LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS BEHROSE DARAB MADAN

Citation: [2009] 14 S.C.R. 777

Court: Supreme Court of India

Bench: B.N. AGRAWAL, G.S. SINGHVI, H.L. DATTU

Case summary

LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS BEHROSE DARAB MADAN.pdf

Judgment text

[2009] 14 (ADDL. ) S. C. R. 777 LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS BEHROSE DARAS MADAN (Civil Appeal No. 5786 of 2002 etc. ) SEPTEMBER 18, 2009 __, • [8. N. AGRAWAL, G. S. SINGHVI AND H. L. DATTU, JJ. } Bombay Rents, Hotel and Lodging Houses Rates Control ... -,j Act, 1947 - s. 28 - Suit under - Maintainability of - Held: Suit u/s. 28 is maintainable provided landlord-tenant relationship is established - On facts, tenant-landlord relationship not established between the landlord and the person in possession of suit premises - Therefore, suit not maintainable. "· ~ Constitution of India, 1950 - Article 142 - Jurisdiction under - Scope of- Held : The power is though not controlled by statutory provisions, it cannot be used to supplant the Jaw :applicable to the case - The power has to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of Jaw. _. , Words and Phrases - 'Tenant' - Meaning of, in the context of s.

5(11)(c)(i) of Bombay Rents, Hotel and Lodging .. Houses Rates Control Act, 1947. ,. After death of deceased tenant, appellant-plaintiff (landlord) issued notice to the trustees and executors of Will of the deceased tenant. No notice was issued to the person in possession of suit property (defendant No. 5). - Thereafter, he filed suit before Court of Small Causes. In the suit, plaintiff specifically stated that defendants 1 to ;>;- 4 (executors and trustees of will) had parted with the possession of the suit premises for defendant No. 5 (respondent); and that defendant No. 5 was not the tenant. However, she was made a party by way of ~ caution. Small Causes Court dismissed the suit holding that defendant No. 5 was entitled to claim tenancy right. 1-- Appellate Court held that suit was not maintainable in · . absence of landlord-tenant relationship between the plaintiff and executors of Will.

High Court dismissed the ;::=writ petition which was filed questioning the order passed by the appellate court. Review application against the same was also dismissed by High Court. Hence, the ). - 4')1111 present appeals. The issue for consideration before this Court was whether the suit filed by the owner of the suit premises > was maintainable before the Small Causes Court. I Dismissing the appeals, the Court . ,,, 'f' Held : 1. The definition of 'tenant' under Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 means any person by whom or in whose account rent is payable for any premises. Section 5(11)(c) (i) of the Act, is too exhaustive to include any member of the tenant's family residing with the tenant at the time of his death. There are two requirements u/s. 5 (11) of the Act, ,.. which must be fulfilled before a person may be called 'tenant' under sub-clause(c); firstly, he must be a member )..

of the tenant's family and secondly, he must have been 'I residing with the tenant at the time of his death. Besides, fulfilling these conditions, he must have agreed upon to be a tenant by the members of the tenant's family. In I default of such agreement, the decision of the court shall be binding on ·such members. [Para 16] [786-D-F] I 2. The Rent Control Act is a special enactment {,( conferring certain special rights and imposing certain special obligations upon landlords and tenants. The Rent • Control Act imposes restrictions on the right of landlord ) BEHROSE DARAS MADAN to evict his tenants on the grounds other than what is -. j specified in the statute. Mere denial of relationship of landlord and tenant cannot oust the jurisdiction unless it is specifically provided in the statute.

If the Rent Controller finds that the opposite party is not a tenant of the landlord, he must dismiss the landlord's application for eviction, but if he finds that sue~ a plea by the opposite party is not true and that the opposite party is a tenant of the landlord, then, if the ground of eviction is proved, he must order eviction of the tenant. [Para 20] [788-H; 780-A-B; E-G] " 3. Section 28 of the Act deals with the jurisdiction of the courts, to decide on issues arising out of the Act. In a suit relating to possession of the premises where the relationship of landlord and tenant admittedly subsists .... between the parties, jurisdiction to entertain and try such a suit is in the courts specified in Section 28. All -~ "" applications made under the Act are also to be entertained ~nd disposed of by the courts specified in Section 28 and no other.

