Dismissed

Yogesh K. Kusumgar v. Shashank P. Shroff and Ors.

Bombay HC15 Dec 2009WP/4918/1997

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Bombay High Court declined to interfere with the concurrent findings of the trial and appellate courts holding that the Court of Small Causes lacked jurisdiction. Finding the suit was founded on a claim of co-ownership rather than a tenancy under the Bombay Rents Act, it was not maintainable in the special court. The petition was dismissed.

What did the court decide?

Writ petition rejected; rule discharged with no order as to costs; interim relief to continue for twelve weeks.

Yogesh K. Kusumgar Vs Shashank P. Shroff and Ors. — Property and Title | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.4918 OF 1997

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Yogesh K.Kusumgar

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...Petitioner

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vs.

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1 Shashank Pravinlal Shroff

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2 Mr.S.R.Jante

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3 H.H.J.Dalvi and H.H.J.Sethe,

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Appellate Bench Judges,

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Small Causes Court,Bombay

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...Respondents

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Shri A.G.Damle for the petitioner

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Shri R.D.Vora i/b M/s.D.M.Vora & R.D.Vora for respondent no.1

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Shri S.D.Rayrikar, A.G.P for State

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CORAM : ABHAY S. OKA,J.

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The date on which the Judgement is reserved:25th September 2009

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The date on which judgement is pronounced:15th December 2009

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Judgement

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1] By this writ petition under article 227 of the Constitution
of India, the petitioner who is the original plaintiff
has challenged the order dated 26th September 1994 passed by
the learned judge of The Court of Small Causes at Bombay by
which it was held that the Court of Small Causes had no

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jurisdiction to entertain the suit filed by the petitioner.
The petitioner had challenged the judgement and order dated
26th September 1994 by preferring an appeal before the
Appellate bench of the Court of Small Causes. By judgement and
order dated 29th July 1997 , the judgement and order passed
by the trial court was confirmed. The petitioner has also
challenged the said judgement and order of the appellate bench
by the present petition.

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2] The petitioner filed a suit, inter alia for a declaration
that "it be ordered and declared that even as a monthly
contractual and/or statutory tenant, the petitioner is
entitled to quiet and peaceful exclusive possession, use,
occupation and enjoyment of the suit premises........" . The
second prayer is for a decree directing that as long as the
petitioner shall continue to hold, occupy and enjoy the suit
premises, the petitioner shall always be entitled to provide,
fix and maintain at his cost, television and radio antennas on
the terrace of the building in which the suit premises are
situated. A declaration was also claimed that the agreement
dated 18th May 1992 (Exhibit A to the plaint) was void ab-
initio , illegal, unenforceable and not binding on the
petitioner. A declaration was also claimed that under the said
agreement the respondent has illegally and wrongfully obtained
from the petitioner , an unlawful premium of a sum of Rs.
3,25,000/-and that the respondent was liable to refund the
said amount with interest. The petitioner prayed for a money
decree of refund of the said amount with interest. A direction
was sought against the respondent enjoining him to deposit a
sum of Rs.5,468/- per month and with the further prayer that
the said amount be paid over to the petitioner to enable him
to pay the monthly rent in respect of the suit premises. A
decree of perpetual injunction was prayed for essentially for

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protecting the possession of the petitioner over the suit
premises.

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2A] In the said suit, a notice was taken out a by the
petitioner for grant of interim relief. A reply was filed by
the respondent opposing the prayer for grant of interim
relief. In the said reply, a contention was raised that the
petitioner is claiming to be a joint owner of the suit
premises and therefore the Court of Small Causes had no
jurisdiction to entertain and try the suit. The learned trial
judge framed a preliminary issue of jurisdiction in accordance
with section 9A of the Court of Civil Procedure, 1908. The
impugned order was passed by the trial court on the said
preliminary issue holding that the trial court had no
jurisdiction to entertain the suit. As stated earlier, the
said order has been confirmed in appeal.

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3] The learned counsel appearing for the petitioner submitted
that the first prayer in the plaint was essentially for
claiming a declaration that the petitioner has a right to
occupy the suit premises as a tenant. He submitted that the
petitioner has pleaded the existence of the tenant-landlord
relationship. He submitted that in the suit , the petitioner
is not claiming any rights as a co-owner. He submitted that
the plaint will have to be read as a whole. He submitted that
the fact that the respondent has filed a suit for eviction
against the petitioner by accepting him as a tenant was
irrelevant for deciding the issue of jurisdiction. He urged
that the fact that it was not necessary to grant the first
prayer in the suit is no ground to hold the issue of
jurisdiction against the petitioner. He submitted that the

