Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, does not oust the jurisdiction of the City Civil Court in a suit where the plaintiff alleges that there is no relationship of landlord and tenant between the parties.

Judgement

S. K. DAS, J. : (On behalf of himself and Hidayatullah J.)The only question which arises in this appeal is, whether on a proper interpretation of S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act LVII of 1947) the Court of Small Causes Bombay had exclusive jurisdiction to deal with the suit out of which this appeal has arisen.

2. The respondent before us is a partnership firm. It was in possession as a tenant of a shop, No. 582/638, at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (to be distinguished from the Court of Small Causes, Bombay) in which it asked for (1) a declaration that it was in lawful possession of shop No. 582/638 at Mulji Jetha Market, Bombay and that the present appellants (who were the defendants in the suit) or their family members, servants or agents had no right to enter into or remain in possession of the said shop; (2) for an injunction restraining the present appellants, their family members, servants and agents from entering into the said shop; and (3) for an amount of commission payable to it under an agreement dated June 23, 1955. The main averments in the plaint were that by the aforesaid agreement defendant No. 1, appellant No. 1 before us, appointed the respondent as his commission agent for the sale of the appellants cloth in the shop in question. The agreement was to remain in force for a period of four years expiring on June 30, 1959. Pursuant to the agreement the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further right to enter into the shop and in paras 10 and 11 of the plaint the respondent-firm alleged that some commission was due to it and further it asked the appellants not to disturb the possession and peaceful enjoyment of the shop by the respondent; but the appellants, their servants and agents were visiting the shop daily and preventing the respondent from having access to its various articles such as stock-in-trade, books of account, furniture, fixtures etc. On these averments the respondent-firm asked for the reliefs to which we have earlier referred. The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees and after the expiry of the agreement they were trespassers and had no right to be in the shop. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit.

3. The substantial defence of the appellants was that the respondent-firm had sublet the shop to the appellants at a monthly rent of Rs. 500/-; but as no sub-tenancy could be legally created at the time, without the consent of the landlord, by reason of the provisions of the Act, the respondent-firm with a view to safeguard its position in regard to the penal provisions of the Act required the appellants to enter into a sham agreement in the shape of a letter dated June 30, 1952. The agreement was never acted upon and was intended to be a cloak to conceal the true nature of the transaction. The appellants further alleged that the agreement dated June 23, 1955 was also not operative between the parties, and the true relation between the parties was that of landlord and tenant. On these averments in the written statement the appellants took the plea that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit.

4. On these pleadings a preliminary issue as to jurisdiction was framed by the City Civil Court, Bombay and this issue was in these terms :

"Whether this court has jurisdiction to entertain and try this suit ?"

The learned Judge of the City Civil Court relying on a decision of this Court in Babulal Bhuramal v. Nandram Shivram, 1959 SCR