IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
First Appeal No. 900 of 2002
Decided On: 17.02.2003
Ramesh s/o Bhikamchand Jain
B.H. Marlapalle and V.G. Munshi, JJ.
Citation: 2003(3) MHLJ 30,2004(2) Bom CR874
1. This appeal is at the instance of the plaintiff who had instituted Special Civil Suit No. 441 of 1998 on or about 30th November, 1998, in the Court of Civil Judge, Senior Division, Jalgaon, for a decree of eviction and to seek possession of the subject premises as well as for recovery of rental considerations for the period from 1-12-1995 to 30-11-1998 with interest thereon at the rate of 24% per annum till the realization of the payment. This suit was dismissed by judgment and order dated 23-2-2001 and being aggrieved by the same the plaintiff approached the District Court in appeal i.e. Civil Appeal No. 7 of 2001. By order dated 5-7-2001, the appeal was returned for being filed before this Court on the ground that the same was not tenable in view of its valuation shown at Rs. 22,99,440/-. The plaintiff moved an application for review and the same was rejected by the learned 3rd Additional District Judge, Jalgaon, on 21-7-2001. Hence, this returned Appeal against the judgment and order passed by the learned 2nd Joint Civil Judge, Senior Division, Jalgaon in Special Civil Suit No. 441 of 1998, being submitted to this Court.
2. The suit premises namely: shop Nos. 1 to 4 admeasuring 2545 sq.ft. on the ground floor of Building No. 9 located in the premises of Khandesh Mill in Nehru Chowk, Jalgaon, are admittedly owned by the said Mill. By an agreement dated 1-9-1983, the plaintiff became the lessee of the suit premises. He continued to be in occupation and enjoyment of the same and by letter dated 25-1-1984 the mill management/owner had purportedly granted permission to sub-lease or give the premises on leave and licence to the plaintiff. By agreement of leave and licence dated 14-10-1985 the plaintiff handed over the suit premises to the defendant Bank i.e. Corporation Bank and the lease was to expire on 30-6-1990. It appears that by exchange of letters between the parties the lease period was extended for a further period of five years i.e. upto 30-6-1995 or 30-11-1995, as the case may be. It appears that on or about 31-3-1995 the plaintiff issued a legal notice for recovery of rental charges at the rate of Rs. 10/- per sq.ft. as against the amount remitted at the rate of Rs. 10,180/- per month as well as for eviction. Finally, Special Civil Suit No. 441 of 1998 was moved before the Court below and the substantial prayers set out in the plaint read thus :
“(A) That the defendants be ordered and decreed to vacate the suit premises and deliver vacant and peaceful possession of the suit premises to the plaintiff.
(B) That the defendants be ordered and decreed to pay to the plaintiff mesne profits in the sum of Rs. 30,540/- per month from 1-12-1995 till 30-11-1998 and also suitable mesne profits as determined by the Honourable Court till the vacation of the premises along with the interest thereon at 24% per annum till the payment of realisation.
In short, the suit was for a decree of eviction and for taking possession of the suit
premises as well as for recovery of rental compensation.
3. The trial Court, on assessing the submissions of the respective parties and the evidence adduced before it, held that (1) the plaintiff was not competent to let-out the premises to the defendant bank, (2) the plaintiff failed to prove that the suit premises were given to the defendant under leave and licence and (3) the plaintiff was not entitled to the possession of the suit premises as well as mesne profits.
4. The only issue which we are required to consider in this appeal is whether the order passed by the learned 2nd Joint Civil Judge, Senior Division at Jalgaon, in Special Civil Suit No. 441 of 1998 could be challenged by way of an appeal before the District Court under Section 29 of the Bombay Rent Act.
5. By the first order dated 5-7-2001, the learned 3rd Additional District Judge, Jalgaon, relied on a decision of this Court in the case of Tukaram Pandurang Gaikwad v. Smt. Hababi Babumeeya Shaikh (First Appeal No. 111 of 1983 decided on 16-12-1999) and held that in view of the provisions of Section 26 of the Bombay Civil Courts Act, 1998, the appeal was required to be filed before the High Court as the amount of valuation was in excess of Rs. 2,00,000/-.
