Babulal Bhuramal And Another vs Nandram Shivram And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 84 of 1957

Decision Date: 31 March 1958

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha

The case was titled Babulal Bhuramal and Another versus Nandram Shivram and Others, and the judgment was delivered on 31 March 1958 by a bench of the Supreme Court of India comprising Justice Syed Jaffer Imam and Justice Bhuvneshwar P. Sinha. The petitioners, identified as Babulal Bhuramal and another individual, filed suit against the respondents, namely Nandram Shivram and others, seeking relief under the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. The petitioners claimed that the original tenant, designated as A, had lawfully become a tenant of the respondent N and that A’s sub‑tenants, B and C, were entitled to possession, use and occupation of the premises. The petitioners requested a declaration that A’s tenancy was protected from eviction pursuant to Sections 28 and 29A of the 1947 Act and that B and C, as lawful sub‑tenants, likewise enjoyed the protection of the Act.

The factual background revealed that A was a tenant of N and that A had sub‑let the same premises to B and C. In response, N instituted an ejectment suit before the Court of Small Causes, Bombay, alleging illegal sub‑letting, and the suit was decreed in N’s favour. Subsequently, A, B and C instituted the present suit before the Bombay City Civil Court, asserting that the tenancy and sub‑tenancy were covered by the 1947 Act and thus immune from eviction. The City Civil Court initially held that it possessed jurisdiction to entertain the suit, but dismissed the petition on the ground that the alleged sub‑letting was unlawful. The petitioners appealed this decision to the Bombay High Court. The High Court concluded that the City Civil Court lacked jurisdiction under Section 28 of the Act, which expressly confines jurisdiction over disputes arising out of the Act to the courts specified therein, and therefore dismissed the appeal without examining the merits. The High Court further observed that while Section 29A permits civil courts to adjudicate questions of title, such questions must not arise from a claim made under the Act; any title issues emanating from the Act must be decided by the courts designated in Section 28. The present appeal, recorded as Civil Appeal No. 84 of 1957, challenged the High Court’s determination that the City Civil Court was without jurisdiction to hear the petitioners’ claim, which originated under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

The judgment dated 9, 1955, of the City Civil Court, Bombay, in Suit No. 2178 of 1954 was recorded. Counsel for the appellants were A.V. Viswanatha Sastri and I.N. Shroff, and counsel for the respondents were Purshotam Tricumdas and C.P. Lal. The judgment was delivered on 31 March 1958 by Justice Imam J. The sole question that the High Court considered and decided was whether the suit filed by the appellants in the City Civil Court could be entertained by that court in view of the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to as the Act). The High Court concluded that the City Civil Court possessed no jurisdiction to entertain the suit. The High Court expressly refrained from expressing any opinion on the merits of the appellants’ case. Consequently, the only issue to be examined on this appeal is whether the High Court correctly determined that the City Civil Court lacked jurisdiction to entertain the suit filed by the appellants. In the original suit before the City Civil Court, the first plaintiff was a tenant of the premises in question under the first defendant. The second and third plaintiffs were persons to whom the first plaintiff had sublet the same premises. The first defendant, acting as landlord, served a notice to quit on the first plaintiff on 6 December 1947. Subsequently, the first defendant instituted Suit No. 483/4400 of 1948 in the Court of Small Causes, Bombay, on 29 April 1948, seeking the eviction of the first plaintiff. In that suit, the first defendant also joined the second and third plaintiffs as parties, alleging that they were trespassers without any right to occupy the premises. The Small Causes Court held that the second and third plaintiffs were not lawful subtenants and that the sub‑letting by the first plaintiff was contrary to law, thereby depriving the first plaintiff of the protection afforded by the Act. Accordingly, the court issued a decree for the eviction of all the plaintiffs in the present suit. An appeal against that decree failed, and a revisional application to the Bombay High Court was summarily dismissed.

