1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4918 OF 1997 Yogesh K.Kusumgar ...Petitioner vs. 1 Shashank Pravinlal Shroff 2 Mr.S.R.Jante 3 H.H.J.Dalvi and H.H.J.Sethe, Appellate Bench Judges, Small Causes Court,Bombay ...Respondents Shri A.G.Damle for the petitioner Shri R.D.Vora i/b M/s.D.M.Vora & R.D.Vora for respondent no.1 Shri S.D.Rayrikar, A.G.P for State CORAM : ABHAY S. OKA,J. The date on which the Judgement is reserved:25th September 2009 The date on which judgement is pronounced:15th December 2009 Judgement 1] By this writ petition under article 227 of the Constitution of India, the petitioner who is the original plaintiff has challenged the order dated 26th September 1994 passed by the learned judge of The Court of Small Causes at Bombay by which it was held that the Court of Small Causes had no 2 jurisdiction to entertain the suit filed by the petitioner. The petitioner had challenged the judgement and order dated 26 th September 1994 by preferring an appeal before the Appellate bench of the Court of Small Causes. By judgement and order dated 29 th July 1997 , the judgement and order passed by the trial court was confirmed. The petitioner has also challenged the said judgement and order of the appellate bench by the present petition. 2] The petitioner filed a suit, inter alia for a declaration that "it be ordered and declared that even as a monthly contractual and/or statutory tenant, the petitioner is entitled to quiet and peaceful exclusive possession, use, occupation and enjoyment of the suit premises........" . The second prayer is for a decree directing that as long as the petitioner shall continue to hold, occupy and enjoy the suit premises, the petitioner shall always be entitled to provide, fix and maintain at his cost, television and radio antennas on the terrace of the building in which the suit premises are situated. A declaration was also claimed that the agreement dated 18 th May 1992 (Exhibit A to the plaint) was void ab- initio , illegal, unenforceable and not binding on the petitioner. A declaration was also claimed that under the said agreement the respondent has illegally and wrongfully obtained from the petitioner , an unlawful premium of a sum of Rs. 3,25,000/-and that the respondent was liable to refund the said amount with interest. The petitioner prayed for a money decree of refund of the said amount with interest. A direction was sought against the respondent enjoining him to deposit a sum of Rs.5,468/- per month and with the further prayer that the said amount be paid over to the petitioner to enable him to pay the monthly rent in respect of the suit premises. A decree of perpetual injunction was prayed for essentially for 3 protecting the possession of the petitioner over the suit premises. 2A] In the said suit, a notice was taken out a by the petitioner for grant of interim relief. A reply was filed by the respondent opposing the prayer for grant of interim relief. In the said reply, a contention was raised that the petitioner is claiming to be a joint owner of the suit premises and therefore the Court of Small Causes had no jurisdiction to entertain and try the suit. The learned trial judge framed a preliminary issue of jurisdiction in accordance with section 9A of the Court of Civil Procedure, 1908. The impugned order was passed by the trial court on the said preliminary issue holding that the trial court had no jurisdiction to entertain the suit. As stated earlier, the said order has been confirmed in appeal. 3] The learned counsel appearing for the petitioner submitted that the first prayer in the plaint was essentially for claiming a declaration that the petitioner has a right to occupy the suit premises as a tenant. He submitted that the petitioner has pleaded the existence of the tenant-landlord relationship. He submitted that in the suit , the petitioner is not claiming any rights as a co-owner. He submitted that the plaint will have to be read as a whole. He submitted that the fact that the respondent has filed a suit for eviction against the petitioner by accepting him as a tenant was irrelevant for deciding the issue of jurisdiction. He urged that the fact that it was not necessary to grant the first prayer in the suit is no ground to hold the issue of jurisdiction against the petitioner. He submitted that the 4 issue of jurisdiction was required to be decided on the basis of averments made in the plaint and in the present case, the averments disclose the existence of tenant-landlord relationship. He submitted that merely because in one paragraph of the plaint there is a reference to the agreement that the petitioner shall be treated as co-owner, the suit still continues to be governed by section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as " the said Act of 1947"). He placed reliance on a decision of Mysore High Court in the case of Onkareppa W. Koloor versus Rachappa G. Jagalalli (A. I .R 1963 Mysore 159). He relied upon a decision of full bench of this Court in the case of Dattatraya K.Jangam versus Jairam G. Gore (63 Bombay Law Reporter 645). He submitted that the relief of declaration that the agreement was in contravention of section 18(3) of the said Act of 1947 can be claimed under section 28 of the said Act of 1947. He relied upon a decision of this Court in the case of Kirti N. Thakkar versus J.D.Jamdar and others (1987 (1) Bombay Cases Reporter 195). Lastly, he submitted that under section 28 of the said Act of 1947, the Court can decide and deal with any claim or question arising out of the said Act of 1947. In that behalf he placed reliance on a decision of the Apex Court in the case of M/s Importers and manufacturers Ltd versus P.H.Taraporewalla (A. I.R 1953 Supreme Court 73). He, therefore, submitted that the courts below have committed a gross error by deciding the issue of jurisdiction against the petitioner. 4] The learned counsel appearing for the respondent submitted that the respondent has filed a suit for eviction against the petitioner in which the respondent has accepted the petitioner as his tenant in respect of the suit premises. He submitted 5 that in view of filing of the said suit there is no apprehension that the respondent will obstruct possession of the petitioner over the suit premises without taking recourse to the due process of law. He submitted that the substantive prayer in the suit does not survive. He pointed out various averments made in the plaint and submitted that essentially the petitioner is claiming to be a co-owner of the property in which the suit premises are situated. He submitted that going by the averments made in the plaint it is clear that the petitioner is claiming ownership in respect of the suit premises. He submitted that as regards the agreement dated 18 th May 1982, the pleading of the petitioner is that the respondent had agreed that the petitioner will be the co-owner of the property . He submitted that after having claimed that he is a co-owner, the petitioner cannot claim tenancy in respect of the suit premises. He submitted that the petitioner has not unconditionally accepted the respondent as his landlord. He submitted that as the petitioner has not accepted the tenant-landlord relationship, only on the basis of prayer clause (a) of the plaint, the Rent Court does not get jurisdiction under section 28 of the said Act of 1947. He submitted that there is no reason to interfere with the concurrent findings recorded by the courts below in this petition under article 227 of the constitution of India. 5] I have given careful consideration to the submissions. The full bench of this Court in the case of Dattaraya (supra) held that in order to determine which Court had jurisdiction to try a 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 relief claimed, if on a fair reading of the plaint it becomes 6 apparent that the plaintiff has alleged relationship of landlord and tenant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the said Act of 1947 or any of its provisions, then it is the special Court alone that will have jurisdiction to entertain the suit. If the dispute is raised by the tenant about the existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue. The full bench further held that if the plaint does not allege relationship of landlord and tenant and no claim or question arises out of the said Act of 1947 or any of its provisions, then the ordinary Civil Court will have jurisdiction to entertain the suit. 6] In the light of the law laid down by the full bench, the averments made in the plaint will have to be considered. In the first paragraph, the flat on the first floor in the building  Pransu and a garage in the said building has been described. The said flat and the garage have been described as the suit premises. The plot No. 22 on which the said building is standing and the said building have been referred to as "the said property". In paragraph 3 of the plaint it is stated that in the year 1981, the respondent had just constructed a plinth of the building. At that time, the petitioner and his family members were residing in another building. The petitioner was looking for a larger and independent accommodation. The petitioner was in search of a vacant plot or a vacant house with plot in the Juhu development scheme. The petitioner was informed that the respondent was looking for a sharer or a partner for his project of construction of the building. In the plaint , a reliance has been placed on 7 the terms and conditions orally agreed between the petitioner and the respondent. Clause (v) of paragraph 4 of the plaint contains an averment that on completion of the building and the petitioner entering possession of the suit premises , between the petitioner and the respondent, for all purposes , the petitioner shall be treated as the co-owner having one third share in the said property. Paragraph 4 of the plaint incorporates various other terms and conditions of the oral agreement between the petitioner and the respondent. As per the said agreement ,it was agreed to confer on the petitioner rights as a co-owner of the said property including the suit premises. In fact clause(ix) of the said paragraph