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IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
M/s. Southern Automatic Industries Pvt. Ltd. another ..... Petitioners.
Versus
Mrs. N.S. Talpade another.... Respondents.
Writ Petition No. 2134 of 1989, decided on 29-8-1998.
Advocates appeared :
Dilip Jhangiani for petitioners.
Chabria for the respondents.
Section 91 (1)-Bombay Rents Hotel and Lodging House Rates (Control) Act 1947, Section I5-A and 28Jurisdiction of Co-operative Court-Rent case-Suit for eviction in Cooperative Court-Defendant a licensee-Becoming protected tenant under Section I5-A of Rent Act-Held, thus proceedings initiated under Section 91 (1) of Societies Act in Cooperative Court can not succeed - While considering the conflict between the provisions of Section 91 of the Societies Act and Section 28 of the Rent Act, the Apex Court has clearly laid down that jurisdiction of the Court in which action is originated Court be determined on the averments made in the plaint or the claim application and not on the defence taken by the adversary party. For example, if the plaintiff goes to the Court alleging that the defendant is a trespasser, the ordinary Court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendant succeeds in proving that he is a tenant in respect of the premises, the possession whereof is sought, Court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser. The Apex Court was dealing with a case where the claim was lodged by the society in the Co-operative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespasser. On facts, it was found that the appellant was a protected tenant under Section 15-A of the Rent Act. In the circumstances, the Apex Court held that proceedings initiated under Section 91 (1) of the Societies Act could not succeed for the simple reason that the society had failed to prove the fact which constituted a foundation for jurisdiction.
2.This petition of 1989 seeks to challenge the order dated 28th February, 1989 passed by the Co-operative Appellate Court by which Appeal No. 13 of 1989 filed by respondent No. 1 Smt. Talpade was allowed. In the result the order dated 31st October, 1988 passed by the Co-operative Court, Mumbai holding that the dispute lodged by opponents on 11th September, 1978 in the Co-operative Court was not maintainable in the Co-operative Court for want of jurisdiction was set aside. A few relevant facts may be stated for appreciating the short controversy as to whether the Co-operative Court will have jurisdiction to entertain the dispute in view of the provisions of section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "Societies Act") and section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "Rent Act").
3.The first respondent Smt. Talpade is a member of the second respondent Beach House Co-operative Housing Society. It is a tenant Co-partnership Society in which the first respondent owns a flat No. D-1. The first petitioner is a private limited company and the second petitioner is a partnership firm. The names of the two petitioners are more or less identically viz. (i) M/s. Southern Automatic Industries. Pvt/. Ltd. and (ii) Southern Automatic industries. A leave and license agreement was entered into on 1st April, 1972 between Smt. Talpade and the second petitioner firm for letting out the suit flat for an initial period of 11 months with an option to the licensees petitioner No. 2 to extend it for a further period of 11 months. It is the petitioner's case that although the agreement was termed as a leave and licence, the true intention between the parties was to create a lease. At any rate, the leave and licence agreement dated 1st April, 1972 was subsisting on 1st February, 1973 and by virtue of the amendment of the provisions of the Rent Act, namely, sections 5(4-A), 5(11)(bb) and section 15-A of the Rent Act, the second petitioner acquired the status of a "deemed tenant" under the Rent Act.
4.On 11th September, 1978 the respondent lodged dispute No. ABN -11-580/2295 of 1978 in the Co-operative Court, Mumbai. The relief prayed for was that the petitioners be ordered to quit, vacate and hand over vacant and peaceful possession of the suit flat and, secondly, the petitioner may be directed to pay to the first respondent a sum of Rs. 3,318/- being compensation and/or mesne profit for certain period. Since I am concerned with the question of jurisdiction, I will refer to the averments in the original dispute-plaint at a later stage. Suffice it to say that the respondents categorically averred in the plaint that under a leave and licence agreement dated 1st April, 1972 the petitioners were in possession of the premises on leave and licence basis on a monthly compensation of Rs. 400/- p.m. for the use and occupation of the flat and Rs. 500/- p.m. towards the compensation for the use of furniture, fixtures and fittings and Rs. 100/- p.m. for the use of car parking space in the society premises. There are further averments that both the petitioners were in possession on 1st February, 1973 under a subsisting leave and licence agreement dated 1st April, 1972 and despite the request made by the first respondent the petitioners did not quit, vacate and hand over peaceful possesion. The first respondent has further alleged that both the petitioners were persistent defaulters in respect of payment of monthly compensation. It has further been alleged that for education of her children the first respondent was in reasonable and bona fide need of the flat.
5.Though the original
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