IN THE HIGH COURT OF GUJARAT
Civil Revision Application No. 302 of 2012
Decided On: 10.01.2014
Abdulkarim Ramzanibhai Shaikh
N.V. Anjaria, J.
1. What is brought under challenge in the present Revision Application filed under Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is judgment and decree dated 3rd October, 2012 passed in Regular Civil Appeal No. 147 of 1999, by the Appellate Bench of the Small Causes Court, Ahmedabad. The Appeal was dismissed and in turn, judgment and decree dated 28th June, 1999, passed by the Small Causes Court No. 6, Ahmedabad, in H.R.P. Suit No. 46 of 1989, whereby it passed eviction decree against the original defendants was confirmed. Allowing the suit of the plaintiff-landlord, the Small Causes Court directed original defendant No. 1 to pay Rs. 630/- towards the rent due and Rs. 11,160/- towards mesne profits. It was directed to the defendant Nos. 1 and 2 to hand over vacant and peaceful possession of the suit properties-the shop on or before 29th September, 1999. The decree was passed on the ground under Sec. 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the Bombay Rent Act’ for sake of brevity). The applicants herein are the heirs of original defendant Nos. 1 and 2. Original plaintiff is also represented by his heirs-the respondents herein.
2. A profile of relevant facts emerging from the pleadings of the parties and from the record may be outlined. The suit instituted by the landlord-plaintiff-Abdul Karim Ramjanibhai Shaikh was for recovery of possession of rented premises. The suit premises was the shop bearing Municipal Survey No. 3394 and Survey No. 893/1/1 forming part of property Survey No. 893 and property Municipal Census No. 3394/2/3 situated in Dariapur-I Ward, Jordan Road, Ahmedabad.
The suit was instituted against Banubibi Ibrahim and Ismailbhai being defendant Nos. 1 and 2-applicants herein. Defendant No. 1-Banubibi was wife of original tenant Ibrahimbhai whereas defendant No. 2 happened to be the brother of said Ibrahimbhai. The plaintiff prayed for recovery of possession as well as mesne profit from 1st September, 1988 to 20th February, 1989 and the notice charges totaling Rs. 700/-.
2.1. The plaintiff pleaded in the plaint that suit property-shop was taken on rent by Ibrahimbhai – the husband of defendant No. 1 for his sweetmeat business at monthly rent of Rs. 90/-, that the month of tenancy used to start from first day of every English calendar month and further that the Municipal tax and education cess and other taxes were required to be paid by the tenant. It was the case that rent upto 31st July, 1988 was paid up, but thereafter the rent was due and payable. It was further averred by the plaintiff that he came to know recently around 29th August, 1988 that husband of defendant No. 1-Ibrahimbhai had died and defendant No. 1 had resumed illegal possession by trespassing into the shop. It was pleaded that defendant No. 1 had never done business with tenant Ibrahimbhai in the suit shop during his life time. It was contended that, therefore, defendant No. 1 was not entitled to continue with possession of the premises any more.
2.2. It was further stated that defendant No. 1 had handed over the possession of the suit shop to defendant No. 2. Therefore also, it was pleaded, defendants were not liable to retain the possession. It was stated that plaintiff had issued notice dated 6th September, 1988 by Registered Post A.D. To both the defendants asking for handing over possession, but the instructions in the notice were not complied with.
2.3. Prior to the institution of the suit, notice dated 6th September, 1988 mentioned above was issued. The said notice (Exh. 19) inter alia stated that said Ibrahimbhai taken the suit shop for his business. It was also stated that after death of Ibrahimbhai, the addressee defendant No. 1 had illegally entered the shop and that it was further transferred in favour of one Ismailbhai Abdul Karim-defendant No. 3.
2.4. Defendant No. 1-now deceased wanted to file her written statement, which was sought to be filed on 7-9-1998. Permission sought by her to file written statement was rejected and her written statement did not come on record.
2.5. Defendant No. 2 filed his written statement at Exh. 12 wherein he contended that Ibrahimbhai was his brother and the shop premises was used by them for joint family business. It was contended that the business was being run therein in the name of New Lucky Restaurant. It was contended that the shop was taken on rent in the name of deceased Ibrahimbhai, but it was jointly held for joint family business and that he was in possession and occupation thereof in capacity of tenant. It was also contended that the rent was paid from the accounts of the partnership firm in which both of them were partners for running the said business. Defendant No. 2 therefore claimed he was a tenant and had been doing business of sweetmeat in the premises in the name of New Lucky Restaurant.
