Case: Babulal Bhuramal &amp; Another Vs. Nandram Shivram &amp; Others

?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S. 28. By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.10. Some reference was made to S. 49 of the Presidency Small Cause Courts Act, 1882 which provides that recovery of possession of any immovable property under Ch. VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto.The provisions of this section render no assistance in the matter of interpretation of S. 28 or S. 29A.Chapter VII of the Presidency Small Cause Courts Act deals with the recovery of possession of immovable property from a person including a tenant. The provision of S. 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions of S. 47 were complied with. Indeed, under S. 41 no claims or rights are determined. In such a situation it is clearly understandable that nothing contained in Ch. VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property. In a suit under S. 28 the Court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions. Section 29 provides for an appeal against the decision of the Court. Under Ch. VII of the Presidency Small Cause Courts Act there is no provision for an appeal against an order directing recovery of possession.11. In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City Civil Court.12. On behalf of the appellants a request was made that if the appeal should fail, they may be given some time to vacate the premises. The High Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]No doubt S. 29A expressly provides that nothing contained in S. 28 or S. 29 shall be deemed to bar a party to a suit, proceeding or appeal, mentioned therein , in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which S .29A permits a party to establish in a competent Court other than that specified in S. 28 ?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S.By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City CivilHigh Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants.