REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.5753­5754 OF 2011

Mahadev P Kambekar (D)  TR. LRS.              ….Appellant(s)

VERSUS

Shree Krishna Woolen Mills Pvt. Ltd.            …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) These appeals are directed against the final

judgment and order dated  19.07.2007  passed  by

the High Court of Judicature at Bombay in Appeal

No.169 of 1999 in Suit No.503 of 1980 and in

Appeal No.199 of 1999 in Suit No.503 of 1980

whereby the Division Bench of the High Court

allowed both the appeals filed by the appellants

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herein (defendant) and the respondent(plaintiff)

herein respectively.    

2) In order to appreciate the controversy involved

in these appeals which lies in a narrow compass, it

is necessary to set out the relevant facts

hereinbelow.

3) The appellants are the legal representatives of

Mahadev Pandurang Kambekar, who was the

original defendant whereas the respondent­Shree

Krishna Woolen Mills Pvt. Ltd. is the plaintiff in the

Civil Suit out of which these appeal arise.

4) The dispute between the parties relates to the

land bearing survey Nos.58 and 60 (re­numbered as

CTS 741,741/1 to 741/7) situated at Nahur­

Bhandup in Bombay suburban District (hereinafter

referred to as “the suit land”).

5) The plaintiff claims to be the lessee  of the suit

land whereas the defendant claims to be the

owner/lessor of the suit land on the terms set out in

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the  indenture of the  lease deed dated 20.06.1958

executed between the parties.

6) A dispute arose between the parties. This led

the defendant to determine the lease in question by

serving a quit notice dated 19.02.1980 to the

plaintiff requesting them to handover the leased

premises, which was in their possession, to the

defendant.

7) The plaintiff then filed a Civil Suit (No.503 of

1980) against the defendant on the original side of

the Bombay High Court claiming therein the specific

performance of the contract (lease deed) in relation

to the suit land.  

8) The suit was based essentially on clause 7 of

the Lease  Deed  which, according to the  plaintiff,

enabled them  to elect and  exercise their right to

purchase the suit land from the defendant on

fulfillment of the conditions set out therein.

9) The defendant on being served filed the written

statement. The defendant denied the claim and at

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the same time also filed his counter claim against

the plaintiff seeking their eviction from the suit land

and the arrears of rent.

10) The  Single Judge by judgment/decree  dated

24.12.1998 decreed  the  plaintiff’s  suit for  specific

performance of contract and directed the defendant

to execute the conveyance deed in favour of the

plaintiff of the suit land. The Single Judge also

allowed the counter claim filed by the defendant and

accordingly passed the decree for possession of the

suit land and arrears of rent for three years against

the plaintiff.

11) The appellants (defendant) and the respondent

(plaintiff) both felt aggrieved by the judgment/decree

passed by the Single Judge and filed their respective

appeals before the Division Bench.  

12) So far  as the  defendant's (appellants  herein)

Appeal No.169/1999 was concerned, it arose out of

the decree passed against him for specific

performance of the contract, whereas so far as the

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plaintiff's (respondent herein) appeal (No.199/1999)

was concerned, it  arose  out  of the  decree  passed

against them  for  possession of the  suit land and

arrears of rent.

13) By impugned judgment, the  Division Bench

allowed both the appeals.   So far as appeal

(169/1999) filed by the appellants (defendant) was

concerned, the Division Bench set aside the

judgment /decree and remanded the suit for re­trial

to the Single Judge on merits afresh in accordance

with law.

14) So far as appeal (199/1999) filed by the

respondent (plaintiff)  was concerned, the  Division

Bench set aside the judgment/decree on the ground

that the counter­claim was not maintainable in view

of Section 41 of the Presidency Small Cause Courts

Act, 1882 ( for short called “the Act 1882”) . In other

words, the Division Bench held that so far as

counter­claim filed by the defendant against the

plaintiff is concerned, the Single Judge wrongly

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entertained it as it had no jurisdiction on its original

jurisdiction to entertain counter­claim of this nature

in the light of the provisions of Section 41 of the Act

1882.

15) The defendant  (appellants herein), i.e., lessor

felt aggrieved by   that part of the order of the

Division Bench which resulted  in dismissal  of  his

counter­claim and filed the present appeals by way

of special leave in this Court.

16) So far as the order of the Division Bench which

resulted in setting aside of the judgment/decree of

the Single Judge and remanding of the suit for re­

trial on merits is concerned, it attained finality as a

result of dismissal of SLP filed by the plaintiff in this

Court.   

17) The short question, which arises for

consideration in these appeals, is whether the

Division Bench was right in dismissing the

defendant's counter­claim as being not

maintainable.