2.6. It was further contended that after death of Ibrahimbhai, defendant No. 2 was paying the rent and the same was accepted by the plaintiff for long time, however afterwards with a view to enhance the rent and out of other intentions, the landlord had refused to accept the rent, pursuant to which the rent amount was sent by Money Order, which too was refused, and thereafter, the rent was deposited in the Court. It was further contended that in another Suit No. 3587 of 1983, a compromise was arrived at under which defendant No. 2 had became legal heir and defendant No. 1 had withdrawn her tenancy rights in the suit premises. Defendant No. 2 thus denied the case of the plaintiff to contend that he had been in possession of the shop premises from the beginning and that had been running business with deceased Ibrahimbhai.
2.7. The issues were framed by the trial Court at Exh. 15. The first issue was whether the plaintiff proved that defendant No. 1 had illegally transferred or assigned the suit premises or had sub-let it to defendant No. 2. This issue relating to ground under Sec. 13(1)(e) of the Act came to be answered in affirmative by the trial Court. The second and third issues were regarding the due rent and the entitlement of plaintiff to recover possession. They were also answered in affirmative as per the decree passed. Issue No. 4 was that whether the defendant No. 2 proved that the husband of defendant No. 1 was his brother and whether they were living in joint family and the business was done jointly and whether he had right to do business in the premises. This issue was partly answered in affirmative and partly in negative. Issue No. 6 framed was that whether defendant No. 2 proved that he and Ibrahimbhai were running business under a partnership firm, which was answered in negative. The trial Court on the basis of appreciation of evidence held that the defence of defendant No. 2 regarding partnership and the business being run in partnership in the suit shop was not believable, and it was further held that the possession of the suit shop was illegally transferred or otherwise assigned in favour of defendant No. 2 and that the ground of sub-letting under Sec. 13(1)(e) was proved.
2.8. The Appellate Bench of the Small Causes Court confirmed the findings of the Small Causes Court and dismissed the appeal. It considered the controversy by formulating three main points for determination. First was whether the trial Judge had erred in not accepting appellant No. 1-deceased as tenant. The Appellate Bench then considered whether appellant No. 2-defendant No. 2 and Ibrahimbhai were doing business in partnership in the name of New Lucky Restaurant. The third point was in relation to Sec. 13(1)(e).
3. Heard learned Advocate Mr. Janak R. Shah for the applicants and learned Advocate Mr. Amar Mithani for the respondent.
3.1. The contention vehemently canvassed by learned Advocate for the applicants was on the aspect of jurisdiction. It was contended that jurisdiction of the Small Causes Court was not attracted and the suit was competent before the Civil Court. For elaborating it, learned Advocate referred to Paragraph Nos. 4 and 5 in the plaint to submit that it was pleaded by the plaintiff that after death of tenant-Ibrahimbhai, defendant No. 1-his wife had illegally assumed possession of the suit shop and had trespassed. In Paragraph 5 it was averred, submitted learned Advocate, that defendant No. 1 had thereafter handed over the possession of the suit premises to defendant No. 2. He submitted therefore that on the very allegation of the plaintiff, the suit would go out of purview of rent Court. He emphasized the use of word “trespass” to contend that on plaintiff’s own showing, the suit was not for determination of any question under the Rent Act.
3.2. It was submitted that there was an inherent lack of jurisdiction of the Small Causes Court. Leaned Advocate submitted that for the purpose of determining the jurisdiction as to which Court-rent or Civil Court, the averments in the plaint are the criteria. It was submitted further by learned Advocate for the applicants that application (Exh. 85) was submitted before the trial Court seeking raising of an additional issue regarding jurisdiction as to whether the suit was maintainable, however, the trial Court rejected the said application. Learned Advocate thereafter took the Court through also the judgment of Courts below in the context of the evidence led so as to submit that decree under Sec. 13(1)(e) was uncalled for as the said ground was not established.
