As discussed above, the jurisdiction vis-a-vis the nature of the Suit is
to be determined on the basis of the averments in the plaint and not on the
basis of defence or the result of the suit on the merits of the claim. Suit for
Cancellation of Instrument on the ground that it is void, illegal will generally
lie before the Civil Court. The Courts constituted under the Provincial Small
Cause Courts Act or Maharashtra Rent Control Act would not be in a
position to grant relief with regard to the Cancellation of Instrument.
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL REVISION APPLICATION NO.598 OF 2012
CIVIL APPELLATE JURISDICTION
Rite Choice Trading Company
Vs.
Vikram Govind Rao and others
CORAM : S. V. GANGAPURWALA, J.
DATE : 31ST JULY, 2013
Citation;2013 (6) MH L J 955
The petitioner is the original defendant No.5. Respondent No.1 is the
original plaintiff, who has filed the Suit for multifarious reliefs. The present
petitioner filed an application under Section 9-A of the Code of Civil
Procedure for framing the preliminary issue about jurisdiction. The trial
Court framed the preliminary issue of jurisdiction and decided it. The trial
Court held that the jurisdiction of the Court is not barred in view of the
provisions of the Maharashtra Rent Control Act. Aggrieved thereby, the
defendant No.5 has filed the present Revision.
2.
Mr. Hingmire, learned Counsel for the petitioner canvassed the
following propositions:
a. The prayers made in the Suit are such, which could be considered
and granted only by the Court as contemplated under the
Provincial Small Cause Courts Act or under the Maharashtra Rent
Control Act. The dispute is between the lessor and lessee and / or
landlord and tenant. In view of the provisions of the Maharashtra
Rent Control Act and the Provincial Small Cause Courts Act, the
jurisdiction to try the said dispute would only vest with the Court
as contemplated under the Presidency Small Cause Courts Act.
b. The learned Counsel further contends that it is the substance of
the pleading that is required to be considered. Upon a plain
reading of the plaint, it would disclose that the plaintiff has
approached the Court in the capacity of the lessee and therefore,
those parts of the prayer and the pleadings with regard to the
relationship of the lessor and lessee and / or landlord and tenant
cannot be tried by the Civil Court.
c. The learned Counsel further contends that the Court could not have
dealt with the Suit involving composite prayers. The same would
not be within the jurisdiction of the Court. In fact, such Suit was
not maintainable. The learned Counsel relies on the judgment of the
Gujarat High Court in a case of Govindbhai Vs. New Shorrock
Mills, Nadiad reported in AIR 1984 GUJARAT 182 and the
judgment of the learned Single Judge of the Gujarat High Court in a
case of Marwadi Punamji Motiji Vs. Mohamad Siddique Musabhai
Shaikh reported in AIR 1993 GUJARAT 168 so also the judgment
of the learned Single Judge of this Court in a case of Rafiuddin
Nuruddin Vs. Abduyl Karim reported in 2005 (4) Mh.L.J. 646.
d. The learned Counsel further submits that claiming relief with
regard to the instrument so also with regard to the status as a
lessee could not be tried in one and the same Suit, and that too,
before the Civil Court. When the part of the relief is outside the
jurisdiction of the Court, such Suit is not tenable. The learned
Counsel relies on the judgment of the learned Single Judge of this
Court in a case of Shantabai Y. Kothare Vs. Shankar P. Naik
reported in 2006(4) Bom.C.R. 55.
e. The learned Counsel submits that upon reading the plaint in toto,
it is manifest that the Civil Court does not have the jurisdiction to
try and entertain the Suit. Some of the reliefs claimed also cannot
be granted by the Civil Court as the same are within the exclusive
jurisdiction of the Rent Court.
3.
Mr. Dhakephalkar, learned Senior Counsel for the respondent No.1-
plaintiff supports the order and submits that all Civil Courts have got
jurisdiction unless expressly or impliedly barred. According to the learned
Senior Counsel, the relief with regard to the reconstruction so also with
regard to the declaration about the transaction cannot be granted by the
Court established under the Maharashtra Rent Control Act or the Provincial
Such a relief is outside the purview of the
According to the learned Senior Counsel, if the totality of the plaint is
4.
jurisdiction of the Civil Court.
Small Cause Courts Act.
read then it is a dispute basically between the partners of the firm and not a
dispute between the landlord and the tenant. The relief is sought against the
partners of the firm so also the action taken by the partners of the firm. Such
a relief being outside the purview of the Rent Court was perfectly
maintainable before the Civil Court. The learned Senior Counsel relies on
the judgment of the learned Single Judge of this Court in a case of Bochhraj
Factories Pvt. Ltd. Vs. Smt. Damyanti reported in 1977 U.C.R. (Bom.) 353
so also the judgment of the Division Bench of this Court in a case of
Madhavprasad Vs. Indirabai reported in AIR 1953 BOMBAY 192 and the
judgment of the learned Single Judge of this Court in a case of P. V. Raheja
Vs. L.I.C. of India reported in AIR 1982 BOMBAY 523.
