Judgment:
A.D. Tated, J.
1 This appeal is directed against the order dated 13th February, 1981 passed by the learned 2nd Additional Principal Judge, City Civil Court, Bombay, in S.C. Suit No. 842 of 1974 directing the plaint to be returned for presentation to proper Court on the ground that the Court had no jurisdiction to decide the suit.
2. The case of the appellant plaintiff is that the alongwith his brother is the sub-tenant of an office room on 4th floor, Nanabhoi Mansion, Sir Phirozeshah Mehta Road, Bombay-400 001. The sub-tenancy rights in the said premises were originally allotted to the plaintiff's father by the Custodian of Evacuee Property. The plaintiff's father expired on 9th July, 1967. A space which is enclosed in a corner of the room by a low wooden partition was originally used by the plaintiff and his father. The respondent-defendant was permitted to the use thereof as licensee for 11 months under the Agreement Ex.'A' annexed to the plaint on his agreeing to pay monthly compensation of Rs. 250/-. The plaintiff further averred that the defendant, after the expiry of the period of the licence, failed to remove himself and his belongings from the suit premises and thus occupied the same as a trespasser. The plaintiff by his notice dated 20th August, 1973 called upon the defendant to remove himself from the suit premises, but the defendant did not comply with the notice. The defendant replied the notice by his Advocate's letter dated 24th September, 1973. The plaintiff further averred that the defendant failed to pay compensation from 1st April, 1973 at the rate of Rs. 250/- per month and the plaintiff was entitled to recover from the defendant a sum of Rs. 2,250/- as compensation up to 31st December, 1973 and future compensation, after holding an inquiry as per Order XII, Rule 20, C.P.C. from the date of filing of the suit till possession. The plaintiff further averred that the suit premises being situated at Bombay and the whole cause of action having arisen at Bombay, the City Civil Court had jurisdiction to entertain the suit. With these averments the plaintiff claimed the following reliefs, the remaining reliefs not being relevant for the decision of this appeal:
'(a) That the defendant be ordered and decreed by mandatory injunction to remove himself and his belongings from the portion of the office premises on 4th floor, Nanabhoi Mansion, Fort, Bombay -1;
(b) That the defendant by order and injunction of this Honourable Court be restrained from entering upon the portion of the office premises on the 4th floor, Nanabhoi Mansion, P.M. Road, Fort, Bombay-1;
(c) The defendant be ordered and decreed to pay to the plaintiff a sum of Rs. 2,250/- and further compensation from the date of filing of this suit till he removes himself and his belongings from the suit premises at such rate as this Honourable Court may determine;'.
3. The respondent-defendant by his written statement dated 10th April, 1974 opposed the claim of the appellant-plaintiff. The defendant inter alia contended that the City Civil Court had not jurisdiction to entertain and try the suit, as it was between a landlord and a tenant and at any rate between a landlord and a deemed tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973 hereinafter referred to as 'the said Amendment Act'), and therefore, the only Court that had exclusive jurisdiction to entertain and try the suit was the Court of Small Causes at Bombay. He further submitted that the plaintiff filed the suit on the basis of the Agreement of Leave and Licence dated 6th May, 1972 which expired in the normal course on or above 8th April, 1983, so that as on 1st February, 1973 even according to the said Agreement of Leave and Licence the licence of the defendant was subsisting so that under the provisions of the said Amendment Act the defendant must be deemed to be a tenant of the plaintiff and the suit was exclusively triable by the Court of Small Causes at Bombay. The defendant also submitted that the suit really was for possession of the suit premises and, therefore, the plaintiff should have paid the Court-fees, treating the suit for possession of the suit premises. He submitted that the suit was not properly valued for the purpose of Court-fees and proper Court-fees were not paid. He submitted that the relations between the plaintiff and the defendant were as of landlord and tenant and, therefore, the Court of Small Causes at Bombay had the exclusive jurisdiction to entertain and try any dispute between landlord and tenant, and the suit as framed was liable to be dismissed.
