PREMCHAND MAHASUKHBHAI Vs. CHAMANLAL RANCHHODDAS

JUDGEMENT

(1.) 1. These three companion applications in revision arise out of three suits filed in the Second Class Subordinate Judge's Court at Ahmedabad by the opponent against his three tenants in respect of properties situated within the limits of the city of Ahmedabad. The suits were filed by the plaintiff for recovering possession and arrears of rent in respect of the three suit properties. The leases in suits Nos. 1106 and 1107 of 1943 out of which Civil Revision Applications Nos. 192 and 320 of 1944 arise are dated April 8, 1943, while the lease in suit No. 1108 out of which Civil Revision Application No. 269 of 1944 arises is dated April 6, 1943.

(2.) IN all the three suits it was contended by the plaintiff that the period of lease had expired on September 11, 1943, on which date the possession of the properties in suits was to be handed over by the respective defendants to the plaintiff. The contentions of the defendants in the three suits were common in several particulars, although in suits Nos. 1107 of 1943 and 1108 of 1943 there were certain additional contentions taken by the respective defendants. The principal ground on which the suits were resisted1 was that the Court had no jurisdiction to hear the suits for possession and rent, that the notice to quit was not valid and that the suits were barred by reason of Section 11 of the Bombay Rent Restriction Act. The contention raised under Section 11 was that the tenants were not liable to be evicted as the plaintiff did not require the suit properties bona fide for his own occupation. Without prejudice to this contention, it was further submitted by the three defendants that the plaintiff had orally agreed to lease the properties for a period of five years more after September 11, 1943. IN suit No. 1107 of 1943 there was the additional contention that the Panch Kuva Cloth Market Association had passed a resolution to the effect that no owner of a building should get the same vacated by his tenant for a period of five years; and it was alleged that by reason of this resolution the plaintiff was not entitled to recover possession. IN suit No. 1108 of 1943 the additional contention was that the defendants were a firm, and that the suit was not maintainable without joining the partners of the firm, as parties to the suit.

(3.) THE question whether the Court of Small Causes had jurisdiction to hear the suits must be determined by reference to the Provincial Small Cause Courts Act. Under Article (4) of the Provincial Small Cause Courts Act, as amended by Bombay Act VI of 1930 and Bombay Act IX of 1932, a suit for possession of immoveable property or for the recovery of interest in such property is not cognizable by the Court of Small Causes unless" (a) the property has been let under a lease made by a written instrument or orally; (b) the Court of Small Causes would be competent to take cognizance of a suit for the rent of the property; and (c) the only substantial issue arising for decision is as to whether the lease has determined by efflux of the time limited thereby or has been determined by a notice in accordance with Clause (h) of Section 111 of the Transfer of Property Act, 1882. " It is thus clear that where there is any substantial issue arising for decision other than the determination of lease by efflux of time or by notice under Clause (h) of Section 111 of the Transfer of Property Act, the Court of Small Causes would have no jurisdiction to hear a suit for possession of immoveable property or for the recovery of any interest in such a property. It has been held by this Court in Bai Hari v. Nathubhai Parbhubhai (1938) 41 Bom. L. R. 755, and Bai Jivkore v. Himatlal Girdharlal (1935) 37 Bom. L. R. 965, that whether the question at issue is substantial or not must be determined having regard to the averments made in the plaint and the contentions taken in the written statement. In Bai Hari v. Nathubhai Mr. Justice Macklin observed that "there can be no question at issue unless there is a difference between the parties, and in, order to determine what the issue is, we have to consider the allegations of both sides. " THE question, therefore, whether the Court of Small Causes had jurisdiction or not must be determined having regard to the contentions taken by the defendants in the three suits.