[1] IN THE HIGH COURTOF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 440 OF 2004 IN NOTICE OFMOTIONL NO.621 OF 2003 IN SUIT NO. 1370 OF 2002 PRS premacel Private Ltd. & Anr. ...Appellants. [Orig.Deft. 1 & 5] Versus Hatim Alihusein & ors. ...Respondents. [Orig.Pltffs & Defendants 2 to 4 &6] ALONGWITH APPEAL NO. 490 OF 2004 Jhonson & Jhonson Ltd. ...Appellants. [Orig.deft No.2] Versus Hatim Alihusein & ors. ...Respondents. [Orig. Pltffs. & Deft. 1,3 to 6.] Mr. Toor i/b. Cr.Bayley & Co. for the appellant. None for the respondents. [2] CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : February 16, 2009. : February 16, 2009. : February 16, 2009. P.C. 1. Both these appeals can be conveniently disposed of by a common order as the same order which was passed by the learned Single Judge is challenged in both the appeals. 2. What is challenged in these appeals is the order dated 28th April, 2004 passed by the learned Single Judge of this Court whereby the larned Single Judge has decided preliminary issue as to the jurisdiction of this court to entertain and try the suit, in favour of the plaintiffs. 3. The relevant facts are that Trustees of Plaintiffs -Trust and three others filed Civil Suit No. 1370 of 2002 claiming that the suit premises which are described in the document at Exhibit ’A’ to the plaint are owned by one Ms. Hindustan Paperbox Manufacturing Company, a registered partnership firm. Those premises were leased out by that firm by an Indenture of Lease dated 26th November, 1985 to the Plaintiffs as Trustees of the Trust. According to the averments in the plaint that lease is subsisting. The Plaintiffs by a [3] sub-lease, dated 25th January, 1990 sublet the premises to defendant No.2 on the terms and conditions contained in the deed of sub-lease executed by the Plaintiffs in favour of the defendant No.2. The case of the plaintiff in the plaint is that the defendant No.2 has unlawfully and contrary to the terms of sublease deed, has assigned the premises in favour of the defendant No.1. According to the averments in the plaint, the assignment of the premises by defendant No.2 to defendant No.1 is also collusive and fraudulent. In this suit it appears that there was an application made for interim relief. As required by the provisions of Section 9A of the Code of Civil Procedure, because of the objections to the jurisdiction of this Court to entertain the suit raised by the defendant No.1 and 5 following preliminary issue was framed. "Whether defendant No.1 and 5 prove that this Court has no jurisdiction to entertain, try and dispose of the present suit ?". That preliminary issue has been decided by the learned Single Judge by the order dated 28th April, 2004. The learned Single Judge has held that this Court has jurisdiction to entertain and try the Suit. The learned Single Judge held that the jurisdiction has neither been ousted under Section 33 of the Maharashtra [4] Rent Control Act, 1999 nor by Section 41 of the Presidency Small Causes Courts Act, 1882, the defendant No.1 to 5 have preferred these appeals against that order. 4. The learned Counsel appearing for the appellants submitted that the learned Single Judge has totally misread the averments in the plaint. The larned Counsel submitted that the prayer clause (c) shows that there is a prayer made for a decree of possession in favour of the plaintiff and against both, the defendant No.1 and defendant No.2. The learned Counsel submitted that the admitted position from the averments in the plaint is that the original landlord of the premises is one M/s. Hindustan Paperbox Manufacturing Company. The Plaintiffs are the lessees, they have sublet the premises to defendant No.2. The learned Counsel, therefore, submitted that the the prayer clauses shows that in this Suit the plaintiffs are seeking a decree of possession against the defendant No.1 and defendant No.2, they are also seeking money decree for recovering arrears of lease money from defendant No. 2. The learned Counsel therefore considering the provisions of Section 33 of the Maharashtra Rent Control Act submitted that the jurisdiction of this Court to entertain the suit is clearly barred because it is a suit relating to [5] possession and arrears of rent between plaintiff, the landlord and the defendant No.2, the tenant. 5. None appears for the original Plaintiff though served. 6. Perusal of the plaint shows that the Plaintiffs have stated that they are monthly tenants of the premises and that the original landlord of the premises is M/s. Hindustan Paperbox Manufacturing Company. According to the Plaintiff defendant No.2 is the sub-lessee of the Plaintiffs. Section 33 of the Maharashtra Rent Control Act Act relied on by the Appellants reads as under :- 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 its jurisdiction,- (a) in Brihan Mumbai, the Court of Small Causes, Mumbai, [6] (b) in any area for which a Court of Small Causes is established under the provincial Small Causes Court Act, 1887 (IX of 1887), 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 proceedings between a landlord and a tenant relating to the 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 [7] or question. [Emphasis supplied] (2) ...." 