Wednesday, 15 August 2018

Whether interim relief can be granted which is beyond scope of suit?

As already stated, in the absence of MHADA being a party to the suit or any relief having been sought against it, the question of deciding the nature of the suit and jurisdiction of the Court on the assumption that it is a suit between the plaintiff and MHADA, could not and did not arise. Mr. Irani pointed out that although not in the suit but in the notice of motion the plaintiff did seek relief against MHADA, that was not considered by the trial Court. In my opinion, no relief can be asked for in a motion outside and beyond the scope of the suit itself and even if the same was sought, it was not required to be entertained.

IN THE HIGH COURT OF BOMBAY

A.O. No. 833 of 1993 with Civil Application No. 3413 of 1993

Decided On: 11.08.1993

Dinyar Behramji Irani Vs.  Kshirsagar Construction Co. Pvt. Ltd.

Hon'ble Judges/Coram:
M.G. Chaudhari, J.

Citation: 1994(3) Bom CR 264


1. Heard at length.

The learned Judge of the City Civil Court, Bombay, has by the impugned order dated 6th July, 1993 directed the plaint to be returned to the appellant - plaintiff after holding that the City Civil Court has no jurisdiction to entertain, try and decide the suit. Feeling aggrieved with that order, the appellant - plaintiff has preferred this appeal. (The appellant is hereafter referred to as the plaintiff and the respondents are referred to as the defendant).

2. The learned trial Judge was right in following the principle that the allegations made in the plaint decide the forum to entertain and try the suit. See Abdulla v. Galappa & others, MANU/SC/0307/1985 : AIR1985SC577 . It is also laid down in this ruling that the jurisdiction does not depend upon the defence taken by the defendants in the written statement. The learned trial Judge has also rightly decided the issue as a preliminary issue under section 9-A of the Code of Civil Procedure.

3. A reading of paragraphs 1, 2 & 3 of the plaint and paragraph 8 of the affidavit in rejoinder filed by the plaintiff dated 23rd June, 1993 leaves no doubt that the plaintiff has essentially claimed himself to be the tenant of the 3 open plots in question along with the structures standing thereon and has complained of threat to his possession thereof. He apprehends that the defendant may cause his dispossession illegally. In paragraph 1 of the plaint the plaintiff has averred that the defendant is the present owner of the property. He has then referred to the rent receipts which were issued to plaintiffs' late father by previous owners. He has stated that his father was a monthly tenant. In the said paragraph he has made the following averments :

"The plaintiff will rely on the other rent receipts when produced at the time of hearing. The fact remains that the plaintiff's late father Behramji Shapoor Irani was the monthly tenant in respect of the said 3 open plots of land in the said property No. 45-C at Lamington Road, Bombay - 400 008, in the said compound known as Ganjanwala Compound and the said 3 open plots were always in possession, use and enjoyment of the plaintiff's late father as a tenant on which open plots of land motor vehicles used to be parked and repairs and other operations to all kinds of motor vehicles were carried on and even till today it is being carried on by the plaintiff himself."

In paragraph 2 the plaintiff avers that it appears that the defendant now wants to develop the suit property which appears to have been acquired by the Maharashtra Housing and Area Development Authority (MHADA) for removing the old tenants and occupiers after giving them alternate accommodation. In paragraph 3, the plaintiff has stated thus:

"The plaintiff was helpless as the police authorities were themselves conniving at this illegal act on the part of the defendant and going to the length of even giving protection to it and the plaintiff being in exclusive possession of his land as such monthly tenant is put to threat of action and hence in this helpless situation the plaintiff has no other alternative but to approach this Hon'ble Court to obtain necessary urgent orders of injunction against the defendant."
In paragraph 8 of the rejoinder, the plaintiff has stated thus:

".....I say that not only Gala Nos. 1 and 2 but even the said open plots have been used in common with the business of Irani Transport Service which is having its transport office at Bhandari Street of which the plaintiff's late father Behramji Shapurji Irani was the proprietor and carrying on business and having all the licences in respect of the said business and even the open plots have also been used in connection therewith."
4. The case with which the plaintiff came to the Court thus clearly was on the footing that he is the tenant in possession of the suit plots of which the defendant is the present owner. Although the written statement would not be material for determining the question of jurisdiction to entertain and try the suit, a reference to it may not be out of place. I am pained to find that the written statement is a specimen of how pleadings should not be drafted. It is not categoric and it requires lot of effort to understand the true pleading. Whatever that may be, the purport of paragraphs 5 and 18 is to deny that the plaintiff is the tenant of the open plots and its case seems to be that only the open cabins were let out to the plaintiff's late father.

