Chunilal Radheshyam & Sons vs Amin Manilal & Co. Pvt. Ltd. & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1981 Supreme(Bom) 305

IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Chunnilal Radheshyam Sons.... Petitioners.
Versus
Amin Manilal Co. Pvt. Ltd. others.... Respondents.
Writ Petition No. 3405 of 1980, decided on 23/24-11-1981.
Advocates appeared :
V.H. Gumaste, N.H. Gursahani, Bhimrao N. Naik with A.N. Samant, for petitioners.
R.B. Andhyarujina i/b. Ambubhai Diwanji Co., for respondents No. 1.
R.B. Andhyarujina i/b. Ambubhai Diwanji Co., and R.D. Shah, for respondents Nos.
2 to 4.

Headnote:
RENT ACT - SECTION 28 - JURISDICTION OF COURT OF SMALL CAUSES - DECREE UNDER SECTION 13(1)(HH) - CERTIFICATE FROM TRIBUNAL - UNDERTAKINGS - MANDATORY - NO DECREE WITHOUT CERTIFICATE AND UNDERTAKINGS - CONSENT TERMS - AGREEMENT FOR CREATION OF LEASE - NO JURISDICTION FOR SPECIFIC PERFORMANCE.
Fact of the Case:

The petitioners, a firm, filed a suit in the Court of Small Causes at Bombay for possession of an area in a building as per the consent terms of a previous suit. The respondents, the directors of the company that owned the building, had filed a suit against the petitioners and another defendant for possession of the premises on the ground that the petitioners were illegally inducted into the building and were profiteering by charging a higher rent than the monthly rent of the premises. The parties arrived at a compromise and consent terms were filed, providing for the termination of the tenancy of the first defendant, the petitioners vacating the premises, the demolition of the existing structure, and the construction of a new building with a specified area to be let out to the petitioners as statutory tenants. The petitioners claimed that the area given to them was less than what was agreed upon and that they were not given the frontage as per the plan annexed to the decree. The respondents contended that the consent terms embodied only an agreement for the creation of a lease and that the Court of Small Causes did not have jurisdiction to entertain a suit for specific performance.
Finding of the Court:

The Court held that the decree passed in the previous suit was not a decree under section 13(1)(hh) of the Rent Act, as it lacked the certificate from the Tribunal and the undertakings required under sub-sections (3-A) and (3-B) of section 13. The Court found that the consent terms did not create a lease but only an agreement for the creation of a lease, and that the suit filed by the petitioners was essentially for the specific performance of an agreement, which the Court of Small Causes did not have jurisdiction to entertain under section 28 of the Rent Act.
Issues: 1. Whether the decree passed in the previous suit was a decree under section 13(1)(hh) of the Rent Act? 2. Whether the consent terms created a lease or only an agreement for the creation of a lease? 3. Whether the Court of Small Causes had jurisdiction to entertain the suit filed by the petitioners?
Ratio Decidendi: 1. A decree under section 13(1)(hh) of the Rent Act requires a certificate from the Tribunal and undertakings as per sub-sections (3-A) and (3-B) of section 13. In the absence of these, the decree cannot be considered a decree under section 13(1)(hh). 2. Consent terms that provide for the demolition of an existing structure and the construction of a new building with a specified area to be let out to the petitioners as statutory tenants create only an agreement for the creation of a lease and not a lease itself. 3. The Court of Small Causes does not have jurisdiction to entertain a suit for the specific performance of an agreement, even if it is an agreement entered into under consent terms that were embodied in a decree.
Final Decision: The petition was dismissed, and the rule was discharged with no order as to costs. The record was to be sent down to the trial court, which was to return the plaint to the petitioners within fifteen days of receiving the record.

JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition raises a question of the jurisdiction of the Court of Small Causes at Bombay under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Rent Act". The petitioners are a firm carrying on business at 94, Kazi Syed Street, Bombay- 400 003. The first respondent is a private limited company of which respondents Nos. 2 to 4 are the Directors. The petitioners had filed a suit in the Court of Small Causes at Bombay. That suit is R.A. Declaratory Suit No. 2298 of 1978. In the plaint filed in the said suit, the petitioners had given the history of a previous litigation between themselves and the respondents and had contended that as a result of the decree passed in the earlier suit, to which reference will be made shortly, they had become entitled to get from the respondents an aggregate carpet area of 1,375 square feet on the ground floor and 560 square feet carpet are on the mezzanine floor of a building which had been constructed at Kazi Syed Street at the same place where originally another building had stood. They also mentioned that the respondents had not given to them possession of the area mentioned above and had, on the other hand, given possession of an area which was much smaller. It was also their grievance that the area, possession of which had been given to them, was not according to the map which had been originally annexed to the decree that was passed. They, therefore, prayed for possession of the area as mentioned above and at a place which according to them had been marked in the place referred to above.

2. At this stage I must proceed to mention the previous litigation between the parties. R.A.S.

Suit No. 1130/5838 of 1975 had been filed by the respondents against the petitioners and one Hasmukhlal Manilal. Hasmukhlal Manilal was defendant No. 1 while the petitioners were defendant No. 2 in that suit. It was the case of the respondents in that suit that defendant No. 1 was the original tenant and the petitioners had been illegally inducted in the building which was situated at 94, Kazi Syed Street, by the said Hasmukhlal Manilal. In paragraph 3 of the plaint it was mentioned that Hasmukhlal Manilal, in breach of the provisions contained in the Rent Act and also in breach of the terms of tenancy, unlawfully sublet to the petitioners the ground floor admeasuring 1, 375 square feet and mezzanine floor admeasuring 200 square feet forming part of the suit premises in that suit. It was also alleged in that suit that the first defendant was charging the petitioners a sum of Rs. 1,050 whereas the monthly rent of the suit premises was Rs. 509. Thus it was alleged that the first defendant in that suit was profiteering. Paragraph 4 of the plaint alleged that the respondents required the suit premises reasonably and bona fide for their own use and occupation and that they intended to "pull down the present building and re-erect a new building with a view partly to use the same for their own use and partly for letting it out." Possession of the premises was prayed for on these grounds.

3. The suit was filed on 24th of November, 1975 and within a short time thereafter, that is on 4th of December, 1975, the parties arrived at a compromise and consent terms were filed. The consent terms are in great details and will be the subject-matter of comments and discussion later in this judgment. Broadly speaking, it may be mentioned that the consent terms provided that the tenancy of Hasmukhlal Manilal, defendant No. 1 in that suit, stood terminated and he was to submit to a decree for eviction. It was also provided that if the petitioners vacated the suit premises, the respondents would demolish the existing structure and re-construct a new building as per the sanctioned plans and thereafter they would let out to the petitioners, who were stated to be the statutory tenants, premises in the new building as mentioned thereafter in

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