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18) Heard  Mr.  Shekhar  Naphade, learned senior

counsel for the appellants and Mr.  Shyam Divan,

learned senior counsel for the respondent.

19) Mr. Naphade, learned senior counsel

appearing for the appellants (defendant) and  Mr.

Shyam Diwan, learned senior counsel appearing for

the respondent (plaintiff) addressed the Court at

length.  However, having  heard  both the learned

counsel and on perusing the record of the case, we

find no merit in these appeals.

20) In our considered opinion, the issue involved

in the present appeals remains no longer res integra

and is decided by this Court in the case of

Mansukhlal Dhanraj Jain & Ors.  vs.  Eknath

Vithal Ogale [(1995) 2 SCC 665].

21) In  Mansukhlal case  (supra), the question

arose as  to whether the suit filed by  the  plaintiff

claiming to be the licensee of the premises on

monetary consideration and seeking permanent

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injunction restraining the defendant (licensor) from

recovery of the possession of the premises is

cognizable by the City Civil Court, Bombay

constituted under the Bombay City Civil Court Act

or is cognizable by the Court of Small Causes

Bombay as per Section 41(1) of the Act, 1882.

22) It is this question, which was examined by this

Court in detail in the light of the relevant provisions

of the Bombay City Civil Court Act, the Presidency

Small Cause Courts Act, 1882 and the Bombay

Rents, Hotel and Lodging House Rates Control Act,

1947.  

23) Having examined the question, their Lordships

speaking through Majmudar, J. held that such suit

is cognizable and thus maintainable in the Court of

Small Causes, Bombay.

24) It is apposite to refer the discussion contained

in paras 11, 12, 13, 16, 17 and 18 which read as

under:

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“11.  In order to resolve the controversy posed for our consideration, it will be appropriate to note the relevant statutory provision having a direct bearing on this question.  Section  41(1) of the  Small  Cause Courts Act reads as under:

“41. (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force but subject to the provisions of sub­section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent thereof, irrespective of the value of the subject­matter of such suits or proceedings.”

12.  A  mere look  at the  aforesaid  provision makes it clear that because of the non­ obstante clause contained in the section, even if  a suit may otherwise lie before any other  court, if such  a suit falls  within the sweep of Section 41(1) it can be entertained only by the  Court  of Small  Causes. In the present proceedings we are not concerned with the provisions of sub­section (2) of Section 41 and hence we do not refer to them. For applicability of Section 41(1) of the Small Cause Courts Act, the following conditions  must be satisfied before taking the view that jurisdiction of regular competent civil court like City Civil Court is ousted:

(i) It must be a suit or proceeding between the licensee and licensor; or (ii) between a landlord and a tenant;

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(iii) such suit or proceeding must relate to the recovery of possession of any property situated in Greater Bombay; or (iv) relating to the recovery of the licence fee or charges or rent thereof.

13. In the present case, we are not concerned with the 2nd and 4th conditions, as the only contention of the appellants is that the present suits do not satisfy conditions 1 and 3 for attracting Section 41(1). The respondents claim to the contrary. It is obvious that if the present suits satisfy conditions 1 and 3 they would clearly attract the applicability of Section 41(1) of the Act and such suits would be outside the purview of regular civil court like the City Civil Court. Therefore, the enquiry which becomes relevant at this stage is to find out from the averments  in the plaints  whether these are suits between a licensor and a licensee and whether they relate to the recovery of possession of immovable property situated in Greater Bombay.

16. It is, therefore, obvious that the phrase “relating to recovery of possession” as found in Section  41(1)  of  the  Small  Cause Courts Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee­plaintiff would squarely be covered by the wide sweep of the said phrase. Consequently in the light of the averments in the plaints under consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits could lie  within

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the exclusive jurisdiction of Small Cause Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits. 17. We may now refer to the relevant decisions of  this Court and other  courts to which our  attention was invited by  learned counsel for  both the sides.  As  some of the decisions referred to a pari materia provision as found in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act”), it will be necessary to refer to the said provision. Section 28(1) of the Bombay Rent Act reads as under:

“28. Jurisdiction of courts.— Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or 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) having 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….”

