Appeal From Order No.850 of 2001

20th July, 2004

Petitioner Counsel: G. S. GODBOLE,ASHISH NAIK
Respondent Counsel: Mrs. G. P. MULEKAR,A. A. JOSHI

Cases Cited:
Mansukhlal Dhanraj Jain Vs. Eknath Vithal Ogale, AIR 1995 SC 1102 [Para 10,13,20]
Bhinka Vs. Charansingh, AIR 1959 SC 96016, AIR 1959 SC 960 [Para 16,17]
Qualter Hall & Co. Vs. Board of Trade, (1961)3 ALL ER 389 (CA) [Para 17]

JUDGMENT

JUDGMENT :- This appeal is directed against the order dated 6th September, 2001 passed below Exh.1 in S. C. Suit No.3163 of 1991 by the City Civil Court at Bombay directing return of plaint to the plaintiffs for presenting it to a proper court.

The Facts :

2. The facts giving rise to the present appeal, in nutshell, are as under :

The parties are referred to in their original capacity as they were before the trial Court. The plaintiff No.1 is an educational institution; whereas plaintiff No.2 is the Secretary of the said institution. The defendant No.1 is the Maharashtra Housing and Area Development Authority ("MHADA" for short); whereas defendant No.2 is the President of Motilal Nagar-III Tenants' Association (Regd), Goregaon (West), Bombay. The plaintiffs claimed that they were the licensees of defendant No.2 in possession of the premises bearing tenement No.32/245, Motilal Nagar-III, M. G. Road, Goregaon (W), Bombay-90 (hereinafter referred to as the "suit premises") since 1974 on payment of monthly charges in the sum of Rs.49/- to defendant No.1 in the name of defendant No.2. They claimed to have all the rent receipts in their possession evidencing payment of occupation charges. The plaintiffs in the plaint has given circumstances under which they occupied suit premises and also spelt out the circumstances as to how the plaintiffs developed an apprehension that defendants would dispossess them from the suit premises without following due process of law.

3. In the suit, plaintiffs are seeking order of permanent injunction against the defendants from dispossessing them from the suit premises.

4. On being summoned, defendants appeared and filed their written statements opposing the reliefs claimed by the plaintiffs. Defendant No.1 pleaded that the suit premises was given on licence by defendant No.2 to the plaintiffs. That there was no privity of contract between the plaintiffs and defendant No.1. Defendant No.2 also filed his written statement. He narrated therein circumstances under which the plaintiffs were permitted to run their school activities in the said premises. In substance, defendants denied that plaintiffs were in exclusive possession of the suit premises. Defendant No.2 also denied having received any amount of rent.

5. Based on the above rival pleadings, issues were framed by the trial Court. One of the issues framed was : "Whether plaintiffs prove that the City Civil Court, Bombay has jurisdiction to entertain and try the suit?" (Emphasis supplied)

6. The trial Court after hearing the parties to the suit held that the plaint itself indicated that the plaintiffs were put in possession of the suit premises as licensees of defendant No.2 since 1974. Trial Court also held that the suit premises was allotted by defendant No. to defendant No.2 Association and that defendant No.2 has put the plaintiffs in possession of the said premises on payment of occupation charges in the sum of Rs.29/- per month. The occupation charges have been paid by the plaintiffs to defendant No.1 in the name of defendant No.2. In other words, the plaintiffs have discharged monetary liability of defendant No.2 by making direct payment to defendant No.1 instead of defendant No.2. Thus, in substance, payment of licence fee was made to the defendant No.2 through defendant No.1.

7. The defendants contended before the City Civil Court that it had no jurisdiction to entertain and try the suit it being the suit between licensee and licensor. In support of their submissions, provisions of section 41 of the Presidency Small Causes Court Act, 1882 amended up to 1976, were pressed in to service.

8. In reply, it was urged on behalf of the plaintiffs that considering the interpretation of sub-section (2) of section 41 of the Presidency Small Causes Court Act, 1882 ("Act" for short) and in view of clause (f) of section 19 of the Act, the Small Causes Court shall have no jurisdiction to entertain and try the suit in question. In their submissions, the City Civil Court alone was competent to entertain and try the suit in question.

9. Trial court after considering the legal submissions advanced by the rival parties came to the conclusion that the City Civil Court has no jurisdiction to entertain and try the instant suit. It was, thus, directed that the plaint be returned to the plaintiff for presenting it to the appropriate Court. This order passed under order VIII, rule 10 of C. P. C. is a subject matter of challenge in this appeal.