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issue of jurisdiction was required to be decided on the basis
of averments made in the plaint and in the present case, the
averments disclose the existence of tenant-landlord
relationship. He submitted that merely because in one
paragraph of the plaint there is a reference to the agreement
that the petitioner shall be treated as co-owner, the suit
still continues to be governed by section 28 of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947
(hereinafter referred to as " the said Act of 1947"). He
placed reliance on a decision of Mysore High Court in the case
of Onkareppa W. Koloor versus Rachappa G. Jagalalli (A. I .R
1963 Mysore 159). He relied upon a decision of full bench of
this Court in the case of Dattatraya K.Jangam versus Jairam G.
Gore (63 Bombay Law Reporter 645). He submitted that the
relief of declaration that the agreement was in contravention
of section 18(3) of the said Act of 1947 can be claimed under
section 28 of the said Act of 1947. He relied upon a decision
of this Court in the case of Kirti N. Thakkar versus
J.D.Jamdar and others (1987 (1) Bombay Cases Reporter 195).
Lastly, he submitted that under section 28 of the said Act of
1947, the Court can decide and deal with any claim or question
arising out of the said Act of 1947. In that behalf he placed
reliance on a decision of the Apex Court in the case of M/s
Importers and manufacturers Ltd versus P.H.Taraporewalla (A.
I.R 1953 Supreme Court 73). He, therefore, submitted that the
courts below have committed a gross error by deciding the
issue of jurisdiction against the petitioner.

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4] The learned counsel appearing for the respondent submitted
that the respondent has filed a suit for eviction against the
petitioner in which the respondent has accepted the petitioner
as his tenant in respect of the suit premises. He submitted

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that in view of filing of the said suit there is no
apprehension that the respondent will obstruct possession of
the petitioner over the suit premises without taking recourse
to the due process of law. He submitted that the substantive
prayer in the suit does not survive. He pointed out various
averments made in the plaint and submitted that essentially
the petitioner is claiming to be a co-owner of the property in
which the suit premises are situated. He submitted that going
by the averments made in the plaint it is clear that the
petitioner is claiming ownership in respect of the suit
premises. He submitted that as regards the agreement dated 18th
May 1982, the pleading of the petitioner is that the
respondent had agreed that the petitioner will be the co-owner
of the property . He submitted that after having claimed that
he is a co-owner, the petitioner cannot claim tenancy in
respect of the suit premises. He submitted that the petitioner
has not unconditionally accepted the respondent as his
landlord. He submitted that as the petitioner has not accepted
the tenant-landlord relationship, only on the basis of prayer
clause (a) of the plaint, the Rent Court does not get
jurisdiction under section 28 of the said Act of 1947. He
submitted that there is no reason to interfere with the
concurrent findings recorded by the courts below in this
petition under article 227 of the constitution of India.

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5] I have given careful consideration to the submissions. The
full bench of this Court in the case of Dattaraya (supra) held
that in order to determine which Court had 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

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apparent that the plaintiff has alleged relationship of
landlord and tenant and the relief claimed in substance
relates to recovery of rent or possession or raises a claim or
question arising out of the said Act of 1947 or any of its
provisions, then it is the special Court alone that will have
jurisdiction to entertain the suit. If the dispute is raised
by the tenant about the existence of relationship of landlord
and tenant, the continuance of the suit in the special Court
will depend on the decision of the Court on that issue. The
full bench further held that if the plaint does not allege
relationship of landlord and tenant and no claim or question
arises out of the said Act of 1947 or any of its provisions,
then the ordinary Civil Court will have jurisdiction to
entertain the suit.

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6] In the light of the law laid down by the full bench, the
averments made in the plaint will have to be considered. In
the first paragraph, the flat on the first floor in the
building �Pransu� and a garage in the said building has been
described. The said flat and the garage have been described as
the suit premises. The plot No. 22 on which the said building
is standing and the said building have been referred to as
"the said property". In paragraph 3 of the plaint it is stated
that in the year 1981, the respondent had just constructed a
plinth of the building. At that time, the petitioner and his
family members were residing in another building. The
petitioner was looking for a larger and independent
accommodation. The petitioner was in search of a vacant plot
or a vacant house with plot in the Juhu development scheme.
The petitioner was informed that the respondent was looking
for a sharer or a partner for his project of construction of
the building. In the plaint , a reliance has been placed on

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the terms and conditions orally agreed between the petitioner
and the respondent. Clause (v) of paragraph 4 of the plaint
contains an averment that on completion of the building and
the petitioner entering possession of the suit premises ,
between the petitioner and the respondent, for all purposes ,
the petitioner shall be treated as the co-owner having one
third share in the said property. Paragraph 4 of the plaint
incorporates various other terms and conditions of the oral
agreement between the petitioner and the respondent. As per
the said agreement ,it was agreed to confer on the petitioner
rights as a co-owner of the said property including the suit
premises. In fact clause(ix) of the said paragraph records
that the petitioner will be entitled to enjoy the suit
premises, one garage, the roof terrace , passages , staircases
, means of access etc on the said property as the co-owner
thereof. In paragraph 5 of the plaint, it is asserted that
relying upon the concluded agreement, the petitioners started
investing required funds for completion of the said building.
It is stated that the receipt of amounts was acknowledged by
the respondent.The petitioner has stated that the
construction of the building was completed by the end of April
1982. The following averments in paragraph 5 of the plaint are
material which read thus:

