2000(4) ALL MR 744
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
J.N. PATEL, J.
Abdul Aval @ Chakuwalla Vs. Sayed Mohamed Ali Usmanali & Ors.
Writ Petition No.3726 of 1988
3rd August, 2000
Petitioner Counsel: Mr. S.P.DUBEY
Respondent Counsel: Ms. GEETA SHASTRI i/b. M/s. KHILANI & CO.
(A) Civil P.C. (1908), O.6, R.14 - Pleading to be signed - Verification of plaint - Plaint signed and verified under signature of Plaintiff's brother - Plaintiff not ignorant of filing of suit and filing done under his instructions - Such non-signing or non-verification by Plainfiff a mere irregularity - Can be subsequently corrected by amendment - Contention that such non-verification fatal - Unsustainable.
(B) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.28 - Jurisdiction of Small Causes Court - Suit seeking declaration that plaintiff a tenant of suit premises and also seeking injunction retraining dispossession - Small Causes Court has jurisdiction to entertain and try such suit.
1961(66) B.L.R. 645, 1970 AIR LJ 138 - Rel.on. (Para 12)
All India Reporter v. Ramchandra, (1959) 62 Bom. L.R. 251 [Para 10]
United Bank of India v. Naresh Kumar, (1996) 6 S.C.C. 660 [Para 11]
Dattatraya Krishna v. Jairam Ganesh, 1961(66) B.L.R. 645 [Para 12]
Sushila Kashi Nath Dhonde v. Harilal Govindji Bhogani, 1970 All India Rent Control Journal 138 [Para 12]
JUDGMENT :- The petitioner (original defendant no.2) has impugned the judgment and order dated 3.3.1986 in Decl. Suit No.1085/5743/72 passed by the learned Judge, Small Causes Court, Bombay, and the judgment and order in Appeal No.468 of 1986 arising out of the same judgment which came to be dismissed by judgment and order dated 9.3.1988.
2. Respondent no.1- original plaintiff filed a suit in the Court of Small Causes claiming that he is tenant of gala nos.4 and 5 admeasuring about 30' x 120 sq.ft., Masood Estate, survey nos.198, 198(part), 311, L.T. Road, Kurla, Mumbai, having inducted in the premises by respondent no.3-original defendant no.4, Masood & Co., on payment of rent of Rs.130/- per month. The plaintiff also sought for an injunction against the defendants in addition to seeking a declaration as regards his tenancy of the suit premises on the basis of the pleadings that defendant nos. 1 & 2 are the hirelings of Gulab Shah and are trying to disturb the possession of the plaintiff.
3. On the other hand, it is the case of defendant nos. 1 & 2 that the defendants are in possession and enjoyment of shop nos. 4 & 5 situate at survey no.311, C.S.T. Road, Kurla, Bombay, i.e. the suit premises on being inducted in the suit premises under an oral agreement dated 2.5.1970 between defendant no.2 and one Kazi Mansoor which subsequently came to be recorded under an agreement of leave and licence (exh.4) dated 2.5.1972. It was the contention of the defendant that the said Kazi was the tenant of Chatrapathi Shivaji Kutir Mandal and after taking possession of the said plot, defendant no.2 did filling work, levelled it and constructed a shed from his own money and there he started his oil business under the name and style of Pahalwan Oil Co. It was agreed between the parties that defendant no.2 would be paying compensation to Kazi and defendant no.2 would continue as his licensee in the said premises. Defendant no.3 did not file any Written Statement. Defendant no.4 who was joined as a party-defendant by the plaintiff claiming to be his landlord filed a Written Statement and supported the case of the plaintiff stating that the suit premises were let out to the plaintiff on a monthly rent of Rs.130/-.
4. The suit of the plaintiff has undergone interesting turn of events like verification of the plaint subsequent to the filing of the plaint as it was earlier filed through his Power of Attorney as also as regards the description of the suit premises as well as joining of defendant no.4 landlord as party-defendant in the suit. This led to framing of additional issue during the trial. The trial Court found that the plaintiff has proved that he is a tenant of the suit premises and entitled to such declaration and injunction as sought. The question of jurisdiction was also raised before the trial court which was negatived as the trial Court had jurisdiction to try the suit and that it was maintainable as filed and further that the plaint is not bad for misjoinder or non-joinder of parties.
