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PETITIONER: IMPORTERS AND MANUFACTURERS LTD.

       Vs.

RESPONDENT: PHEROZE FRAMROZE TARAPOREWALAAND OTHERS.

DATE OF JUDGMENT: 10/12/1952

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   73            1953 SCR  226  CITATOR INFO :  RF         1971 SC1495  (18)  R          1973 SC1099  (3)  R          1980 SC1605  (14)

ACT: Bombay Rents, Hotel and Lodging Rates Control Act, 1947,  s. 28-Sub-lease  by tenant in contravention of term  of  lease- Suit   by  landlord  against  tenant  and   sub-tenant   for possession   and  compensation  for  use   and   occupation- Jurisdiction  of Small Causes Court -Construction of s.  28- Impleading of sub-tenant, effect of.

HEADNOTE: Where  a lease of a flat situated within the City of  Bombay contained  a term that the tenant shall not assign,  sub-let or re-let the premises, without the previous consent of  the landlord and the tenant, in contravention of this term  sub- let the flat, and the landlord instituted a suit against him and the sub-tenant in the Court of Small Causes Bombay,  for possession  and compensation for use and occupation  of  the premises,  and  the sub-lessee contended that the  Court  of Small Causes had no jurisdiction so far as he was  concerned inasmuch  as the suit was not one between a landlord  and  a tenant  nor, one for rent within S. 28 of the Bombay  Rents, Hotel and Lodging Rates Control Act, 1947: Hold,  (i) that the suit was clearly one for possession  and the claim for compensation wag merely an incidental claim; (ii) s. 28 of the Act conferred jurisdiction on the Court of Small  Causes  not  only to entertain and try  any  suit  or proceeding  between  a landlord and tenant for  recovery  of rent  or  possession, but also "to deal with  any  claim  or question arising out of this Act or ’any of its provisions"’ and s. 28 was thus wide enough to cover the question  raised as between the plaintiff and the sub-lessee ; (iii)     in  any  event, though the sub-lessee  was  not  a necessary  party to the suit he was a proper party, and  the joinder of such a party cannot alter the nature of the  suit and  make  it  any the less a suit between  a  landlord  and tenant or take it out of s. 28.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 172 of  1952. Appeal  by special leave from the Judgment and Decree  dated January 25, 1952, of the High Court of Judicature at  Bombay (Chagla C.J.) in Revision Application No. 1119 of 1951  from the Judgment and Decree dated August 10, 1951, of the  Court of Small Causes at Bombay in Appeal No. 355 of 1950, arising out of Judgment and Decree dated 227 December 18, 1950, of the Court of Small Causes in Suit  No. 1055/7943 of 1948. B.   H. Lulla for the appellants. C.   H. Daphtary (Solicitor-General for India) (B.B. Adhyarujina, with him) for the respondents Nos. 1, 2 and 3. 1952.  December 10.  The Judgment of the Court was delivered by   DAS  J.-This  is  an appeal by  special  leave  from  the judgment and order of the High Court of Judicature at Bombay passed  on January 25, 1952, in Civil Revision,  Application No.  1119  of 1951.  It arises out of a suit  filed  in  the Bombay  Small  Causes Court under section 28 of  the  Bombay Rents,’ Hotel and Lodging House Rates Control Act, 1947, for ejectment  from and compensation at the rate of Rs. 370  per month  from November 1, 1947, for the use and occupation  of the  second floor flat of Sunama House situate  in  Cumballa Hill,  Bombay.  The plaintiffs are the trustees of the  will of  Framroze  D. B. Taraporewala deceased and  as  such  the owners  of  the  Sunama House.  The defendants  are  two  in number,  namely, the first defendant Mrs. Dinbai K. Lala  to whom the said flat was let out by the plaintiffs on or about September  1,  1942,  at Rs. 370 per mouth  and  the  second defendant a limited company to whom the first defendant  had sublet the said flat as from November- 16, 1947, at the same rent.   The  defendants contested the suit on a  variety  of grounds,  but the trial Court by its judgment dated  October 18,  1950,  rejected  all-the  pleas  and  passed  a  decree directing  both the defendants to vacate the flat  by  March 31, 1951, and awarding, only as against the first defendant, Rs. 3,317-10-8 for compensation from November 1, 1947,  till July  31,  1948, and thereafter at Rs. 370  per  month  from August  4,  1948, till delivery of  possession  besides  the costs of the suit.  The defendants preferred an appeal under section  29  of  that Apt.  Besides the  various  pleas  put forward 228 before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, watch was not pleaded in  their written statements, namely, that the Small  Causes Court had no jurisdiction to entertain the suit in so far as it  concerned the second defendant.  The Appellate Bench  of the Small Causes Court dismissed the appeal with costs.  The second defendant thereafter moved the High Court in revision under  section 115 of the Code of Civil Procedure which  was also  dismissed  with costs.  The second defendant  has  now come  up in appeal before us after having  obtained  special leave of this Court. The only contention urged before us is that the Small Causes Court  had  no  jurisdiction to entertain  this  suit.   The relevant portions of section 28 of the Act are as follows:- "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 with in its jurisdiction, (a) in Greater Bombay, the Court of Small