Thereafter, the appellants filed the present Suit No. 2178 of 1954 in the Bombay City Civil Court on 20 September 1954. In that suit, the appellants prayed for a declaration that the first plaintiff was a tenant of the defendants and therefore entitled to protection under the Act, and that the second and third plaintiffs were lawful subtenants of the first plaintiff, entitled to possession, use and occupation of the premises as subtenants. The City Civil Court initially held that it had jurisdiction to entertain the suit. However, the Court dismissed the suit on the ground that there had been no lawful sub‑letting by the first plaintiff to the second and third plaintiffs, as required by the provisions of section 10 of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act,

In the earlier proceedings the lower court held that the requirements of the Bombay Rents Act of 1944—formally known as Bombay Act No. VII of 1944 and thereafter referred to as the Bombay Rents Act, 1944—had not been properly complied with by the parties. The appellants contested that finding and filed an appeal to the Bombay High Court. The High Court dismissed the appeal. While the High Court accepted that the judge of the City Civil Court possessed jurisdiction to entertain the suit, it expressly dissented from the lower judge’s view on jurisdiction and, nevertheless, it refrained from issuing any substantive ruling on the merits of the appellants’ contentions. Thus the appellate record contains a procedural determination that the appeal was unsuccessful, coupled with an expressed disagreement with the lower court’s jurisdictional conclusion but without any adjudication of the underlying rights and obligations asserted by the appellants.

The Court then turned to the substantive provisions of the Bombay Rents Act, 1944. The preamble of the Act declares that it is expedient to amend and consolidate the law relating to the control of rents, the repair of certain premises, the rates of hotels and lodging houses, and the procedures for eviction. The Court observed that when the entire text of the Act is read as a whole, the purpose articulated in the preamble is clearly reflected in the legislative scheme. Accordingly, the Act defines “landlord” as any person who, at the relevant time, is receiving or is entitled to receive rent in respect of any premises, whether on his own account, on behalf of another, as a trustee, guardian, receiver, or in any similar capacity, and it also includes any person who is not a tenant but who derives title under a landlord and, with respect to his subtenant, a tenant who has sublet any premises. The Act defines “tenant” as any person by whom or on whose account rent is payable for any premises and expressly includes sub‑tenants and other persons who derived title under a tenant before the Act came into operation, any person to whom interest in premises has been transferred under the proviso to section 15, any person who remains in possession after the lease has been determined, with or without the landlord’s assent, and any member of the tenant’s family residing with him at the time of his death, as may be decided by the Court in the absence of an agreement. Section 12 of the Act provides a tenant with protection against eviction provided the tenant pays or is ready and willing to pay the standard rent and any permitted increases. Section 13 enumerates the grounds on which a landlord may recover possession of the premises, one of which is the sub‑letting, assignment or any other transfer of the tenant’s interest after the Act became operative. Finally, Section 14 states that when a tenant’s interest is terminated for any reason, any sub‑tenant to whom the premises or any part thereof had been lawfully sub‑let before the Act commenced shall, subject to the provisions of the Act, be treated as the tenant of the landlord on the same terms and conditions that would have applied had the original tenancy continued.

Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act specifies the courts that have authority to hear any suit or proceeding between a landlord and a tenant concerning recovery of rent or possession of premises to which the provisions of this Part apply. It provides that, notwithstanding any other law or the amount of the claim, the Court of Small Causes in Greater Bombay, any Court of Small Causes created under the Provincial Small Cause Courts Act of 1887, or, in other areas, the Civil Judge (Junior Division) having jurisdiction over the location of the premises, shall have jurisdiction. Where no Junior Division judge exists, the Civil Judge (Senior Division) with ordinary jurisdiction may entertain the suit. These courts may try the suit, decide any application under the Act, and resolve any question arising out of the Act or its provisions, and no other court shall have jurisdiction to entertain such matters, subject to subsection (2). Section 29 deals with appeals and provides that no further appeal lies from an appellate order made under the preceding provisions. However, Section 29A clarifies that the limitations in Sections 28 and 29 do not prevent a party in a suit, proceeding, or appeal, in which a question of title to premises is raised and decided, from filing a separate suit in a competent court to establish title to those premises.

