M.L. Pendse, J.
1. This Revision application is placed before me in accordance with the directions given by the learned Chief Justice on August 31, 1987 in view of the difference between Mr. Justice Sawant and Mr. Justice Guttal on the questions as to whether the suit instituted by the respondents in the City Civil Court, Bombay was maintainable.
2. The plaintiffs instituted Suit No. 1290 of 1984 in the City Civil Court on February 28, 1984 claiming that since December 1974 the plaintiffs are in possession of shop No. 4, Meghji Vallabhdas Trust Building, Dadar, Bombay. The defendant is tenant of shop premises. The plaintiffs claim that plaintiff No. 1 paid to defendant Rs. 18,500/- and the defendant handed over the premises under an irrevocable leave and licence. The plaintiffs asserted that it was agreed that plaintiffs No. 1 would pay to the defendant or the landlords of the premises the amount of monthly rent. According to the plaintiffs, the rent payable by the defendant to the landlords was Rs. 13.30 per month. The plaintiffs claim that an amount of over Rs. 20,000/- was spent for carrying out improvements in the premises. It is claimed that the defendant failed to pass any receipts inspite of demand; but on the other hand on February 27, 1984 the defendant demanded monthly charges at the rate of Rs. 200/- per month instead of Rs. 13.30. The plaintiffs claim that when the demand was turned down the defendant threatened to physically throw out the plaintiffs from the premises. The plaintiffs, therefore, approached the Court and the relief sought was a permanent injunction restraining the defendant from disturbing the plaintiffs peaceful enjoyment and possession of the suit shop.
3. The plaintiffs took out Notice of Motion for a temporary injunction pending the suit. The defendant appeared before the learned Judge and raised the preliminary objection to the jurisdiction of the Court to entertain and try the suit. The defendant claimed that the relief was sought by the plaintiffs relating to the possession of the shop on the strength of alleged licence granted by the defendant and such a suit could be tried only by the Court of Small Causes in exercise of powers under section 41 of the Presidency Small Causes Court Act, 1882. The preliminary objection was turned down by the judge of the City Civil Court by order dated December 21, 1984 and the defendant preferred the present Revision application to this Court. The petition was placed for hearing before Chief Justice K. Madhava Reddy, and by judgement dated September 20, 1985 the petition was referred to the Division Bench, as the learned Judge felt that the suit was for injunction simpliciter which does not involve any inquiry into the status of the plaintiffs and therefore can be entertained by the City Civil Court. The learned Judge referred the petition to Division Bench as there were earlier decisions which according to the learned Judge required reconsideration.
4. The Revision Application was placed for hearing before Mr. Justice Sawant and Mr. Justice Guttal. Mr. Sawant held that neither section 28 of the Bombay Rent Act nor section 41 of the presidency Small Cause Court Act bars the jurisdiction of Bombay City Civil Court to entertain the suit which is for injunction simpliciter. Mr. Justice Guttal on the other hand held that as the plaintiffs claims to be in exclusive possession on the basis of relationships of licensor and licensee and sought injunction to protect the possession, the Bombay City Civil court had no jurisdiction having regard to the provisions of section 41 of the Presidency Small Cause Act In view of the difference the Revision application is now posted before me.
It is now well settled that in order to determine which Court has jurisdiction to try the suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for, whatever may be the form of the relief claimed. If on the fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of a licensor and licensee and the relief claimed in substance relates to recovery of possession, then it is the special Court alone that will have jurisdiction to decide the suit. The plain reading of the plaint leaves no manner of doubt that the plaintiffs approached the City Civil court with a(1) clear case that the occupation of the suit premises was on the strength of an irrevocable leave and licence granted by the defendants. The plaintiffs claim that they are in settled possession of the shop and the defendant has no right to disturb their quiet and peaceful enjoyment and possession of the premises except by due process of law. In other words, the plaintiffs sought permanent injunction on the basis that their injunction in the shop premises and continuances thereof was lawful and valid. The plaintiffs approached the Court on the basis of relationship of licensor and licensee between the plaintiffs and the defendant and though the relief sought was only for a perpetual injunction, it is obvious that such relief could be granted only on the basis that the plaintiffs have subsisting right to remain in occupation. The existence of subsisting right would depend upon determination of the claim of the plaintiffs that as irrevocable leave and licence was granted in their favour.
Chapter VII of Presidency Small Cause Courts Act, 1882 was substituted by Maharashtra Act XIX of 1976 and section 41(1) after its amendment by Maharashtra Act No. 24 of 1984 reads as under :
"41.(1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefore, irrespective of the value of the subject matter of such suits or proceedings."