3.3. Learned Advocate for the applicants further submitted that there was inherent lack of jurisdiction with Small Causes Court. He furthered this contention by placing reliance on the Apex Court decision in Chandrika Misir v. Bhaiyalal, MANU/SC/0328/1973 : AIR 1973 SC 2391. The same principle was reiterated in decision of this Court in Nanubhai Paragji v. Chhaganlal Ranchhodji Desai, MANU/GJ/0454/1993 : 1993 (2) GLR 1613, that the question pertaining to inherent lack of jurisdiction of the Court can be permitted to be raised at any stage of proceedings even if not taken before the lower Court. He thereafter submitted that allegation made in the plaint showed that suit was required to be instituted before the Civil Court. He relied on decision in Abdulla Bin Ali v. Galappa, MANU/SC/0307/1985 : 1985 (1) SCALE 179. Learned Advocate for the applicant heavily relied on Apex decision in Laxmidas Morarji (Dead) by L.Rs. v. Miss Behrose Darab Madan, MANU/SC/1675/2009 : 2009 (10) SCC 425 : (2010 (1) GLR 825 (SC)). On that basis, he submitted that when the plaintiff himself had described defendant No. 1 as trespasser, the Small Causes Court could not be said to have the jurisdiction and the plaintiff’s suit for ejectment was competent only before the Civil Court.
3.4. On the other hand, learned Advocate for the respondents-original plaintiffs submitted that the dispute as coming out from the plaint was in the realm of the Rent Act and the questions under the Rent Act were arising. He submitted that the plaint when read as a whole, would bring in the jurisdiction of the Rent Court. According to him, it evident from the total reading of the case that the suit was for recovery of rented premises on the ground under Sec. 13(1)(e) of the Bombay Rent Act. He submitted that the pleading and averment that defendant No. 1 was in the context of his rights which may be asserted with reference to Sec. 5(11)(c)(ii) of the Bombay Rent Act. In his submission, when the issue raised were falling under the Rent Act and required to be decided under the Rent Act, the competent Court was the Small Causes Court and the suit was rightly instituted and entertained. Learned Advocate further submitted that the ground for eviction under Sec. 13(1)(e) was duly proved on the basis of evidence and both the Courts had reached concurrent findings on the issue. He highlighted those findings arrived at by the Small Causes Court and confirmed by the Appellate Bench with reference to the evidence on record discussed in the judgments.
3.5. Learned Advocate in support of his submission on the point of jurisdiction, relied on the following decisions: (i) Arjun Khiamal Makhijani v. Jamnadas C. Tuliani, MANU/SC/0031/1989 : 1989 (4) SCC 615; (ii) Sudhakar Kashiram Alias Kashinath Bhavsar v. Nagindas Atmaram, 1972 GLR 536; (iii) Nafisaben W/o. Badrudin Tofafarosh v. John Alias Zenub Abdulkadar Babuji, MANU/GJ/0279/1980 : 1981 GLR 674; (iv) Vithalbhai Biharilal Patel v. Laxmanbhai Gordhandas, MANU/GJ/0574/2002 : 2003 (4) GLR 3403; (v) Katikara Chintamani Dora v. Guatreddi Annamanaidu, MANU/SC/0336/1973 : AIR 1974 SC 1069 and (vi) Ram Sarup Gupta (Dead) by L.Rs. v. Bishun Narain Inter College, MANU/SC/0043/1987 : AIR 1987 SC 1242.
4. In order to consider the issue of jurisdiction of the rent Court, it is necessary to refer to Sec. 28 of the Bombay Rent Act, which confers jurisdiction on the Rent Courts, reads as under:
“28. Jurisdiction of Courts:-(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.
(a) in Greater Bombay, the Court of Small Causes, Bombay,
(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and
(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction,
shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply or between a licensor and a licensee relating to the recovery of the licence fee or charge and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-sec. (2), no other Court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question.
(2)(a) Notwithstanding anything contained in clause (aa) of sub-sec. (1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any area under the Provincial Small Cause Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area.
(b) Where any suit, proceeding or application has been withdrawn under clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceeding or application, as the case may be, may either retry it or proceed from the stage at which it was withdrawn.
(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application, as the case may be, be deemed to be the Court of Small Causes.
Explanation:-In this Section ‘proceeding’ does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act.”
