Civil Revn. Appln. No.1010 of 1983

7th February, 1989.

Petitioner Counsel: S. R. Ahmed and Shoel Ahmad, for Non-applicants.

Cases Cited:
1986 Mah LJ 207,(1986) 3 Bom CR 134 [Para 14]

JUDGMENT

ORDER : -The order passed by the Additional Judge of the Court of Small Causes, Nagpur on 1-9-1988 in Civil Suit No. 481/84 at Ex. 84 rejecting the defendants prayer for returning the plaint for presentation to the proper Court, has been challenged in this petition.

2. Originally the non-applicants had filed a suit for possession and arrears of rent against the applicants 1 to 8. This suit was Small Cause Suit No. 481 of 1984. The defendants 1 to 7 were the legal representatives of the original tenant Makbul Hussain, whereas the defendant 8 Akbar Ali was added as sub-lessee. The plaintiffs contended that they were the landlords in respect of the suit house; that Makbul Hussain the predecessor of defendants 1 to 7 was inducted as tenant on a monthly rent of Rs. 26/-, that the original landlord Mohmad Abdul Hafiz initiated rent control proceedings and obtained permission from the Rent Controller to determine the tenancy of the defendants and accordingly terminated the tenancy of the defendants. A suit was instituted for eviction based on the notice. However, during the pendency of that suit, the defendant 8 filed a suit for declaration that he is a valid tenant in respect of the suit tenement. This suit was instituted as No. 444/1967. The suit was dismissed by the trial court, decreed by the first appellate court and ultimately in the second appeal this court set aside the decree passed by the appellate court and restored the decree of dismissal of the trial court. While this suit was going on, the plaintiff withdrew civil suit No. 1487/1970 in view of the decree passed by the first appellate court in civil suit No. 444/1967. However, this court dismissed the claim of defendant No. 8 that he was a lessee. Thereafter the plaintiffs instituted the present suit alleging that they were the landlords and the defendants the tenants. It was also their case that the rent as increased to Rs. (sic) in or about 1967. They, therefore, claimed the eviction and arrears of rent.

3. The suit was resisted by the defendants. According to them there was a novatio and, this novatio ousted the jurisdiction of the Small Causes Court. It was also contended by them that by with drawing civil suit No. 1437 of 1970, the permission granted by the Rent Controller has been exhausted and, therefore, the present suit without fresh permission is

not maintainable. It was also alleged that the suit was barred by O.2. R.2 of the Civil P.C. It was also claimed that the suit could not be maintainable against the defendants 1 to 7.

4. After this defence was filed, the defendants filed an application before the trial Court, vide Exh.47 alleging that other substantial issues arise in the case and, therefore, the Small Causes Court has no jurisdiction and as such the plaint should be returned for presentation to the proper Court. The trial Court, on hearing both the parties rejected this application by its order dt. 15-1-1987. This order came to be challenged in revision before this Court vide Civil Revision No.157/1987. This Court issued a notice before admission. However, when the matter came up before the court on 25-3-87, the petitioners were permitted to withdraw with liberty to raise the issue subsequently.

5. After the withdrawal of this revision the defendants filed an application for amendment of the Written Statement. The points raised by this amendment are (1) that in regular Civil Suit No. 444/1967 filed by the defendants, the title of the plaintiffs was denied and, therefore, the present suit filed after the lapse of 12 years is barred by limitation; (21 the second contention raised was that in view of withdrawal of the civil suit No. 1487/1970 (filed by the present plaintiffs), more than 12 months have lapsed and hence the present suit brought after the lapse of 12 years is barred by limitation; (3) thirdly it was contended that the premises in dispute are situated in the slum area and, therefore, the suit is not maintainable, as no permission of the competent authority has been obtained. On filing this amendment application (which was allowed by the Court the defendants filed another application Ex. 84 contending that as the plaintiffs title has been denied and as the question of limitation and maintainability of suit has been raised, the suit becomes one in which there are other substantial issues apart from the issue of termination of tenancy. As such the court of Small Causes has no jurisdiction and hence the plaint should be returned for presentation to the proper court. This application was heard by the trial court and by a speaking order this application was rejected. It is this order which has been the subject-matter or challenge in this revision.

