The Rent Controller's finding on the issue of tenancy is res judicata, even though the Rent Controller was not competent to try the subsequent suit.

Headnote:
SMALL CAUSES COURT JURISDICTION - TENANCY DISPUTE - RES JUDICATA - EFFECT OF RENT CONTROLLER'S FINDING - STAY OF SUIT - PREMATURE SUIT - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES (CONTROL) ACT, 1944 - C. P. AND BERAR LETTING OF HOUSES AND RENT CONTROL ORDER, 1949.
Fact of the Case:

Plaintiffs filed a suit for ejectment against the defendant, alleging that he was their tenant and that they had validly determined the tenancy. The defendant contended that the suit was not cognizable by the Small Causes Court as the tenancy was disputed, and that the suit was premature as an appeal against the Rent Controller's permission to determine the tenancy was pending.
Finding of the Court:

The court held that the Small Causes Court had jurisdiction to try the suit as the Rent Controller's finding on the issue of tenancy was res judicata, and that the suit was not premature as the notice determining the lease was effective even though an appeal against the Rent Controller's permission was pending.
Issues: 1. Whether the Small Causes Court had jurisdiction to try the suit. 2. Whether the suit was premature.
Ratio Decidendi: 1. The Rent Controller is a legal Tribunal and his finding on the issue of tenancy is res judicata, even though the Rent Controller was not competent to try the subsequent suit. (Explanation VIII to section 11 of the Civil Procedure Code). 2. The notice determining the lease is effective even though an appeal against the Rent Controller's permission is pending. The landlord is not entitled to evict his tenant on the strength of the certificate of the Controller pending the appeal before the Collector, but it does not lay down that the landlord is debarred from filing any suit and that it must be thrown out as premature.
Final Decision: The reference made by the District Judge is dismissed.

JUDGMENT - Waikar J.-This is a reference made by the District and Sessions Judge, Akola under Order XLVI Rule 7 of the Code of Civil Procedure on an appli-cation made to him by the original defendant in the small causes suit for ejectment which was decreed against him.

2. The dispute was in respect of one room admeasuring 13'x 12', which according to the plaintiffs (who are brothers) was let out to the defendant on a monthly rent of Rs. 3. The plaintiffs obtained necessary permission of the House Rent Controller and by a quit notice dated 21–9-1979 determined the tenancy with effect from 31–10–1979 and filed the suit for ejectment, arrears of rent and damages.

3. It appears that the suit or ejectment was filed even before the appeal filed by the defendant (Tenant) to the Resident Deputy Collector, Akola against the order of the Rent Controller was decided.

4. The contention of the defendant in the Small Cause's Suit was that the permission granted by the House Rent Controller had not become final as the appeal against the same before the Resident Deputy Collector was still pending. He, therefore, prayed for stay of the suit till the decision of that appeal. He further stated that the premises were taken on lease by his father Atmaram from one Renukabai. The plaintiffs, he contended, were hot the exclusive heirs of deceased Renukabai. The other legalheirs of Renukabai were necessary parties to the suit. So also this defendant was not the sole tenant as there were other heirs of his deceased father Atmaram. He, therefore, questioned the jurisdiction of the Small Causes Court to enter- tain the suit. The defendant further stated in the written statement that he had offered the rent to the plaintiffs which was refused.

5. The learned Small Causes Judge held that the plaintiffs were the landlords and the defendant their tenant and that the tenancy was validly determined. He found the defendant in arrears of rent and decreed the claim for ejectment and arrears of rent as claimed. He found that the suit did not suffer from the defect of non-joinder of any parties.

6. The learned District Judge upheld the contention of the defendant that the learned Small Causes Judge had exercised a jurisdiction which was not vested in him as the suit was not cognizable by the Court of Small Causes and hence made a reference to this Court under Order XLVI Rule 7 of the Code of Civil Procedure.

7. It is true that in view of the Bombay, Amendment to Article 4 of Schedule II of the Provincial Small Cause Courts Act, it is only when the fact of tenancy, either written or oral, is not in dispute and the substantial issue arising for decision is about the determination of tenancy by efflux of time or by a notice under clause (h) of section 111 of the Transfer of Property 'Act that the Small Causes Court gets jurisdiction to try the suit. It is also true that once the tenancy is denied or disputed by the defendant, the juris- diction of the Small Causes Court is ousted.

8. The learned District Judge, in his referring order referred to the case reported in (Bai Hari v. Nathubai Prabhubhai)1. It. was a suit to recover possession founded upon a written lease. The defence raised was that itwas executed merely as a matter of form, because the defendant had executed a mortgage deed of the property, which belonged to the defendant and the lease deed was executed at the instance of the plaintiff mortgagee, which was meant not to be acted upon: What was observed therein was :

“ —— when the Legislature says 'substantial issue' it means an issue arising not only upon the allegations in the plaint but upon those allega-tions combined with the allegations made in the written statement. That is only common sense. You can have no question at issue unless there is difference between the parties, and in order to determine what the issue is, you have to consider the allegations of both sides.”

“A substantial issue is an issue which goes to the root of the case, other issues being

Click Here to Read the rest of this document