In all such suits or proceedings the courts specified in Section 28 also have the jurisdiction to decide all claims of questions arising out of the Act or any of its provisions. In the instant case, the suit premises is situate within the jurisdiction of Greater Bombay. In view of Section 28 of the Act, the Court of . i Small Causes, Bombay, will have jurisdiction. The appellants have filed a suit for eviction. The suit is maintainable provided that a landlord-tenant relationship is established. However, it is clear from the pleadings of the appellants that the~ do not consider respondent No. 5 as a tenant. In furtherance of this stand, the appellants have gone on to adduce evidence to prove that respondent does not qualify the conditions to be deemed "" as tenant under the Act. Therefore, the inevitable conclusion is that Small Causes Court at Bombay had no jurisdiction to entertain the suit filed by the owners of the . ' suit premises. [Para 21] [790-A-D] .. Om Prakash Gupta v.

Rattan Singh and Ors. (1964) 1 SCR 259; Khem Chand Dayalji and Co. vs. Mohammed Bhaichand (1969) 1 sec 884, relied on. 8 4. Article 142 of the Constitution of India, being in the nature of a residuary power based on equitable principles, the courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 is a constitutional power and, hence, not ;. specified in Section 28 and no other. In all such suits or . , proceedings the courts specified in Section 28 also have the ii... _ jurisdiction to decide all claims of questions arising out of the f. Act or any of its provisions. In the instant case, the suit premises is situate within the jurisdiction of Greater Bombay. In view of Section 28 of the Act, the Court of Small Causes, Bombay, will have jurisdiction. The appellants have filed a suit for eviction. The suit is maintainable provided that a landlord-tenant relationship is established.

However, it is clear from the pleadings of the appellants that they do not consider respondent No. 5 as a tenant. In furtherance of this stand, the appellants have gone on to adduce evidence to prove that respondent does not qualify the conditions to be deemed as • tenant under the Bombay Rent Act. In the light of the principles stated by this Court in Om Prakash Gupta's case (1964) 1 SCC "( ~ 259, the inevitable conclusion is that Small Cau~es Court at · Bombay had no jurisdiction to entertain the suit filed by the ..... owners of the suit premises. 22. The learned senior counsel for the appellant would submit that the lis between the parties is pending before various forums from last four decades and even as of now the landlord of the premises is unable to get vacant possession of the suit premises and, therefore, we should ex&icise our power I· under Article 142 of the Constitution of India and direct the.

respondent to quit and deliver vacant possession of the suit premises to the landlord. Reliance is placed on the decision of this court in the case of Dhanajaya Sharma vs. State of Haryana and Others; ((1995) 3 SCC 757). 23. Article 142 being in the nature of a residuary power based on equitable principles, the courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a Constitutional power and, hence, not restricted by statutory enactments. - BEHROSE DARAS MADAN [H. L. DATIU, J. ] Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express ~· statutory provisions dealing with the subject, at the same time these Constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case.

This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief, which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties. It would be useful at this stage to refer to the observations made by this Court in the case of Teri Oat Estates (P) Ltd. vs. U. T Chandigarh [(2004) 2 SCC 130], "sympathy or sentiment by itself cannot be a ground for passing an order in relation to where the appellants miserably fail to establish a legal right. Despite an extraordinary constituted jurisdiction contained in Article 142 of the Constitution, the Supreme Court ordinarily would not pass an order which would be in contravention of a statutory provision. " 24.

In view of the aforesaid settled legal principles, it is not possible to accept the request of learned senior counsel for the appellant. 25. Since we are of the opinion that the Small Causes Court at Bombay had no jurisdiction to entertain the suit, we have not pronounced any opinion on t~e merits of the appellant's case. 26. As the appellants were bonafide prosecuting the suit before the court which had no jurisdiction to entertain the same, we direct, that if along with the plaint, an application under Section 14 of the Limitation Act, 1963 is filed the time from the date of institution of the suit till this day shall be excluded in computing the period of limitation in filing the suit. It is further directed that if any such suit is filed, the same and consequent appeal/appeals/revision shall be disposed of within a period of one year from the date of its filing in view of the fact that unfortunately the present eviction matter remained pending for forty two long years. 27.

Civil Appeal No. 5786 of 2002 is, accordingly, dismissed. 28. In view of the dismissal of Civil Appeal No. 5786 of 2002 ·by us today, Civil Appeal No. 5787 of 2002 does not survive and is, accordingly, dismissed. No order as to costs. K~K. T. Appeals dismissed. ..