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BOMBAY HIGH COURT
Mrs. Roshan Dalvi, J.
Shaikh Jaber Abdulah J AI Sabah —Plaintiff
versus
Ravindra Mukund Chafe and Anr. —Respondents
Suit No. 2955 of 2010
Decided on 19.12.2013
(ii) Specific Relief Act, 1963—Section 6—Suit for possession—Owner of a property can sue in a Civil Court for recovery of possession of property from any party who he claims is in wrongful possession of property owned by him—Plaintiff has produced property register cards showing ownership—Plaintiff is admitted owner of building and suit flat—Defendant has admitted ownership of Plaintiff—Plaintiff may recover possession either U/s.5 of Specific Relief Act on his title or U/s.6 of Specific Relief Act merely on his possession, if Plaintiff has been dispossessed therefrom without his consent—If a person shows his actual possession such actual possession would be restored even if he does not have title—However, Plaintiff has not chosen to sue on title—He has chosen to sue on dispossession—Plaintiff claims to be in constructive or juridical or symbolic possession only—He has described himself as absentee landlord. (Paras 20, 21, 22, 25 and 28)
(iii) Specific Relief Act, 1963—Section 6—Bar on suit—Section 6(1) only entitles person dispossessed without his consent to sue—It does not bar any suit—Only bar is under Section 6(2) if suit U/s.6 is filed after six months from date of dispossession or it is filed against government—If that was so, Court would not have the jurisdiction to try suit—Section 6(2) would bar Court’s jurisdiction—Court would be obliged to dismiss suit upon such statutory bar—Filing suit under one or other of provisions is not a jurisdictional issue and is capable of correction by amendment—Plaintiff cannot be non-suited at threshold—There is no bar to filing of suit under Section 6 of Specific Relief Act. (Paras 36 and 58)
(iv) Civil Procedure Code, 1908—Section 9—Jurisdiction of Civil Court—When a statute creates a bar, Court’s jurisdiction is barred—When Court’s inherent jurisdiction is barred, Court cannot try suit and must dismiss it—If Court’s jurisdiction is not statutorily barred either expressly or impliedly, Court must try suit on merits and may dismiss it if provision under which it is tried is not satisfied or if reliefs cannot be granted under the provision under which it is tried or under any other provision of law considering merits of case. (Para 39)
Result: Suit held to be maintainable.
Mrs. Roshan Dalvi, J. —The Plaintiff is the owner of the building AlJabriya Court at 69, Marine Drive, Mumbai 400 020. The Defendant No.1 is stated to be the trespasser who has illegally encroached upon Flat No.6 and a garage in the aforesaid building. Defendant No.2 is also claimed to be stranger and trespasser illegally inducted in flat No.6 by Defendant No.1. The Plaintiff claims that the Defendants have entered upon the suit premises without his consent or permission and by breaking open the locks of the suit premises and dispossessed the Plaintiff from possession constraining the Plaintiff to recover possession of the suit premises.
2. It is the Plaintiff’s case that the premises was tenanted to one Jayantilal Desai. Rent receipts were issued to him. He died in April, 1976. His wife Urmila Desai and thereafter his married daughter Mrs Renuka Shah lived and died in the suit premises. Mrs. Renuka has not left any legal heirs surviving her, residing with her at the time of her death on 23rd April, 2010. The Plaintiff, therefore, claims that the tenancy rights came to an end upon her death. The Plaintiff claims that the right, title and interest including the possession of the suit premises devolves upon and reverts to the Plaintiff as the owner and accordingly he has constructive / symbolic possession.
3. The Plaintiff claims to be an absentee landlord. He claims the revisionary rights in respect of the suit premises upon the death of the last surviving tenant.
4. The Plaintiff has further claimed that on 31st August, 2010 Defendant No.1 broke open the lock of the suit premises and entered therein. The Plaintiff obtained knowledge of the trespass committed by Defendant No.1 from the neighboring tenants through his constituted attorney (CA) one Nabil Rashid Gani (Nabil).
5. Upon such a case the Plaintiff has sued for possession under Section 6 of the Specific Relief Act. Defendant No.1 claimed that he had earlier entered upon the suit premises and was occupying it. Defendant No.1 claims to have been living with deceased Renuka Shah, the Plaintiff’s statutory tenant. He claims to have been transferred and bequeathed the suit Flat to him. Defendant No.1 has relied upon a photocopy of the Will of the deceased, yet unprobated. Without the grant of probate and consequent title Defendant No.1 has sought to transfer the tenancy to Defendant No.2.
6. Defendant No.2 claims to be a tenant upon the issue of a single rent receipt by the erstwhile CA of the Plaintiff whose Power of Attorney (POA) was since revoked. The receipt is shown to be rubber stamped with his name.
7. The Plaintiff applied for interim reliefs essentially of the appointment of the Receiver in respect of the suit premises upon his claim of recovery of possession of the property of which he was dispossessed under Section 6 of the Specific Relief Act. The Defendants claim that the Plaintiff was not in possession and could not have been dispossessed. It is, therefore, contended that the Plaintiff is required to sue U/s.5 of the Specific Relief Act on his title. Defendant No.2 claims to be a tenant.
8. Consequently two preliminary issues have been earlier raised and framed and are required to be answered; (1) relating to the maintainability of the suit U/s.6 of the Specific Relief Act and (2) relating to the bar U/s.41 of the Presidency Small Cause Courts Act, 1882 (PSCCA) as preliminary issue U/s.9A of the Civil Procedure Code (CPC).
9. The issues are as follows and answered as follows :
ISSUES
1 Is the suit not maintainable U/s.6 of the Specific Relief Act, 1963. No
2 Is the suit barred by provision of Section 41 of the Presidency Small Cause Court Act, 1882. No
10. The bar of jurisdiction created U/s.41 of the Presidency Small Cause Court, 1882 is required to be determined first because if the Courts inherent jurisdiction is ousted, the Court would not be able to consider the maintainability of this suit U/s.6 of Specific Relief Act. Hence the issues shall be determine
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