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

2. It is necessary to state the following facts in order to bring out the points in controversy between the parties. The Happy Home Co-operative Housing Society Ltd.,-Hereinafter referred to as the Society -was registered in February 1949. It obtained a lease of a piece of land measuring about 12 thousand sq. yards, situated at Nehru Road, Vile Parle (East) Bombay. The Society divided this land into 17 plots to be allotted to each one of its members for building purposes. A member was under the obligation of payment of premium, annual rent of Re. 1, and other incidental charges and to construct a house on the plot. The Society advanced loans to the members to enable them to construct their houses. The premium in respect of the land and the loan advanced, as aforesaid together with interest, was repayable in monthly instalments. Accordingly Plot No. 10, measuring about 676 sq. yds. was allotted to the appellant, and other plots were similarly allotted to other members for constructing their respective houses. Through the agency of the Society, the appellant constructed a house on his plot. The construction was completed and the appellant occupied the building on or about May 1, 1951. The sum of Rs. 25,922 odd was advanced by way of loan, to the appellant. An agreement, dated March 26, 1952, was entered into between the appellant and the Society in respect of the loan aforesaid, and the document was duly registered on May 27, 1952. The agreement between the appellant and the Society provided that the amount of loan aforesaid advanced to the appellant should be repaid in 366 or smaller monthly instalments, andafter the entire amount of the loan had been repaid, the Society would execute a sub-lease in respect of Plot No. 10 in favour of the appellant. It was further stipulated that in the event of default in the payment of an instalment, fixed in the agreement, the Society had the right to determine the Agreement, and thereupon any amounts already paid would be forfeited to the Society, and the member was to surrender the property and give vacant possession of the premises to the Society. It appears that no instalment was paid by the appellant with the result that on August 26, l954, the Society gave notice to him, calling upon him to give vacant possession of the premises, but the appellant did not comply with the notice. In view of the persistent refusal of the appellant to comply with the terms of the agreement, the Society referred the dispute with the appellant, under S. 54 of the Bombay Cooperative Societies Act (Bombay Act VII of 1925) which hereinafter will be referred to as the Act, to the Registrar for decision by himself or his nominee. The said dispute was heard and decided by a Committee of Arbitrators, appointed by the Registrar, Cooperative Societies, consisting of three gentlemen, (1) a nominee of the Society as Plaintiff, (2) a nominee of the Appellant, as defendant, and (3) a nominee of the Registrar, who was to be the Chairman. The said Committee of Arbitration, by majority, gave an award in favour of the Society to the effect that the appellant do deliver vacant possession of Plot No. 10, along with the house, to the Society and pay Rs. 150 per month as compensation for unauthorised use and occupation of the premises from October 1, 1954, to the date of the delivery of vacant possession. The appellant was also made liable for payment of costs of the arbitration proceedings. Thereupon the appellant made a revisional application to the Bombay Co-operative Tribunal, contending that the dispute between the Society and himself was essentially a dispute between landlord and tenant regarding the possession" of the premises and the recovery of rent and that the only Court that had jurisdiction to decide such a controversy was the Small Cause Court in Greater Bombay, in view of S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act (Bombay Act LVII of 1947).After hearing the parties, the Tribunal negatived the contention raised on behalf of the appellant and dismissed the revisional application. After the Award was certified under S. 59 of the Act, the Award was filed in the Bombay City Civil Court for execution. Thereupon the appellant took out a Chamber Summons against the Society for stay of the execution proceedings. The learned Judge who heard the Chamber Summons held that the Award made by the Arbitrators was without jurisdiction, in view of the provisions of S. 28 of the Rent Control Act. Accordingly, the summons was made absolute on October 16, 1956. From that order the Society came up in appeal to the High Court. The High Court, on a consideration of the terms of the agreement aforesaid, of March 26, 1952, and after elaborate arguments raised by the parties as to the legal effect of that document came to the conclusion that it was only an agreement to lease, binding the Society to grant a sub-lease only after the appellant had fully paid all the instalments due and fulfilled other conditions of the agreement, as stipulated between the parties. In that view of the matter, the High Court held that there was no relationship of landlord and tenant between the parties. In the result, the learned Judges set aside the order under appeal before them and directed that the execution of the award be proceeded with in accordance with law, with costs to the Society in both the Courts. It is from this judgment and Order that this appeal has been brought to this Court, on a certificate being granted by the High Court.

Reasoning:
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.