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SUPREME COURT OF INDIA
10th December 1953
MAHAJAN, S.R. DAS AND BHAGWATI, JJ.
Messrs, Importers and Manufactures Ltd., Appellants
Versus
Pheroze Framroze Taraporewala and others, Respondents.
Appeal No. 172 of 1952.
Advocates appeared
Shri B. H. Lulla, Advocate, instructed by Shri Rajinder Narain Agent, for Appellants; Shri C. K. Daphtary, Solicitor-General for India (Sri R. B. Andhyarujina, Advocate, with him), instructed by Shri R. A. Gagrat, Agent, for Respondents Nos. 1, 2 and 3.
A, a tenant of a certain plot in Bombay sublet it to B at the same rent at which A was paying, that is Rs. 370 per month. The landlord filed a suit against both A and B under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in the Bombay Small Causes Court, for ejectment and for compensation at the rate of Rs. 370 per month. The trial court passed a decree directing both the defendants to vacate the flat and awarding, only as against A, compensation at Rs. 370 per month from the date it was due till delivery of possession. In appeal to the appellate bench of the Small Causes Court one of the pleas taken by the defendants was that the Small Causes Court had no jurisdiction to entertain the suit so far as it concerned the second defendant B. The appeal was dismissed. B thereafter moved the High Court in revision under section 115 of the Code of Civil Procedure which was also dismissed. The contention of the appellant B was that the suit as against it was not a suit between a landlord and a tenant and that, in so far as it claimed compensation for use and occupation, it was not a suit for recovery of rent and, therefore, section 28 had no application, and the Court of Small Causes had no jurisdiction to entertaip tf1is ~uit. There Wa!! furtl1e~ appea,\
~o the Supreme Qourt by C. . Held: (dismissing the appeal) (i) The suit was undoubtedly one for possession of the flat and the claim for compensation was only incidental and ancillary to the claim for possession.
(ii) Section 28 of the Act confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions." There is no reason to hold that "any claim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction not only to entertain that suit but also Hto deal with any claim or question arising out of the Act or any of its provisions" which may properly be raised in such a suit. The plaintiffs in this suit claim that the purported subletting by A to B was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the contractual tenancy A was not entitled to create a sub-tenancy and they questioned the validity of Bs claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and B thus raised in the plaint certainly arises out of the Act and the language of section 23 appears to by wide enough to cover the same.
(iii) Apart from section 28 of the Act, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whethhr he was or was not a party to the suit. The non-joinder of such a person does not render the decree any less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion hetween the "landlord and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the court thinks fit to do so. The joinder of such a proper property cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of section 28 of the Act.
Judgement
S. R. DAS J. : This is an appeal by special leave from the judgment and order of the High Court of Judicature at Bombay passed on 25-1-1952 in Civil Revision Application No. 1119 of 1951. It arises out of a suit filed in the Bombay Small Causes Court under S. 28, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for ejectment from and compensation at the rate of Rs. 370 per month from 1-11-1947, for the use and occupation of the second floor flat of Sunama House situated in Cumballa Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D. B. Taraporewala deceased and as such the owners of the Sunama House. The defendants are two in number, namely the first defendant Mrs. Dinbai K. Lala to whom the said flat was let out by the plaintiffs on or about 1-9-1942 at Rs. 370 per month and the second defendant a limited company to whom the first defendant had sublet the said flat as from 16-11-1947 at the same rent. The defendants contested the suit on a variety of grounds, but the trial Court by its judgment dated 18-10-1950 rejected all the pleas and passed a decree directing both the defendants to vacate the flat by 31-3-1951 and awarding, only as against the first defendant Rs. 3,317-10-8 for compensation from 1-11-1947 till 31-7-1948 and thereafter at Rs. 370 per month from 1-8-1948 till delivery of possession besides the costs of the suit.
The defendants preferred an appeal under S. 19 of that Act. Besides the various pleas put forward before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, which was not pleaded in their written statements, namely, that the Small Causes Court had no jurisdiction to entertain the suit in so far as it concerned the second defendant. The Appellate Bench of the Small Causes Court dismissed the appeal with costs. The second defendant thereafter moved the High Court in revision under Section 115 of the Code of Civil Procedure which was also dismissed with costs. The second defendant has now come up in appeal before us after having obtained special leave of this Court.
2. The only contention urged before us is that the Small Causes Court had no jurisdiction to entertain this suit. The relevant portions of S. 28 of the Act are as follows :
"Notwithstanding anything contained in any law and notwithstanding that, by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,
(a) in Greater Bombay, the Court of Small Causes, Bombay,
(aa) . . . . . . . .... ., ,, ..
(b). . . . . . . , . , . , , . .., , . ,
shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply, and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions; and no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question."
It was not disputed that the provisions of Part II of the Act apply to the premises. The contention of the appellant is that the suit as against it was not a suit between a landlord and a tenant and that, in so far as it claimed compensation for use and occupation, it was not a suit for recovery of rent and, therefore, S. 28 had no application, and the Court of Small Causes had no jurisdiction to entertain this suit. In view of this plea it is necessary to refer to the plaint in this suit. After setting forth their title as owners of the Sunama House as trustees under the will of Framroze D. B. Taraporewala the plaintiffs plead that the second floor flat was let out to first defendant on or about 1-9-1942 at Rs. 370 per month on terms and conditions printed on the back of the rent bill form which were shown to and accepted by the first defendant.
In para 5 of the
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