4. While replying to the averments in the plaint, the respondent-defendant denied that the appellant-plaintiff was a sub-tenant of the premises of which the room in suit framed part. He averred that at the time of letting out the suit premises to him the plaintiff gave out that he was entitled to let out the suit cabin and there was no mention of the plaintiff's brother being in any way concerned with the premises. According to him, the premises of which the suit cabin formed part were acquired by the plaintiff as a tenant and not as a sub-tenant. He submitted that the plaintiff had sublet the suit premises to him, but in order to circumvent the provisions of the said Amendment Act an agreement, camouflaged in the form of a leave and licence agreement, was entered into. According to him, the real intention was to create a tenancy, and even if the said Agreement is considered as a Leave and Licence Agreement, even under the provisions of the said Amendment Act the defendant is deemed to be a tenant in respect of the suit cabin. He submitted that he was always ready and willing to pay rent of the suit cabin, but he denied that the plaintiff was entitled to recover from him a sum of Rs. 2,250/- upto 31st December, 1973. He submits that the plaintiff was only entitled to recover the standard rent of the premises and nothing more under the provisions of the said Amendment Act. He further averred that he preferred on application before the Court of Small Causes at Bombay for fixation of standard rent, and interim rent was fixed by that Court and he had been depositing the rent with the Court at the rate fixed by the Court. At the end of his written statement the defendant again reiterated his stand that the suit was really between a landlord and tenant and as such the City Civil Court had no jurisdiction to try the same.
5. On the above pleadings the learned trial Judge raised the following issues :-
'(i) Does the plaintiff prove that the defendant was his licensee in respect of a cabin on the fourth floor of Nanabhoi Mansion, P.N. Road, Bombay-400 001, as stated in para 1 of the Plaint?
(ii) Does the plaintiff prove that the defendant was a licensee alongwith others and not exclusively, as stated in para 2 of the Plaint?
(iii) Does the plaintiff prove that the licence was terminated by notice dated 20th August, 1973, as stated in para 3 of the Plaint?
(iv) Does the plaintiff prove that the defendant is liable to pay compensation at the rate of Rs. 250/- per month from 1st April, 1972?
(v) Does the defendant prove that this Court has no jurisdiction to entertain and try this suit for reasons stated in para 3 of the Written Statement?
(vi) Does the defendant prove that the subject-matter of the suit has not been properly valued, as stated in para 4 of the Written Statement?'
After referring the above issues to trial and after allowing the parties to adduce evidence the learned trial Judge recorded the following findings on those issues:
'(i) In the affirmative. But the defendant is protected under section 15-A of the Bombay Rent Act.
(ii) In the negative. The defendant is the only licensee of the cabin.
(iii) In the affirmative.
(iv) In the affirmative.
(v) In the affirmative.
(vi) In the affirmative.'
In view of the finding at Issue No. 5 that the City Civil Court had no jurisdiction to entertain and try the suit for reasons stated in paragraph 3 of the written statement, the learned trial Judge ordered that the plaint be returned to proper Court. On the point of proper valuation of the suit, he held that the suit should be valued at Rs. 25,000/- and the plaintiff should pay the Court-fees on that amount. It appears that the plaintiff has accordingly paid the additional Court-fees worth Rs. 1,464/- on 1st April, 1982, but the valuation clause in the plaint has not been accordingly amended. Leave is granted to the plaintiff to amend the valuation clause accordingly.
6. The learned Counsel for the appellant-plaintiff contends that the learned trial Judge is not right in finding that the City Civil Court has no jurisdiction to try the suit and that the suit is exclusively triable by the Court of Small Causes at Bombay. He submits that the jurisdiction of a Civil Court to try a particular suit has to be considered with reference to the averments in the plaint. He submits that as per the averments in the plaint the suit is by a licensor against a licensee for possession of the premises after the expiry of the licence period and for the recovery of compensation for use and occupation for the period for which the licensee continued to occupy the premises and did not pay either the licence fee or compensation for use and occupation, treating the respondent-defendant as a trespasser after he failed to deliver back possession to the plaintiff on expiry of the licence and such a suit is triable by a Civil Court. According to the learned Counsel, such a suit is not covered by section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as 'the Bombay Rent Act'). The provisions of the said section 28 relevant for the decision of this appeal, as amended by the Maharashtra Act No. 17 of 1973, read as follows :-
'28. (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reasons, the suit of proceeding would not, but for this provision, be within its jurisdiction,
(a) in Greater Bombay, the Court of Small Causes, Bombay,
(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and
(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) have ordinary jurisdiction,
shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply, or between a licensor and a licensee relating to the recovery of the licence fee or charge and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.'