4.1. The above Section creates a special jurisdiction of the rent Courts. It starts with non-obstante clause. By enacting this provision, the legislature intended to confer exclusive jurisdiction on the Small Causes Court and the Rent Courts in respect of matters arising between landlord-tenant relationship and in respect of questions under the Rent Act and the disputes relating thereto. A bare reading of the provision shows that rent Courts as special Courts are invested with jurisdiction to entertain and try the suits or proceedings which are, firstly between a landlord and tenant. In the second place, it applies to the suit or proceedings relating to recovery of rent or possession of any premises to which the relevant provisions of the Act apply. Dissecting the Section further, the jurisdictional sweep of the rent Court would also extend to deal with any claim or question arising out of the Bombay Rent Act. The Section then proceeds to state that no other Court shall have jurisdiction to entertain any such suit, proceedings or application or to deal with such claim or question. The jurisdiction of Rent Court would be invariably attracted when the suit or proceedings have in it the above aspects and issues.
4.2. The scope, ambit and purport of Sec. 28 have been subject-matter of consideration in several decisions, which may be surveyed. Following observations from the decision of the Apex Court in Babulal Bhuramal v. Nandram Shivram, MANU/SC/0136/1958 : AIR 1958 SC 677 may be pertinently noticed:
“In a suit for recovery of rent where admittedly one party is the landlord and the other the tenant, Sec. 28 of the act explicitly confers on Courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other Court exercising jurisdiction with respect thereto. Similarly, in a suit relating to possession of premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the Courts specified in Sec. 28 and no other. All applications made under the Act are also to be entertained and disposed of by the Courts specified in Sec. 28 and no other. In all such suits or proceedings the Courts specified in Sec. 28 also have the jurisdiction to decide all claims of questions arising out of the Act or any of its provisions. The words employed in Sec. 28 make this quite clear. Do the provisions of Sec. 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the act or any of its provisions? The answer must be in the affirmative on a reasonable interpretation of Sec. 28. Suit No. 483/4400 of the Court of Small Causes, Bombay was admittedly by a landlord. Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act. The suit, in substance, was a denial of the right of the defendants as tenants. The claim of the defendants was that they were protected by the provisions of the Act. In such a suit, the claim of the defendants was one which arose out of the Act or any of its provisions and only the Courts specified in Sec. 28 and no other could deal with it and decide the issue.” (Para. 7)
4.3. In Jayantkumar Ramprasad Mehta v. Lilavatiben, Wd/o. Devprasad Pitambardas Mehta, 1996 GLR 1018, this Court observed on the scope of Sec. 28 that the suit contemplated under the said provision is not only a suit between a landlord and tenant in which that relationship is admitted, but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of Rent Act subsist between the parties. In Baldevdas Shivlal v. Filmistan Distributors Pvt. Ltd., 1966 GLR 147, Division Bench of this Court stated:
“But what the Section does is that it confers jurisdiction upon special Courts and it ousts the jurisdiction of other Courts in respect of the matters enumerated therein. The special Courts specified in Sec. 28 has jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which the provisions of the Section apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. This Section enables the special Courts to deal with any claim or question which arises out of the Act and also applies where the relationship of landlord and tenant is disputed.”
4.4. In Ram Kishor Pandit v. Vijayabahadur Singh Jagtapsingh, MANU/MH/0017/1964 : AIR 1964 Bom. 85, the Bombay High Court highlighted that Section is intended to take away the jurisdiction of the regular Court and vest it in the special Court where a question between a landlord and tenant arises provided that the Act applies to the premises and the question relates to any of the matters enumerated, that is, to recovery of rent or possession or arising out of any of the provisions of the Act. It was observed that it was abundantly clear from the very nature of the provisions thateven where the relationship of landlord and tenant is disputed, it will fall within the Act. In another decision in Dattatraya Krishna Jagnam v. Jairam Ganesh Gore, MANU/MH/0113/1965 : AIR 1965 Bom. 177, the phrase “relating to recovery of rent or possession” was pinpointed to bring out the scope and ambit of Sec. 28. It was observed:
“The words used are “relating to recovery of rent or possession” and not “for recovery of rent or possession”. The words “relating to” are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this Section. Thus a suit, in which the plaintiff seeks to get rid of an order of his eviction by an injunction restraining the defendant from interfering with his possession, will also be covered by this Section.” (Para. 7)
Section 28 confers jurisdiction upon the special Court not only to decide questions referred to in the Section, but also all matters which are incidental or ancillary to the determination of these questions, See Meharsingh Sethi v. Khurshed Nadirahaw Satarwalu, 56 Bom. LR 540 and Importers and Manufacturers Ltd. v. Pheroze F. Taraporewala, MANU/SC/0071/1952 : 1953 SCR 226 : AIR 1953 SC 73 in which the Supreme Court observed:
“Once there is a suit between the landlord and a tenant relating to the recovery of rent or possession of the premises, the Small Cause Court acquires the jurisdiction not only to entertain that suit but also to deal with any claim or question arising out of the Act or any of its provisions which may properly be raised in such a suit.”
