Mrs. E. Williams and Another vs Vallabhdass

Chandra Sekhara Sastry, J.—This is a revision petition under Sec. 115 C. P. C. to revise the order of the Second Additional Judge, City Civil Court, Hyderabad holding that it is advisable to take up the issue No. 4 at the final stage of arguments after trial. The respondent filed a suit against the two petitioners for possession of the suit house, A/11, Vallabhadas Blocks, bearing Municipal No. F. 4-175, situated in Nampalli, Hyderabad after evicting the defendants, who are the petitioners herein. The allegation in the plaint is that the defendants are trespassers and have no title or interest in the suit house. It is further alleged that the defendants appear to have collusively and wrongfully with the connivance of M. H. Durreni, the tenant, taken possession of the suit block during the pendency of the proceedings against him before the Rent Controller and have since then been retaining possession of the said house without the plaintiff''s consent.

It is also alleged in the plaint that the plaintiff obtained an order for eviction of the said Durreni from the Rent Controller, Hyderabad on 21-12-54 and that when he took out execution and went to take delivery of possession on 1-3-55, the 2nd defendant upon the allegation that he was occupying the suit house along with the 1st defendant, filed a claim petition before the Rent Controller claiming that the defendants are the tenants of the house. But the Rent Controller dismissed that claim petition. The defendants aggrieved by the said order, filed an appeal before the 1st Judge, Small Causes Court; but it was also dismissed on 14-7-56. Then, the defendants preferred a revision to the High Court in C. R. P. No. 360/56. By an order dated 4-4-57, the High Court allowed the revision petition and set aside the orders of the 1st Judge, Small Causes Court and the Rent Controller, Hyderabad, on the ground that the Rent Controller has no jurisdiction to entertain and dispose of the matter.

Thereafter, the present suit was filed in the lower Court, which is the Civil Court, for possession on the ground that the defendants are trespassers. One of the pleas raised by the defendants in their written statement is that the 1st defendant is a tenant under the plaintiff in respect of the suit house under an oral contract of tenancy arrived at in June 1954 and that they were in possession in pursuance of the said contract and that they also paid a rent of Rs. 245/- for 7 months to the plaintiff through his agent and manager, L. B. Batta on 21-1-55. They further pleaded that since the defendants are the tenants and the dispute is one between a landlord and a tenant, the Civil Court has no jurisdiction to try the suit. Issues were framed and issue No. 4 raised the question of jurisdiction of the Civil Court to entertain the suit, in view of the plea taken by the defendants that they are the tenants and the plaintiff is their landlord.

When the suit was called on 14-3-1960, the advocate for the defendants was present, but the plaintiff''s advocate was absent. Then, the lower Court passed the following order:

Advocate for defendant present Plaintiff''s advocate has not yet appeared. It is stated that issue No. 4 about jurisdiction be taken up first which can be argued out on pleadings. Posted for arguments regarding issue No. 4 to 4-4-1960.

But the case was called on 10-8-1960 on which date the order was passed by the lower Court, which is now sought to be revised, to the effect that

It is advisable to take up issue No. 4 at the final stage of arguments.

Obviously what the lower Court meant was that it cannot decide the question of jurisdiction without deciding whether the defendants are the tenants under the plaintiff after taking evidence on the question.

It is argued by Sri Jeevan Reddy, the learned counsel for the petitioner, that as the defendants pleaded in the written statement that the relationship between them and the plaintiff is that of tenants and landlord, the jurisdiction of the Civil Court to entertain the suit and decide that question is ousted by reason of the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 now repealed and replaced by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act of 1960. The learned counsel fairly conceded that there is no specific section in either of the two Acts which ousted the jurisdiction of the Civil Court in express terms to entertain suits based on the allegation that the defendants are trespassers. But what is contended is that, by necessary implication, the jurisdiction of the Civil Court is ousted whenever the defendants pleaded that they are the tenants of the plaintiff and that whenever an issue arises in a suit for possession whether there is any relationship of landlord and the tenant between the plaintiff and the defendants, it is only the Rent Controller that has got exclusive jurisdiction to try the said issue and thus the jurisdiction of the Civil Court is excluded.

In support of this contention, the decision of the Supreme Court in Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, is relied upon. That was a case under the Bihar Buildings (Lease, Rent and Eviction) Control Act. In that case; the landlord filed an application for eviction of the tenant on the ground that the tenant committed wilful default in the payment of rent due for the months of March, April and May, 1947. The House Controller held that the tenant committed default in the payment of rent and ordered eviction. The said order was upheld by the Commissioner and the order of the Commissioner became final. Subsequently the tenant filed a suit in the Munsif''s Court, Patna for a declaration that the order of the House Controller was illegal, ultra vires and without jurisdiction. The main ground on which the tenants attacked the order of eviction passed by the House Controller was that, in fact, there was no arrear of rent and that, therefore, no order for eviction could be passed against them. The Supreme Court pointed out that the Act has entrusted the Controller with a jurisdiction which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction on finding that there is non-payment of rent, to order eviction of a tenant and, therefore, it was held that even if the controller wrongly decides the question of nonpayment of rent and orders eviction of the tenant, his order cannot be questioned in a Civil Court.

It may be noted, that, in that case, in the plaint filed by the tenants, it was alleged that the relationship of the plaintiffs and the defendants was that of a tenant and landlord and the allegations in the plaint determines the Jurisdiction of the Civil Court. When the plaint was filed on the basis that the relationship between the parties was that of landlord and tenant and the relief asked for was on the ground that the Rent Controller decided erroneously in exercise of his jurisdiction, obviously the jurisdiction of the Civil Court was barred for the reason that the question that the civil Court was called upon to decide in that suit was one which was within the exclusive jurisdiction of the Rent Controller. This decision, therefore, does not, in my opinion, support the argument advanced by the learned counsel for the petitioner.

Reliance is placed also upon certain observations in the decision in Babulal Bhuramal and Another Vs. Nandram Shivram and Others, . The question that arose for decision in that case was one under Sec. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act. Particularly, the following passage at page 680, column 2 of the report is strongly relied upon.

Do the provisions of S.28cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions? The answer must be in the affirmative on a reasonable interpretation of Sec. 28.

Again reliance is also placed upon the following further observation in column 1 at page 681 of the report:

On a proper interpretation of the provisions of Sec. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship Is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties. The Courts which have jurisdiction to entertain and try such a suit are the Courts specified in S. 28 and no other.

These observations in this judgment of the Supreme Court appear to support the contention of the learned counsel for the petitioner. But if the facts of the case and the context in which these observations are made are noted, it will be clear that this decision also does not support the argument of the learned counsel for the petitioner.

The Supreme Court pointed out that the suit was admittedly by the landlord, and that the eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act. It was also pointed out that the claim of the defendants was that they were protected by the provisions of the Act and that, in such a suit, the claim of the defendants was one which arose out of the Act or any of its provisions and that only the Courts specified in Sec. 28 and no other could deal with it and decide the issue. Therefore it is clear that on the allegations in the plaint itself, the 1st defendant was the tenant of the plaintiff and the other tenants are the persons, who were let into possession by the 1st defendant and the relief asked for was one against a tenant which can be granted exclusively by the Courts specified in Sec. 28 of that Act. Therefore, the Supreme Court held that the Civil Court had no jurisdiction to entertain the suit and that it is only the Courts specified in Sec. 28 of the Act that had jurisdiction to decide the claim put forward in the plaint. It may also be seen that the decision of the Supreme Court was mainly based on the language of Sec. 28 of that Act. There is no corresponding section in the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 or in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act of 1960.

I, therefore, hold that the jurisdiction of the Civil Court is not ousted merely because the defendants pleaded in their written statement that they are the tenants and that the plaintiff is their landlord. Initially, it is the allegations in the plaint that determine the jurisdiction of the Court and not the averments in the written statement. The Court will have to try the issue after taking evidence and decide whether the defendants are the tenants under the plaintiff. If it comes to the conclusion that the relationship of the landlord and the tenant exists, it may have to hold, subject to its view on any other issues raised in the suit such as estoppel etc., that it has no jurisdiction to try the suit further. But, on the allegations in the plaint only, it cannot be held that the lower Court has no jurisdiction to entertain the suit. The order of the lower Court is right and the Civil Revision Petition is dismissed with costs.