Whether rent court has jurisdiction to entertain suit between landlord and tenant relating to land encroached by tenant?

 It is significant that the jurisdiction of the Court to entertain a suit is required to be gathered from the averments as made in the plaint and not from the defence as would be taken in the written statement as filed by the defendant. In the present case, it is not in dispute that the petitioner is a tenant of the respondent in regard to the open plot admeasuring 30 sq.ft x 20 sq.ft and that it was a clear assertion of the respondent in the plaint that the petitioner had encroached upon the land admeasuring 200 sq.ft. In the written statement as filed by the petitioner resisting this allegation as made in para 1B of the plaint, the petitioner denied the respondent's allegations. The contention of the respondent was that in fact the petitioner was a tenant of an area admeasuring 1538 sq.ft since last 50 years and not of an area of 30 sq.ft x 20 ft. as alleged by the respondent. This assertion was replied in para 3 of the written statement, which shows that there was a clear dispute between the tenant-respondent and petitioner (landlord and tenant) in regard to the area of the tenanted premises. Section 28(1) of the Bombay Rent Act confers a jurisdiction on the Court to entertain and try any suit or a proceeding between a landlord and a tenant relating to recovery of possession of any premises to which any of the provisions of para II of the Act (Section 6 to section 31) applies and to decide any application under the Act or to deal with any claim or question arising under the Act or any of its provisions and that subject to the provisions of section 2, no court shall have the jurisdiction to entertain such a suit proceedings or application or deal with such a claim or question. In view of this clear mandate of section 28, which would permit the Court to deal with "any claim or question arising under the Bombay Rent Act between a landlord and a tenant, it cannot be said that in the facts in hand, the Court lacked the jurisdiction to entertain the respondent's suit even to try the issue of encroachment to the tenanted premises. In any event, the petitioner had denied the case of encroachment and in fact the petitioner claimed tenancy if an area admeasuring 1538 sq.ft. This itself clearly shows that under section 28 the trial Court was within its jurisdiction under section 28(1) to entertain the respondent's suit in question.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 934 of 1994

Decided On: 28.11.2017

Laxmibai Ganpati Bhingare Vs. Shivaji Dnyani Salunkhe

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(4) MHLJ 190

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How to ascertain that rent court has jurisdiction to try particular suit?

The position therefore is that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the Special court will depend on the decision of the Court on that issue. Similarly if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit.

(6) One of the matters in respect of which exclusive jurisdiction is conferred on the special court is 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 Part II of the Act apply. Three conditions must be satisfied before a suit or proceeding can be said to be of this nature. It must be a suit or proceeding between a landlord and a tenant. The suit or proceeding may be instituted either by a landlord or by a tenant, but it must be in his capacity as the landlord or the tenant as the case may be. It must also be against the tenant or landlord, though persons deriving title through or under him may also be made parties to the suit. The suit or proceeding must also be in respect of premises to which any of the provisions of Part VI of the Act apply. The third condition which is to be satisfied is that the suit or proceeding must relate to recovery of rent or possession of such premises.

(7) The words used are "relating to recovery of rent or possession" and not "for recovery of rent or possession". 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. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this section. Thus a suit, in which the plaintiff seeks to get rid of an order of his eviction by an injunction restraining the defendant from interfering with his possession, will also be covered by this section.

(8) Section 28 confers jurisdiction upon the special Court not only to decide questions referred to in the section, but also all matters which are incidental or ancillary to the determination of these questions, see Meharsingh Sethi v. Khurshed Nadirshaw Satarwala 56 Bom. LR 540 and Importers and Manufacturers Ltd. v. Pheroze F. Taraporewala MANU/SC/0071/1952 : [1953]4SCR226 in which the Supreme Court observed :

"Once there is a suit between the landlord and a tenant relating to the recovery of rent or possession of the premises, the Small Cause 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 provisions which may properly be raised in such a suit."

It was held in this case that the Court of Small Causes has jurisdiction not only to decide the dispute between the plaintiff landlord and the tenant but also a question raised between the plaintiff and the sub-lessee.

