1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2566 OF 2008 IN SUIT NO. 5378 OF 1999 Smt. Veena Prafulchandra Dalal .. Plaintiff V/s Jitendra Pannalal & Anr. .. Defendants Mrs. Anjali N. Helekar i/b Ms. Francisca Philip for the plaintiff. Mr. R.V. Govilkar for the defendant no.1A. CORAM : D.G. KARNIK, J. DATE : 6TH JULY 2009 ORAL ORDER: 1. Heard. 2. By this motion, the plaintiff prays that the Court Receiver be appointed as a receiver of the suit premises. The motion is opposed by the defendant no.1A who has been brought on record as an intermeddler after the death of defendant no.1. 3. Learned counsel for the defendant no.1A raised a preliminary 2 objection and submitted that this Court has no jurisdiction to entertain and try the suit and hence a receiver cannot be appointed. Secondly, he submitted that sufficient grounds have not been made out in the motion for appointment of a receiver. 4. In order to understand the contention regarding jurisdiction, it is necessary to state the facts in brief. The suit premises are flat no.302 situated on the 3rd floor of Vile Parle Aradhna Co-operative Housing Society Ltd. at Vile Parle (West). One Kantilal Poojalal Janodia, the late father of the plaintiff, was a tenant of some premises in the old building. Kantilal died in December 1967 leaving behind him three heirs, namely a widow Padma, a son Ashwin and a daughter Veena who is the present plaintiff. After the death of Kantilal, the old building was demolished and redeveloped. After redevelopment, the suit flat no.302 was given to the heirs of Kantilal. In the meanwhile, the plaintiff was married and her brother Ashwin also married. Padma, mother of the plaintiff, died in the year 1996. Ashwin also died leaving behind him his wife Pallavi who was the original defendant no.1. According to the plaintiff, the relations between Ashwin and Pallavi were strained and they were residing separately in the suit premises. After the death of Ashwin, according to the plaintiff, Pallavi grabbed all the properties of Ashwin including the suit premises. The plaintiff therefore filed the present suit in 3 the year 1999 for a declaration that she had become owner of the suit premises. The promoter and developer, who had constructed the building, has been joined as party defendant no.2 to the suit. During the pendency of the suit, the defendant no.1 Pallavi, the widow of Ashwin, also died. According to the plaintiff, after the death of Pallavi, Jitendra Pannalal – her brother illegally started intermeddling with the assets of Ashwin including the suit flat. He was therefore joined as party defendant no.1A to the suit. 5. Learned counsel for the defendant no.1A submitted that the suit flat was never allotted to the heirs of Kantilal on ownership basis, but they were only the tenants in respect of the suit flat and on Ashwin’s death, Pallavi being his widow inherited the tenancy. He further submitted that after the death of Ashwin, the defendant no.1A started residing with Pallavi in the suit flat as she was ill. At the time of death of Pallavi, the defendant no.1A was living in the suit flat as a member of her family and therefore he inherited the tenancy. This, of course, is denied by the plaintiff. Counsel for the defendant no.1A therefore submitted that whether the defendant no.1A has inherited the tenancy of the suit flat is the main point in issue. That matter can be decided only by a rent court which has exclusive jurisdiction to decide that issue under section 33 of the Maharashtra Rent Control Act. Consequently, this Court has jurisdiction to decide that issue and the present suit. Sub-section (1) of section 33 of the Maharashtra Rent Control Act (for short “the Rent Act”) reads as under: 4 “33. Jurisdiction of courts. (1) Notwithstanding anything contained in, any law for the time being in force, but subject to the provisions of Chapter VIII, 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 the jurisdiction,- (a) in Brihan Mumbai, the Court of Small Causes, Mumbai, (b) in any area for which a Court of Small Causes is established under the Provincial Small Causes Courts Act, 1897, such court, and (c) elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises and to decide any application made under this Act (other than the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority); 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.” 