6. Mr. Chaudhary, learned Advocate for the petitioners strenuously urged before me that the trial court was not at all justified in dismissing his application Ex.84. Mr. Chaudhary, took me extensively through the plaint allegations and the defence raised in the written statement. He also took me through the relevant provisions of the Provincial Small Cause Courts Act and particularly the provisions of item 4 of Schedule II of the said Act. What Mr. Choudhary urged before me was that a suit for possession of immovable property or for the recovery of an interest in such property was excluded under item No. 4 of Schedule II of the Small Cause Courts Act which means that the suit for immovable property was excluded from the cognizance of the Small Cause Court. However, an exception was made to that item and this exception was of the suit for ejectment where (i) the property has been let under a lease made by a written instrument or orally (ii) the Court of Small Causes would be competent to take cognizance of the suit for rent of the property and (iii) the only substantial issue arising for decision is as to whether the lease has been determined by efflux of the time limited thereby or by cl. (h) of S.111 of the T.P. Act. Thus according to Mr. Choudhary the scheme of the Act was that the suits involving eviction were brought within the jurisdiction of the court of Small Causes and thus the jurisdiction was subject to a limitation that the substantial issue arising therein was whether the lease has been determined by efflux of time or has been determined by a quit notice. If this were the only issue involved in that suit then that suit could be taken cognizance of by the Small Cause Courts, otherwise not.

7. It was urged before me that in the present suit the defendants have raised many contentions which are of a substantial nature.

He has alleged that the suit is barred by limitation. This is a substantial issue which may take the case outside the cognizance of the Small Cause Court. He has also raised an issue that the claim is barred under the Act No. 23 of 1971. This is a substantial issue which bars the jurisdiction of the Small Causes Court. Similarly a bar under O.2, R.2 of the Code of Civil Procedure has been raised and that also takes the suit outside the jurisdiction of the Small Causes Court. Thus according to him, so many substantial issues have been raised which make the court of Small Causes incompetent to decide the issue substantially.

8. It was on this background that he strenuously contended before me that the only option left with the trial court was to return the plaint for presentation to the proper court but the court has assumed jurisdiction (not vested in it by law) and detained the suit within its seisin.

9. The scheme of the Provincial Small Cause Courts Act has undergone a change from time to time and a close scrutiny of this scheme on the background of the amendment which the Statute suffered from time to time, will not only be relevant but would be equally important as far as the present dispute is concerned. Under the Provincial Small Cause Courts Act a special court has been established to decide some disputes pertaining to some categories stated in the Act. The jurisdiction of this forum has also been specified by the said Act. The said statute had made these forums the courts of exclusive jurisdiction. When the present suit was instituted on 27-3-84 the item Nos. 4 and 8 in IInd schedule was on the statute book. It meant that though the suit for possession of immovable property was excluded from the jurisdiction of the Small Causes Court, the suits for ejectment where the property has been let under lease either written or oral were kept within the cognizance of the Small Causes Court. This cognizance was subject to further limitations enumerated in cl. (c) of Item No. 4. The Small Causes Court could get jurisdiction only when the substantial issue arose for decision (in the suit) was whether the lease as determined by efflux of time or whether it has been determined by a notice in accordance with clause 4 of S.111 of the T.P. Act. Conversely the Small Causes Court was to get jurisdiction to try the eviction suits only when the substantial issue involved were the validity of the notice. Conversely if some issues other than the issues were involved, the jurisdiction of the Court of Small Causes came to an end.

10. Mr. Choudhary strenuously contended before me that when the present suit was instituted on 27-3-84, Small Causes Court had jurisdiction to entertain this suit and its jurisdiction was circumscribed by cls. (a), (b) and (c) of Item 4 of scheduld II. Thus, according to him, the suitor went to the court with a clear knowledge that his suit would be tenable before the Court of Small Causes if the only substantial issue in this suit was the validity of the notice. He had equally the knowledge that when some other substantial issues were involved then that Court would not be able to take cognizance. It is on the background of these circumstances that Mr. Choudhary, the learned Advocate for the petitioner, has strenuously urged before me that in his written statement he has raised the issues not only regarding the validity of the notice of eviction but also regarding the maintainability of the suit, limitation and the bar under O.2, R.2 of the Civil P.C. These issues are substantial in themselves and they make the suit not cognizable by the Court of Small Causes. It is on these contentions that he urged that there was no option to the trial Court but to return the plaint for presentation to the proper Court.

11. While the suit was pending before the trial Court this Provincial Small Cause Courts Act underwent a change. The jurisdiction of the Court of Small Causes came to be enhanced and Ss.26(1) and (2) and 26-A, 26-B and 26-C came to be introduced in the statute by the amendment in 1984. This amendment was to come into force on 1-1-1985, S.26 which has come on the Statute Book during the pendency of this suit reads as follows :

"26.(1) Notwithstanding anything contained elsewhere in this Act, but subject to the provisions of sub-sec. (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-sec. (1) shall apply to suits of 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."

Section 26-A provides for an appeal which was unknown so far to Provinical Small Cause Courts Act. This appeal was to the District Court. S.26-C needs to be reproduced so that it will help the appreciation of real controversy which reads as follows : -

"26C. Notwithstanding anything contained in S.16, all suits and other proceedings cognizable by the Court of Small Causes under this Chapter and pending in the District Court or the Court of any Civil Judge on the date of coming into force of the Provincial Small Causes Courts and Presidency Small Causes Courts (Maharashtra Amendment) Act, 1984, shall be continued and disposed of by the District Court or the Court of the Civil Judge, as the case may be as if this Chapter had not been enacted.''

The scheme of the Act scrutinised in the proper perspective reveals (i) that the Court of Small Causes has been made the Court of exclusive jurisdiction in cases of dispute pertaining to a particular category. S.16 has made it a court of exclusive jurisdiction and the jurisdiction of the other courts was specifically barred. S.26 enhanced the jurisdiction of the Court of Small Causes inasmuch as all the suits in between the landlords and tenants, licensors and licensees relating to the recovery of possession of immovable property are made exclusively triable by the Court of Small Causes irrespective of the value of the subject-matter of such suits and proceedings and irrespective of the substantial points raised in the dispute. To that extent the provisions of S.26(1) of the Provincial Small Cause Courts Act has overriding effect over the exceptions carved out in item No. 4 of schedule II of the said Act. To capitulate once again the exceptions carved out in (i) of item 4 made the suits between the landlord and the tenant for eviction cognizable by the Small Causes Court only when the substantial point involved in the suit was regarding the validity of the notice. If other substantial points were involved then the Small Causes Court lost its jurisdiction. However, by enacting S.26, all the suits for possession between the landlord and the tenant or the licensor and the licensee are made exclusively triable by the Court of Small Causes and this jurisdiction is not limited by any other provisions. The opening words "Notwithstanding anything contained elsewhere in this Act"have a positive tendency to show that it has overriding effect upon the limitations by clauses A, B and C of item No. 4 in schedule II of the said Act. If S.26 is read in the real sense, it would show that the suits for possession in between the landlord and the tenant or the licensor and the licensee has to be instituted only in the Court of Small Causes and nowhere else irrespective of the valuation of the property, involved.

12. If these two provisions are read together, what will be apparent is that while the present suit was pending before the Court of Small Causes, a restriction imposed by clause 3 of item 4 of schedule II stood removed. If that limitation was removed by S.26, then nothing remains in the arguments of Mr. Choudhary, the learned advocate for the present petitioners. What Mr. Choudhary

is contending before me is that in his defence he has raised the plea; (i) of limitation (ii) of maintainability of suit (iii) a bar under O.2, R.2 and such other points. Taking all these contentions raised, they have absolutely no tendency to bar the jurisdiction of the Court of Small Causes though they may be considered as appropriate defence to the claim made by the plaintiff.

13. Mr. Choudhary strenuously urged before me that S.26 came on the statutebook during the pendency of this suit and it is a well recognised principle that the amendment has always prospective operation. What Mr. Choudhary contended before me was that the enhancement of the jurisdiction inherent in S.26 of the Provincial Small Cause Courts Act would not operate in the case of suits which were already pending before the Court of Small Causes. There appears to be an inherent infirmity in this argument. It is a well recognised principle that the party to the litigation has no right to claim a particular procedure. What is enunciated in S.26 is merely a procedure where no substantial rights are conferred on a party. S.26 has only an enhanced scope of jurisdiction of this Court of Small Causes. It does not touch in the vested right in the party to the litigation. There is thus no force in the argument that the procedure prescribed in S.26 of the said Act would not be applicable to the suits instituted before coming into force of this law. Section clearly shows that in the suits of the specified nature the Small Cause Court will have exclusive jurisdiction and this jurisdiction has now been extended to all the suits for possession between the landlord and the tenant and licensor and the licensee. This law has to take effect from each day in which it was made enforceable.

14. Mr. Choudhary invited my attention to the ratio laid down in Lilabai Rasiklal Waghela v. Keshaorao Domaji Tidke, 1986 Mah IJ 207. The question which arose in that case was, whether a party had a right to appeal before the District Court in a suit initiated before coming into force of this amended provision. The question which was raised before the court was whether a right vested in a litigant at the time of initiation of proceedings could be touched or disturbed to his prejudice by an enactment coming into force subsequently. The court held that if the amending provision affects the vested right in the party it cannot have a retrospective operation. Its operation would only be prospective. Beyond this, ratio laid down in this case does not proceed an inch further. What was held in that suit was that a right of appeal conferred by S.26-A would not be available to a party in a suit which was instituted prior to 1-1-85. It was also observed that in the case of suit instituted prior to 1-1-85 the old procedure under the Provincial Small Cause Courts Act will prevail. Thus this ruling speaks about the prospective operation of the amended provision vis-a-vis the vested right in the party. As far as the present case is concerned, to claim a particular procedure is not a right vested in the party. The party cannot ordinarily ask that he should be governed, by the same provisions of the Act which were in force when he initiated the proceedings or if his vested rights are affected by the amendment he may have a ground to agitate but if there is no disturbance to his vested right, he cannot legitimately say that the old procedure should be made applicable to him. What is inherent in S.26 is not merely a procedure that has to be followed. It, in fact, enhances the jurisdiction of the Samll Causes Court to entertain and decide all suits for possession in between the lessor and the lessee. Thus there is absolutely no force in the argument of Mr. Choudhary that S.26(1) of the Small Causes Courts Act has a prospective operation in the sense that his suit being initiated in 1984 should not be governed by the new provisions inserted in the statute.

15. Mr. Choudhary invited my attention to S.7 of the Bombay General Clauses Act and particularly to sub-cl. (e) thereof. It is difficult to hold that S.7(e) has any operation to the present case. S.7(e) reads as follows :-

"7. Where this Act, or any Bombay Act (or Maharashtra Act) made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be

made, then,, unless a different intention appears, the repeal shall not -

(a) to (d) x x x x

e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and such, investigation legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

Reading S.26(1) as it stands, it does not affect any investigation, legal proceedings or remedy in respect or any right, privilege, obligation, liability, penalty, forfeiture or punishment. It only enhances the jurisdiction of the Court of Small Causes. Prior to this amendment the Small Cause Court could entertain the suit for eviction only when the substantial question raised was about the validity of the notice. By this amendment all suits for possession between the landlords and tenants have been included within the category which is exclusively within the jurisdiction of the Court of Small Causes, It does not provide any remedy. It does not speak of any investigation. It only says that on coming into force of this Act all the suits of a particular description shall be tried by the Court of Small Causes. There is thus no force in the argument that the amendment affects any rights vested in the defendant.