The reading of the provisions of section 28(1) of the Bombay Rent Act reproduced above shows that a suit by a licensor against a licensee after the expiry or termination of the licence, for possession of the property in respect of which the licence was granted and for recovery of compensation for use and occupation for the period during which the licensee remained in possession and did not pay compensation, is not covered. In the present case the plaintiff does not aver that the respondent-defendant was his tenant and he is claiming possession from him on termination of his tenancy. It is the defendant who is contending that he was either a sub-tenant of the plaintiff or a licensee protected under the provisions of the Bombay Rent Act and as such the suit as framed was exclusively triable by the Court of Small Causes at Bombay and the City Civil Court had no jurisdiction to try the suit. The jurisdiction of a Court to try a particular claim has to be decided on the averments in the plaint; and in case the defendant makes out a defence that in view of certain provisions of law his possession is protected and he could not be evicted in a suit filed by the licensor, treating him as a trespasser, the proper course to be followed by the Civil Court is to dismiss the suit.
7. The learned trial Judge on the following reasoning appearing in paragraph 24 of his judgment held that he had no jurisdiction to decide the suit :-
'Section 15-A of the Bombay Rent Act lays down that any person who is on 1-2-1973 in occupation as licensee of the premises which is not less than a room, shall be deemed to have become tenant of the landlord. If I hold that the defendant falls within this protection accorded by the Act, the question is whether this Court has jurisdiction to try this suit. Upon the introduction of section 15-A in the Bombay Rent Act, there was a consequential amendment to section 28 of the Bombay Rent Act. By virtue of this amendment, suits between licensor and licensee for recovery of licence fee and possession have to be filed in the Court of Small Causes. By section 28 a licensee in possession of the premises which is not less than a room is deemed to be a tenant of the landlord. The definition of 'tenant' was also amended so as to bring in its ambit the licensees deemed to be a tenant under section 15-A.'
By Maharashtra Act No. 17 of 1973 section 28 of the Bombay Rent Act was amended and the portion underlined in the section reproduced above was inserted in section 28(1) of the Bombay Rent Act. The amended portion cover a suit between a licensor and a licensee relating to the recovery of licence fee or charge. It does not cover a suit instituted by a licensor against a licensee after the termination of the licence for recovery of possession of the premises in respect of which the licence was granted and for recovery of compensation for use and occupation of those premises. The definition of the term 'tenant' appearing in Clause (11) of section 5 of the Bombay Rent Act was also amended by Maharashtra Act No. 17 of 1973 and thereby Clause (bb) was inserted. It reads as follows :-
'(bb) such licensees as are deemed to be tenants for the purposes of this Act by section 15-A.'
On reading section 28(1) and Clause (11)(bb) of section 5 of the Bombay Rent Act together, a suit by a licensor against a licensee who is deemed to be a tenant for the purposes of the Bombay Rent Act by section 15-A, for recovery of possession, also will lie in the Court of Small Causes at Bombay, and the City Civil Court will have no jurisdiction to try such suit. In the present suit the applicant-plaintiff does not aver that the respondent-defendant is a deemed tenant under section 15-A of the Bombay Rent Act. It is the contention of the defendant that he being a licensee in possession of the suit premises on 1st February, 1973 and the licence in his favour being subsisting, he became a tenant of the plaintiff and as such the claim of the plaintiff for recovery of possession of the suit premises is not tenable in the City Civil Court. The plaintiff does not accept that the defendant is a deemed tenant under section 15-A of the Bombay Rent Act. There are no averments in the plaint that the defendant, in view of the provisions of section 15-A of the Bombay Rent Act, became a tenant of the plaintiff. The claim of the plaintiff as set out in the plaint is that the defendant is not entitled to continue in possession of the suit premises after the expiry of his licence and he is claiming recovery of possession of the suit premises on the ground that the possession of the defendant over the suit premises is that of a trespasser. As stated by me earlier, the jurisdiction of a Court to try a suit has to be decided with reference to the averments in the plaint and the law regarding jurisdiction of the courts to entertain suits. If on the averments in the plaint the Court has jurisdiction to try a suit, it cannot be ousted if the defendant succeeds in proving his defence. In case the defendant succeeds in his defence and makes out a case whereby his possession is protected under the law, the only course open to the Court is to dismiss the suit, as the rights of the plaintiff are to be decided on the averments made in the plaint. Similarly, if the plaintiff is not entitled under the law, to the relief sought by him on the averments in the plaint, the suit has to be dismissed. In this view of the matter, disagreeing with the learned trial Judge, I find that on the averments in the plaint the suit was not exclusively triable by the Court of Small Causes at Bombay under section 28 of the Bombay Rent Act and as such the jurisdiction of the City Civil Court to try the suit is not barred by the provisions of the said section 28. Therefore, the City Civil Court has jurisdiction to try the suit as framed, and as such the order passed by the learned trial Judge returning the plaint to the plaintiff for presentation to proper Court cannot be sustained.
