Whether jurisdiction of court depends on plea taken by defendant that he is tenant of suit premises?

 Thus exclusive jurisdiction is given to the Court of Small Causes and jurisdiction is denied to other Courts (1) to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises, (2) to try any suit or proceeding between a licensor and a licensee relating to the recovery of licence fee or charge, (3) to decide any application made under the Act and, (4) to deal with any claim or question arising out of the Act or any of its provisions. Exclusive jurisdiction to entertain and try certain suits, to decide certain applications or to deal with certain claims or questions does not necessarily mean exclusive jurisdiction to decide jurisdictional facts also. Jurisdictional facts have necessarily to be decided by the Court where the jurisdictional question falls to be decided, and the question may fall for decision before the Court of exclusive jurisdiction or before the Court or ordinary jurisdiction. A person claiming to be a landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit, the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the Court finds that the defendant is not a tenant the suit will fail for that reason. If the suit is instituted in the ordinary Civil Court instead of the Court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant. Conversely a person claiming to be the owner of a building and alleging the defendant to be a trespasser will have to institute the suit, on the plaint allegations, in the ordinary Civil Court only. In such a suit the defendant may raise the plea that he is a tenant and not a trespasser. The defendant's plea will not straightaway oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the Court where it falls for determination be it the Court of Small Causes or the ordinary Civil Court. If the jurisdictional question is decided in favour of the Court of exclusive jurisdiction the suit or proceeding before the ordinary Civil Court must cease to the extent its jurisdiction is ousted.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1906 and 1907 of 1980

Decided On: 07.01.1981

Natraj Studios (P) Ltd. Vs.  Navrang Studios and Ors.

Hon'ble Judges/Coram:

Baharul Islam, O. Chinnappa Reddy and R.S. Pathak, JJ.

Citation: AIR 1981 SC 537,(1981) 1 SCC 523

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Whether dispute between landlord and tenant can be referred to arbitration?

In the matter before us, the claim of the lessors for increase of rent of the premises which are governed by the Bombay Rent Act wholly and squarely arises out of the Bombay Rent Act and, therefore, could only be decided by Court having competence and jurisdiction under Section 28 of the Bombay Rent Act and no other Court or forum including the arbitrator. Incidentally, we may note that the Apex Court in Natraj Studios (P) Ltd v. Navrang Studios and Anr. AIR 1981 SC 537 clearly held that the parties governed by the Bombay Rent Act cannot be permitted to contract out of the legislative mandate which require their disputes to be settled under the Act by the special Courts constituted by the Act and that the arbitration agreements between the parties whose rights are regulated by the Bombay Rent Act cannot be recognised by Court of law. Whether the rent being paid by the lessee as a protected lessee deserves to be refixed is a question that can only be gone into by the Court having jurisdiction under Section 28 of the Bombay Rent Act and the parties cannot by the agreement even if it be assumed that there is such agreement and have rent refixed through the arbitrator. This is simply impermissible under Section 28 of the Bombay Rent Act. Moreover, it needs no elaboration that under the Bombay Rent Act the parties cannot have the rent of the premises governed by the Bombay Rent Act fixed by the agreement or otherwise beyond what is permissible as standard rent in relation to such premises and the increase of rent cannot exceed permissible increase as provided under the Bombay Rent Act. Section 18 of the Bombay Rent Act provides that if any landlord receives inter alia any consideration other than standard rent with permitted increases in respect of renewal or continuance of any premises, he may be convicted with imprisonment for a term which may extend to six months and also be punished with fine which shall not be less than the amount so received by him. Such excess amount is also recoverable by the tenant or his legal heirs within the time provided under Sub-section (2) of Section 18. The legislative scheme is that the landlord cannot charge the rent other than the standard rent or the permitted increases in respect of the renewal or continuance of lease and when that is the legislative scheme we are afraid the appellant's submission that he has a right to have the agreed rent fixed by the arbitrator under the arbitration clause of the deed of Lease is wholly misconceived and misplaced.

IN THE HIGH COURT OF BOMBAY

Appeal No. 365 of 1996 in Arbitration Petition No. 424 of 1991

Decided On: 12.11.2003

Vinayak Balkrishna Samant and Ors.Vs. Mahanagar Telephone Nigam Ltd.

Hon'ble Judges: 

R.M. Lodha and N.N. Mhatre, JJ.

Citation:2004(3) Bom CR111

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Whether parties are free to contract out of express provisions of law ?

 While the agreement dated 07.08.2006
can be admitted in evidence and even relied upon by the
parties to prove the factum of the tenancy, the terms of
the same cannot be used to derogate from the statutory
provision of Section 106 of the Act, which creates a
fiction of tenancy in absence of a registered instrument
creating the same. If the argument advanced on behalf of
the respondents is taken to its logical conclusion, this
lease can never be terminated, save in cases of breach by
the tenant. Accepting this argument would mean that in a
situation where the tenant does not default on rent
payment for three consecutive months, or does not commit
a breach of the terms of the lease, it is not open to the
lessor to terminate the lease even after giving a notice.
This interpretation of the clause 6 of the agreement
cannot be permitted as the same is wholly contrary to the
express provisions of the law. The phrase ‘contract to
the contrary’ in Section 106 of the Act cannot be read to
mean that the parties are free to contract out of the
express provisions of the law, thereby defeating its very
intent. As is evident from the cases relied upon by the
learned senior counsel appearing on behalf of the
appellant, the relevant portions of which have been
extracted supra, the contract between the parties must be
in relation to a valid contract for the statutory right
under Section 106 of the Act available to a lessor to
terminate the tenancy at a notice of 15 days to not be
applicable.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 8361 OF 2016

M/S PARK STREET PROPERTIES (PVT) LTD  Vs. DIPAK KUMAR SINGH & ANR.

V. GOPALA GOWDA, J.
Dated:August 29, 2016
Citation:AIR 2016 SC 4038, 2017(2) MHLJ 32SC,
MANU/SC/0960/2016 : (2016) 9 SCC 268

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