18.  When Section 41(1)  of  the Small  Cause Courts Act is read in juxtaposition with the aforesaid Section 28 of the Bombay Rent Act, it becomes clear that pari materia words are used about nature of suits in both these

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provisions for conferring exclusive jurisdiction on Small Cause Courts, namely, they alone can entertain such suits or proceedings relating to recovery of possession of  premises.  It is  of  course true that  Section  41 of the  Small  Cause  Courts Act deals with such suits between the licensee and licensor while Section 28 of the Bombay  Rent  Act  deals  with suits between landlord and tenant. But the nature of such suits as contemplated by both these sections is the same,  namely, it should  be the suit relating to the recovery of possession of premises. Interpreting the phrase “relating to recovery of possession” as found in Section 28 of the Bombay Rent Act, a Bench of three learned Judges of this Court in the case of Babulal Bhuramal v. Nandram Shivram6 held that  a suit for  declaration that  one  of the plaintiffs was the tenant of the defendant landlord and the other plaintiffs were his sub­ tenants and they were entitled to be protected from eviction squarely falls within the exclusive jurisdiction of the Small Cause Court, Bombay under Section 28 of the Bombay Rent Act and jurisdiction of the City Civil Court for entertaining such a suit is excluded. Imam,  J. speaking for the three­ Judge Bench  in  that case observed at  page 374 of the report as under:

“The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning  of the  Act.  Such  a  claim was one which arose out of the Act or any of its provisions. The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the

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second and third plaintiffs. The City Civil Court was thus called upon to decide whether the first plaintiff  was a tenant of the premises within the meaning of the Act and whether he had lawfully  sublet the same to the second and third plaintiffs. The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act.”

25) In the light of the law laid down by this Court

in Mansukhlal’s case (supra) which was later relied

on in  Prabhudas Damodar  Kotecha  &  Ors.  vs.

Manhabala Jeram Damodar & Anr. [(2013) 15 SCC

358],  we have  no hesitation  in affirming the view

taken by the High Court in the impugned judgment

which rightly  held  that the counter­claim  filed by

the defendant (appellants herein) is not

maintainable.

26) In our considered view, the law laid down in

these two cases has full application to the facts of

this case and we find no ground to take a different

view than what has been taken by the High Court.

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27) The only distinction on the facts of the case of

Mansukhlal (supra) and the case at hand is that in

case of  Mansukhlal  (supra), the dispute was

between the licensee and the licensor in relation to

the land, whereas in the case at hand, the dispute

is between the landlord and the tenant.  

28) This factual distinction, in our view, is of no

significance for deciding the issue in question

against the appellants by placing reliance on the law

laid down in the case of  Mansukhlal  (supra)

because  both the category of cases, i.e., the one

arising between the  licensor and the  licensee and

the other arising between the landlord and the

tenant in relation to the land are governed by

Section 41 of the Small Cause Courts Act.  

29) In other words, whether it is a suit between the

licensor  and the licensee  or  between  the landlord

and the tenant, such types of suits fall under

Section 41 of the Small Cause Courts Act and are,

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therefore, cognizable by the Courts of Small Causes,

Bombay.

30) This takes us to deal with the next argument

of  Mr.  Naphade, learned senior counsel for the

appellants that once the tenancy is determined such

suits would not come within the purview of Section

41 of the Small Cause Courts Act. This argument

was rejected by the Division Bench and, in our view,

rightly by placing reliance on the law laid down by

the Bombay High Court in the case of  Nagin

Mansukhlal Dagli  vs.  Haribhai Manibhai Patel

(AIR 1980 Bombay 123) (Para 8 of the said decision

quoted in the impugned order).  We approve the law

laid down by the Bombay High Court in the case of

Nagin Mansukhlal Dagli (supra) as laying down the

correct principle of law. We, therefore, do not

consider it necessary to elaborate our reasoning

more than what we have said.

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31) Before parting,   we consider it apposite to

make it clear that though both learned senior

counsel in support of their respective submissions

referred extensively to the factual matrix of the case

from their respective list of dates, pleadings and the

documents but  we  have refrained from recording

any factual finding on any of the factual issues.  

32) Indeed, in the light of what we have held supra

on legal question, it is not necessary.  It is now for

the parties to raise all such factual issue(s) such as

how much area was leased out, how much area is

outside the lease, who are the owners of the leased

area and the areas adjacent to leased area and all

incidental questions arising therefrom before the

competent Court.  

33) It is apart from the fact that these factual

issues were also not gone into by the Division Bench

and indeed rightly.  It is for this reason, we find no

ground to deal with them for the first time in these

appeals else it will cause prejudice to the rights of

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the parties while prosecuting their grievances before

the competent Court. Now, it will be for the

competent Court to come to its own conclusion on

their respective merits and pass appropriate orders

in accordance with law.  

34) In view of the foregoing discussion and the

observations,  we find no  merit in these appeals.

The appeals thus fail and are accordingly dismissed.

                      ………...................................J.      [ABHAY MANOHAR SAPRE]

  …...……..................................J.              [R. SUBHASH REDDY]

New Delhi; January 31, 2019

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