5.
The learned Senior Counsel also harped on the judgment of the
learned Single Judge of this Court in the case of Inderjit Sohanlal Gulati Vs.
M. P. Gulati and others reported in All India Rent Control Journal 1989
(1) page 496 to contend that when the dispute is with regard to the personal
right of the partner or asset of the partner and the landlord is impleaded as
party defendant then such a Suit would be maintainable before the Civil
6.
Court and would not be maintainable before the Court under the Rent Act.
With the assistance of the learned Counsel, I have gone through the
pleadings and the order. There need not be a debate with the proposition that
all Civil Courts have jurisdiction unless their jurisdiction is expressly or
impliedly barred. There also cannot be a debate with the proposition that it
is the substance of the pleading which has to be considered.
7.
Before I proceed to consider the arguments advanced by the learned
Senior Counsel appearing for the respective parties, it would be appropriate
to refer to the relevant pleadings in the plaint.
“By the present Suit, the plaintiff has challenged the said alleged
transactions of 05.09.2006 and 01.09.2006 being illegal, void ab initio
and not binding on the plaintiff.”
8.
The plaint proceeds to give the details of the partnership being
reconstituted from time to time and the rights of the firm and partners in the
“7.
property leased.
The plaintiff states that the defendant Nos.2 and 3 being the partners
are required to carry out the business of the firm to the best advantage of
the firm and all the partners and the policy decisions are to be taken by all
the partners according to the said partnership deed i.e. as per the contract as
well as according to the provisions of the Indian Partnership Act, 1932.
Plaintiff states that according to the said partnership deed and even
according to law no partner is entitled to assign, transfer his share in the
partnership business to any third party nor any party is entitled to sell,
surrender or otherwise transfer either the leasehold rights or any immovable
property or the assets of the partnership firm to any person without the prior
8.
written consent of all the partners.
The plaintiff states that he learned from the news items published
from Pune that the defendant Nos.1 to 3 in collusion with each other have
transferred the leasehold rights either by surrender or otherwise in favour of
the defendant No.5 in joining hands with the defendant No.4.
Admittedly as on today the firm is in existence i.e. same has not
been dissolved, and therefore, they alone have no any right to transfer the
leasehold rights wherein the plaintiff is also having 1/3 rd undivided share,
and therefore, the said transaction is illegal, void ab initio and non-est and
the same is not binding on the plaintiff and the plaintiff continues to be a
lessee having 1/3rd undivided share in the said leasehold rights. On the
basis of the above said facts and rights of the plaintiff, he has issued a
notice dated 26.09.2006 to the defendant Nos.1 to 3 calling upon them to
give all the details of the transaction...
The defendants cannot go beyond the partnership deed.
Even
though losses are not shared by the plaintiff that is not a criteria, and
therefore, the plaintiff is a partner and sharing the losses is not a condition
precedent for becoming a partner or acquiring the status of a partner, and
therefore, the plaintiff is constrained to file the present suit challenging this
transaction and cancellation of these documents and for declaration of his
right in the immovable property in the form of leasehold rights, hence the
present suit. If these documents remain in existence they would cause
prejudice to the rights of the plaintiff.”
9.
Based upon the said pleadings, the plaintiff has claimed following
reliefs in the Suit:
“a) It may kindly be declared that the plaintiff continues to be a lessee
ig
having undivided share to the extent of 1/3 rd in the said leasehold
rights i.e. assets of the partnership firm;
It may also kindly be declared that the alleged transaction dated 5-9-
b)
2006 by defendant Nos.1 to 3 in favour of the defendant No.5 i.e.
surrender of leasehold rights and the alleged transaction between
defendant Nos.4 and 5 regarding the alleged Conveyance dated 1-9-
2006 are illegal, null and void ab initio and non-est and not binding on
the plaintiff;
c)
Both these registered instruments dt.5.9.2006 and 1.9.2006 alleged to
by decree of this court and a note to that effect may kindly be sent to
the registering authority regarding cancellation of these instruments;
d)
It may also kindly be declared that the defendant No.5 has not
acquired any rights in the said leasehold rights or in the property more
have been executed in favour of defendants may kindly be cancelled
particularly described in the Schedule and to deal with the said
property or carry out any development or construction over the suit
property;
e)
The defendant No.5 or any other defendants may kindly be
permanently restrained from dealing with the suit property and create
any further third party interests in the suit property and be further
restrained from carrying out any development and construction over
Necessary interim reliefs restraining the defendants in terms of prayer
f)
the suit property.
clause No.(e) above may kindly be granted during the pendency of the
present suit for which a separate application is filed.
g)
The defendant Nos.1 to 3 may kindly be directed by mandatory
injunction to reconstruct with their own funds the demolished building
of the original restaurant and bring in the suit property to its original
nature and status thereby enabling the plaintiff and defendant Nos.1 to
Even if it is assumed that a particular Act is a complete Code, its
10.
