1 wp3628-96.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3628 OF 1996 Gajanan Vasudeo Karmarkar ..Petitioner Vs Eknath Raghunath Mandhare ..Respondent -- Mr.A.L.Patki, for petitioner. Mr.V.G.Peshave, for respondent. -- CORAM : A.S.OKA, J. DATE : 2 nd DECEMBER, 2010 ORAL JUDGMENT : The original defendant in the suit filed by the respondent, has filed this Writ Petition under Article 227 of the Constitution of India challenging clause 3 of the operative part of judgment and decree of the District Court. 2] The case made out by the respondent plaintiff is that in the year 1967-1968 the petitioner had let out a room in property bearing survey No. 128/2 at Kothrud, Pune for residential use of the respondent and his family. The monthly rent was fixed at Rs.20/-. It is contended that the respondent 2 wp3628-96.sxw and the petitioner were working in the same institution and, therefore, the respondent did not insist on the petitioner issuing rent receipt. It is stated that the petitioner was holding an open plot of land on which he started construction which was completed in the year 1984. At that time, the petitioner represented that unless the room in which plaintiff was residing and the another room in which another tenant Dabhade was residing were demolished, the Corporation will not issue a Completion Certificate in respect of the new construction. Accordingly, petitioner offered to let out one room in the newly constructed building. According to the respondent, the petitioner insisted that the rent should be Rs.75/- per month and as per the earlier practice, rent receipt was not issued. According to the respondent, as a condition for giving the room, the petitioner insisted on respondent signing a document. Accordingly, the respondent shifted to a room admeasuring 15 ft x 11 ft (hereinafter referred as “the said premises”) on the first floor of building Anuradha. According to the respondent, monthly rent was fixed at Rs.75/- per month. It is alleged in the plaint that out of greed, the petitioner started demanding more amount towards rent. It is alleged that the respondent declined to purchase the suit premises on ownership basis. Thereafter, petitioner started making attempts to dispossess the respondent. It was contended that the respondent has been regularly paying the rent at the rate of Rs.75/- per month to the petitioner. It is alleged that a false police complaint has been filed by the petitioner against the respondent. The first relief claimed in the suit was that the respondent may be declared as a tenant in respect of the suit premises. The second relief was that the petitioner may be directed to allow the use of bathroom and toilet to the respondent which was being 3 wp3628-96.sxw used by the respondent. A relief of perpetual injunction was prayed by the respondent restraining the petitioner from interfering with the possession of the respondent over the suit premises and from evicting the respondent from the suit premises. The last relief claimed is of injunction directing the petitioner to return the original document obtained from the respondent in writing. The suit was contested by the petitioner by filing written statement. The petitioner denied the status of the respondent as a tenant in respect of room which was demolished. 3] The Trial Court dismissed the suit by holding that the respondent has failed to prove that he was tenant in respect of the suit premises. An appeal was preferred by the respondent against the decree of the Trial Court. The Appellate Court confirmed the finding of the Trial Court on the issue of tenancy. The Appellate Court proceeded to pass the judgment the operative part of which is as under:- “ .... .... 3. The defendant is restrained from causing obstruction or disturbance to the plaintiff’s possession and enjoyment of the suit premises to get or with the latrine and bath-room situated on the ground floor, till the defendant complies with the requirement as if he had obtained decree for possession of the premises as provided u/s.13(i)(hh); of the Bombay Rent Act, provided the plaintiff pays Rs.75/- p.m. plus taxes, permitted increases, water charges, electricity charges etc. to the defendant from the date of occupation of the suit premises 4 wp3628-96.sxw i.e.from 1985 till this date and regularly pays the same till the defendant complies with above referred order. 4. In the circumstances of the case, I direct the parties to bear their respective costs.” 4] Learned counsel for the petitioner submitted that there are findings of fact recorded by both the courts below that the respondent failed to prove his claim of tenancy. He submitted that after having failed to establish his tenancy and after having failed to establish his entitlement to declaration of tenancy, the Appellate Court could not have granted any relief to the respondent in as much as the respondent was entitled to a relief provided the plea of tenancy was established. He submitted that there was no challenge to the findings recorded by the Courts below on the issue of plea of tenancy. He, therefore, submitted that clause 3 of the impugned judgment and decree is perverse. 