Case: Vasudev Gopalkrishna Tamwekar Vs. The Board Of Liquidators Happyhome Co-Operative Housing So

the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing, the arbitrators had no jurisdiction to grant relief for possession. But there is no warrant for the submission that the Society claimed before the arbitrators that the appellant was a tenant and on that basis claimed relief for possession. The pleadings before the arbitrators are not included in the record, and on a reasonable reading of the award also no such inference can be raised. Before the Committee of arbitrators the Society had alleged that the appellant had made persistent defaults in repayment of the loan due by him and had claimed a declaration that the appellant had ceased to be a member of the Society, and an order for delivery of vacant possession of the premises belonging to the Society. It was, it appears, not alleged that any relation of landlord and tenant had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a tenant in respect of the premises in dispute could not affect the jurisdiction of the committee of arbitrators. No useful purpose will therefore be served by entering upon a discussion whether the provisions of Section 28 of Bombay Act 57 of 1947 override the provisions of the Bombay Cooperative Societies Act 7 of 1925, as was suggested at the Bar.10. Alternatively, it was contended that even if the Society claimed to obtain an order for possession on some footing other than the relationship of landlord and tenant, when the appellant raised the contention that he was a tenant and the relationship of landlord and tenant was put into issue, the Court of Small Causes, Bombay, alone was competent to decide that question. Section 28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677 which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677 may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P. 681:"The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties."There is nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant.

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

Explanation:
0[ds]In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as tenant.It was argued in the High Court, though not in the Trial Court, that on the terms aforesaid of the agreement, a present demise of the land had been executed in favour of the appellant. This argument was thought of in the High Court. In the lower Court, the Appellants counsel relied on S. 27-A of the Specific Relief Act, and it was submitted that the defendant was entitled to defend his possession even though no lease had been executed and registered, as required by law. The argument that the appellant had become the tenant of the land in question under the Society was thought of because, in the agreement, he was referred to as the tenant.In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677  which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677  may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P.suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between theis nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant.