Chandumal S/O Jamnumal Kukreja ... vs Gyarsilal S/O Ramjilal Agrawal
2003 Latest Caselaw 1093 Bom

JUDGMENT

S.A. Bobde, J.

1. This Revision is preferred by the defendants against the judgment and order dated 12-9-2001 passed by the 7th Addl. District Judge, Nagpur, decreeing the respondent's suit for recovery of possession.

2. The respondent obtained permission for terminating the tenancy of the revision applicants under Clause 13(3)(ii) of the C. P. and Berar Rent Control Order, 1949. The permission proceedings were contested upto the Supreme Court. The order granting permission to terminate the tenancy of the revision applicants was upheld. Thereupon, the respondent issued a notice for termination of the tenancy on 16.2.1988. Since it was not complied with, the respondent filed Civil Suit No. 2401 of 1989 under Section 26 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act").

3. The only question raised on behalf of the applicants is whether the suit was tenable against the applicant No. 2 Nandulal who was described as a trespasser claiming through the tenant under Section 26 of the Act. According to the learned counsel for the applicants, it is not. The learned counsel submits that the respondent has described the applicant No. 2 Nandulal as a trespasser and, therefore, the suit not being one between a landlord and tenant was not tenable against him under Section 26 of the Act. Section 26 reads as follows:--

"26. (1) Notwithstanding anything contained elsewhere in this Act, but subject to the provisions of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

(2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, apply."

On a plain reading of the provisions, it is clear the Small Causes Court had jurisdiction to entertain the present suit for recovery of possession of the immovable property in question between the respondent and the applicant No. 1, because the relationship between the two was one of landlord and tenant. The question is whether the suit is also tenable against a trespasser who claims through a tenant also or, is it necessary for a landlord to file a separate suit in a separate forum against such trespassers. According to the learned counsel for the applicants, it is necessary to file a separate suit and the suit is not tenable against a trespasser claiming through the tenant. There is no dispute that the applicant No. 2 who is described as a trespasser in the present case claims through the applicant No. 1, the original tenant.

4. Mr. Bhangde, learned counsel for the respondent, has rightly relied on a decision of the Supreme Court in Messrs I. and M. Ltd. v. Pheroze Framroze, wherein the Supreme Court was considering the jurisdiction of the Court under Section 28 of the Bombay Rent Act to maintain a suit against a sub-tenant to whom the premises were illegally sub-let by the tenant. Their Lordships took the view that such a suit for recovery of possession was tenable against an illegal sub-tenant, inter alia, because Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions." Their Lordships took the view that there is no reason to hold that "any claim or question" must necessarily be one between the landlord and the tenant. However, it is clear from para 3 of the judgment that the decision did not rest solely on the existence of the power of the Small Causes Court to "deal with any claim or question arising out of this Act or any of its provisions". In para 3, the Supreme Court has observed as follows:--

"Apart from that section, under the ordinary law a decree for possession passed against a tenant 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 nonjoinder 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 and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of Section 28 of the Act. To hold otherwise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion."

It is, therefore, clear that the absence of the words "to deal with any claim or question arising out of this Act or any of its provisions" would not disable the Small Causes Court to deal with the suit between a landlord and a tenant relating to recovery of possession of any immovable property, merely because one of the parties to the suit is a trespasser claiming through the tenant. As observed by the Supreme Court, the decree passed against such a person would be binding on him even if such a person was not a party. His joinder to such a suit does not alter the character of the suit and does not make the suit "any the less a suit between the landlord and the tenant". It is, therefore, clear that the Supreme Court was of view that a suit between a landlord and a tenant does not cease to be one between a landlord and a tenant merely because one of the defendants is an illegal tenant and, in my view, as in the present case, a trespasser claiming through the tenant. I am of view that substantively the suit remains one for recovery of possession between a landlord and a tenant and the jurisdiction of the Small Causes Court is not affected because Section 26 does not further empower the Small Causes Court "to deal with any claim or question arising out of this Act or any of its provisions". Indeed, Section 26 of the Act must be taken as providing an exclusive forum for a suit for recovery of possession of any immovable property between a landlord and a tenant. It would indeed be hazardous to interpret the provision in such a manner that a suit between a landlord and tenant would be tenable before the Court of Small Causes and if there is a trespasser claiming through the tenant in the premises, the plaintiff would have to sue him separately in another Court. As observed by the Supreme Court recently in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, :

"The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it."

In my view, therefore, a suit between a landlord and tenant for recovery of possession of immovable property does not lose that character merely because one of the respondents is a trespasser claiming through the tenant and in occupation of that property.

5. The view of the Supreme Court in Messrs I. & M Ltd. 's case (supra) was affirmed by Their Lordships in Thakkar Keshavlal v. Parekh Amrutlal, .

6. In this view of the matter, I see no merit in the submission made on behalf of the applicants that a decree passed by the Court of Small Causes is without jurisdiction in that it decrees the respondent's suit for possession against the applicant No. 2 who is described as a trespasser in the plaint. Hence, there is no merit in the Revision Application which is hereby dismissed.

7. Mr. Purohit, learned counsel for the applicants, seeks stay of the operation of this order. Having regard to the fact that the premises are commercial premises and the proceedings were initiated in 1977, the prayer for stay is rejected.