This sub-section clearly prescribes that Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between the licensor and the licensee relating to the recovery of possession of any immovable property situated in Greater Bombay. Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 confers jurisdiction on the Court of Small Causes, Bombay to entertain and try any suit or proceeding between landlord and a tenant relating to the recovery of rent or possession of any premises. The expression "relating to recovery or possession' came up for consideration before the Full Bench of this Court in the case of Dattatraya Krishna Jangam v. Jairam Ganesh Gora,
(F.B.) and it was held that the words used in the
section are "relating to recovery of rent or possession" and not for recovery of rent or possession and 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. The full Bench held that even if a suit is not for possession, but the relief claimed in the suit is in regard to or in respect of recovery of possession, then it will come within the ambit of the section. The same interpretation must squarely apply while determining the ambit of expression "relating to recovery of possession" in section 41 of the Presidency Small Cause Courts Act. The decision of the Full Bench was examined by Division Bench of this Court in the judgement in Bombay Grain Dealers Association v. Lakhmichand Vasanji and Co., . The Division Bench examined which suits must fall
within the jurisdiction of the Small Causes Court and observed :
"If a person is seeking to prevent the obtaining of possession by the landlord, it could be said that it relates both to possession of the premises and it also relates to recovery of possession of the same.......... it may be that he is trying to recover possession in an illegal manner by force. Nonetheless, what the landlord is attempting is to recover possession. If the plaintiff comes to Court and says "This is what the landlord is doing. You prevent him from doing so", Certainly the suit one which relates to the recovery of possession."
Both the decisions, of the Full Bench and Division Bench, were examined by a learned Single Judge in the judgment in M/s. A.K. Porbunderwala & Sons v. Gulam Hussain Alibhai Nathani, where the
plaintiffs instituted suit in the City Civil Court for a perpetual injunction alleging that the defendant was making attempt to throw out the plaintiff, who was inducted as sub-tenant, without any authority of law. It was claimed that as the suit is merely for an injunction and the plaintiffs have nowhere stated that the suit was filed in the capacity as tenants nor asked for any protection under the Rent Act, section 28 of the Rent Act has no application and the City Civil Court had jurisdiction to entertain the suit. The learned Single Judge turned down the plea holding that injunction was sought on the basis that the plaintiffs had subsisting rights as sub-tenants protected under the Rent Act. There is one more decision of the Division Bench to which reference is required to be made. In the case in Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel, , the plaintiff
instituted suit on the Original Side of this Court after terminating leave and licence granted to the defendant to remain in occupation of the suit premises. The defendant contended that by reason of section 41 of the Presidency Small Cause Court Act exclusive jurisdiction has been conferred upon that Court to try suits between licensor and the licensee relating to possession of an immovable property situated in Greater Bombay, and therefore, High Court has no jurisdiction to entertain or try the suit. The Division Bench Court upheld the contention and repelled the submission that the relationship of licensor did not survive after the licence was terminated and therefore provisions of section 41 would not be attracted.
5. Mr. Justice Sawant felt that inspite of these decisions the suit for injunction simplicitor where the plaintiff does not seek any declaration of his status would be maintainable in the City Civil Court. The learned Judge also felt that the suit for injunction simpliciter does not involve any inquiry into the status of the plaintiff. Reference was made by the learned Judge to decisions in Shiavax C. Cambatta v. Sunderdas Ebji, and (Smt.
Faijulbee Hajeel v. Yadali Amir Shaikh Ansari), A.I.R. 1984 Bom. 291 to hold that if a tenant who was forcibly dispossessed by the landlord can institute suit under section 6 of the Specific Relief Act in Bombay City Civil Court, then suit for injunction which is instituted before such forcible dispossession, would equally be maintainable in the City Civil Court. Mr. Justice Guttal on the other hand held that the ratio laid down by the Full Bench and which was followed by the Division Bench and Single Judge conclusively establishes that the suit instituted by the plaintiff was in a wrong forum. The learned Judge held that there is a marked distinction between the suit relating to the possession between landlord and tenant and suit under section 6 of the Specific Relief Act and therefore the two decisions on which Mr. Justice Sawant relied would have no application. In my judgment, the conclusion reached by Mr. Justice Guttal is correct.