5 6. The jurisdiction of a court is ordinarily to be determined as at the time of the inception of a suit. When a party puts a plaint on file, it is at that time that the court has to consider whether it has jurisdiction to entertain and try that suit or not (see Govindram Salamatrai Bachani v. Dharampal Amarnath Puri, 1950 (Vol. 53) Bom. L.R. 386). When the plaintiff filed the present suit, the original defendant no.1 was alive. The plaintiff has claimed in the suit a declaration that she and not the defendant no.1 was owner of the suit flat. The issue, who is the owner of the suit flat, is not an issue which lies within the exclusive jurisdiction of the Small Causes Court under the provisions of the Rent Act. That issue can be decided only by this Court. This Court, at the inception of the suit, had the jurisdiction to determine the issue of title of the plaintiff visa vis the original defendant no.1. Death of the defendant no.1 and bringing on record the defendant no.1A would not and cannot, in my view, oust the jurisdiction of this Court to try the present suit. 7. In view of the defence of the defendant no.1A that he has become a tenant, even if it is assumed that the Court is now called upon to decide whether he has become a tenant, this Court would have the jurisdiction to decide that issue. It may be noted that the rent court contemplated under section 33 has an exclusive jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises or decide any application made under the Rent 6 Act. The question raised by the defendant no.1A that he has inherited the tenancy, is not triable exclusively by the rent court. Every court would have right and jurisdiction to decide existence or otherwise of the jurisdictional facts, i.e. to say to decide whether the facts which give or take away its jurisdiction, exist. [See Natraj Studios v. Navrang Studios, (1981) 1 SCC 523 (para 18)]. For example if in a suit for eviction of a trespasser brought in a civil court the defendant takes a defence that he is a tenant, that would not straightway oust the jurisdiction of the civil court but the court would be entitled, nay required, to decide whether the defendant is a tenant and the civil court would have the jurisdiction to decide that question. If the court holds that the defendant is not a trespasser but is a tenant, it would then proceed no further with the trial as finding on that issue would oust its jurisdiction. But if the court holds that the defendant is not a tenant, it would then proceed and decide the suit. This Court exercising ordinary original civil jurisdiction has the jurisdiction to decide whether the defendant no.1A is a tenant, and if it holds him to be a tenant then it would not further proceed with the suit. But if this court holds that the defendant no.1A is not a tenant, then the court would have to proceed further in the matter. The jurisdiction of this Court to decide whether the defendant no.1A is a tenant is not ousted by section 33(1) of the Maharashtra Rent Control Act. 8. As regards the merits of the grounds for appointment of a receiver, the ownership or the tenancy rights of the suit premises were inherited by Pallavi 7 as an heir of her husband Ashwin. Under sections 15 and 16 of the Hindu Succession Act, the suit property inherited by Pallavi- the original defendant no.1, from her husband Ashwin would devolve on the heirs of Ashwin and not on her own heirs. The plaintiff Veena who is the sister of Ashwin, prima facie, has better title than the defendant no.1A, the brother of Pallavi. The plaintiff has, prima facie, established a title better than the defendant no.1A. The defendant no.1A, prima facie, has no right to occupy the suit premises. He appears to have entered into the suit flat without any right therein. In the circumstances, it would be appropriate to appoint the Court Receiver, High Court, Bombay as the receiver in respect of the suit property. 9. Hence, I pass the following order: (a) The Court Receiver, High Court, Bombay is appointed as the receiver of the suit premises. The receiver shall take symbolic possession of the suit flat and shall not dispossess the defendant no.1A if he executes within 4 weeks hereof an agency agreement and gives an undertaking to pay the royalty and further pays regularly to the receiver the royalty as may be determined by the Court Receiver. (b) If the defendant no.1A fails to execute the agency agreement within 4 weeks and/or does not pay and give the requisite undertaking to pay the royalty as may be fixed by the receiver or fails to pay the royalty regularly, the receiver shall take actual physical possession of the suit flat and appoint 8 any other person as an agent of the receiver on usual terms. (c) The notice of motion is disposed of. (D.G. KARNIK, J.)