5. After filing the suit, immediately the plaintiff had taken out a notice of motion for interim relief. The respondent filed written statement which was relied upon by way of affidavit in reply for the purpose of the motion. The plaintiff then filed his rejoinder. The Roznama of the Court unfortunately does not show that the learned trial Judge had made any minute framing the issue which he tried as a preliminary issue. The Roznama also does not show that any of the parties desired to adduce evidence or that such a prayer was refused. The judgment of the trial Court, however, makes it abundantly clear that the issue of jurisdiction as raised in the written statement was heard by the learned trial Judge as a preliminary issue under section 9-A of the Code of Civil Procedure at the hearing of the notice of motion. Both the parties were represented and from the judgment it appears that the contention. Surged before the learned Judge were duly considered by him. Now in paragraph 2 of the written statement, the respondent-defendant has stated thus :

".....this Hon'ble Court be pleased to frame preliminary issue under section 9(a) of the Civil Procedure Code and decide whether this Hon'ble Court has jurisdiction to entertain and try the present suit in view of the averments of the plaintiff in the plaint of admitted relationship between the plaintiff and defendants as per the provisions of section 28 of the Bombay Rent Act..."
It must be assumed that this was the nature of the preliminary issue which has been decided by the learned trial Judge.

6. Now, section 9-A of the Code of Civil Procedure contemplates such an issue to be decided as a preliminary issue for the purpose of the suit and not for the purpose of notice of motion alone. Mr. Irani, the learned Counsel for the appellant, drew my attention to the decision of this Court, in the case of Kranti Mohan v. Fatehchand, reported in 1983 Maharashtra Law Journal page 141, rendered by Kotwal, J. The learned Judge, after examining the scheme of section 9-A, described it in the following words :

"Section 9-A of the Code therefore opens an umbrella under which exists a self-contained scheme with a definite object."
It is true that the issue regarding objection to jurisdiction has to be tried as a preliminary issue and parties are required to be given full opportunity to lead necessary evidence as if the issue was framed at the trial and determination of such an issue has to be based on consideration of all aspects. With respect, I entirely agree with this view of the learned Judge expressed in the aforesaid judgment. Grievance of Mr. Irani is that the learned trial Judge did not follow the principles enunciated in the aforesaid ruling, inasmuch as he had not afforded adequate opportunity to the plaintiff to adduce evidence on the issue. He submitted that the learned trial Judge has decided the issue on a cursory consideration of the matter which he could not and that has resulted in failure of justice.

7. In answer to this objection, Mr. Pandit, the learned Counsel for the respondent, submitted that no opportunity was sought by the plaintiff before the trial Court to adduce any oral or documentary evidence in regard to the preliminary issue and therefore no grievance can now be made. The learned Counsel also submitted that even in the memorandum of appeal such a grievance is not found made. This submission of the learned Counsel does not appear to be without substance having regard to ground (b) of the appeal memo in which, after stating the general principle as to how the preliminary issue is required to be decided, no grievance is found to be made that such an opportunity was sought and was refused nor it is indicated as to what type of evidence the plaintiff had in mind to adduce. I, therefore, find it difficult to accept the submission of Mr. Irani that the learned trial Judge has not tried or decided the issue in accordance with the law.