8. In this case though the learned trial Judge recorded a finding that he had no jurisdiction to try the suit, he has recorded findings on other issues raised in the suit and tried before him. The learned Counsel for the appellant plaintiff challenged the finding of the learned trial Judge that in view of the provisions of section 15-A of the Bombay Rent Act the respondent-defendant became a tenant of the plaintiff in respect of the premises occupied by him as licensee. In this Court he moved an application under Order XLI, Rule 27 C.P.C. for admission of additional evidence in this appeal. Thereby he wants to produce xerox copies of (1) letter dated 21st November, 1949 addressed to the plaintiff 's father by the Custodian of Evacuee Property, Bombay and (2) order dated 3rd November, 1954 passed by the Custodian of Evacuee Property, Bombay. These documents pertain to the premises of which the suit cabin forms part. The learned Counsel for the appellant states that the originals of those documents are filed in R.A.N. Application No. 927 of 1960 Nanaji V. Dossa & Co., and Arjandas S. Motwani v. Ahmed Moosa Nanabhoi and Ismail Moosa Nanabhoi, in the Court of Small Causes at Bombay, and he proposes to file certified copies of those documents as and when he receives them for which he has already applied. The learned Counsel for the respondent strongly opposes the production of additional evidence at this stage in appeal. According to him, the plaintiff was aware of those documents and he could have produced them in the trial Court. He submits that there are neither pleadings nor submissions before the trial Court that the Custodian of Evacuee Property, while letting out the property to M/s. Nanaji V. Dossa & Co. and subsequently to the plaintiff's father, prescribed a condition that the sub-tenant would undertake not to sublet the premises or assign right, title and interest therein to any other person, and, therefore, those documents are not at all necessary for the decision of this appeal. In the trial Court no specific issue was raised on the defendant's pleading that as per the provisions of the Bombay Rent Act, as amended, he became tenant of the plaintiff for purposes of the Bombay Rent Act. It is the main defence of the plaintiff to the plaintiff's claim for possession of the suit premises and, therefore, it is necessary to frame an issue on that point. It is urged before me that as the plaintiff occupied the premises as licensee and the licence was subsisting on 1st February, 1973 when section 15-A was inserted in the Bombay Rent Act by the Maharashtra Act No. 17 of 1973, in view of the provisions of section 15-A the defendant must be deemed to have become tenant of the plaintiff in respect of the suit premises. The learned Counsel for the appellant, on the other hand, contends that the plaintiff held the premises of which the suit cabin formed part, as sub-tenant, and under the conditions on which he was occupying the property he had no right to transfer his interest in the property to anyone. Relying on the decision of a Full Bench of this Court in Ratanlal Chandiprasad Jalan and others v. Raniram Darkhan and others, : AIR1986Bom184 , he contends that as the plaintiff had no transferable interest in the premises occupied by him as sub-tenant, he could not grant a licence in respect of part of the said premises in favour of the defendant and, therefore, the defendant could not be deemed to be a tenant of the plaintiff under the provisions of section 15-A of the Bombay Rent Act. The Full Bench para 18, : AIR1986Bom184 has laid down the law on this point thus :-
'It would thus be clear that there must be a valid licence and the same must be subsisting on the material date. Section 52 of the Indian Easement Act has defined the term 'licence'. It envisages a grant of a licence to do something upon the immovable property of the grantor. Section 53, however, would have an important bearing. It reads as follows :---