records that the petitioner will be entitled to enjoy the suit premises, one garage, the roof terrace , passages , staircases , means of access etc on the said property as the co-owner thereof. In paragraph 5 of the plaint, it is asserted that relying upon the concluded agreement, the petitioners started investing required funds for completion of the said building. It is stated that the receipt of amounts was acknowledged by the respondent. The petitioner has stated that the construction of the building was completed by the end of April 1982. The following averments in paragraph 5 of the plaint are material which read thus: 5.....Without prejudice to the Plaintiff s rights and remedies to get specific performance of the aforesaid oral agreements and understandings and to get the plaintiff declared as the co-owner of the said property, the plaintiff states that at that stage when the plaintiff had requested the defendant for entering into proper documents and ensuring to him his one third share and interest in the property 8 with the exclusive possession, ownership and holding in respect of the said first floor and one Garage, the defendant in the beginning went on dodging the matter but ultimately the defendant knowingly and intentionally made a false representation to the plaintiff that because of certain bye-laws, rules and regulations of the society and also provisions of the Lease Deed in respect of the plot no.22, he would not be able to immediately give the required documents to the plaintiff and that the preparation, approval and completion of the said documents with the prior sanction and approval of the society may take much time and therefore, the defendant then proposed in the initial stages firstly to partly secure the plaintiff by making a Construction Loan Agreement and to grant to plaintiff hereitable, assignable and transferable tenancies of the said first floor and the one Garage in the compound of the said property. The defendant also suggested that he would take back from the plaintiff the entire amount which he would pay back to the plaintiff as interest and the instalments of repayments of the said loan amount. The defendant also then had suggested that the Construction Loan Agreement would also be registered and his investment would be properly secured by a charge on the entire property which could be released on reconveyed by the plaintiff after he was granted one third share and interest in the said property and in the membership of the society. 9 7] In paragraph 6 of the plaint, the petitioner stated that by April 1982 he had invested almost a full amount required for constructing the building. He stated that he was put in a precarious position in view of the aforesaid representations made by the respondent. The petitioner apprehended that if there was any fight with the respondent, difficulties may be faced in securing the possession of the suit premises. The petitioner further stated that "in the aforesaid coercive oppressive and pressurising condition, Mr. Yogesh Kusumgar , the Karta of the plaintiff was forced under circumstances to sign an absolutely one-sided agreement with the defendant on or about 18 th May 1982 . Hereto annexed and marked Exhibit A is the copy of the Xerox copy of the said agreement Which the defendant was forced to give to the plaintiff after having a legal correspondence in the matter." 8] Thereafter, the Petitioner has referred to the recitals in the said agreement. In paragraph 11 of the plaint, the petitioner has stated that the respondent has wrongfully and illegally avoided to a sign and transfer his one third undivided share and interest in the said property in favour of the petitioner and therefore the petitioner has incurred a recurring liability of payment of monthly rent. It is alleged that with the object of preventing the petitioner from claiming ownership in the said property , the respondent started misusing and taking undue advantage of the one-sided agreement. Various instances of alleged harassment of the petitioner by the respondent have been set out in the plaint. In paragraph 19 of the plaint, the petitioner has set out the prayers claimed in the suit. Before setting out the prayers , he has stated thus: 10 19.Under the aforesaid facts and circumstances, and without prejudice to all other legal rights and remedies of the plaintiff in the matter of claiming and getting declared and secured against the defendant and all persons claiming through him the said one-third undivided share, right, title and interest of the plaintiff in the said entire property and building Pransu and in the defendant s membership share, right, title and interest in the said society the plaintiff has filed the present suit for claiming and for seeking to get from this Honourable Court several urgent reliefs, declarations and injunctions as follows... 