8. Next submission of Mr. Irani is that one of the allegations made by the plaintiff in the plaint is that there was a design to deprive the plaintiff of alternative accommodation inasmuch as the property appears to have been acquired by MHADA and therefore in that respect at least jurisdiction is not barred. The learned trial Judge has noted this pleading but has not commented upon it in the course of his discussion in the judgment. However, it is not possible to find fault with the impugned order on this ground because it has not been pleaded by the plaintiff that he had approached MHADA for alternate accommodation or it has been refused to him either by MHADA or by the respondent by denying his tenancy rights. No material was annexed to the plaint although in paragraph 20 of the rejoinder it was stated in reply to paragraph 19 of the written statement that the plaintiff would repeat the averment that the property has been acquired by MHADA for reconstruction purpose and the plaintiff sought to rely upon the letters addressed to the said authority without prejudice. There is nothing in the Roznama of the lower Court nor I find anything stated in the memorandum of appeal to suggest that the plaintiff had sought an opportunity to produce these letters but such an opportunity was denied to him by the trial Court. That apart, for considering any relief to be granted to the plaintiff in that respect, MHADA would be required to be before the Court but it is not a party to the suit. Hence the submission of the learned Counsel is rejected.

9. Mr. Irani further submitted that the suit was also filed owing to apprehension of dispossession by MHADA Maharashtra Housing and Area Development Authority who has acquired the suit property and for which acts defendant would be responsible as the acquisition would be subject to tenancy of the plaintiff and from that angle also, the Civil Court will have jurisdiction to grant relief. According to the learned Counsel, the result of the learned trial Judge's failure to appreciate this aspect is that the plaintiff would be driven from one Court to another resulting in multiplicity of proceedings adding to his helplessness and misery. Although one may appreciate the ground of hardship in such eventuality, that however cannot be regarded as a legal aspect rendering the decision of the lower Court bad in law in any manner. As already stated, in the absence of MHADA being a party to the suit or any relief having been sought against it, the question of deciding the nature of the suit and jurisdiction of the Court on the assumption that it is a suit between the plaintiff and MHADA, could not and did not arise. Mr. Irani pointed out that although not in the suit but in the notice of motion the plaintiff did seek relief against MHADA, that was not considered by the trial Court. In my opinion, no relief can be asked for in a motion outside and beyond the scope of the suit itself and even if the same was sought, it was not required to be entertained.

10. Mr. Irani then submitted that the subject matter of the suit was open plots of land and the learned trial Judge has not considered whether Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (i.e. Bombay Rent Act) was applicable to these plots. He submitted that the instrument of lease as well as the rent receipts issued to the late father of the plaintiff by the then owners are silent about the purpose for which the plots were let out to him. According to the learned Counsel, a grave irregularity has been committed by the learned trial Judge while passing the impugned order by ignoring this aspect of the matter.

11. Part II of the Bombay Rent Act starts with section 6. That section provides that in areas specified in Schedule I, this Part shall apply to premises let or given on licence for residence, education, business trade or storage. There is no dispute that the suit plots of land are covered by Schedule I. Question is whether these were let out for a purpose falling under section 6(1) of the Rent Act. In that connection, it is stated by the plaintiff himself in the plaint in paragraph 1 that his late father, who was a tenant, had been using the plots for parking motor vehicles and carrying out repairs, and other operations thereto. More specifically, in paragraph 8 of the rejoinder which portion has already been quoted earlier, the plaintiff has stated that his late father was using the open plots in connection with carrying on business of Irani Transport Service. That squarely brings the subject matter of the suit within the ambit of sub-section (1) of section 6 of the Bombay Rent Act which applies to premises let for business and trade amongst others. Section 5(8) of the Rent Act which defines premises includes in Clause (a) thereof any land not being used for agricultural purpose. There is therefore no substance in the grievance that the learned trial Judge was in error in taking the view that the dispute between the parties fell within the ambit of section 28 of the Bombay Rent Act. Mr. Irani submitted that the learned trial Judge was in error in taking that view without demonstrating as to how a claim or a question arising under the Rent Act is involved in the suit. Even in this submission, I find no merit. The nature of the right claimed by the plaintiff has been discussed earlier with reference to the plaint and rejoinder. In the context thereof, when one looks at the reliefs sought in the plaint, it becomes abundantly clear that the relief of injunction sought by the plaintiff against the defendant was for restraining the defendant from trespassing and/or interfering with and/or obstructing the plaintiff's peaceful and exclusive use, occupation, possession and enjoyment of the three plots of open land i.e. the suit lands, save and except in due course of law (i.e. without due process of law). The nature of the suit and the relief claimed therefore is precisely covered by the ratio of the decision in Eknath v. Mansukhlal MANU/MH/0444/1987 : (1988)90BOMLR22 rendered by my learned Brother Pendse, J., (while concurring with the view of another learned Judge Guttal, J., and disagreeing with the view taken by Sawant, J., (as His Lordship then was) in the Division Bench constituted by Sawant & Guttal, JJ.). It has been noted in this judgment by Pendse, J., that the words used in section 28 of the Rent Act are "relating to recovery of rent or possession" and the words `relating to' are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises and that even if a suit is not for possession but the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of the section. He further held that the same interpretation must squarely apply while determining the ambit of expression `relating to recovery of possession' in section 41 of the Presidency Small Cause Courts Act. The learned Judge held that it could not be said that section 19(i) of the Presidency Small Cause Courts Act prescribes that Small Cause Court shall have no jurisdiction to entertain suits to obtain an injunction, and therefore, suit for injunction simpliciter cannot be filed in that Court under section 41 of the Act as section 41 opens with a non-abstante clause and therefore a suit even for an injunction can only be instituted in the Court of Small Causes in accordance with section 41 of the Act. The learned Judge also held that the Court which is entitled to entertain the suit can certainly pass consequential orders which may be necessary. It was also held that the Court of Small Causes would have jurisdiction to grant relief of injunction in proper cases where it fell within its jurisdiction and that the mere fact that the suit is for injunction simpliciter will not oust the jurisdiction of the Small Causes Court if the other conditions of exercise of jurisdiction are satisfied. Although the question involved before Pendse, J., was in respect of a dispute between a licenser and licensee, the judgment would equally apply to a dispute between a landlord and a tenant as both are covered by section 28 of the Rent Act. Mr. Irani submitted that the learned trial Judge has not correctly applied the provisions of section 28. However, in my view merely because the learned trial Judge has analysed the requirements of section 28 of the Act and has referred to one of the ingredients, that does not mean that the order passed by him is contrary to the provisions of section 28 of the Act.

