DHAGAD AMBALAL BHAILALBHAI Vs. BAI NARMADA WD O PARSHOTTAM DAHYABHAI

JUDGEMENT

(1.) The facts giving rise to this civil revision application are as follows:-

(2.) In revision it is contended that the learned Civil Judge has failed to exercise jurisdiction by wrongly holding that the suit which was filed before him was barred by res judicata. The contention is that the first suit was an ordinary suit cognizable by ordinary Courts whereas the suit out of which this revision application has arisen is a special civil suit under section 28 of The Bombay Rents Hotel and Lodging House Rates Control Act 1947 which will hereinafter be referred to as the Act. It is contended that the present suit as framed is clearly a suit between a landlord and a tenant and relates to the recovery of possession in respect of premises to which the Act applies. Section 28 of the Act so far as it is relevant reads as follows :

(3.) It is clearly stated in para 7 of the plaint that the defendant is the owner of the house and that the plaintiffs are the tenants in respect of the house. It is further averred in the plaint that the defendant is not entitled to obtain possession by executing the decree passed in Civil Suit No. 40/51. It is clearly stated in the plaint that the plaintiffs are tenants of the premises and that the defendant is not entitled to take possession of the house in execution of a decree. The plaintiffs therefore claimed an injunction restraining the defendant from taking possession. It is however contended by the learned counsel for the opponent that in the plaint the plaintiffs stated that they were the tenants of Yashoda and not of the present defendant. No doubt in the plaint it is stated that Bai Yashoda told the plaintiffs to stay in the house as tenants. It is also stated in the plaint that since then the plaintiffs have been staying in the house as tenants. The suit is therefore clearly one between a landlord and a tenant in respect of premises to which the Act applies. But it is contended by the learned counsel for the opponent that the suit does not relate to the recovery of possession which is the second requirement mentioned in sec. 28 of the Act. It is contended that this is not a suit by a landlord to recover possession or a suit by the tenant to recover possession as the tenants are already in possession. The contention of the learned counsel for the opponent is that when a suit has to be filed under section 28 of the Act it must be either by the landlord to recover possession or by the tenant to recover possession and the suit for an injunction restraining the defendant from recovering possession is not a suit relating to the recovery of possession. This contention cannot be accepted because the expression used in section 28 of the Act is a suit relating to the recovery of rent or possession of any premises. Section 28 of the Act does not use the expression a suit for possession and uses the expression a suit relating to the recovery of possession. A suit in which an injunction is prayed to restrain that defendant from taking possession in respect of the suit premises is a suit relating to the recovery of possession of the suit premises. This contention cannot therefore be accepted. In Babulal Bhuramal v. Nandram Shukhram 60 Bom. Law Reporter 954 at p. 957 their Lordships of the Supreme Court have observed as follows :-