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Causes, Bombay, (aa).................................... (b)....................................... 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, 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 no other Court shall have jurisdiction  to  entertain any  such  suit, proceeding or application or to  deal  with such claim or question." It  was not disputed that the provisions of Part II  of  the Act apply to the premises.  The contention of the  appellant is  that  the suit as against it was not a  suit  between  a landlord and a tenant and that, in so 229 far  as it claimed compensation for use and  occupation,  it was not a suit for recovery of rent and, therefore,  section 28 had no application, and the Court of Small Causes had  no jurisdiction  to-entertain this suit.  In view of this  plea it is necessary to refer to the plaint in this suit.   After setting  forth  their title as owners of the  Sunama  Houses trustees  under the will of Framroze D. B. Taraporewala  the plaintiffs  plead that the second floor flat was let out  to first  defendant on or about September 1, 1942, at  Rs.  370 per month on terms and conditions printed on the back Of the rent bill form which were shown to and accepted by the first defendant.   In paragraph 5 of the plaint is set out one  of those  terms,  namely,  that the tenant  shall  not  assign, sublet  or re-let the premises without the previous  written consent of the landlords.  In paragraph 7 reference is  made to the notice given by the plaintiffs to the first defendant on  October  17,  1946, to vacate the flat  at  the  end  of November,  1946,  on the ground that the same  was  required reasonably   and  bonafide  for  the  use  of  two  of   the beneficiaries  under the will.  Then, after referring to  an unsuccessful attempt on the part of the plaintiffs to obtain a  certificate under section 9 of the Act ’  the  plaintiffs refer  to a letter dated November 16, 1947, written  by  the first  defendant to the plaintiff8 intimating that  she  had from  that day sublet the flat to the second defendant.   It is  stated  in para,graphs 12 and 13 of the plaint  that  on December  19, 1947, the second defendant sent a  cheque  for Rs. 370 for rent , for the month of November, 1947, but  the plaintiffs  declined to accept the same or to recognise  the second  defendant  as  a lawful  occupant  as  subtenant  or otherwise.  It is also alleged that on January 23, 1948, the plaintiffs gave a notice to both ,the Codefendants to vacate the premises at the end of February 29, 1948.  In paragraphs 14   and  15  the  plaintiffs  formulate  the  grounds   for ejectment,  ,namely, (1) that the alleged subletting by  the first  ,defendant  to  the second  defendant  was  wrongful, illegal and in breach of the terms of the tenancy and 30 230 (2)that the plaintiffs required the premises reasonably  and bona  fide  for  the  use  and  occupation  of  two  of  the beneficiaries.    The  plaintiffs  prayed  that   both   the defendants be ordered to vacate the -premises and that  both of them be ordered to pay to the plaintiffs compensation for the use and occupation of the premises at Rs. 370 per  mouth from  November 1, 1947, till delivery of vacant  possession. The appellant points out that on the face of the plaint  the plaintiffs declined to recognise it as a lawful occupant  as