7. Perusal of the above Section makes it clear that if the suit is between the landlord and tenant relating to recovering of rent or possession of the premises, then the suit lies before the Small Causes Court and the jurisdiction of this Court which is Civil Court of Original Civil Jurisdiction stands ousted. The case of the Plaintiff in the plaint is that the defendant No.2 who is the sub-lessee of the plaintiffs, has unlawfully and contrary to the terms of the lease deed has sublet the premises to the defendant No.1. The Plaintiffs therefore in paragraph No. 42 claimed the following reliefs:- (a) for a declaration - (i) that the occupation and use of the suit property by the Defendant NO.1 is entirely without any locus and that the Defendant NO.1 has no right, title or interest to remain in the suit property and they are trespassers. (ii) That the Defendant No.2 had no right to make an assignment of the suit property to the Defendant No.1 and they acted fraudulently in inducting the Defendant NO.1 in the suit property. (b) That it be ordered and decreed that the Defendant NO.2 are bound and liable to restore the suit property by ensuring that the Defendant NO.1 do quit and hand-over possession and charge of the same to the Plaintiffs. (c) That the Defendant NO.1 be ordered to [8] forthwith quit and hand over vacant possession of the suit property without any further let or hindrance by removing their employees, servants and agents and/or whomsoever claiming by or through them together with their belongings and things including removable plant and machinery, stocks and other moveable properties whatsoever. (d) That the Defendant Nos. 1 and 2 be ordered and directed jointly and or severally to pay compensation/ damages/ mesne profits of a sum of Rs. 4,04,32,000/- together with further interest as claimed in the Particulars of Claim at Exhibit ’A-XIII’ hereto or such sums as may be decided by this Hon’ble Court. (e) That the Defendant NO.1 be ordered and directed to pay compensation/damages/mesne profits of a sum of Rs. 23,25,000/- being the aggregate sum of compensation from September,f 1999 till the date of filing of this suit computed at the rate of Rs.f 75,000/- per month as per Particulars of Claim at Exhibit’A-XIII’. (f) That the Defendants Nos. 1 to 6 be ordered and directed jointly and/or severally to pay compensation/damages of a sum of Rs. 2 crores together with interest as per Particulars of Claim at Exhibit ’A-XIII’ hereto. (g) That pending the hearing and final disposal of the suit the defendant NO.2 be directed to forthwith pay arrears of compensation aggregating to a sum of Rs. 6,78,876/- from September, 1999 to 31st August, 2001 being the date of determination of the sub-lease dated 25th January, 1990. (h) That pending the hearing and final disposal of the suit and/or pending their handing over possession of the premises the Defendant No.1 be ordered to pay to the Plaintiffs compensation/damages/mesne profits at the rate of Rs. 75,000/- per month from 1st September, 2001 as per Particulars of Claim at Exhibit’A-XIII hereto. (i) That pending the hearing and final disposal of the suit all the Defendants jointly and/or severally be ordered to furnish appropriate security as this Hon’ble Court may deem fit. (j) That pending the hearing and final disposal [9] of the Suit this Honourable Court be pleased to appoint the Court-Receiver High Court Bombay or some other fit and proper person as Receiver of the suit property described in Exhibit ’A’’ hereto with full powers under Order XL Rule 1 of the Code of Civil Procedure, 1908l; including all powers to take possession of the above said property and remove any person found therein. (k) That pending the hearing and final disposal of the suit the Defendant NO.1 by themselves their agents or servants or whomsoever claiming through or by them be restrained by an order of temporary injunction of this Hon’ble Court from carrying on any business in the suit property or any manufacturing activities there at. (l) That pending the hearing and final disposal of the suit the Defendants by themselves or their agents or servants or whomsoever calling through or by them be restrained by an order of temporary injunction of this Court from creating any third party rights in the suit property or transferring the said property or parting with possession of creating any charge of the said property any person and/or letting, subletting or licensing or howsoever otherwise creating any charge or lien to the possession of the suit property described in Exhibit ’A" hereto. (m) For interim and ad-interim relief in terms of prayer g),h),i),j),k) and l) above. (n) That defendants be ordered and decreed to pay the cost of this suit. (o) That such further directions given and order passed as the nature and circumstances of the case may require" 8. By prayer clause (a) decree of declaration is claimed. The first declaration claimed is that the possession of the suit property by defendant No.1 is unlawful and he is a trespasser. The second declaration claimed is that the defendant No.2 had no right to make assignment of the suit property to [10] defendant No.1, as Plaintiff admittedly is a tenant of the premises and defendant No. 2 is the subtenant. The relationship between the tenant and the sub-tenant that is the plaintiff and the defendant No. 2 is governed by the provisions of Maharashtra Rent Control Act and, therefore jurisdiction to pass a decree of declaration as to whether the defendant No.2 has lawfully assigned the premises or the assignment of the premises by defendant No.2 invalid, will be within the exclusive jurisdiction of the Small Causes Court. 