LAXMIDAS MORARJI (DEAD ) BY LRS. versus MISS BEHROSE DARAB MADAN

Citation: [2009] 14 S.C.R. 777 · Decided: 18-09-2009 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 14 (ADDL.) S.C.R. 777 
LAXMIDAS MORARJI (DEAD ) BY LRS. 
A 
v. 
MISS BEHROSE DARAS MADAN 
(Civil Appeal No. 5786 of 2002 etc.) 
SEPTEMBER 18, 2009 
B 
__, • 
[8.N. AGRAWAL, G.S. SINGHVI AND H.L. DATTU, JJ.} 
-,j 
Bombay Rents, Hotel and Lodging Houses Rates Control 
... 
Act, 1947 - s. 28 - Suit under - Maintainability of - Held: 
Suit u/s. 28 is maintainable provided landlord-tenant c 
relationship is established -
On facts, tenant-landlord 
relationship not established between the landlord and the 
person in possession of suit premises - Therefore, suit not 
maintainable. 
D 
"· 
~ 
Constitution of India, 1950 - Article 142 - Jurisdiction 
under - Scope of - Held : The power is though not controlled 
by statutory provisions, it cannot be used to supplant the Jaw 
: applicable to the case - The power has to be used sparingly 
in cases which cannot be effectively and appropriately tackled 
E 
by the existing provisions of Jaw. 
_., 
Words and Phrases - 'Tenant' - Meaning of, in the 
.. 
context of s.5(11)(c)(i) of Bombay Rents, Hotel and Lodging 
Houses Rates Control Act, 1947. 
,. 
F 
After death of deceased tenant, appellant-plaintiff 
(landlord) issued notice to the trustees and executors of 
Will of the deceased tenant. No notice was issued to the 
-
person in possession of suit property (defendant No. 5). 
Thereafter, he filed suit before Court of Small Causes. In 
the suit, plaintiff specifically stated that defendants 1 to 
G 
;>;-
4 (executors and trustees of will) had parted with the 
possession of the suit premises for defendant No.5 
(respondent); and that defendant No. 5 was not the 
777 
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778 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R. 
A tenant. However, she was made a party by way of 
~ 
caution. Small Causes Court dismissed the suit holding 
that defendant No.5 was entitled to claim tenancy right. 
Appellate Court held that suit was not maintainable in · 
1--. 
absence of landlord-tenant relationship between the 
B plaintiff and executors of Will. High Court dismissed the 
;::=-
writ petition which was filed questioning the order passed 
by the appellate court. Review application against the 
same was also dismissed by High Court. Hence, the 
present appeals. 
).-
4')1111
c 
The issue for consideration before this Court was 
whether the suit filed by the owner of the suit premises 
> 
was maintainable before the Small Causes Court. 
I 
Dismissing the appeals, the Court 
D 
'f' .,,, 
Held : 1. The definition of 'tenant' under Bombay 
Rents, Hotel and Lodging Houses Rates Control Act, 
1947 means any person by whom or in whose account 
rent is payable for any premises. Section 5(11)(c) (i) of the 
E Act, is too exhaustive to include any member of the 
tenant's family residing with the tenant at the time of his 
death. There are two requirements u/s. 5 (11) of the Act, 
which must be fulfilled before a person may be called 
,.. 
'tenant' under sub-clause(c); firstly, he must be a member 
).. 
F of the tenant's family and secondly, he must have been 
'I 
residing with the tenant at the time of his death. Besides, 
fulfilling these conditions, he must have agreed upon to 
be a tenant by the members of the tenant's family. In 
default of such agreement, the decision of the court shall 
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G 
be binding on ·such members. [Para 16] [786-D-F] 
I 
2. The Rent Control Act is a special enactment 
{,( 
conferring certain special rights and imposing certain 
special obligations upon landlords and tenants. The Rent 
Control Act imposes restrictions on the right of landlord 
• 
) 
H 
LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS 
779 
BEHROSE DARAS MADAN 
to evict his tenants on the grounds other than what is A 
-.j 
specified in the statute.Mere denial of relationship of 
landlord and tenant cannot oust the jurisdiction unless 
it is specifically provided in the statute. If the Rent 
Controller finds that the opposite party is not a tenant of 
the landlord, he must dismiss the landlord's application 
B 
for eviction, but if he finds that sue~ a plea by the opposite 
party is not true and that the opposite party is a tenant 
of the landlord, then, if the ground of eviction is proved, 
he must order eviction of the tenant. [Para 20] [788-H; 
" 780-A-B; E-G] 
c 
3. Section 28 of the Act deals with the jurisdiction of 
the courts, to decide on issues arising out of the Act. In 
a suit relating to possession of the premises where the 
relationship of landlord and tenant admittedly subsists 
D 
..... 
between the 

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