The plaint filed by the appellants in the City Civil Court set out that the first plaintiff, by right of law, was entitled to sublet the premises in question to the second and third plaintiffs, and that such subletting had been lawfully effected. The plaint asserted that the first plaintiff was not required to comply with the provisions of section 10 of the Bombay Rents Act, 1944. It further claimed that the Appeal Court of Small Causes of Bombay had erred in holding that the first plaintiff could sublet the premises only after complying with section 10 of that Act. According to paragraph 11 of the plaint, the plaintiffs declared that they were always ready and willing to pay the rent for the premises and to observe and perform all the terms and conditions of the tenancy. Paragraph 12 contained the specific declaration that the plaintiffs prayed for, stating that they were entitled to a declaration confirming that the first plaintiff was a tenant of the premises within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, and that the second and third plaintiffs were entitled to possession, use, and occupation of the premises as lawful subtenants of the first plaintiff.

The plaintiffs asked the Court to declare that the first plaintiff was a tenant of the premises within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and that the second and third plaintiffs were entitled to possession, use and occupation of the premises as lawful sub‑tenants of the first plaintiff. Paragraph 18 of the plaint set out the relief sought in clauses (a) and (b), which essentially repeat the declaration requested in paragraph 12 but are expressed separately for the first plaintiff and for the second and third plaintiffs. In addition, the plaint contained a prayer for an injunction restraining the servants or agents of the defendants from proceeding with the execution of the decree passed by the Court of Small Causes in suit No. 483/4400 of 1948. The nature of the relief and the language of the declaration show that the plaintiffs based their claim on the provisions of the 1947 Act. According to the plaintiffs, that Act gave the first plaintiff protection as a tenant and conferred on the second and third plaintiffs a right to remain in possession as sub‑tenants. Consequently, they sought to avoid eviction by obtaining an injunction that would prevent the enforcement of the eviction decree.

The Court noted that one ground for eviction under section 13 of the Act is that a landlord may evict a tenant who, after the Act came into force, has sub‑let, assigned or otherwise transferred his interest in the premises. The Act, however, saved a sub‑letting that had been made before the Act’s commencement, provided that the sub‑letting was lawful. The definition of “tenant” in the Bombay Rents Act, 1944, states that a tenant is “any person by whom or on whose account rent is payable for any premises, and includes every person who from time to time derives title under a tenant.” The Court observed that it was never alleged, nor could it be sustained, that a sub‑tenancy would continue outside the Act and that the sub‑tenant would automatically become a tenant when the principal tenancy ended. Because the definition of “tenant” in the 1944 Act expressly includes a sub‑tenant, the Act required compliance with section 10 for the creation of a lawful sub‑tenancy, as the statutory status of tenant was being conferred on a sub‑tenant—a situation not recognised under ordinary law. Even a lawful termination of the principal tenancy would not affect the sub‑tenant’s rights. In suit No. 483/4400, the Appeal Court of Small Causes held that the first plaintiff had not lawfully sub‑let the premises and, since his tenancy had been terminated, both he and his sub‑tenants were liable to be evicted. The present plaintiffs therefore seek a fresh determination of those questions in the suit filed before the City Civil Court, relying on section 29A of the Act to justify the jurisdiction of that Court to entertain their claim.

The plaintiffs argued that a question of title could be reconsidered in any competent civil court, even if that question had already been decided by a court that had jurisdiction under section 28 of the Act. Their submission required the Court to interpret the meaning of sections 28 and 29A of the Bombay Rents Act, 1944. The Court noted that, in a suit for recovery of rent where it was undisputed that one party was the landlord and the other was the tenant, section 28 expressly gave exclusive jurisdiction to the courts listed in that provision to hear and decide the suit, and expressly barred any other court from exercising such jurisdiction. In the same way, when a suit concerned possession of premises and the landlord‑tenant relationship was undisputed between the parties, the exclusive jurisdiction to entertain and try the suit lay with the courts specified in section 28 and no other court. The Court further observed that every application made under the Act was to be entertained and disposed of solely by those courts named in section 28, and that those courts also possessed the authority to decide any claim or question that arose out of the Act or any of its provisions. The language of section 28, the Court held, made this limitation clear. The Court then considered whether the provision covered a situation in which, in a suit, one party claimed to be the landlord and denied that the other was his tenant, or vice‑versa, and where the relief sought was essentially a claim arising out of the Act. On a reasonable construction of section 28, the Court affirmed that the answer was yes. The Court referred to suit number 483/4400 before the Court of Small Causes, Bombay, which had been instituted by a landlord seeking eviction of the tenant and the tenant’s sub‑tenants on the ground that they were trespassers and that the landlord was entitled to possession. In effect, the suit denied the defendants’ status as tenants protected by the Act. The defendants contended that they were entitled to protection under the provisions of the Act. Consequently, the claim of the defendants arose out of the Act, and only the courts designated in section 28 could hear and resolve the matter. The present suit, filed in the City Civil Court, likewise asserted that the plaintiffs were tenants within the meaning of the Act, a claim that also arose out of the Act’s provisions and related to possession of the premises and the landlord’s right to evict.

The plaintiffs were rejected because the first plaintiff was held to be a tenant under the Act and had lawfully sub‑let the premises to the second and third plaintiffs. The City Civil Court therefore had to determine two questions: whether the first plaintiff qualified as a tenant within the meaning of the Act, and whether he had lawfully sub‑let the property to the second and third plaintiffs. In addition, the court needed to decide if the plaintiffs had established a right to remain in possession of the premises in accordance with the provisions of the Act. Because the landlord had terminated the first plaintiff’s tenancy, that plaintiff could only resist eviction if he could show a statutory right to continue possessing the premises. When a tenancy is terminated outside the framework of the Act, the sub‑tenancy also ends and the landlord becomes entitled to possession. The landlord’s right to possession could be blocked only if the second and third plaintiffs proved that the premises had been lawfully sub‑let to them and, under section fourteen of the Act, they must be treated as tenants. Consequently, the City Civil Court could not grant relief to the plaintiffs unless their claim to remain in possession was established under the Act or any of its provisions. Apart from the Act, the plaint did not disclose any cause of action. Section twenty‑eight expressly provides for the filing of any suit concerning possession of premises to which any provision of Part Eleven of the Act applies, when a landlord‑tenant relationship exists, and authorises the court to resolve any claim or question arising out of the Act in such a suit. The suit filed by the plaintiffs in the City Civil Court undeniably concerned possession of premises governed by Part Eleven, and therefore the court was required to consider the claims and questions that arose under the Act. It was argued that the suit was not a landlord‑tenant dispute because the defendants did not admit that the plaintiffs were tenants of the premises. However, section twenty‑eight applies only where the parties acknowledge that a landlord‑tenant relationship within the meaning of the Act exists. The plaint clearly states that the defendants acted as landlords at various stages and that the plaintiffs were their tenants. Accordingly, the suit was essentially a landlord‑tenant suit, and it did not cease to be such merely because the defendants denied the plaintiffs’ tenancy claim.

In this matter, the question of whether the plaintiffs were tenants was treated as a claim or issue that arose under the Act or any of its provisions, and therefore it had to be resolved by the court that was hearing the suit. A correct reading of section 28 shows that the provision does not limit the suit solely to cases where the landlord‑tenant relationship is already admitted; it also embraces suits in which the parties assert that such a relationship, as defined by the Act, exists between them. Consequently, only those courts specifically named in section 28 possess the authority to entertain and adjudicate such suits, and no other court may do so. Section 29A, however, states expressly that nothing in section 28 or section 29 shall prevent a party to a suit, proceeding, or appeal mentioned in those sections, where a question of title to premises is raised and decided, from approaching a competent court to assert his title to the premises. Even assuming that a claim to a tenancy right is a question of title, the inquiry remains whether section 29A allows a party to establish that title in a court other than the one designated by section 28. If the provisions of sections 28 and 29A can be interpreted so that they do not conflict, it is the court’s duty to read them in a harmonious manner. It is conceivable that in a suit governed by section 28, a question of title to premises that does not stem from the Act or any of its provisions may be decided incidentally; any party dissatisfied with such an incidental determination would retain the right to sue in a competent court, relying on section 29A, to establish his title.

