LexRAIZADA TQPANDAS & ANR versus M/S. GORAKHRAM GOKALCHAND
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1919 Kolw. Dera/11114., •• u.1 .. of ro1;,,. Sh4h '· 19i9 ~;ril 22 214 SUPREI\lECOURT REPORTS [19M] VOL. The Appeal No. 642 of 19151 must therefore also fail. costs. Both the appeals are therefore dism~ed with Appeals dismilsed. R.AIZADA TQPANGAS It ANR. fl. M/S. GORAKHRAM GOKALCHAND (S. K. DAB, A. K. SARKAR and M. HIDA.YA.TtiLLAH JJ.) JuriBdietion of Oourl-Bu!t filed in Olty Oltlil Oourt · alle- ging that dtfen®nt waa a llu'lllJe&-Prayer /or injunclion-De/en- dant al/,e,gi7tg relation of lan<ilord and tenant-Whethtr 8111QU cau- se• court ha. exclusive juriadiction-Bombay R•nl8, Hotel and Lodging H01JBe Ratea Oontrol Acl, 1947 (Bom. LXII o/ 1947), aa. 28,29,29A. The respondent Is a partnership firm. It instituted a suit in the Bombay City Civil Court against the appellant. It was alleged in the plaint that by virtue of an agreement appellant No. I appointed the respondent as his commission agent for the sale of his cloth in the shop which was in the possession of the respondent. The agreement was to remain in force for four years. Persuant to the agreement the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the busi- ness of commission agency. On the expiry of the agreement the appellants had no further rights to enter into the shop. The respondent prayed for a declaration that it was in lawful possession of the shop, for an injunction restraining the appel- lants, their family members, servants and agents from entering into the shnp and for an amount of commission payable to it 1-1nder the agreemel)t, 'fhe plaint proceeded on the footin!l that ·- • 3 S.C.R. SUPREME COURT REPORTS 215 during the period of agreement the appel~ants were mere license- es and after the expiry of the agreement they were mere trespas· sers. The plaint in terms negatives any relationship of land· lord and tenant as between the parties to the suit. The defence of the appellants was that the respondent had sublet the shop to them at a certain monthly rent. But since no subletting is possible under the Bombay Rents, Hotel anJ Lodging House Rates Control Act, 1947, without the consent of the land-lord the parties entered into a sham agreement which was never acted upon and which was only a cloak to conceal the true relationship. The relationship was that of a land-lord and tenant. On these averments in the written statement the appel· !ants took the plea that the Court of Small Causes Bombay alone had jurisdiction to try the suit. The City Civil Court relying on a decision of this Court upheld the contention of the appellants and made an order that the plaint be returned for presentation to the proper court. The respondent thereupoR appealed to the High Court. The High Court held that on a correct interpretation of s.28 of the Act the suit out of which the appeal had arisen was not a suit within the exclmive jurisdictio'1 of the Court of Small Causes Bombay and setting aside the order of the City Civil Judge directed that it should dispose of the suit in accordance with Jaw. 'l'he present appeal i:s by way of special leave. In the appeal the same question as to thejurisdiction u! the City Civil Court was raised. Held (per S.K. Das and M. Hidayatullah,JJ.) that s. 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a land- lord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of P «rt II of the Act apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions. Section 28 does not invest the Court of Small Causes with exclusive power to try questions of title a• between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under s. 28 depends, the defendant by his plea cannot force the plaintiff to go to a fornm where on his own averments he cannot go. If the suit as framed is by a land-lord or a tenant 11nd the relief asked for is in the n11ture of a claim which ari.e1 1'63 Rlliud• To~lli" •• GordArOM Gobl<ir.,./ Rciai• T Of1c•las ~. c,,,.iw.,. G1ks
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