It was held in this case that the Court of Small Causes has jurisdiction not only to decide the dispute between the plaintiff landlord and the tenant but also a question raised between the plaintiff and the sub-lessee.” (Para. 8)
4.5. From the above position of law, it clearly emerges that the provision seeks to cover all issues required to be decided under the Bombay Rent Act by firstly employing non-obstante clause and using the words “relating to”. As is rightly held, the phrase “relating to” is wide. The wider interpretation given is justified. It flows from the very language of the provision and accords to the purpose of vesting the Rent Courts with special and exclusive jurisdiction. As observed in O.N. Bhattnagar v. Smt. Rukibai Narsindas, (MANU/SC/0217/1982 : 1982 (2) SCC 244), Sec. 28 of the Rent Act operate to confer exclusive jurisdiction on certain Courts to decide all questions or claims under that Act as to the parties between whom there is or was relationship and tenant. It applies even where relationship of landlord and tenant is disputed. The relationship between landlord and tenant and the disputes incidental thereto, when emanates from the plaint, Sec. 28 would apply and the suit would became triable by the rent Court.
4.6. The following observations of the Apex Court in Sushila Kashinath Dhonde v. Harilal Govindji Bhogani, (MANU/SC/0460/1969 : 1969 (3) SCC 223) explicitly bring out the legal position:
“Having due regard to the aspects mentioned above and the provisions of Sees. 18(3) and 28(1), in our opinion it is not necessary that there should be a relationship of landlord and tenant in respect of all the matters covered by Sec. 28(1) of the Act, so as to give jurisdiction to the Court of Small Causes. No doubt, one type of action contemplated under that Section, viz., a suit or proceeding for recovery of rent or possession of any premises to which any of the provisions of Part II apply may be between a landlord and a tenant; but in respect of the other matters dealt with in that subsection, it is not necessary that relationship of landlord and tenant should exist between the parties before the Court.” (Para. 13)
5. Applying the above principles, the suit instituted by the original plaintiff-respondent herein related to the rented premises. In other words, Rent Act was applicable to the subject-matter of suit. The prayer was for recovery of possession of the rented premises. Entire frame of the suit was based on the jural relationship of the plaintiff as landlord and deceased Ibrahimbhai as a tenant. The plaint contained averments and pleadings about the rent due and payable. The plaint contained clear averments also that the suit premises of which the possession was sought for, was rented to Ibrahimbhai-husband of defendant No. 1. It was pleaded that defendant No. 1-wife of original tenant-had illegally handed over the possession of the premises to defendant No. 2. The cause of action mentioned in Para. 7 of the plaint by stating that it had arisen pursuant to and ever since husband of defendant No. 1 had taken the suit shop on rent and further because of the reason that from 1st January, 1988 rent was not paid; that after death of tenant, possession was handed over to defendant No. 2 by defendant No. 1 illegally. The prayer, as already stated, was one of seeking possession of the rented premises and for recovery of the rent amount due as well as amount of mesne profit.
5.1. For determination as to which Court has jurisdiction to try and entertain the suit, the Court has to read the plaint as a whole. It is the real nature of the suit, which would determine the jurisdiction. It is the substance and essence of the controversy coming out from the wholesome reading of the plaint is the criteria for deciding the jurisdiction. In the present case, upon a fair and honest reading of the plaint, it become evident that the entire controversy and the suit prayers was formulated upon and had the context of tenant-landlord relationship. The relief claimed in the suit was for all practical purposes and in its substance, was a prayer for possession of rented premises. The issues involved, the trial of the suit and consideration or otherwise of grant of the prayers made in the suit would necessarily attract provisions of the Bombay Rent Act.
5.2. In course of submissions, learned Advocate for the respondents herein tried to explain the averment and allegation by which the defendant No. 1 was described as trespasser and further that he had transferred the possession to defendant No. 2, by submitting that it was in anticipation of defence which the other side may raise seeking rights under Sec. 5(11)(c)(ii) of the Act. Be as it may, the word “trespass” or averment so made could not be taken as decisive by themselves. A solitary averment taken without its context cannot be the yardstick to judge the real nature of the suit. In the present case the context was luminously clear being a dispute arising from landlord-tenant relationship. All the averments taken together and the total effect thereof sets out a case in the plaint and it is such total effect which would show the substance and nature of the suit.
5.3. Picking up a single sentence and construe the plaint is also not the rule of understanding or construing the pleadings. In construction of a pleading, a pedantic approach has to be eschewed. Then only the substance of the suit and the essence of the matter can be gathered. In Ram Sarup Gupta (supra), as was rightly relied on by the learned Advocate for the rets herein, the Apex Court observed that sometimes pleadings are expressed in words which may not be expressly making out a case in accordance with strict interpretation of law. It was observed that in such a situation it is the duty of the Court to ascertain the substance of the pleadings. It was observed that it is not desirable to place undue emphasis on form. In Patikara Chintamani (supra), the principal was highlighted in the following words:
“In construing a pleading (in this case Memo of Appeal) or a like petition…. the Court should not look merely to its form, or pick up from its isolated words or sentences; it must read the petition as a whole, gather the real intention of party and reach at the substance of the matter.”
5.4. Therefore by unduly emphasising the word “trespass” and overlooking the real nature of controversy, it could not have been contended by learned Advocate for the applicants that the suit fell out of the jurisdiction of the Rent Courts.
5.5. In Nafisaben W/o. Badruddin Tofafarosh (supra), the facts were that the plaintiff in his plaint had specifically averred that defendants were trespassers in the suit premises. The suit was instituted on title to recover possession of the suit premises from the defendants. This Court highlighted to the nature of exclusive jurisdiction of the Court of Small Causes or the Court functioning under Sec. 28 referring to and analysing the decisions of the Apex Court. Following observations may be pertinently noted.
“Under these circumstances, in my opinion, though the frame of the suit was on the basis that the defendants were trespassers and though, it was the plaintiffs case in the plaint that the defendants were trespassers and he would claim possession of the suit premises as if they were trespassers, the facts averred in the plaint indicate that whichever was the Court which tried the suit, it would have jurisdiction to decide the question of Sec. (3)(11)(c) of the Act because in the plaint it was alleged that Sakinabanu had no son and the defendants had come to the suit premises only in connection with the obsequial ceremonies in connection with the death of Sakinabanu. In anticipation of the plea that might be raised by the defendants that they were tenants within the meaning of Sec. 5(11)(c) of the Act, the owner of the property, the plaintiff, was averring in the plaint that statutory tenancy was not heritable and secondly that none of the defendants was residing with Sakinabanu at the time of her death.” (Para. 10)
5.6. The decision in Laxmidas Morarji (supra) on which heavy reliance was placed by the learned Advocate for the applicants operated on different facts. In that case, it was not the case of the plaintiff-landlord that there was existence of landlord-tenant relationship. The case in the suit was that defendant No. 5 was not the tenant and had no legal and valid claim over the suit premises. It was also mentioned in the suit that defendant Nos. 1 to 4 (trustees and executors of the Will) have parted with the possession of the premises in favour of defendant No. 5. The suit was however filed before the Rent Court on a plea that provisions of the Bombay Rent Act would apply. Thus, the very jurisdictional fact about landlord-tenant relationship was absent in Laxmidas Morarji (supra). This, in juxtaposition of the facts of the present case, was totally different in as much as, as already seen, the entire suit of the plaintiff in the present case was founded on the jural relationship of plaintiff-landlord and tenant-Ibrahimbhai. It was plaintiff’s suit for recovery of rent and for recovery of possession of rented premises after death of the tenant. Therefore, reliance placed by learned Advocate for the applicants on Laxmidas Morarji (supra), was of no avail to support his contention that the Small Causes Court had no jurisdiction.
