Importers And Manufacturers Ltd. v. Pheroze Framroze Taraporewala And Others.

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 Caurt of JudicatUl'e at Bombay (Chagla C.J.) in Revision Application No. 1119 of 195! 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

SUPREME COURT REPOR'rS

December 18, 1950, of the Court of Small Causes in Suit No. 1055/7943 of 1948. Importers and Manufacturdr& B. H. Lulla for the appellants. • Ltd. C. K. Daphtary (Solicitor-General for India) (R.B. v. Adhyarujina, with him) for the respondents Nos. 1, 2 Pheroee and 3. Framrose

Taraporeioala

1952 .. December 10. The Judgment of the Court and Others. was delivered by Das J: 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 Oourt 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 aibout September 1, 1942, at Rs. 370 per month and the second defendant a limited com- . pany 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 1, 1948, till delivery of possession besides the costs of the suit.

The defendants preferred an appeal under section 29 ·of th~t Act.

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Besilles tpe various pleas put forwarq

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(1953]

-·, before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, Ifliporters and which was not pleaded in their written statements, l1Jan_ufacturers . Ltd. namely, · th~t the Small Causes Court had no jurisv. diction to entertain the suit in so far as it concerned Pheroz8 the second defendant. The Appellate Bench of the J!"f1·a11irozo Small Causes Court dismissed the appeal with costs .. TaraporeuJala 'l'he second defendant thereafter moved the High and Others. Court in revision under section 115 of the Code of Das J. Civil Procedure ,vhich was also dismissed with costs. The second defendant has now come up in appeal before ns 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 sui.t. 'l'he 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 within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) .............. ·...................... , (b) ..................................... , . .shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the re!lovery 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 rnit between a landlord and !\ tenant and that, in so·

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I faras it claimed compensation for use and occupa· tion, it was not a suit for recovery of rent and, there- 1 -td . d , . d h 1npor ers an fore, sect10n 28 ha no apphcat10n, an t e Court of 11ianufacturers Small Causes had no jurisdiction to entertain this ·Ltd. suit. In view of this plea it is necessary to refer to v. the plaint in this suit. After setting forth their title Pheraze Franu·oze. · as owners of the Sunama House as trustees under the Taraporewala will of Framroze D. B. 'I'araporewala the plaintiffs a,,a Others. plead that the second floor Jiat was let out to first defendant on or about September 1, 1942, at Rs. 370 Das J. 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 t.he plaint is set out one of thos_e 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 c).efendant on October 17, 1946, to vacate the fiat at the end of November, 1946, on the ground that the same was required reasonably and bona fide for the use of two of the beneficiaries under the will. Then, after referring to an unsuccessful attempt on the part of the plaintiffg 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 plaintiffs intimating that she had from that day sublet the fiat to the second defendant. It is stated in paragraphs 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 sa.me 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 defendants 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 ~o

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8UPREME COURT REPOR'l'S

[1953]

(2) that. the plaintiffs required the premises reason-

Importers and ably and bona .fi~e for the use. a;i~ occupation of two · Manufaoturors of the benefwianes. The plamt1ffs prayed that both Ltd. the defendants be ordered to vacate the premises and v. that both of them be ordered to pay to the plaintiffs Pheroze compensation for the use and occupation of the preFramroze mises at Rs. 370 per month from November 1, 1947, Ta1·aporcwala and Others. till delivery of vacant possession. The. appellant Das I.

points out that on the face of the p laiut the plaintiffs declined to recognise it as a lawful occupant as subtenant or otherwise and treated it as a mere trespasser having; no lawful claim to the demised fiat 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 fiat 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 pro· fits is usually an integral part of the decree for possession. 'l'he 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 (ll) 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 couf ers jurisdiction on the Court of Small Causes not only to entertain and try any snit or proceeding between a landlord and I\

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19511 tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or Importers (J.nd question arising out of this Act or any of its provi- ll!lanufacturdrs sions." There is no reason to hold that "any cJoaim Lt1l. v, or question" must necessarily be one between the Pheroze landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the B,rn11u·oee Taraporewal'J recovery of rent or possession of the premises the and Others. Smail Causes Court acquires the jurisdiction not cinly to .entertain that suit but also "to deal with any claim Das J. or question arising out of the Act or any of its provisions" 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 con· tractual 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 ot 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 pos~ession passed against a tena.nt 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 may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord

(1953j and the tenant under or throi;rgh whom he claims aud to seek protection under the Act, if he is entitled to lfitporters and any. Such a person may be joined as a party to the Man1,facturdr1 suifl' from the beginning of the suit or at any later Ltd. stage of the suit if the Court thinks fit to do so. The v. P.herote joinder of such a proper party cannot alter the Framroze character of the suit and does not make the suit any Tai·aporewala the less a suit between the landlord and the tenant or and Others. take it out of section 28 of the Act. 'ro hold other· wise 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. 1951!

Agent for the appellants: RaJinder Narain. A.gent for respondents Nos. 1, _2 & 3 : R. A. Ga.grat.

Nov. 'l.

RAJ BAJRANG BAHADUR SINGH v. . THAKURAIN BAKHTRAJ KUER. [MuKHERJEA, CHANDRASEKHARA A!YAH and BHAGWATI JJ.J OudhEstates Act (I of 1861>) s.14-Will of Taluqdar-Bequest as "absol~tte owner" without right to transfer-Validity-Succession to legatee whether governed by Act or ordinary law-C1·eation of su. ccessive estates - Validity-Rule aaainst perpetuities-Construction Ma1ik Kamil", "Naslan bad naslan".

The Oudh Estates Act (Act,! of 1869) does not interdict the creation of future estates and limitations provided they do not transgress the rule of perpetuities and where a disposition by a will made by a taluqdar does not make the legatee an absolute owner but gives him only an interest for life which is followed by subsequent interests created in favour of other persons the rule of succession laid down in s. 14 of the Act will not apply on the death of the donee and the property bequeathed to him will pass accord· in~ to the 1'rill to the next person entitled to it under the will.