The Arguments :

10. Mr. Godbole, learned counsel for the appellant/plaintiffs urged that section 41(1) of the Act only covers suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fee or rent except those to which other Acts apply. He contends that the suit premises are owned by MHADA as such section 41(2) of the Act will be applicable and not section 41(1). In his submission, reliance placed by the trial Court on the judgment of the Supreme Court in the case of Mansukhlal Dhanraj Jain Vs. Eknath Vithal Ogale, AIR 1995 SC 1102 is misplaced. He submits that the Supreme Court in the said case of Mansukhlal Dhanraj Jain was not dealing with the case like present one where the premises is owned by MHADA. That the Supreme Court in that case was dealing with the premises belonging to the private individual as such provision of section 41(2) of the Act did not attract consideration of the Supreme Court. In his submission, sub-section (2) of section 41 of the Act is an exception to sub-section (1) of that section. In his submission, provision of section 41(2) proceeds with non obstante clause as such provision of section 41(1) will not be applicable to the premises belonging to or owned by MHADA, the respondent No.1.

11. Per contra, learned counsel appearing for the respondent No.2 urged that section 41(2) of the Act has no application to the facts of the present case. According to him, section 41(2) specifically provides that anything contained in sub-section (1) shall not apply to the suits or proceedings for recovery of possession of immovable property or of licence fees or charges or rent thereof to which the provisions of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ("Bombay Rent Act" for short); Bombay Government Premises Eviction Act, 1955; Bombay Municipal Corporation Act ("BMC Act" for short) and Bombay Housing Board Act or any other law for the time being in force apply. He further submits that the present suit is not for possession or for recovery of charges of rent but it being a suit for injunction; it relates to recovery of possession as such the said suit would be governed by the provisions of section 41(1) of the Act; as such trial Court was perfectly justified in directing return of plaint for filing it in the proper Court.

12. He further submitted that if suits or proceedings for possession or for recovery of rent and charges are to be governed by the provisions of the four Acts, namely; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("Rent Act"); the Bombay Municipal Corporation Act ("BMC Act"); Maharashtra Housing and Area Development Act, 1976 ("MHADA Act") and the Bombay Government Premises (Eviction) Act, 1955, then only provision of sub-section (2) of section 41 of the Act will be attracted. He submits that section 41(2) is an exception in section 41(1); because adequate machinery is provided in all the legislations referred to in the said sub-section (2) for obtaining the possession or for recovery of rent and charges. In order to buttress his submission he pointed out that the Rent Act provides remedy under section 28 (old) and section 33 (new). That the BMC Act provides remedy under section 105-B. That the Government Premises Act provides remedy under section 4, whereas MHADA Act provides remedy under section 66. According to him, in all these Acts, since independent machinery is already provided, section 41(1) of the Act is not made applicable to the suits or proceedings which are to be governed by such legislations. He further submitted that in the present case the action was initiated for injunction by filing suit by the alleged licensees of defendant No.2. The proceedings were neither initiated for possession nor for recovery of licence fee or charges of rent nor they were to be governed by the provisions of the legislations referred to in sub-section (2) of section 41 of the Act as such view taken by the Court below is a perfectly legal view.

13. Learned counsel for respondent No.2 further submitted that section 41(1) of the Act has used the wording; "suit and proceedings between licensor and licensee or landlord and tenant relating to the recovery of possession .....", whereas section 41(2) has used language; "suits and proceedings for recovery of possession ....". (Emphasis supplied). Based on the difference in the language used in sub-section (1) and (2) of section 41, he submits that in the case of Mansukhlal Dhanraj Jain (supra) the Supreme Court was required to interpret wordings of section 41(1) and section 41(2) and, after noticing difference between the two sub-sections, Supreme Court ruled that section 41(1) covers even suits for injunction simplicitor as the language used in sub-section (1) is "relating to the recovery of ....." which is wider in sweep. He submits that it is a well settled rule of interpretation that when the wordings of the statute are clear and unambiguous the natural meaning should be assigned to the words used. He, thus, submits that the suit and proceedings for possession are different than the suit and proceedings relating to the possession. He, thus, submits that the present suit cannot be within the sweep of section 41(2) of the Act as such it ought to be presented before the Small Causes Court, Mumbai.

Statutory Provisions :

14. Before proceeding to consider rival submissions, it would be profitable to take survey of statutory provisions governing controversy. The entire issue centers around the interpretation of sub-sections (1) and (2) of section 41 of the Act, provisions of which are reproduced hereinbelow :

"S.41. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees of rent, except to those to which other Acts apply to lie in Small Causes Court :- (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, 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 Greater Bombay, or relating to the recovery of any 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 of 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 Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force applies.