6. Chief Justice Chagla speaking for the Bench in (Shiavax Cambatta v. Sunderdas Ebi), (supra) observed that every suit for possession is not liable to be transferred under section 50 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to the Court of Small Causes, and it is only those suits for possession which are filed between the landlord and the tenants where the jurisdiction of the Civil Court ousted. The learned Chief Justice then observed that it is only when a landlord or tenant files a for possession in his capacity as landlord or tenant and relying on the title as a landlord or a tenant that it becomes a suit of the description mentioned in section 28 of the Rent Act. In the case before the learned Chief Justice the suit was instituted under section 6 of the Specific Relief Act and it was held that although the plaintiff might have set out the title in the plaint, the title of the plaintiff was not relevant to be determined in the suit. Section 6 of the Specific Relief Act, inter alia provides that if any person is dispossessed without his consent of an immovable property otherwise than in due course of law, he or any person claiming through him my file a suit to recover possession thereof notwithstanding any other title that may be set up in such a suit. Sub-section (4) of section 6 prescribes that nothing in the section shall bar any person form establishing his title to such property and to recover possession. The scope of inquiry therefore under section 6 of the Specific Relief Act is very limited and the suits instituted under this provision are of a specific type for which a summary remedy is provided. The Court is required to examine the sole question as to whether the plaintiff was dispossessed otherwise than in due course of law within six months prior to the institution of the suit and the question of title is wholly irrelevant. The decision of the Division Bench in Smt. Faijulbee Hajeel v. Yadali Amir Shaikh Ansari, (supra) reiterated the view taken by Chief Justice Chagla in the earlier case.
7. In my judgment the suits instituted under section 6 of the Specific Relief Act cannot be equated with the suits for injunction simpliciter. Section 5 of the Specific Relief Act prescribes that the person entitled to the possession of the specific immoveable property may recover it in the manner provided by the Code of Civil Procedure, 1908, and that by institution of suit in a proper forum. Chapter VII of the Specific Relief Act deals with subject of injunction and section 38(1) of the Act provides that the perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In suit for injunction simpliciter, the City Civil Court has to determine whether the defendant has committed a breach of obligation existing in favour of the plaintiff and to ascertain that fact the Court must find out whether the relationship of licensor and licensee existed between the parties and whether the initial induction of the plaintiff in the shop premises was under the authority of law. It is, there therefore, not correct to suggest that a suit for injunction simpliciter does not involve any inquiry into the status of the plaintiff. The contention that the suit under section 6 of the Specific Relief Act is maintainable in the City Civil Court after the tenant is forcibly dispossessed by the landlord and on the same analogy the suit for injunction simplicitor before such forcible dispossession should be entertained by the City Civil Court cannot be accepted. In the suit instituted under section 6 of the Specific Relief Act the plaintiff does not claim recovery of possession in his capacity as a licensee and the issue of relationship between the licensor and licensee is wholly immaterial, but in the suit for injunction simpliciter relief can be granted provided such a relationship existed.
8. It was submitted that section 19(i) of the Presidency Small Cause Court Act prescribes that small Cause Court shall have no jurisdiction to entertain suits to obtain an injunction, and therefore suit for injunction simpliciter cannot be filed in that Court under section 41 of the Act. The submission cannot be accepted for more than one reason. Section 41 opens with the words "notwithstanding anything contained elsewhere in this Act" and therefore the suit relating to recovery of possession between licensor and licensee, and even for an injunction can only be instituted in the Court of Small Causes in accordance with section 41 of the Act. Secondly, the Court which is entitled to entertain the suit can certainly pass consequential orders which may be necessary. The Division Bench in the case of Bombay Grain Dealers Association (supra) held that once a suit or proceeding falls within jurisdiction of a Court, then the Court is entitled to pass such consequential orders as are necessary for the effective enforcement of the rights declared or given by it. The Court of Small Causes therefore would have jurisdiction to grant relief of injunction in proper cases where the suit fell within its jurisdiction. The mere fact that the suit is for injunction simpliciter will not oust the jurisdiction of the small Cause Court if the other conditions of exercise of jurisdiction are satisfied.
9. Accordingly, I agree with the view taken by Mr. Justice Guttal and not with that of Mr. Justice Sawant. As the entire petition was referred to the Division Bench, and not only an issue, for determination, the Revision application can be finally disposed of. I will make rule absolute and set aside the finding recorded by the Judge, City Civil Court on December 21, 1984 holding that the City Civil Court had jurisdiction to entertain and try the suit.
Papers now be placed before the Division Bench for final disposal. The cost of hearing before me to be determined by the Division Bench.