16. Mr. Choudhary also invited my attention to S.26-C of the Provincial Small Cause Courts Act, which is in the nature of a saving clause. Till this section came on the statute-book, all suits for possession of the property falling outside the category enumerated in clause 4 of schedule II of the Small Causes Courts Act were tried by the regular Courts. When this new enactment came into force there were some suits of the like nature which were already pending before the courts than the court of small causes. It is only for such suits that a provision is made by S.26-C. These suits were saved from the operation of the new amendment and it was specifically declared that such suits shall be tried as if this amendment was not enacted. Thus on the very face of it Dr. Choudhary cannot legitimately claim any advantage from this saving clause. Even otherwise he cannot claim any advantage even on the analgoy. To repeat it once again when this amendment came into force some suits of the nature covered by S.26(1) of the Provincial Small Cause Courts Act were pending before the courts which were not the Small Cause Courts. By operation of S.26 exclusive jurisdiction to entertain and try these suits was vested in the court of Small Causes. By implications the suits which were pending before the other courts could not be tried by those Courts as they had no jurisdiction. It is only with a view to clarify this anomalous position that this saving clause was inserted. In the present case the suit was already before the Court of Small Causes. When it was pending before the Court of Small Causes the plaintiffs averments clearly show that it was a suit between the landlord and the tenant. It does not appear whether any substantial issue was raised (prior to 1-1-85) contending that the Small Causes Court had no jurisdiction. The written statement came to be filed by the defendants for the first time on 20th Feb., 1985 i.e. after the amendment. The position which was prevailing then was that the suit was before the competent Court. The subjectmatter also came within the competence of that Court. On 1-1-85 the position changed tremendously as far as the question of the jurisdiction of the Small Causes Court was concerned. The bar created by sub.cl. (o) of item No. IV of Schedule II was removed by the enactment of S.26A. All suits for possession between the landlord and tenant came within the jurisdiction of the Court of Small Causes. Thus the enhancement of jurisdiction could not be a point of agitation by the defendant. What the Court has to see is whether it has jurisdiction to decide the matter. As the matter stood before the Court, it found that it had jurisdiction and the limitations which were previously there, came to be removed by the amendment. In these circumstances, it is futile to argue that this law has no application in the present case. The operation is, no doubt, prospective. It becomes operative from the day it comes

from the day it comes into force and the Court has to follow this law unless that law has a tendency to disturb the rights vested in the parties.

17. Looked from this angle, the position becomes crystal clear. The plaintiff instituted a suit for eviction of a tenant. The Court has been established at Nagpur under the Provincial Small Cause Courts Act and under items Nos. 4-A, B and C that Court had jurisdiction. That jurisdiction came to be enhanced by enacting S.26. The limitation created by clause C of item No. 4 was removed by S.26(1). Thus on the date this amendment came into force the Small Causes Courts had all the jurisdiction to entertain all suits for possession between the landlords and tenants. Whatever defences are raised do not suggest any lack of jurisdiction. They concern only with the maintainability of the suit either on the ground of some other statute or on the ground of limitation or on the ground of O.2. R.2 of the Code of Civil Procedure. The Small Cause Court is quite competent to decide these points.

18. In these circumstances, it is futile to contend that the court was not justified in rejecting the application of the defendants for returning the plaint for presentation to proper court. The legal position which was in vogue clearly shows that the court had jurisdiction to entertain the matter and to decide it and the defences raised do not have any tendency to attack or curtail that jurisdiction.

19. The order passed by the trial Court is, therefore, quite correct and it needs no interference at the hands of this court. In the result, the revision is dismissed. Rule is discharged. The trial court is now directed to proceed with the suit expeditiously as the suit has become pretty old.

Revision Dismissed