1 Ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5721 OF 2002 Muddu Deju Shetty ...Petitioner vs. University of Pune ...Respondent Mr.Prathamesh Bargude with Mr.S.B.Deshmukh for the petitioner Smt M.G.Kulkarni for respondent no.1 CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 JUDGMENT : 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. The petitioner is the original plaintiff and the respondent is the original defendant. The petitioner filed a suit in the Court of Small Causes at Pune for declaration that he is a monthly tenant of the respondent-defendant in respect of the canteen premises more particularly described in paragraph 1 of the plaint. It appears that the respondent made an application for framing preliminary issue of jurisdiction of the Court of Small Causes to entertain the suit. Along with the suit, an application for temporary injunction at Exh.5 was made by the petitioner. During the pendency of the said application, an objection regarding jurisdiction was raised by the respondent in accordance with section 9-A of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). The application at Exh.5 was rejected on 8 th August 1999. On the same day, by a separate order the trial Court held that the suit was not maintainable and there was no relationship of tenant and landlord. An 2 appeal was preferred by the petitioner before the District Court. In the said Appeal, an order of status quo was passed by the District Court on 4 th November 1999 which was to operate for a period of one month. There was a separate revision application filed by the petitioner challenging the order passed by the trial Court holding that the suit was not maintainable. The revision application was decided on 15 th December 1999 by the District court directing that the preliminary issue shall be heard afresh after giving an opportunity of being heard to both the parties. It appears that in the meanwhile, a lock was put on the suit premises by the respondent. On an application made by the petitioner, the trial Court passed an order of removal of the lock. 2 The order of removal of the lock was passed by the trial Court on 1 st February 2000 and an Appeal was preferred by the respondent against the said order. A preliminary objection was raised on maintainability of the Appeal. The Appellate Court overruled the preliminary objection and held that the Appeal was maintainable. Ultimately the District Court held that the order passed by the trial Court for restoration of the possession was without jurisdiction as the preliminary issue of jurisdiction was already ordered to be heard. The said order of the Appellate Court was challenged by the petitioner by preferring the Writ Petition no.5645 of 2000 which was disposed by this Court by Judgment and Order dated 15 th February 2000. This Court held that in view of mandatory provision of 9-A of the said Code, the trial Court will have to decide the issue of jurisdiction at the earliest opportunity before passing any interim order of mandatory injunction. Paragraph 11 of the order passed by this Court reads thus : 3 11 However, during the course of argument Mr.Anturkar gave an undertaking on behalf of the petitioner that as soon as the preliminary issue of jurisdiction is decided against the petitioner he shall hand over vacant and peaceful possession of the suit premises, and shall not insist that the respondent University should take possession of the suit premises by taking out appropriate proceedings in the Court of law, subject however to his right of appeal or writ petition against the said order. The petitioner further undertakes that if the writ petition is finally decided against the petitioner he would hand over vacant and peaceful possession of the suit premises irrespective of his remedy of going to the Apex Court. Petitioner shall file an undertaking to that effect within one week from today besides the assurance given by the petitioner through his advocate to this Court. In view of the said undertaking, I am, however, inclined to allow the order of status quo granted by this Court to continue further for a period of two months from today with direction to the Small Causes Court, Pune to decide the application below Exh.20 expeditiously preferably within one month from the receipt of the writ of this Court. Both the learned counsel agree that the parties will fully co-operate with the trial Court in expeditious hearing of the said application and shall not seek any adjournment on any count whatsoever. This statement is accepted. 3 That is how the trial Court took up the preliminary issue of jurisdiction for hearing. Under the orders passed by this Court, the possession of the petitioner 4 was protected. By the Judgment and Order dated 12 th April 2001, the learned Judge of the Court of Small Causes held that the petitioner has failed to prove that he was a tenant in respect of the suit premises. It was held that the possession of the petitioner was purely permissive and he is not even a licensee within the meaning of section 5(4) (A) of the Bombay Rent Act,1947. The trial Court ultimately held that Court had no jurisdiction under the provisions of the said Act of 1947 but the Court had jurisdiction to entertain the suit in view of section 26 of the Provincial Small Cause Courts Act,1887. Therefore, the ultimate finding recorded by the trial Court is that the said Court has jurisdiction to entertain the suit. An Appeal was preferred by the petitioner which has been dismissed by confirming the finding of the trial Court. These are the two orders impugned in this Writ Petition under Article 227 of the Constitution of India. 4 The learned counsel for the petitioner submitted that the issue of jurisdiction ought to have been decided on the basis of the averments made in the plaint and at the time of deciding the issue of jurisdiction, the trial Court could not have decided the issue as to whether the petitioner has established the issue of tenant-landlord relationship. He placed reliance on the decision of this Court in case of Lockwood Industrial Supplying Company Vs. Victoria Timber Supplying Company [2010 (1) Mh.L.J. 187]. He submitted that approach of the Courts below is completely erroneous. The learned counsel for the respondents supported the impugned Judgments and orders. She submitted that the averments made in the plaint are totally inconsistent. She pointed out that the petitioner admits at one point of time that his entry in the suit premises is purely as a contractor. She pointed out that 5 the petitioner kept on shifting his stand as is clear from the various averments made in the plaint. She pointed out that the petitioner participated in the tender process by awarding contract for running the canteen. She pointed out that the petitioner has come out with a case that from 18 th October 1995, the respondent decided to create tenancy. However, a stand is also taken that he has become monthly tenant from 31 st July 1996. She submitted that if the averments made in the plaint are read as a whole, the Small Causes Court which was exercising power under section 28 of the said Act of 1947 had no jurisdiction to entertain and try the suit. 5 I have carefully considered the submissions. The