MANECK GUSTEDJI BURJARJI Vs. SARAFAZALI NAWABALI MIRZA

JUDGEMENT

(1.) This appeal by special leave is directed against an order passed by the Bombay High Court disposing of Special Civil Application No. 2936 of 1975 filed by the respondent against the appellant. The facts giving rise to the appeal are a little interesting and a mere narration of them will show how extraordinary is the order made by the High Court which is impugned in the appeal. It must be said in fairness to the learned counsel appearing on behalf of the respondent that he did not seek to support the order and frankly conceded that it was unsustainable. This was in keeping with the highest traditions of the bar in the country.

(2.) The appellant is a tenant in respect of Flat No. 5 on the second floor of a building situate in Dadar Parsi Colony in the City of Bombay. The respondent had advertised for accommodation as a paying guest. In response to the advertisement, the appellant contacted the respondent and ultimately as a result of negotiations, an agreement dated 1st June 1972 was entered into between the appellant and the respondent whereby the appellant allowed the respondent to occupy and utilise one bed room together with a bath room and a furnished kitchen in the flat as a paying guest for a period of eleven months commencing from 1st June 1972 on payment of compensation at the rate of Rs. 350/- per month. During the pendency of this agreement, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) was amended by the introduction of Section 15A which gave protection against eviction to persons who were in possession of premises as licensees on 1st February 1973 by deeming them to be tenants of the landlords. The respondent seeking to take advantage of this amendment in the Bombay Rent Act, filed a suit in the Court of Small Causes Court, Bombay on 4th April 1973 climing that he was a deemed tenant in respect of the entire flat and praying that the standard rent of the flat be fixed at Rs. 50/- per month. The respondent also obtained an ex parte injunction from the Small Causes Court on 24th April, 1973 restraining the appellant and her father from taking forcible possession of the flat from the respondent without due process of law or interfering with his possession of the flat. Immediately, as soon as the order of ex parte injunction was served on her, the appellant made an application to the Small Causes Court and on her application, the ex parte injunction was varied and it was confined only to the portion of the first which formed subject-matter of the agreement dated 1st June 1972.

(3.) Since the appellant was restrained from taking possession of the portion of the flat in the occupation of the respondent without due process of law the appellant filed suit No. 3413 of 1973 in the City Civil Court, Bombay on 26th April 1973 for recovering possession on the ground that the respondent was a paying guest and the period of his agreement having come to an end, he was bound to remove himself together with his belongings from the said portion of the flat. The appellant took out a notice of motion in the suit for an injunction restraining the respondent from interfering with or disturbing the possession of the appellant in respect of the flat or from trespassing upon it, save in respect of the portion which the respondent had been allowed to occupy as a paying guest. On the notice of motion, an ex parte injunction was granted by the Civil Court and this order of injunction was executed on 4th May 1973 by removing the lock of the respondent on the kitchen. The respondent thereafter moved the City Civil Court for restoration of the possession of the kitchen but his application was rejected by the City Civil Court on 29th April 1974. An appeal preferred by the respondent against this order was also dismissed by the High Court on 17th July 1974. The suit then came up for hearing and two preliminary issues were tried by the City Civil Court, one relating to court-fees and the other relating to jurisdiction. We are not concerned with the issue relating to court-fees and hence we need not pause to consider it. The issue relating to jurisdiction was that since the respondent had taken up the plea that he was a deemed tenant in respect of the flat, the City Civil Court had no jurisdiction to try the suit and the suit fell within the exclusive jurisdiction of the Small Cause Court under Section 28 of the Bombay Rent Act. This preliminary issue was decided against the respondent and it was held that the jurisdiction of the Court was to be decided by reference to the allegations made in the plaint and since the case of the appellant in the plaint was that the respondent was a paying guest, the City Civil Court had jurisdiction to try the suit. The respondent challenged the correctness of this view by preferring an appeal to the High Court. The appeal came up for hearing before Lenthin, J., but since there was a divergence of views between two single Judges of the High Court, Lentin, J., referred the appeal to a Division Bench. The Division Bench by a judgment dated 11th February 1975 upheld the view taken by the City Civil Court and holding that, on the allegations in the plaint, the City Civil Court had jurisdiction to entertain the suit, dismissed the appeal.