In the subsequent order dated 21-7-2001 rejecting the review application, the learned 3rd Additional District Judge, Jalgaon, referred to a judgment of this Court in the case of Nirmal Quality Products v. Contey Industry, MANU/MH/0667/1994 : 1995(1) Mh.LJ. 189 and held that the pecuniary jurisdiction of the appellate Court to entertain appeal arising from the decree passed by the Civil Court is determined on the basis of valuation in the plaint and not on the basis of decree passed in that suit. The review petition was rejected by reiterating the earlier view.
6. In the case of Nirmal Quality Products (supra), this Court was dealing with a special civil suit for recovery of properties and general proposition laid down in the said decision cannot be made applicable to the suits which are filed for a decree of eviction and to seek possession of the rented premises and when such suits are governed by the special statute i.e. the Bombay Rent Act. From the record and proceedings we have noticed that the bank had replied the notice issued by the plaintiff on 25-3-1995. The said reply dated 26-6-1995 referred to the leave and licence agreement as well as the subsequent correspondence between the parties and confirmed that lawful tenancy under Section 15 of the Bombay Rent Act was created in favour of the defendant — bank. It would be appropriate to reproduce the relevant portion of the said reply :
“Thus, you have created a lawful tenancy in favour of my client as per Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Bombay Rent Act). So also under the provisions of the Bombay Rent Act, the status of my client as tenant is confirmed one which please note.”
7. Section 28 of the Bombay Rent Act has set out the jurisdiction of the Courts to entertain and try any suit or proceedings between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of the concerned part may apply or between licensor or a licensee relating to the recovery of the licence fee or charge and to decide any application and to deal with any claim or question arising out of the Act or any of its provisions and subject to the provisions of Sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question. From the perusal of the plaint as well as the reliefs sought in the same it was certainly a suit instituted under Section 28 of the Bombay Rent Act before the learned 2nd Joint Civil Judge, Senior Division, Jalgaon and for deciding the jurisdiction for appeal, valuation made in the appeal memo and the remittance of court-fees cannot be the sole ground in a suit which was instituted under a special statute. Section 29 of the Bombay Rent Act provides, inter alia, that notwithstanding anything contained in any law, an appeal shall lie from a decree or order made by the Civil Judge, to the District Court.
8. Shri S.R. Deshpande, learned Advocate appearing for the defendant-Bank, invited our attention to the provisions of Section 13 and 13A2 of the Bombay Rent Act and submitted that none of the clauses of Section 13 were invoked while seeking a decree of eviction and the suit fell within the ambit of Section 13A2 of the Act. However, the plaintiff did not satisfy the definition of ‘landlord’ as provided in the explanation to Section 13A2 of the Act and therefore, he had no remedy of approaching the competent authority for seeking eviction of the defendant. We are not required to advert to these issues and they can be effectively considered by the proper court of appeal.
9. Shri U.M. Bopshetty, learned Advocate for the appellant, on the other hand, placed reliance on the decision of this Court (Division Bench) in the case of Mehersingh Sethi v. Khurshed Nadirshaw Satarawalla, MANU/MH/0184/1954 : (1954)56BOMLR540 . We may usefully reproduce the following observations :
“If a suit falls within the purview of Section 28, the rules with regard to the jurisdiction laid down in the Civil Procedure Code have no application. It is not permissible to ask the further question whether the special Court set up under the section has the necessary pecuniary jurisdiction or even the necessary territorial jurisdiction. The special Courts have exclusive jurisdiction with respect to a particular subject-matter and their jurisdiction arises, not by reason of any pecuniary or territorial jurisdiction, but their jurisdiction arises by reason of the subject-matter being of the nature mentioned in the section. In order to determine the jurisdiction of the special Court, the only thing has to be looked at is the subject-matter of the suit; and if the subject-matter of the suit is that which is described in the section, the special Court has jurisdiction and no further question as to its pecuniary or territorial jurisdiction can arise.”
10. We are, therefore, satisfied that the view taken by the learned 3rd Additional District Judge, Jalgaon, in returning the appeal on the ground of pecuniary jurisdiction is unsustainable and the appeal against the order passed by the learned 2nd Joint Civil Judge, Senior Division, Jalgaon, in Special Civil Suit No. 441 of 1998 would lie before the District Court only.
11. We, therefore, allow the appeal, quash and set-aside the impugned orders dated 5-7-2001 and 21-7-2002 passed by the learned 3rd Additional District Judge, Jalgaon. The plaintiff is entitled to re-submit his appeal to the District Court, Jalgaon and in case, the court-fees remitted by him in the earlier round of appeal has not yet been refunded to him, fresh court-fees is not required to be paid. Costs in cause.