petitioner has invoked jurisdiction of the Court of Small Causes under section 28 of the said Act of 1947. the petitioner claims declaration that he is the tenant of the respondent in respect of the suit premises. Under section 28 of the said Act of 1947, the Court of Small Causes has an exclusive jurisdiction to decide the suit between the landlord and tenant relating to tenancy of the tenanted premises. This is a case where exclusive jurisdiction is conferred on the Special Court to try the suit between the landlord and tenant. As far as the scope of issue of jurisdiction framed in such a suit is concerned, law is no more res-integra. The Full Bench of this Court in case of Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore (AIR 1965 Bombay 177) in paragraph 5 has held thus : 5 The position therefore is that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit 6 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 apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant 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. Similarly, if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit. 6 Thus, when the Court decides the issue of jurisdiction under section 28 of the said Act of 1947, the Court cannot go into the question whether the existence of landlord-tenant relationship is established. What is material to see and ascertain is the real nature of the suit from the averments made in the plaint. The Court has to see what in substance the plaintiff has asked for. If on the plain reading of the plaint it becomes apparent that the plaintiff has alleged relationship of landlord-tenant and if the relief claimed in substance relates to possession or raises the claim arising out of the provisions of the said Act, it is the 7 court under section 28 of the said Act which has exclusive jurisdiction to entertain the suit. If on the basis of the averments made in the plaint the issue of jurisdiction is held in favour of the plaintiff, the issue whether relationship as landlord-tenant is established or not still remains open. The said issue is required to be decided on merits after evidence is adduced by the parties and if on evidence, the said relationship is not proved, the Court is bound to throw out the suit. 7 The approach of the trial Court and the appellate Court is completely erroneous. The Courts below ought not to have decided the question whether relationship as tenant-landlord was proved by the petitioner. What was required to be seen is as to what is the real nature of the suit as reflected from reading of the plaint as a whole. The Apex Court in case of Abdulla Bin Ali and others vs. Galappa and others (AIR 1985 SC 577) has reiterated the law that allegations made in the plaint decide the forum of the suit and the issue of jurisdiction does not depend upon the defence taken by the defendant in the written statement. 8 In the plaint, the petitioner has come out with a case that on 19 th June 1986 the respondent has signed an agreement in which it was stated that the canteen was to be run on contract basis for a period of 12 months. According to the petitioner, the respondent charged rent of Rs.2,000/- per term i.e. Rs.4000/- per annum. It is asserted that by a further agreement, the respondent allotted the contract to the petitioner from 10 th June 1992 to 10 th June 1995. It is alleged that under the said contract, the rent was enhanced to Rs.11,817/-. It is alleged that after 10 th June 1995, the agreement was 8 not extended. It is further stated that the defendants issued tenders on 10 th June 1995. Thereafter, there was a fresh agreement which came to an end on 31 st July 1996. The contention of the petitioner is that from 31 st July 1996, he is occupying the suit premises on monthly rental basis and the rent amount has been fixed at Rs.5,000/-. It is alleged that from 31 st July 1995, the petitioner is a monthly tenant of the respondent and till the year 1999, the respondent has not made any grievance. The cause of action pleaded is that on 15 th June 1999, the respondent issued a letter to the petitioner informing that the contract has come to an end and therefore, the petitioner should hand over the possession. The 1 st prayer in the suit is for declaration of tenancy and the second prayer is for injunction protecting the possession. It is true that the averments made in the plaint suggest the entry of the petitioner in the suit premises is on the basis of the contract to run the canteen. Nevertheless, there are specific assertions that from 31 st July 1996, the petitioner is occupying the suit premises as a tenant at the monthly rent of Rs. 5000/- and till 1999, no grievance has been made by the respondent. It is alleged that the rent at the rate of Rs.5000/- per month has been accepted by the respondent from July 1996. Thus, the real intention of the petitioner is to claim declaration of tenancy and he has specifically alleged relationship between himself and the respondent as tenant and landlord. It is for the petitioner to prove as to how his initial entry in the premises which was as a contractor turned into tenancy as claimed by him, but that will be an aspect to be decided on merits of the suit. Suffice it to say that if the plaint is read as a whole, it is apparent that the petitioner has alleged tenant-landlord relationship between him and the respondent and the relief claimed 9 relates to the question arising under the said Act of 1947. 9 The entire approach of the Courts below is erroneous. The Courts below have not properly understood the scope of enquiry while deciding the issue of jurisdiction of the Court under section 28 of the said Act of 1947. The approach of the Appellate Court is completely erroneous, when the Court went to the extent of recording a finding that the Small Cause Court has jurisdiction to entertain the suit under section 26 of the Presidency Small Cause Courts Act. 10 Therefore, the Petition must succeed. As a result of this petition, the suit has not made any progress and the petitioner continues to occupy the suit premises. 11 Hence, I pass the following order : i) Impugned Judgments and orders are quashed and set aside and the issue of jurisdiction is answered in favour of the petitioner. ii)It is however made clear that issue of existence of tenant-landlord relationship between the petitioner and the respondent is expressly kept open which will be decided by the trial Court on the basis of the evidence which may be adduced by the parties and evidence which is already on record. iii)It is obvious that the burden to prove the existence of tenant-landlord relationship will be on the petitioner. iv)The trial Court is directed to dispose of the suit as expeditiously as possible and in any event on or before 31 st August 2010. v) The petitioner is directed to co-operate with the 10 trial Court for expeditious disposal of the suit. vi)If hearing of the suit is delayed on account of default on the part of the petitioner, it will be open for the respondent to apply to the trial Court for a direction against the petitioner to deposit compensation at the market rate. vii)All contentions of the parties are kept open. viii)Writ Petition is allowed in above terms. No order as to costs. JUDGE