9] If the Plaint is read as a whole, the case made out by the petitioner can be summarised as under: (i) as per the oral agreement between the parties, the petitioner paid required funds for construction of the building on the said property. (ii) the respondent agreed to acknowledge only a sum of Rs.3,25,001/- which was to be received by him from the petitioner by cheque/demand draft. (iii) on completion of the building and on the petitioner entering possession of the suit premises and the said garage, as between the petitioner and the respondent, the petitioner shall be treated as a co-owner of one third undivided ownership right, share, right, title 11 and interest in the said property and also undivided share in the membership rights of the society. (iv)in the matter of possession and enjoyment of the suit premises, the roof terrace, other common areas, passages, staircases etc in the said building, the petitioner will have all the rights, benefits and entitlements as a co-owner thereof. (v) the agreement dated 18 th May 1992 was executed by the petitioner in the coercive, oppressive and pressurising condition described in paragraph 6 of the plaint. The said agreement is a one-sided agreement. The agreement is ab-initio void and unenforceable. (vi)the agreement dated 18 th May 1992 is an agreement which purportedly creates a tenancy in respect of the suit premises in favour of the petitioner. The said agreement is itself under the challenge in the suit inasmuch as there is a prayer made for declaration that the said agreement was void ab initio, illegal, unenforceable and not binding on the petitioner as the same has been procured by the respondent from the petitioner without his free consent and approval. 10] Thus, the agreement which purports to create the tenancy in respect of the suit premises in favour of the petitioner has been challenged by the petitioner on the ground that it is void ab - initio and the same has been 12 procured under coercion. The plaint read as a whole shows that the petitioner has not accepted that he is a tenant in respect of the suit premises. In fact the petitioner is contending that the agreement of tenancy is void ab initio. The petitioner is claiming that he is entitled to one third undivided ownership right, title and interest in the said property. In the prayer (a) of the plaint a relief is sought to be claimed in a very peculiar language. The opening part of the said prayer is "....... even as the monthly contractual and/or statutory tenant the plaintiff is entitled to quiet and peaceful exclusive possession, use, occupation and enjoyment of the suit premises......." . In the plaint the petitioner has not accepted that he is the tenant and the respondent is the landlord of the suit premises. The contention in the plaint is that the agreement of tenancy is void ab initio and in fact the petitioner is entitled to one third share in the said property as a co-owner. Apart from the fact that the petitioner has not specifically pleaded the existence of tenant-landlord relationship, in the averments made in the plaint, no claim or question arising out of the provisions of the said Act of 1947 is raised. There is a prayer made claiming a right to put up radio and television antennas on the terrace of the building. In absence of the the material averments in the plaint conferring jurisdiction on the Court under Section 28 of the Said Act of 1947, the prayers made in the suit will not give jurisdiction to the special court. Unless there is a foundation for the prayers made in the body of the plaint, only on the basis of the prayers made in the suit ,the special Court under section 28 does not get jurisdiction. In the suit the specific case of the petitioner is that the agreement (Exhibit A to the 13 plaint) is unenforceable and void ab initio. The said agreement purports to create a tenancy in respect of the suit premises in favour of the petitioner. Therefore, going by averments made in the plaint, this is not a suit between a tenant and landlord. It was sought to be contended that the declaration claimed is that the agreement is contrary to section 18 (3) of the said Act Of 1947. However the substantive declaration claimed in respect of the agreement is that the agreement has been procured without free consent of the petitioner and the same is void ab initio. Therefore the only conclusion is that if the plaint is read as a whole, the Court of Small Causes has no jurisdiction to entertain and try the suit. 11] Moreover, the respondent has already filed a suit against the petitioner for eviction. In the said suit respondent has accepted the petitioner as a tenant. It is true that this by itself will not affect the decision on the issue of jurisdiction. However, this Court is exercising power of superintendence under Article 227 of the Constitution of India. Both the Courts have recorded concurrent findings on the issue of jurisdiction. No case is made out for interference in writ jurisdiction. The impugned judgements and orders deserve to be confirmed. Now the trial court may have to pass an order of return of the plaint. 12] Writ petition is rejected. Rule stands discharged with no orders as to costs. The interim relief operating in the writ petition will continue to operate for a period of twelve weeks from today. 14 JUDGE