction and thus the injunction that was granted earlier and to be in force upto 25th would have continued in which event obviously the first respondent would not have been able to induct the second respondent even on the 26th as he contends. Even ex facie it is difficult to accept that the first respondent had been visiting his sister''s place at Ghatkopar repeatedly at least for two days and he used to return late at night. Even the father had gone to Ghatkopar and stayed there for two days. All this appears to be the deliberate move to be away from the house so that even service of writ petition could be avoided and also the service of injunction if such an order is passed could well be circumvented. That the petitioner had repeatedly gone to the house and thereafter along with the bailiff the house was found closed, whereas on some occasion the servant replied that the master was away and this was told even on the telephone. Whether it was actually so or not could not be verified. Even at the business premises the respondent was away on those crucial two days when the injunction was approaching the point of being exhausted. All this could not be accidental and the synchronising of these timings with the so called necessity for the entire family to go to Ghatkopar carries with it a deeper implication. An attempt to effect service on the learned Advocate Shri Gandhi who has represented first respondent in the trial Court did not achieve the object as the learned advocate declined service on the ground that he was not engaged after the matter was over in the Small Causes Court, though it cannot be over-looked that the first respondent on his own admission had contacted Shri Gandhi on the 19th and obtained his advice in that behalf and the learned Advocate rightly informed him that if the injunction did not continue under any orders after 25th then he was free to induct any one else. Even the receipt of the telegrams within the scheduled time was sought to be frustrated as it was contended that the telegrams were not received in due time as the family members were out and the respondent No. 2 contends that those were lying at his residence which were received by the mother though he had not gone to that house on the 26th. This again sounds highly improbable. The meeting with Rashmi Jhaveri and Godiawala has its own importance and the denial of the respondent in that behalf is obviously motivated. It is impossible to conceive that those two persons would have discussed the matter with the petitioner unless they were authorised and instructed by the first respondent and further when the first respondent admits that they told him that they did not pursue the negotiations because the demands were unreasonable carries with it deeper implications about establishing the first respondent authorising these two persons to negotiate on his behalf and they in turn disclosing to him the outcome of the discussion. If that be so, then the meeting of the 23rd as deposed to by the petitioner also probabilises itself and in turn it indicates that those two persons were told that the petition was to be filed on the 24th and was to be taken for admission on the 25th and which in normal course would have been transmitted through them to the first respondent. This part of the evidence is not challenged at all. Similarly Bailiff''s evidence is not challenged. Consequently that the petition was to be filed on the 24th and to be taken for admission on 25th could be made known to the first respondent and that synchronises the hectic activities of the first respondent to be away from his residence and the place of business continuously alongwith the family members so as to avoid service of any notice. The further fact that the evidence of the respondent is deliberately kept vague as to when the petitioner and his father approached him and as to when he had entered into the agreement with the second respondent and this assumes much importance in the context of the controversy. It may, therefore, be possible to infer that the respondent was keeping track on the events and thus also about the proceeding in the writ petition. The un-ceremonious haste of giving possession, if it was really so, in the early hours of 26th also casts a reflection against the respondent. The details of these features are discussed in the earlier paragraphs which would make the picture quite clear about the conduct of both these respondents and which conduct can hardly be encouraged. The first respondent obviously wanted to proclaim that he has filed the caveat and, therefore, he was not avoiding to face the petition, but it is obviously a camouflage because with this proclamation he deliberately created another situation where service under that caveat even of the writ petition had become impossible, so that the first respondent once again could proclaim that he could not be blamed and could not be held responsible also because he was not served with the notice or the order. It also cannot be over-looked that as per the agreement which is now accepted, the petitioner had advanced Rs. 45,000/- as his contribution towards the construction loan and he was to be inducted in one flat on one floor and the rental was to be fixed as per the standard rent. On the admission of both the respondent it is borne out that the first respondent accepted Rs. 1,00,000/- from the second respondent which he once again styled as construction loan and thereafter he inducted the second respondent on the monthly rental of Rs. 1450/-. This obviously pertains only to one flat. This is in glaring contrast with the amount of Rs. 45,000/- received from the petitioner and the rental was to be fixed as per standard rent. The first respondent was not bold enough to give the exact date on which he has agreed with the second respondent to accept the amount and create tenancy rights in favour of respondent No. 2 in the new building. However, he asserted and which is sought to be supported by the second respondent that this amount of Rs. 1,00,000/- was paid on 12-8-1981. It is significant that the first respondent in his affidavit made a vague statement that some time prior to August, 1981 the petitioner and his father had expressed their desire to withdraw from the agreement. However, that point of time has been deliberately kept vague, though he asserted further that it is on the 7th September, 1981 that it was mutually agreed to release the parties out of the obligation under the agreement and it is on that day that certain writings were executed. The contention, therefore, raised on behalf of the petitioner that this amount was pocketed much earlier and in order to retain the benefit of that amount the first respondent forced the situation on the petitioner in September 1981 and for which a subtle pressure was exercised that there was no writing. The profit motive is apparent and that in fact the respondent pocketed quite a substantial amount of profit is well established thus on his own showing. The first respondent utilised Rs. 45,000/- of the petitioner and then merrily accepted Rs. 1,00,000/- from the second respondent and utilised the same creating an agreement over the same flat in respect of which the agreement with the petitioner was still subsisting. All these features are quite alarming which obviously forfeit any claim on equity in favour of the first respondent. However, despite these glaring features which may even tend to spell out a reasonable possibility of the respondent having knowledge of the order, still it falls short of the quantum of proof required in such a field as the knowledge is not conclusively established on the evidence as it stands. The respondents though are entitled to its benefit, the impact of these features on the conduct and design of the respondents is not diluted. However, the requirement of law must be fulfilled before a person can be held guilty for contempt. Non-fulfilment of that requirement however is the inescapable result. A thought however rationally occurs in a situation like this where caveat is filed in person and the person is not conveniently available on account of his own action, it is necessary that some change in the procedure and formulation of rules is effected so as to prescribe a safeguard for imposing a suitable condition so as to effect service on some authorised person in his absence if he is not available. One of the contingencies would be that it would be obligatory for such a person at the time of filing the caveat in person to appoint an authorised agent or an authorised clerk or any other person who would be readily available for effecting service about the notice of the order and if such a person himself is not available then the notice to such authorised person would be accepted and treated as notice to that person himself. Otherwise it would become very easy to make a show of filing the caveat in person and then moving away from the residence and being not available deliberately for quite some time which is very crucial and thereby delaying the petition being placed before the Court for orders so that in between a situation to his advantage can well be created which may tend to make the interim order passed subsequently as ineffective. Several other remedial measures can well be envisaged. It would, therefore, be proper that the concerned authorities would examine this aspect and if need be streamline the procedure in that behalf to achieve the desired object.