'A licence may be granted by any one in the circumstances and to the extent in and to which he may transfer its interest in the property affected by the licence.'This provision thus provides that one who has a transferable interest in an immovable property can to the extent thereof grant a licence in respect of it. In other words, a person who cannot transfer his interest in the property would have no right to grant a licence. Besides section 15 of the Bombay Rent Act prohibits a transfer of the tenancy rights. But such a transfer is permissible if there is a specific contract to that effect. We have already discussed this aspect in detail in the earlier part of the judgment. The eligibility of a tenant, whether contractual or statutory, to grant licence would thus depend upon his right to transfer his interest. The category 'A' tenant mentioned above has such a right to transfer his interest and consequently he would be entitled to create a licence though he is a statutory tenant. The position would be otherwise as far as the category 'B' tenant is concerned, that is, he has no right to create or grant licence.'
9. The learned Counsel for the respondent-defendant contends that the decision on the point in question appearing in the passage reproduced above is per incuriam and is not a binding precedent. As there is a serious dispute between the parties regarding the applicability of the provisions of section 15-A of the Bombay Rent Act to the facts of the present case, it is proper that there should be a specific issue on the point and the issue should be decided after allowing the parties to adduce evidence and after hearing them fully on it. Therefore, I raise the issue on the above pleadings of the parties as follows :---
'Does the respondent-defendant prove that he must be deemed to have become a tenant of the plaintiff in respect of the suit premises in view of the provisions of section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947?'
The learned trial Judge, when the matter is received back by him, shall reconsider the issue framed by him in this case and he may frame the issue suggested above as an additional issue and shall decide it along with other issues, after giving the parties opportunity to adduce additional evidence, if any. As I am sending the matter back to the trial Court, it is not necessary for this Court to allow the appellant-plaintiff's application for additional evidence in this appeal. He is at liberty to adduce that evidence in the trial Court. Prayer (b) of Civil Application No. 4078 of 1986 filed by the appellant for reminding the matter to the trial Court is being allowed for the reasons mentioned above.
10. The learned Counsel for the appellant-plaintiff contends that the respondent-defendant is occupying the suit premises since 1972 and he has not paid compensation from 1st April, 1973 at the agreed rate of Rs. 250/- per month. He pointed out that as per the provisions of Order XV-A.C.P.C., which has been inserted by this High Court while amending the Code of Civil Procedure, 1908, in exercise of the powers under section 122 of that Code, the Court can direct the defendant to pay arrears of compensation upto the date of the suit and also for the period thereafter in each succeeding month, and in case the defendant fails to obey the order, the Court can strike off the defence. It is true that the Court can order the defendant to pay the arrears of compensation and also can further order him to pay compensation for succeeding months, and in case he fails to obey the order, his defence can be struck off. The learned Counsel for the appellant wants that I should pass an order directing the defendant to pay the arrears of compensation up to date. I think it would not be proper for this Court to pass such order, as the matter is being remanded to the trial Court and the trial Court is competent to pass such an order. The appellant can move the trial Court in the matter and trial Court after hearing the parties shall pass orders according to law.
11. In the result, the appeal is allowed with costs. The order of the learned trial Judge directing that the plaint be returned to the appellant-plaintiff for presentation to proper Court is set aside and the matter is remanded to the trial Court for readmitting the suit on its file on the original number and for the decision according to law. As the matter is pending since long, the hearing of the suit by the trial Court shall be expedited and the trial Court shall dispose of the suit, as far as possible, within six months from the day the parties appear before the trial Court on 20th October, 1986.
12. As the appeal is allowed and the prayers made in Civil Application No. 4078 of 1986 filed on 23rd September, 1986 have been already considered and necessary directions are given, the civil application does not survive and it stands disposed of accordingly.