IN THE HIGH COURT OF BOMBAY

A.F.O.D. No. 434 of 1963 with C.A. Nos. 1592 and 1799 of 1963 and 416 of 1964 and A.O. Nos. 166, 170 and 1560 of 1963

Decided On: 04.09.1964

Dattatraya Krishna Jangam Vs. airam Ganesh Gore

Hon'ble Judges/Coram:

H.K. Chainani, C.J., Y.S. Tambe and Dr. D.Y. Chandrachud, JJ.

Citation: AIR 1965 Bom 177 

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Whether tenant can file suit before rent court if landlord is keeping dogs in common premises?

The Full Bench also appreciated that the expression used in the section is "relating to recovery of rent or possession" and not "for recovery of rent or possession". The words "relating to" are wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. It has been held that section 28 confers jurisdiction upon the special Court not only to decide questions referred to in the section but also all matters which are incidental or ancillary to the determination of such question.

5. Therefore, it is in this context that one has to see the prayer of the respondent herein in his injunction notice. The allegation is that the petitioners are keeping dogs and barrels in the passage leading to the respondent's premises, i.e., Room No. 5 on the 2nd floor and the common lavatory. The dogs are ferocious. The respondent is a practising Advocate. His clients cannot come to him because of the menace so created by the petitioners. Even he finds it difficult to enjoy the possession of the suit premises. No doubt the learned Counsel for the petitioner at this stage stated that the petitioner had not disturbed the possession of the respondent of the suit premises and that even the dog were now kept on the 4th floor. However, all that is to be considered on merits. The question before this Court is a limited one. It is when the suit premises are given possession but access to the premises is not obstructed causing merely some inconvenience, and is obstructed absolutely, can one say that the grievance is not relating to the possession. It is not possible for me to accept the petitioners contention that the dispute herein is not relation to the possession of the suit premises by a tenant against the landlord. Accordingly the petition is rejected. Rule is discharged with no order as to costs.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 564 of 1987

Decided On: 13.03.1989

R.J. Mehta, President Engineering Majdoor Sabha and Anr.

Vs.

Govind Ramchandra Nadkarni

Hon'ble Judges/Coram:

T.D. Sugla, J.

Citation:1989 MHLJ809,1989(2) Bom CR175

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Whether suit is tenable before rent court if there is disclaimer of title by tenant prior to filing of suit?

It is thus every clear, upon the observations of the Supreme Court, that in a situation where a landlord seeks recovery of possession of any premises, the relationship of landlord and tenant is a sine qua non for the attractability of the provisions of Section 28 of the Act. If such a condition is not fulfilled, Section 28 is out of the way and it is open to the owner of the property to recover possession of the premises de hors the provisions of the Bombay Rent Act.

39. On the facts of this case, it will have to be inferred that as a result of the disclaimer, which disclaimer as found by us was much prior to the suit, the tenancy, if any, of defendants 3 and 4 came to an end. At' the time of the suit or even prior thereto there did not exist any relationship of landlord and tenant between the plaintiff and defendants 3 and 4, Defendants 3 and 4 in their written statement categorically took up the position that there never existed any relationship of landlord and tenant between them and the plaintiff. Defendants 3 and 4, on the contrary, claimed the tenancy from defendants 1 and 2, who, having regard to the findings made by us, have been proved to be trespassers on the suit premises. In these circumstances, it will have to be held that the defendants were not entitled to invoke the provisions of the Bombay Rent Act and that the bar of the jurisdiction of the Civil Court postulated by Section 28 of the Bombay Rent Act did not and does not apply to the facts of the case.

IN THE HIGH COURT OF BOMBAY

A.F.O.D. Nos. 267 and 270 of 1969

Decided On: 04.04.1977

 Ratanlal Manikchand Shah Vs. Chanbasappa Sanganbasappa Chincholi and Ors.

Hon'ble Judges/Coram:

D.B. Deshpande and P.R. Mridul, JJ.

Citation:AIR 1978 Bom216,1978 BomCR 483

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