The last question that survives relates as to whether inspite of the respondents not being held liable for contempt and since the suit is being restored for being decided on merits would it be necessary to pass an interim order of injunction as was done by the learned trial Judge which however was vacated by the lower Appellate Court. I have already indicated the conduct of the respondents and especially that of the first respondent in manipulating the thrust of the situation so that he could conveniently induct the second respondent before the service of the impugned order was effected on him. The existence of agreement with certain stipulations between the petitioner and the first respondent is accepted and which include utilising the loan amount towards construction of the building and creating tenancy rights in favour of the petitioner vis-a-vis one flat in the newly constructed building. The respondent''s point of defence as reflected through his affidavit could be that the said agreement was withdrawn or rescinded voluntarily by the petitioner and thus the parties were released of the mutual obligations. The petitioner has denied it and has also explained as to why certain writings were effected and why the two cheques were accepted. I have elaborately discussed that aspect in the other context earlier and it is un-necessary to re-state the same. In the context of various features and attendant circumstances the explanation tendered by the petitioner cannot be discarded in this prima facie field and he will have to be given an opportunity to substantiate the same, especially when various circumstances at least ex facie are quite relevant in support of that plea, in contrast to which it is not proper in view of all these features to accept the claim of the respondent even at the threshold about withdrawal of agreement. On the contrary there are several circumstances which would require a serious consideration while examining this aspect. Thus for instance when the petitioner and his father have alleged to have contacted the first respondent to expedite the construction work it would mean that they were anxious to execute the agreement and they have paid quite a substantial amount out of their valuable saving. In that event in the prima facie field it becomes at least debatable if practically in the same breath they could voluntarily inform the first respondent that they would like to withdraw from the agreement. It is not even remotely suggested that by then the petitioner had acquired any other accommodation. This flat is most convenient to him. His conduct in depositing the amount under the said cheques on encashing them in the suit itself is very eloquent and the exchange of correspondence also supports his claim at least in the prima facie field. The first respondent wants to get out of the agreement on the basis of the theory which is required to be established on evidence though prima facie it cannot be accepted to that extent as to deny any relief to the petitioner. The vagueness as to when the agreement was made between the first and the second respondent and the deliberately vague evidence led by the first respondent in that behalf cannot be said to be irrelevant when the petitioner submits that it was done prior to taking writings from him. The vagueness of the timings and the probabilities of the features would put one on guard to carefully scrutinise the evidence in that behalf which would be led at the trial. The first respondent accepted Rs. 1,00,000/- from respondent No. 2 as construction loan for the same flat even when the agreement with the petitioner was subsisting. The two dates viz. 12-8-1981 and 7-9-1981 in that context are quite relevant. This is elaborately discussed earlier. The various features relating to the receipts issued by first respondent in favour of the second respondent which are already discussed also cannot be lightly ignored. The learned trial Judge has approached the problem correctly and has arrived at the proper conclusion that a prima facie case has been made out by the petitioner-plaintiff for granting interim injunction. The petitioner had advanced the loan with which the building was constructed may be along with other funds. The petitioner has been waiting for quite some time to get the flat as the tenant under the agreement but instead respondent No. 2 has been inducted in the flat which was ear-marked for the petitioner. The petitioner if he succeeds in the suit would be entitled to relief of up-holding his claim over the flat in the said building. Not passing of any interim order would also result in allowing the first respondent to take advantage of his own wrong if he ultimately falls in the suit. The other two issues of balance of convenience and irreparable loss are obviously in favour of the petitioner. As against this the Appellate Bench of the Small Causes Court was obviously in error in holding otherwise. As to whether two flats were agreed to be given for the said amount of Rs. 90,000/- would be a matter of evidence though even the first respondent has refunded Rs. 10,000/- under a separate cheque issued in favour of the petitioner''s brother. We are not thus much concerned with the other flat relating to the petitioner''s brother. The Appellate Bench was obviously wrong in coming to such a firm finding even at the threshold of the suit in the absence of any evidence observing that it was improbable that a person who commits