5. In the appeal preferred by the petitioner as well as original defendant no.1 which came to be disposed of by common order dated 9.3.1988, the appellate court also concurred with the finding of the trial Court that the plaintiff has proved that he is a tenant of the suit premises and is entitled to protection under the provisions of the Bombay Rent Act and so also declaration. The contention raised before the appellate Court was that the Court had no jurisdiction to try and entertain the suit and that the suit is bad for non-joinder or misjoinder of parties. The appellate Court found that the Court had jurisdiction and negatived the contention of non-joinder or misjoinder of parties and dismissed the appeal. Original defendant no.1 did not agitate the matter further and it is only defendant no.2 who has impugned the said judgment and order before this Court.
6. Mr. Dubey, learned counsel for the petitioner, submitted that original defendant no.1 being partner of Pahalwan Oil Co. i.e. the business which was being done by the petitioner, original defendant no.2 had no interest in the suit premises as the petitioner-defendant no.2 only claims to be the tenant of the suit premises and, therefore, failure on the part of defendant no.2 to challenge the findings does not, in any manner, prejudice the case of the petitioner.
7. Mr.Dubey submitted that he is challenging the impugned judgment and decree of the two Courts below mainly on two counts. Firstly, that the Court of Small Causes at Bombay had no jurisdiction to try the suit as filed and presented by the plaintiff, the same being out of the purview of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Act"). Another contention of Mr.Dubey is that the plaint as presented and filed was not maintainable on the ground that it was not verified as required under the law and it is only at the subsequent stage of arguments that the plaintiff was permitted to put his signature on verification and, therefore, on these two counts, the Courts have failed to appreciate the case of the petitioner and the judgment and decree stands vitiated.
8. Ms. Geeta Shastri, learned counsel for the respondent no.1-original plaintiff, submitted that the suit as filed and presented before the Small Causes Court was well within jurisdiction of the said Court as the dispute was regarding the tenancy rights of the plaintiff and, therefore, the plaintiff has sought a declaration that he is a tenant of the suit premises and further sought protection of his tenancy rights by way of an injunction and so it would come within the parameters of section 28 of the Bombay Rent Act. On the count of non-signing of the plaint and verification, it is submitted by the learned counsel that it is merely a technical defect and irregularity which can be cured and therefore, the trial Court was justified in allowing the plaintiff to sign the plaint and verification at the stage of arguments. It is submitted that the plaint was actually presented by the brother of the plaintiff, but as the plaintiff had not executed any Power of Attorney in his favour, the defect was cured by the plaintiff by seeking an amendment and thereby putting his signature on the plaint and verification. It is submitted that the fact that the plaintiff had authorised his brother to present and sign the plaint on his behalf is not in dispute and, therefore, it cannot mean that the plaint as filed and presented is not tenable.
9. Mr.Dubey, learned counsel for the petitioner, submitted that the dispute between the parties should be well-appreciated by this Court in the background of the situation which was prevailing in the city of Mumbai in the seventies. He apprised the Court of the fact that during those days there was a tendency on the part of the goonda elements to grab properties and let it out on leave and licence or otherwise to various persons by taking money. He submitted that it is not in dispute that the property in question initially belonged to one Kishanchand Rewachand and that it has passed hands. According to Mr.Dubey, the plaintiff was one such person who actually in connivance with defendant no.4 dislodged the petitioner from the suit property by claiming that he is a tenant of defendant no.4.
10. Insofar as the finding of facts is concerned, the two Courts below have considered the evidence led by the parties in the trial Court and have arrived at a concurrent finding of fact which does not call for interference. The question that remains to be examined is whether the plaint as filed and presented by the plaintiff was maintainable under the law and the Court of Small Causes had jurisdiction to try the suit. The appellate Court has considered this aspect in the background of the evidence led by the parties and has given a finding in favour of respondent no.1 - original plaintiff. As regards the presentation of the plaint and filing of the same under the signature of the brother of the plaintiff is concerned, I find that it was a mere irregularity. If at all it is accepted that he had no authority to do so, it has come on record that the plaint is signed and verified by Mukhtar Ali Usman Ali who is the brother of the plaintiff. Though the plaintiff in his evidence has stated that the present suit came to be filed by one Rafi, that by itself would not make the plaint presented and filed on behalf of the plaintiff untenable. The fact remains that the plaintiff had filed the suit which was signed and verified by his brother and probably presented by Mr.M.M.Rafi. It is not that the plaintiff was ignorant of filing of the suit or it was filed without his knowledge or instruction. Further this irregularity came to be cured by subsequent amendment made on 29.1.1986 under which the trial Court permitted the plaintiff to sign the plaint and so also the verification. This fact is not challenged by the defendant. In the case of All India Reporter v. Ramchandra, reported in (1959) 62 Bombay Law Reporter 251, this Court had the occasion to examine such an irregularity and it was held:-
"If a plaint is not properly signed or verified but is admitted and entered in the register of suits it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint. When a defective plaint is rectified and re-signed and re-verified on a subsequent date, the re-signing or the re-verification of the plaint relates back to the original date of the suit. Even when the plaint is amended after it is properly instituted, the amendment relates back to the original plaint unless the amendment adds new parties or new properties.