5] Learned counsel for the respondent submitted that a finding of fact has been recorded that earlier the respondent was occupying a residential premises in the shed of petitioner as a tenant and to enable the petitioner to obtain occupation certificate in respect a newly constructed structure, the respondent vacated the said shed and on assurance given by the petitioner, he occupied the suit premises on rental basis. He submitted that considering this background, the Appellate Court has passed an equitable decree protecting the possession of the respondent and ensured that the respondent is entitled to use latrine and bathroom till the compliance was 5 wp3628-96.sxw made with the requirement of Section 13(i)(hh) of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred as “the said Act”). He submitted that in view of the admitted position, learned District Judge was justified in passing a discretionary and equitable decree of injunction with which no interference can be made in Writ jurisdiction. 6] I have given careful consideration to the rival submissions. The suit is filed for declaration by the respondent that he is the tenant of the suit premises. A relief of perpetual injunction was prayed for as a consequential relief. Under Section 28 of the said Act, the Courts specified therein have exclusive jurisdiction to try any suit between the landlord and tenant relating to recovery of rent or possession of any premises to which any of the provisions of the Part II of the said Act apply. Thus, the exclusive jurisdiction to try the suits between the landlord and tenant relating to possession of any premises to which the Part II of the said Act is applicable, is conferred on the Court of Small Causes at Mumbai as well as the other Courts specified in sub-Section 1 of Section 28. The Sub-Section 1 of Section 28 of the Act has been given overriding effect over the other statutes. On plain reading of the plaint and averments therein, the suit is governed by Section 28 of the said Act. 7] The Court specified under Section 28 of the Act gets jurisdiction to pass a decree provided the existence of landlord and tenant relationship is established. In the present case, the concurrent finding of fact is that the respondent has failed to prove that he was tenant in respect of suit premises. The said finding has not been challenged by the respondent. It 6 wp3628-96.sxw is obvious that in view of the said finding, the Court under Section 28 of the said Act cannot grant any relief in the suit. The Court under Section 28 of the said Act gets jurisdiction to pass a decree granting any relief provided there exists landlord-tenant relation ship between the parties to the suit. Thus, after having held that the petitioner was not the tenant, the decree for perpetual injunction could not have been passed as the Trial Court did not have the jurisdiction to pass the decree and, consequently, the Appellate Court did not get jurisdiction to issue a perpetual injunction as provided in clause 3 of the operative part of the impugned judgment and decree. It is pertinent to note that the Appellate Court granted perpetual injunction after holding that the respondent was not entitled to declaration of tenancy in respect of the suit premises. In fact, the finding of fact recorded by the Appellate Court is that the respondent failed to prove that he was a tenant in respect of the suit premises. Learned counsel for the respondent stated that the petitioner has obtained a decree for possession in respect of the suit premises and a Second Appeal arising out of the decree passed in the suit is pending in this Court in which the decree for possession has been stayed. 8] Suffice it to say that after recording a finding that the respondent plaintiff has failed to establish the claim tenancy, the consequential relief of perpetual injunction could not have been granted. Therefore, the Appellate court has exceeded the jurisdiction vested in it and the said clause no.3 will have to be set aside. However, to enable the respondent to adopt appropriate remedy, a limited protection can be granted for a reasonable period. 7 wp3628-96.sxw 9] Hence, I pass the following order:- (a) Clause 3 of the operative part of the impugned judgment and decree is quashed and set aside. (b) Consequently, clause 1 of the operative part of the impugned judgment and decree is modified and the Appeal stands dismissed. (c) To enable the respondent to adopt appropriate proceedings, the decree of injunction in terms of clause (3) of the operative part of the impugned decree will continue to operate for a period six months from today. (d) Rule is made absolute in the above terms with no order as to the costs. [A.S.OKA, J]