such fraud would give copy of such writing to the other side so that he would make use of it against him. It was also wrongly felt that they were required to record a finding as to whether any fraud was actually perpetrated. The Appellate Bench then further erroneously observed that if an injunction is granted then the first respondent would be compelled to keep the suit premises for himself only and would be put to a loss of income for which the premises are constructed and it was casually observed that as against this non-granting of injunction would not cause inconvenience to the petitioner. These observations and the reasons in that order are obviously not convincing. It is rather surprising to note that the lower Appellate Bench felt agitated of the prospective financial loss that would be caused to the first respondent if one flat has to be retained and not rented out on giving the injunction, though the other side of the coin about the loss that has been caused to the petitioner has been unfortunately missed. The conduct of the first respondent unmistakably indicates that if no restraint is put on him he would not hesitate and would waste no time to let out all the flats in the building getting much profit than what he would have derived by letting out one flat to the petitioner. This is now demonstrated by his action. If such a situation arises then it would complicate the situation if ultimately the petitioner succeeds in the suit and perhaps the very purpose of filing the suit may be frustrated. Putting all these features in the balance the same must tend in favour of granting injunction as has been rightly done by the learned trial Judge. The interim relief will have to be in two Items (1) restraining the second respondent from transferring, alienating, parting possession or creating third party interest in respect of the flat in which he is inducted by the first respondent, and (2) to order the first respondent to keep one additional flat as vacant or to retain it with himself without letting it out to any one and correspondingly restraining him from creating any third party interest in respect of the said flat. To strike the balance and to minimise the inconvenience to both the sides it would be necessary to direct the hearing of the suit expeditiously. The interim order would obviously remain in force till the final disposal of the suit whereafter proper orders would be passed by the learned trial Judge incharge in accordance with his findings in the suit. During the course of the hearing of this petition the first respondent was directed not to let out one flat until further order to which he had agreed and, therefore, passing of the final orders on the same lines would serve the ends of justice. It however appears from the record that the second respondent who is made a party to the contempt petition is not the party to the main writ petition as obviously he was not a party defendant in the suit and which was obviously because by then he was not inducted in the premises. The situation has changed after filing of the petition. In view of this the petitioner may consider the necessity of impleading the second respondent as a defendant in the suit so as to avoid multiplicity of proceedings and further complications. If such a motion is made, the learned Judge shall certainly consider it in the light of the observations herein above. If he is allowed to be added as the defendant, then the petitioner would be at liberty to move the trial Court for an order of interim injunction against him on the lines as suggested and the learned trial Judge shall consider the same on its own merits in the light of the observations hereinabove. Consequently, therefore, it would be premature to pass any interim order in that behalf in this proceeding qua respondent No. 2 who has since not been impleaded either or in the petition in the suit.

The observations hereinabove are restricted to this proceeding and need not be confused as the final expression of opinion on merits. The learned trial Judge shall have un-fettered discretion to decide all relevant issues in the suit on their own merits. All the contentions on merits available to both the sides thus left open for adjudication in the suit.

The net result would be that the petitioner would succeed in the main petition while the notice issued in the contempt petition will have to be vacated.

Writ Petition No. 3762 of 1983---Rule made absolute in terms of prayer Clause (a) with costs. The impugned order recorded in Appeal No. 229 of 1983 by the Appellate Bench of the Small Causes Court, Bombay on October 19, 1983 is set aside. It is hereby declared that the Small Causes Court at Bombay has jurisdiction to entertain and try the suit filed by the petitioner-plaintiff. The learned Judge incharge shall proceed with the said suit in accordance with law and endeavour to decide the same on merits as far as possible and feasible within a period of six months.

During the pendency of the said suit, the first respondent herein i.e. the original defendant is directed to keep one flat either vacant or retain in his possession in the suit building and is thereby restrained from creating any third party interest or from transferring, alienating or disposing of or even letting of the same to any one till the final disposal of the suit in question.

Contempt Petition No. 16 of 1984---Rule discharged. Notices issued against both the respondents are vacated.