9. By prayer clause (b) which we have quoted above, the decree is claimed against defendant No.2 directing him to take possession of the premises from defendant No.1 and then hand it over to the plaintiffs. Thus by prayer (b) the plaintiff are seeking a decree of possession against both, defendant No. 2 and defendant No.1. By that prayer clause the plaintiff is seeking a decree by which the defendant No.2 is obliged to take over the possession of the suit property from defendant No.1 and after taking over the possession of the premises from the defendant No.1, defendant No.2 has to hand over the possession of the premises to the plaintiffs. Thus the plaintiffs are seeking a decree of possession against the sub-tenant i.e. defendant No.2. Plaintiffs are the landlord and defendant No.2 is the tenant and, therefore by prayer clause (b) what [11] the Plaintiffs are seeking is the decree of possession against the sub-tenant, defendant No.2, the Suit therefore will be clearly covered by the provisions of Section 33 of the Maharashtra Rent Control Act. 10. Perusal of prayer clause (c) shows that it is an ancillary prayer to prayer (b). By prayer (c) a decree is sought against defendant No.1 to hand over possession. In prayer (c) it is, however, not mentioned as to whom the defendant No.1 should hand over the possession. Reading of prayer clause (b) & (c) together shows that the defendant No. 1 has to hand over possession to defendant No.2 and defendant No. 2 has to hand over the possession to the Plaintiffs. 11. In our opinion, the learned Single Judge has totally omitted to consider the prayer clause (b) and (c). By prayer clause (b) and (c) the Plaintiffs are clearly seeking a decree of possession against the defendant No.2 and seeking a decree of possession against the defendant No.1 also but plaintiffs are not asking for a decree of possession against the defendant No.1 and in favour of the Plaintiff itself. They are seeking a direction to the defendant No.2 to take over possession from defendant No.1 and hand over the possession of the premises to the Plaintiffs. It is [12] thus clear that in truth and substance this is a suit for decree of possession against the sub-tenant and therefore is squarely covered by the provisions of Section 33 of the Maharashtra Rent Control Act. 12. One more aspect, in our opinion is relevant. Perusal of the particulars of the claim shows that a money decree for an amount of Rs. 4,88,400/- with interest thereon is claimed against defendant No.2, towards compensation- lease rent from September 1999 to 31st August, 2001 @ Rs. 12989/- per month + service charges of Rs. 7361 per month. Thus the plaintiff is claiming a decree for recovering rent from the sub-tenant and, therefore for this reason also the suit will be triable exclusively by the Small Causes Court in view of provisions of Section 33 of the Maharashtra Rent Control Act. 13. Even if it is assumed that the provisions of Section 33 of the Maharashtra Rent Control Act do not apply, in our opinion, there is no escape from the provision of Section 41 of the Presidency Town Small Causes Court Act. Sub-section 1 of Section 41 reads as under :- " 41. (1) Notwithstanding anything contained elsewhere in this act but subject to the [13] provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefore, irrespective of the value of the subject matter of such suits or proceedings:. We have observed above that this is a Suit for decree of possession between landlord and tenant i.e. the Plaintiff is the landlord and the defendant No.2 who is a tenant/ sub-tenant and, therefore, even if tenancy of the defendant No.2 is not protected by the provisions of Maharashtra Rent Control Act still the suit will lie in view of the provisions of Section 41(1) of the Presidency Small Causes Court Act before the Small Causes Court. This court has already held that section 41 quoted above confer exclusive jurisdiction on the small causes court to try suits between landlord and tenant for recovery of possession and arrears of rent. 14. Looking at the matter from any point of view, in our opinion, the Judgment of the learned Single Judge cannot be sustained since this Court cannot be [14] said to have jurisdiction to entertain and try the suit. Preliminary issue framed by the learned Single Judge is, therefore answered in favour of the defendant No.1 & 5. It is held that this Court does not have jurisdiction to entertain, try and dispose of the suit as framed and filed. 15. In view of the answer given to the preliminary issue the suit itself does not survive in this Court. In the result therefore, both the appals succeed and are accordingly allowed. The order of the learned Single Judge impugned in these appeals is set aside. It is held that this Court does not have jurisdiction to try the suit No. 1370 of 2002. The Suit stands dismissed. Both the appeals are allowed. 16. In view of this order if the parties have made any deposits pursuant to any interim order in the suit, parties shall be at liberty to approach the learned Single Judge for appropriate orders. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]