The expression "signed by any person duly authorized by him to sign the same" in O. VI, r.14, of the Civil Procedure Code, 1908, is not restricted to written authorizations. If the authorization is proved, even oral authorization must be taken as sufficient.
Order IV, r.1, of the Civil Procedure Code, 1908, does not require that a plaint should be presented by the plaintiff personally or by a person duly authorized by him. It can be presented by any person. In the case of a suit where there are two or more plaintiffs, presentation of the plaint by one of the plaintiffs or by the pleader of one of the plaintiffs will be a proper presentation.
Courts receiving pleadings and Officers authorised to receive pleadings must see that the requirements of O.VI, rr.14 and 15 and of O. VII, r.1, of the Civil Procedure Code, 1908, are properly complied with."
11. Recently in the case of United Bank of India v. Naresh Kumar, reported in (1996) 6 S.C.C. 660, the apex Court held that substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no injustice is done to any party and permitted the suit filed by the company by an officer not authorised by him to be subsequently rectified. Therefore, in the facts and circumstances, this Court finds that the suit of the plaintiff does not suffer from any irregularity for want of verification by the plaintiff.
"28.(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,-
(a) in Greater Bombay, the Court of Small Causes, Bombay,
(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and
(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such civil Judge the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of the rent or possession of any premises to which any of the provisions of this part apply or between a licensor and a licensee relating to the recovery of the licence fee or charge and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.
Section 28 of the Bombay Rent Act vests the jurisdiction in Greater Bombay to the Court of Small Causes at Bombay in respect of 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 this Part apply or between a licensor and a licensee relating to the recovery of the licence fee or charge and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Therefore, it is quite clear that the suit filed by the plaintiff for the reliefs sought was of the nature of dispute as regards his tenancy and, therefore, the plaintiff was required to file a suit for seeking a declaration that he is a tenant of the premises and sought protection of the Court by way of injunction that he should not be dispossessed of the same would meet the requirement of "any claim or question arising out of this Act or any of its provisions" and, therefore, the suit as filed and presented by the plaintiff in the Court of Small Causes, Bombay, was well within its jurisdiction. The following two authorities also make it further clear. In the case of Dattatraya Krishna v. Jairam Ganesh, reported in 1961 (66) B.L.R. 645, a Full Bench of this Court held:-
"The City Civil Court, Bombay, has no jurisdiction to entertain a suit for a declaration that a sub-tenancy was created in favour of the plaintiff by the defendant tenant after the coming into force of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and for an injunction restraining the defendant from interfering with his possession as a sub-tenant.
The City Civil Court, Bombay, has no jurisdiction to entertain a suit for a declaration that the plaintiff is a tenant or sub-tenant of the defendant and for an injunction restraining the defendant from proceeding with or from obtaining an order for eviction of the plaintiff in the application made by the defendant under s.41 of the Presidency Small Causes Courts Act, 1882, or from executing the order for eviction obtained by him in such application.
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 a 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."
Further in the case of Sushila Kashi Nath Dhonde & Ors. v. Harllal Govindji Bhogani & Ors., reported in 1970 All India Rent Control Journal 138, this Court held:-
".......that it is not necessary there should be a relationship of landlord and tenant in respect of all matters covered by Section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 so as to give jurisdiction of the Court of Small Causes. When the court of Small Causes under Section 28 of the Act is invited "to deal" with any claim or question arising out of this Act or any of its provisions" the relationship between the parties to such proceedings need not be that of a landlord and tenant."
In the circumstances, the challenge in the petition to the jurisdiction of the Court cannot be sustained.