Conversely, where a suit raises a question of title that originates wholly from the Act or any of its provisions, the exclusive jurisdiction to try that suit lies with the courts specified in section 28 and with no other. In other words, a title that cannot be established outside the framework of the Act, but which arises under the Act because of a claim made thereunder, must be determined by a court named in section 28, whereas a title that is unrelated to the Act may be determined by any other court of appropriate jurisdiction. The Act was intended to amend and consolidate the law concerning the control of rents of certain premises and evictions. It gave the terms “landlord” and “tenant” a broader meaning than those words possess under ordinary law. Accordingly, any person who qualifies as a landlord or a tenant within the meaning given by the Act must comply with the provisions of the Act, and any claim to such status must be decided under the Act because it constitutes a claim arising out of the Act.

The Court observed that any individual asserting the status of landlord or tenant as defined by the Act must have that claim examined according to the Act’s own provisions, because such a claim necessarily originates from the Act. The Act expressly designated the courts specified in section 28 as the only courts empowered to adjudicate any claim or question that arises out of the Act or any of its provisions, and it deliberately barred all other courts from exercising such jurisdiction. Accordingly, the Court found it untenable to accept the argument that, after the legislature created special courts under section 28 to deal with these matters, the same issues could be revived and decided in a different suit before a court not mentioned in section 28. By inserting section 29A, the legislature clearly intended that a decision rendered by a court hearing a suit under section 28 on a question of title outside the Act should not acquire the character of finality. Moreover, the Act’s language unmistakably requires that every claim or question that stems from the Act—or from any of its provisions—even when such a claim concerns the title to premises, must be heard by the courts named in section 28 and by no other tribunal. The Court noted a reference to section 49 of the Presidency Small Cause Courts Act, 1882, which states that the recovery of possession of any immovable property under Chapter VII of that Act does not preclude the filing of a suit in the High Court to determine the title to the property. However, the Court held that this provision offers no assistance in interpreting sections 28 or 29A. Chapter VII of the Presidency Small Cause Courts Act concerns the recovery of possession of immovable property from a person, including a tenant, and sections 41 onward prescribe a summary procedure for such recovery, which may be stayed by the Small Cause Court if the conditions of section 47 are satisfied. Importantly, under section 41 no substantive claims or rights are finally determined. In this context, the Court found it evident that nothing contained in Chapter VII could prevent the institution of a suit in the High Court for the purpose of trying the title to the immovable property. In a suit instituted under section 28, the court is required to determine all questions relating to rent recovery, possession, and any other claim or question arising out of the Act or its provisions. Section 29 provides for an appeal against the decision of that court, whereas Chapter VII of the Presidency Small Cause Courts Act contains no provision for an appeal against an order directing recovery of possession. Accordingly, the Court concluded that the High Court was correct in holding that the suit filed by the plaintiffs—who are the appellants in the present appeal—could not be heard by the City Civil Court. On behalf of the appellants, a request was made that, if the appeal should fail, they may be

In the earlier proceedings the appellants had asked that they be given additional time to vacate the premises. The High Court, when it dismissed the appeal, directed that “Decree not to be executed for a fortnight.” Subsequently, upon granting special leave, this Court issued an ex‑parte stay of the decree in suit No. 483/4400 of 1948 filed in the Court of Small Causes, Bombay. The stay was to remain in effect until the sixteenth day of January 1956, and the Court ordered that the application for stay be listed for hearing on that date. On the scheduled date the Court allowed the stay on the basis that two specified conditions must be satisfied; failure to satisfy either condition would cause the stay order to be vacated. On 19 February 1957 the Court issued another order after it was brought to its notice that the appellants had not complied with the conditions set out in the earlier order dated 16 January 1956. The stay order, however, was not set aside because the appellants had been directed to perform certain acts and had given an undertaking that they would immediately deliver possession of the premises to the respondents if the appeal were dismissed or decided against them. Considering the undertaking given by the appellants and the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay had already been delayed for a considerable period, the Court could not accede to the appellants’ request for further relief. Consequently, the appeal was dismissed with costs, and the order of dismissal was entered.