MAHARASHTRA AMENDMENT

In its application to the State of Maharashtra, in Section 41,

(1) In sub-section (1), the words "or in any other law for the time being in force" shall be deleted;

(2) In sub-section (2), for the words and figures "the Bombay Housing Board Act, 1948 or any other law for the time being in force applies", the words and figures "the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977), or any other law for the time being in force, apply", shall be substituted. Mah Act No.24 of 1984 (24-09-1984)."

Findings :

15. Having heard rival contentions, it is not in dispute that entire controversy revolves around interpreting of section 41 of the Act. While interpretation this section the Court has to find out what is the intention, object and purpose of the legislature while legislating this particular section. The basic rule of interpretation is to read the statute as a whole and must be construed to make it effective and workable. While interpreting a statute one has to read the language of the statute as it is. The intention of the legislature is primarily to be gathered from the language used. As such, each and every word used in the enactment must be taken into account and no words should be added to the words actually used by the legislature. Therefore, as a rule one has to avoid the addition of words to a statute or ignore the words used. The words used must be construed in their natural and grammatical meanings. The very same principles are applicable while interpreting section of the statute. In this case section 41 being a self contained code, it will have to be interpreted applying the principles of interpretation referred to herein.

16. Having laid down the parameters of interpretation of section, let me first turn to the 'heading' prefixed to section 41 of the Act. Sometimes, heading is regarded as preamble to the section. Headings cannot control the plain words of statutes, but they may explain ambiguous words. If there is any doubt in interpretation of the words of section, the headings certainly help the Court to resolve that doubt (see Bhinka Vs. Charansingh, AIR 1959 SC 960).

17. This view is now well-settled that the Headings or Titles prefixed to sections or group of sections can be referred to in construing the provisions. The headings contained in Schedule 7 of the Companies Act, 1948 were used by the Court of Appeal for purposes of construction of paras in the schedule to which they were prefixed. [Qualter Hall & Co. Vs. Board of Trade, (1961)3 ALL ER 389 (CA)]. Similarly, while construing the provision of the Uttar Pradesh Tenancy Act, 1939, a reference was made to the headings by the Supreme Court, in Bhinka Vs. Charan Singh (supra). They referred to the passage from Maxwell which stated: "The heading prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words."

18. The heading to section 41 of the Act reads as "Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court" (Emphasis supplied). It is, thus, clear from the heading of this section that the suits to which other Acts apply are excluded from the purview of section 41. Now the question is which are those Acts which apply and which are those suits which are excluded from the purview of section 41. To begin with; initial answer lies in text of section 41(1); which opens with the words "Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-section (2) ......", which means the suits governed by the provisions of sub-section (2) of section 41 are excepted from the category of suits referred to in sub-section (1). With this understanding of sub-section (1), if one turns to sub-section (2) of section 41, which lays down that "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 of 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 Municipal Corporation Act, the Bombay Housing Board Act, 1948 now substituted with that of Maharashtra Housing and Area Development Act, 1976 or any other law for the time being in force applies"; meaning thereby the suits, to which the provisions of the Acts referred to in sub-section (2) of section 41 are applicable, are excluded from the purview of sub-section (1) of section 41.

19. The legislative intent appears to be to exclude from the purview of section 41(1) such suits for which forum is created in different legislations referred to in section 41(2). The present suit or the suit in question is not for possession or for recovery of charges of rent, therefore, section 41(2) has no application at all. Section 41(2) applies to the suits and proceedings for possession or for recovery of rent or charges initiated under different legislations referred to in sub-section (2) of section 41. The MHADA is not seeking relief of possession. The relationship between plaintiffs and defendant No.2 is that of licensees and licensor. Privity of contract is between two individuals. It has nothing to do with the rights of MHADA. It is a litigation between two private parties to which provisions of MHAD Act are not applicable.

20. Further, if one turns to language used in sub-section (1) in contrast to the language used in sub-section (2) of section 41, sub-section (1) has used the words "..... suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession .....", whereas in sub-section (2), the language used is "..... suits or proceedings for the recovery of possession ....." The Apex Court in the case of Mansukhlal Dhanraj Jain (supra) has interpreted the words appearing in section 41(1) and section 41(2) and reached to the conclusion that the language used in sub-section (1) is wider in meaning than the language used in sub-section (2) of section 41 of the Act. That the words "relating to" used in sub-section (1) would embrace within its hold even the suits for injunction simplicitor. The words used in the statute are clear and unambiguous.

21. In the above backdrop, the present suit being a suit for injunction simplicitor and not for possession, it cannot be said to be within the sweep of sub-section (2) of section 41 of the Act. On the aforesaid interpretation of section 41 of the Act, no fault can be found with the impugned order. The trial Court was perfectly justified in directing return of plaint to the plaintiff for presenting it to a proper court.

In the result, appeal is dismissed with no order as to costs.

Appeal dismissed.