5.7. The principles relating to jurisdiction vested in the Courts specified in Sec. 28 were highlighted in Laxmidas Morarji (supra) in the following observations:
“In a suit relating to possession of the premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit or applications under the Act is exclusively vested in the Courts specified in Sec. 28. Section 28, conferring power on designated Courts under the Act, also begins with a non-obstante clause. Since, the Small Cause Court at Bombay had no jurisdiction to entertain the said eviction suit, no opinion on the merits of the appellant’s case is required. For similar reasons and considering principal issues to be decided, it is not necessary to discuss in detail the evidence adduced by the parties.” (Paras. 22, 20, 28 and 18)
6. Having steered clear of the above aspect, proceeding now to consider the findings recorded by the Courts below in respect of ground under Sec. 13(1)(e) of the Bombay Rent Act, the case of defendant No. 2 that he was doing business in the suit premises jointly with tenant-Ibrahimbhai was found to be unacceptable on evidence by the Courts below. It was the case of defendant No. 2 that joint business was run under a partnership, the deed of which was produced at Exh. 51 and copy was produced at Exh. 57. The Deed was executed on the stamp paper purchased on 20th April, 1967, and the same was purchased by defendant No. 2 as partner of Lucky Restaurant. Furthermore, the partnership-deed (Exh. 51) was of the year 1967, whereas, indisputedly, the premises was given on rent in 1972. Yet another contradiction was that in the written statement, it was the case of defendant No. 2 that there were three partners having 33% share, whereas, as in the above, Exh. 51 Deed produced, it was stated that defendant No. 2 and Ibrahimbhai had 50% share each. Again, during the cross-examination, defendant No. 2 stated that the business was carried on in the name of “Lucky Restaurant” till 1977, and thereafter, the name was changed to New Lucky Restaurant; and the document (Exh. 51) mentioned the name of “New Lucky Restaurant”. Courts below recorded that the word “New” was added by way of interpolation at two places. It was further recorded that Municipal Census No. 3394 of the premises let-out in the year 1972 as per defendant No. 2’s own admission was referred to in the document (Exh. 51). On the basis of all these inconsistence and contradictions, the Small Causes Court did not believe the case of defendant No. 2 and the Appellate Bench confirming the same held that the partnership deed produced appeared to be fake document.
7. Both the Courts recorded that defendant No. 2 was exclusively in possession of the premises. Courts below came to the conclusion that possession was transferred by defendant No. 1 to defendant No. 2 illegally and ingredients of Sec. 13(1)(e) were satisfied. Exclusive possession of the suit thereby was found with defendant No. 2 and it was, therefore, rightly concluded by both the Courts that it attracted Sec. 13(1)(e) and resultantly liability for eviction. It is settled as observed in Dev Kumar, (MANU/SC/0123/1996 : 1996 (1) SCC 25) as well as in Nirmal Kanta, (MANU/SC/7383/2008 : 2008 (7) SCC 722) and catena of other decisions that sub-tenancy or sub-letting comes into existence when a third party stranger is inducted into the tenanted premises and the possession is parted with in favour of such third party exclusively. It is also a principle well settled that once exclusive possession of the third party to the demised premise is proved, it was suffice to prove the case within the purview of the provisions.
8. Concurrent findings recorded by both the Courts that there was a sub-letting and defendant No. 2 was in exclusive possession were based on the proper findings emanating from evidence on record, in which no perversity or irregularity was noticed. No ground was shown or existed so as to warrant interference in the said findings in exercise of revisional powers by this Court under Sec. 29(2) of the Bombay Rent Act. For all the foregoing reasons and discussion, judgment and decree dated 29th June, 1999 passed by the Small Causes Court, Ahmedabad in H.R.P. Suit No. 464 of 1989 and confirmed by the Appellate Bench by its judgment and decree dated 3rd October, 2012 in Regular Civil Appeal No. 147 of 1999 requires no interference and the same is upheld except that the date of 29th September, 1999 mentioned in judgment and decree of the Small Causes Court for handing over vacant and peaceful possession of the suit premises-shop by the applicants-tenants shall stand substituted to 15th April, 2014. Revision application is dismissed. Rule is discharged.