3 to continue the said business as before.”
operation has to be limited to the purpose for which it was enacted. A
provision in the Statute ousting jurisdiction of the Court must receive strict
construction. Where the Civil Court's jurisdiction is barred expressly, it
must mean that it is confined to the matters connected therewith or covered
thereby. The adjudicatory forum provided therein must be competent to
resolve the dispute.
11.
Jurisdiction of Civil Court is plenary in nature. A casus omissus
cannot be supplied by the Courts to oust jurisdiction of Civil Court. Court
which cannot give relief claimed for has no jurisdiction to deal with the case.
12.
When a special tribunal is created under special Statute, jurisdiction of
Civil Court is ousted only in respect of those reliefs which could be granted
by special tribunals in special Statute and in other respects, jurisdiction of
13.
civil court is not ousted.
A plea of bar of jurisdiction of Civil Court must be considered having
regard to the contention raised in the plaint. For the said purpose, averments
disclosing cause of action and the reliefs sought for therein must be
considered in its entirety. The Court would not be justified in determining
the question one way or the other, only having regard to the reliefs claimed
dehors the factual averments made in the plaint. The Court has to consider
what in substance and not merely in form, is the nature of the claim made in
the Suit and the underlying object in seeking the relief therein.
14.
Considering the substance of the pleading, it transpires that the
grievance of the plaintiff is against the acts of the other partners entering into
transactions with the landlord / owner and the further transactions thereto. It
is not a dispute about the rights of tenancy between the landlord and the
tenant. The claim of the plaintiff is that being a partner in the firm, he has a
right in that asset of the firm, which is leased, and as the transaction is
without his consent, he retains his right. The averments in the plaint do not
suggest that the dispute is the one contemplated under Section 33 of the
Maharashtra Rent Control Act or a dispute, which would be tried in a Court
established under the Provincial Small Cause Courts Act. The Suit is also
not one of a composite relief as is being sought to be contended. The other
reliefs would be consequential to the main relief about the declaration
regarding the transaction entered into between the parties, which is without
the consent of the plaintiff.
The relief of declaration and cancellation with regard to the registered
15.
instruments is only within the realm of the Civil Court. Prayer clauses (b)
and (c) in the plaint deal with the same. The other reliefs would be the
consequences of the finding in respect of prayer clauses (b) and (c). Prayer
clause (g) also would be consequential to the same, that is, a prayer for
mandatory injunction.
16.
The judgments relied by the learned Counsel for the petitioner are on
In a case of
the premise wherein the composite relief was claimed.
Shantabai Y. Kothare, referred supra, the Suit was filed in respect of the
tenanted premises as well as the encroached area. It was held by the Court
that the Suit in respect of the encroached area is not maintainable, and as
such, a composite Suit would not be tenable. The Court would not have
jurisdiction to grant relief in respect of an encroached area. In a case of
Rafiuddin Nuruddin, referred supra, it was held by the Court that the
relationship of the landlord and the tenant was not established, and as such,
the Court under the Maharashtra Rent Control Act did not get the
jurisdiction. So also in a case of Govindbhai and Marwadi Punamji
Motiji, referred supra, it was held that when one relief falls outside the
provisions of the Maharashtra Rent Control Act then in such a case, the
Court does not have the jurisdiction and the said decree would be nullity.
The position here is different. The plaintiff is actually agitating his
17.
grievance against the partners of the firm. His grievance is that his partners
have entered into transaction with the landlord without his consent and seeks
declaration that the said transaction is not binding upon him and further
seeks the relief of cancellation of the said transaction. All other prayers
would be the consequence of the said relief of declaration and cancellation
of the instrument.
As discussed above, the jurisdiction vis-a-vis the nature of the Suit is
18.
to be determined on the basis of the averments in the plaint and not on the
basis of defence or the result of the suit on the merits of the claim. Suit for
Cancellation of Instrument on the ground that it is void, illegal will generally
lie before the Civil Court. The Courts constituted under the Provincial Small
Cause Courts Act or Maharashtra Rent Control Act would not be in a
position to grant relief with regard to the Cancellation of Instrument.
19.
In light of the above, the trial Court has properly considered the said
aspect and has rejected the application. I do not find any error committed by
the trial Court in passing the impugned order. Civil Revision Application, as
such, stands dismissed. However, with no order as to costs.
(S. V. GANGAPURWALA, J.)
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