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subtenant  or otherwise and treated it as a mere  trespasser having  no lawful claim to the demised flat and,  therefore, the suit, in so far as it was one between the plaintiffs and the appellant (the second defendant), cannot be said to be a suit between a landlord and a tenant and that the suit in so far as it claimed compensation from him cannot be said to be a  suit  for  recovery  of  rent.   The  last  part  of  the contention  need  not  detain  us long,  for  the  suit  was undoubtedly one for possession of the flat and the claim for compensation  was  only incidental and ancillary to  to  the claim for possession.  Jurisdiction to entertain a suit  for possession will empower the Court not only to pass a  decree for  possession but also to give directions for  payment  of mesne profits until delivery of possession.  Such  direction for payment of mesne profits is usually an integral part  of the   decree   for  possession.   The  only   question   for consideration,  therefore,  is  whether  the  suit  was  one between a landlord and a tenant. The  respondents  (the plaintiffs) do not contend  that  the appellant (the second defendant) is a ’tenant" as defined in section  5  (11) of the Act.  The appellant,  on  the  other hand,  does not and, indeed, cannot ;deny that,  as  between the  plaintiffs  and the first defendant, the  suit  is  one between a landlord and a tenant and as such the Small Causes Court  is,  under  section 28 of the  Act,  the  only  Court competent  to  entertain  the  suit.   Section  28   confers jurisdiction  on  the  Court of Small  Causes  not  only  to entertain and try any suit or proceeding between a  landlord and a 231 tenant relating to the recovery of rent or possession of the premises  but  also  "to deal with  any  claim  or  question arising out of this Act or any of its provisions.  There  is no  reason  to  hold  that’ "any  claim  or  question"  must necessarily be one between the landlord and the tenant.   In any  case,  once there is a suit between a  landlord  and  a tenant relating to the recovery of rent or possession of the premises  the Small Causes Court acquires  the  jurisdiction not  only to entertain that suit but also "to deal with  any claim or question arising out of the Act or any of its  pro- visions"  which may properly be raised in such a suit.   The plaintiffs   in  this  suit  claimed  that   the   purported subletting  by the first defendant to the  second  defendant was  unlawful both because it was a breach of the  terms  of the  tenancy and also because as the statutory tenant  after the  determination  of  the contractual  tenancy  the  first defendant was not entitled to create a sub-tenancy and  they questioned  the validity of the second defendant’s claim  to any  protection under the Act.  The claim or question as  to the  respective  rights  of the plaintiffs  and  the  second defendant thus raised in the plaint certaintly arises out of the  Act and the language of section 28 appears to  be  wide enough  to cover the same.  Apart from that  section,  under the  ordinary law a decree for possession passed  against  a tenant  in  a  suit for ejectment is  binding  on  a  person claiming   title  under  or  through  that  tenant  and   is executable against such person whether or not he was or  was not  a party to the suit.  The non-joinder of such a  person does not render the decree any the less binding on him.   It is in this sense, therefore, that he is not a necessary party to  an ejectment suit against the tenant.  It  is,  however, recognised  that  such a person is, nevertheless,  a  proper party  to  the suit in order that the question  whether  the lease   has  been  properly  determined  and  the   landlord plaintiff is entitled to recover possession of the  premises

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may  be  decided  in his presence so that he  may  have  the opportunity  to see that there is no collusion  between  the landlord 232 and  the tenant under or through whom he claims and to  seek protection under the Act, if he is entitled to’ any.  Such a person  may  be  joined  as a party to  the  suit  from  the beginning  of the suit or at any later stage of the suit  if the Court thinks fit to do so.  The joinder of such a proper party  cannot alter the character of the suit and  does  not make  the suit any the less a suit between the landlord  and the tenant or take it out of section 28 of the Act.  To hold otherwise  will be to encourage multiplicity of suits  which will  result in no end of inconvenience and  confusion.   In our  view the decision and the reasoning of Chagla C.J.  are substantially  correct   and  this appeal  must  fail.   We, therefore, dismiss the appeal with costs.                Appeal dismissed. Agent for the appellants: Rajinder Narain. Agent for respondents Nos. 1, 2 & 3: B. A. Gagrat.