12. Mr. Irani also argued that this was a case where the relationship was not admitted as that of landlord and tenant although the plaintiff was claiming to be the tenant. That question, in my view, cannot arise when the issue has to be determined by reference to the plaint and pleadings of the plaintiff. Assuming that the denial of the tenancy of the plaintiff on the part of the defendant is false, the remedy of the plaintiff in that event would lie in the Court of Small Causes to get himself declared to be the tenant. No defect therefore can be found in the approach of the trial Court to the issue in question.

13. Mr. Irani submitted that the suit was merely to protect possession and since it was brought as due process action, the City Civil Court could grant relief to the plaintiff. Here also I find it difficult to agree with the submission of the learned Counsel in view of the judgment in Eknath's case supra.

14. Thus, in my opinion, the learned trial Judge was right in passing the order for return of the plaint for being presented to the appropriate Court of competent jurisdiction. Mr. Irani submitted that in view of the denial of tenancy of the plaintiff over the suit plots made by the defendant, the plaintiff may be required to seek relief to assert his tenancy rights. As stated earlier, that will always be open to the plaintiff to do in the Court of Small Causes in an appropriate manner in accordance with law. That, however, does not come in the way of returning the present plaint. Mr. Irani also submitted that the plaintiff would not know at this stage whether MHADA would refuse to grant alternate accomodation to the plaintiff in lieu of his tenancy over the suit plots if the property is to be developed and in the event of refusal, plaintiff's remedy against MHADA would lie in the City Civil Court. Apart from what I have already stated earlier, since that question is not before me, I do not express any opinion on that aspect. Suffice it to say that any remedy if available to the plaintiff in accordance with the law apart from the one in the present suit is not dealt with in this order.

15. In the result, the order passed by the learned Judge of the City Civil Court for return of the plaint is affirmed and the appeal is dismissed.

However, since the learned Judge of the Court below had deferred the return of the plaint for some time and has directed the parties to maintain status quo in the meanwhile, I direct that the order returning the plaint shall not be given effect to till 6th September, 1993 and the parties are directed to maintain status quo until that date. The plaintiff will be at liberty to seek interim relief from the Court of Small Causes after the plaint is lodged in that Court after it is returned to the plaintiff. In that event, the plaintiff shall give advance notice to the defendant.

No order as to costs.

No separate order on the civil application which stands disposed of.

Certified copy expedited.


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