IMPORTERS AND MANUFACTURERS LTD. versus PHEROZE FRAMROZE TARAPOREWALA AND OTHERS.

DAS J.-This is an appeal by special leave from the judgment and order of the High Court of Judicature at Bombay passed on January 25, 1952, in Civil Revision Application No. 1119 of 1951. It arises out of a suit filed in the Bombay Small Causes Oourt under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for ejectment from and compensation at the rate of Rs. 370 per month from November 1, _ 1947, for the use and occupation of the second floor flat of Sunama House situate in Cumballa Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D. B. Taraporewala deceased and as such the owners of the Sunama House. The defendants are two in number, namely, the first defendant Mrs. Dinbai K. Lala to whom the said flat was let out by the plaintiffs on or aibout September 1, 1942, at Rs. 370 per month and the second defendant a limited company to whom the first defendant had sublet the said flat as from November 16, 1947, at the same rent. The defendants contested the suit on a variety of grounds, but the trial Court by its judgment dated October 18, 1950, rejected all the _pleas and passed a decree directing both the defendants· to vacate the flat by March 31, 1951, and awarding, only as against the first defendant, Rs. 3,317-10-8 for compensation ·from November 1, 1947, till July 31, 1948, and thereafter at Rs. 370 per month from August 1, 1948, till delivery of possession besides the costs of the suit. The defendants preferred an appeal under section 29 ·of th~t Act. Besilles tpe various pleas put forwarq before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, which was not pleaded in their written statements, namely, · th~t the Small Causes Court had no jurisdiction to entertain the suit in so far as it concerned the second defendant. The Appellate Bench of the Small Causes Court dismissed the appeal with costs 'l'he second defendant thereafter moved the High Court in revision under section 115 of the Code of Civil Procedure ,vhich was also dismissed with costs. The second defendant has now come up in appeal before ns after having obtained special leave of this Court. ·

pp. 227–228

The only contention urged before us is that the Small Causes Court had no jurisdiction to entertain this sui.t. 'l'he relevant..portions of section '28 of the Act are as follows :-

p. 228

"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,

p. 228

(a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) .............. · ...................... ,

p. 228

(b) ..................................... , .

p. 228

. shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the re!lovery of rent or possession of any premises to which any of the provisions of this Part apply, 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 no other Court shall have jurisdiction to entertain any such suit,·proceeding or application or to deal with. such claim or question."

p. 228

It was not disputed that the provisions of Part II of the Act apply to the premises. The contention of the appellant is that the suit as against it was not a rnit between a landlord and !\ tenant and that, in so· faras it claimed compensation for use and occupa· tion, it was not a suit for recovery of rent and, there-

pp. 228–229

. d , . d h fore, sect10n 28 ha no apphcat10n, an t e Court Small Causes had no jurisdiction to entertain suit. In view of this plea it is necessary to refer the plaint in this suit. After setting forth their as owners of the Sunama House as trustees under will of Framroze D. B. 'I'araporewala the plaintiffs plead that the second floor Jiat was let out to defendant on or about September 1, 1942, at Rs. per month on terms and conditions printed on back of the rent bill form which were shown to accepted by the first defendant. In paragraph t.he plaint is set out one of thos_e terms, namely, the tenant shall not assign, sublet or re-let the mises . without the previous written consent of landlords. In paragraph 7 reference is made to notice given by the plaintiffs to the first c).efendant on October 17, 1946, to vacate the fiat at the end of November, 1946, on the ground that the same was required reasonably and bona fide for the use of two of the beneficiaries under the will. Then, after referring to an unsuccessful attempt on the part of plaintiffg to obtain a certificate under section 9 of Act, the plaintiffs refer to a letter dated November 16, 1947, written by the first defendant to the plaintiffs intimating that she had from that day sublet fiat to the second defendant. It is stated in paragraphs 12 and 13 of the plaint that on December 19, 1947, the second defendant sent a cheque for Rs. for rent for the month of November, 1947, but plaintiffs declined to accept the sa.me or to recognise the second defendant as a lawful occupant as subtenant or otherwise. It is also alleged that January 23, 1948, the plaintiffs gave a notice to the defendants to vacate the premises at the end of February 29, 1948. In paragraphs 14 and 15 plaintiffs formulate the grounds for ejectment, namely, (1) that the alleged subletting by the defendant to the second defendant was wrongful, illegal and in breach of the terms of the tenancy ~o (2) that. the plaintiffs required the premises reasonably and bona .fi~e for the use. a;i~ occupation of two of the benefwianes. The plamt1ffs prayed that both the defendants be ordered to vacate the premises and that both of them be ordered to pay to the plaintiffs compensation for the use and occupation of the premises at Rs. 370 per month from November 1, 1947, till delivery of vacant possession. The. appellant points out that on the face of the p laiut the plaintiffs declined to recognise it as a lawful occupant as subtenant or otherwise and treated it as a mere trespasser having; no lawful claim to the demised fiat and, therefore, the suit, in so far as it was one between the plaintiffs and the appellant (the second defendant), cannot be said to be a suit between a landlord and a tenant and that the suit in so far as it claimed compensation from him cannot be said to be a suit for recovery of rent. · The last part of the contention need not detain us long, for the suit was undoubtedly one for possession of the fiat and the _claim for compensation was only incidental and ancillary to to the claim for possession. Jurisdiction to entertain a suit for possession will empower the Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. Such direction for payment of mesne pro· fits is usually an integral part of the decree for possession. 'l'he only question for consideration, therefore, is whether the suit was one between a landlord and a tenant.

pp. 229–230

The respondents (the plaintiffs) ·do not contend that the appellant (the second defendant) is "tenant" as defined in section 5 (ll) of the Act. The appellant, on the other hand, does not and, indeed, cannot deny that, as between the plaintiffs and the first defendant, the suit is one between a landlord and a tenant and as such the Small Causes Court is, under section 28 of the Act, the only Court competent to entertain the suit. Section 28 couf ers jurisdiction on the Court of Small Causes not only to entertain and try any snit or proceeding between a landlord and tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions." There is no reason to hold that "any cJoaim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Smail Causes Court acquires the jurisdiction not cinly 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. The plaintiffs in this suit claimed that the purported subletting by' the first defendant to the second defendant was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the con· tractual tenancy the first defendant was not entitled to· create a sub-tenancy and they questioned the validity of the second defendant's claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and the second defendant thus raised in the plaint certaintly arises out ot the Act and the language of section :28 appears to be wide enough to cover the same. Apart from that section, under the ordinary law a decree for pos~ession passed against a tena.nt in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an· ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or throi;rgh whom he claims aud to seek protection under the Act, if he is entitled to any. Such a person may be joined as a party to the suifl' from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of section 28 of the Act. 'ro hold other· wise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion. In our view the decision and the reasoning of Chagla C.J. are substantially correct and this appeal must fail. We, therefore, dismiss the appeal ·with costs.

pp. 230–232

Appeal dismissed. Agent for the appellants: RaJinder Narain. A.gent for respondents Nos. 1, & 3 : R. A. Ga.grat.

p. 232

RAJ BAJRANG BAHADUR SINGH

p. 232

v . . THAKURAIN BAKHTRAJ KUER.

p. 232

and

p. 232

OudhEstates Act (I of s.14-Will of Taluqdar-Bequest "absol~tte

p. 232

of Validity-Rule Estates

p. 232

not the death in~

p. 232