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�5.....Without prejudice to the Plaintiff�s rights
and remedies to get specific performance of the
aforesaid oral agreements and understandings and to
get the plaintiff declared as the co-owner of the
said property, the plaintiff states that at that
stage when the plaintiff had requested the defendant
for entering into proper documents and ensuring to
him his one third share and interest in the property

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with the exclusive possession, ownership and holding
in respect of the said first floor and one Garage,
the defendant in the beginning went on dodging the
matter but ultimately the defendant knowingly and
intentionally made a false representation to the
plaintiff that because of certain bye-laws, rules
and regulations of the society and also provisions
of the Lease Deed in respect of the plot no.22, he
would not be able to immediately give the required
documents to the plaintiff and that the preparation,
approval and completion of the said documents with
the prior sanction and approval of the society may
take much time and therefore, the defendant then
proposed in the initial stages firstly to partly
secure the plaintiff by making a Construction Loan
Agreement and to grant to plaintiff hereitable,
assignable and transferable tenancies of the said
first floor and the one Garage in the compound of
the said property. The defendant also suggested
that he would take back from the plaintiff the
entire amount which he would pay back to the
plaintiff as interest and the instalments of
repayments of the said loan amount. The defendant
also then had suggested that the Construction Loan
Agreement would also be registered and his
investment would be properly secured by a charge on
the entire property which could be released on
reconveyed by the plaintiff after he was granted one
third share and interest in the said property and in
the membership of the society. �

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7] In paragraph 6 of the plaint, the petitioner stated that by
April 1982 he had invested almost a full amount required for
constructing the building. He stated that he was put in a
precarious position in view of the aforesaid representations
made by the respondent. The petitioner apprehended that if
there was any fight with the respondent, difficulties may be
faced in securing the possession of the suit premises. The
petitioner further stated that "in the aforesaid coercive
oppressive and pressurising condition, Mr. Yogesh Kusumgar ,
the Karta of the plaintiff was forced under circumstances to
sign an absolutely one-sided agreement with the defendant on
or about 18th May 1982 . Hereto annexed and marked Exhibit A is
the copy of the Xerox copy of the said agreement Which the
defendant was forced to give to the plaintiff after having
a legal correspondence in the matter."

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8] Thereafter, the Petitioner has referred to the recitals in
the said agreement. In paragraph 11 of the plaint, the
petitioner has stated that the respondent has wrongfully and
illegally avoided to a sign and transfer his one third
undivided share and interest in the said property in favour of
the petitioner and therefore the petitioner has incurred a
recurring liability of payment of monthly rent. It is alleged
that with the object of preventing the petitioner from
claiming ownership in the said property , the respondent
started misusing and taking undue advantage of the one-sided
agreement. Various instances of alleged harassment of the
petitioner by the respondent have been set out in the plaint.
In paragraph 19 of the plaint, the petitioner has set out the
prayers claimed in the suit. Before setting out the prayers ,
he has stated thus:

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�19.Under the aforesaid facts and circumstances,
and without prejudice to all other legal rights and
remedies of the plaintiff in the matter of claiming
and getting declared and secured against the
defendant and all persons claiming through him the
said one-third undivided share, right, title and
interest of the plaintiff in the said entire
property and building �Pransu� and in the
defendant�s membership share, right, title and
interest in the said society the plaintiff has filed
the present suit for claiming and for seeking to get
from this Honourable Court several urgent reliefs,
declarations and injunctions as follows...�

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9] If the Plaint is read as a whole, the case made out by the
petitioner can be summarised as under:

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(i) as per the oral agreement between the parties, the petitioner paid required funds for construction of the building on the said property.

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(ii) the respondent agreed to acknowledge only a sum of Rs.3,25,001/- which was to be received by him from the petitioner by cheque/demand

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draft.

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(iii) on completion of the building and on the petitioner entering possession of the suit premises and the said garage, as between the petitioner and the respondent, the petitioner shall be treated as a co-owner of one third

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undivided ownership right, share, right, title

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and interest in the said property and also
undivided share in the membership rights of the
society.

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(iv)in the matter of possession and enjoyment of the suit premises, the roof terrace, other common areas, passages, staircases etc in the said building, the petitioner will have all the rights, benefits and entitlements as a co-owner thereof.

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(v) the agreement dated 18th May 1992 was executed by the petitioner in the coercive, oppressive and pressurising condition described in paragraph 6 of the plaint. The said agreement is a one-sided agreement. The agreement is ab-initio void and unenforceable.

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(vi)the agreement dated 18th May 1992 is an agreement which purportedly creates a tenancy in respect of the suit premises in favour of the petitioner. The said agreement is itself under the challenge in the suit inasmuch as there is a prayer made for declaration that the said agreement was void ab initio, illegal, unenforceable and not binding on the petitioner as the same has been procured by the respondent from the petitioner without his free consent and approval.

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10] Thus, the agreement which purports to create the
tenancy in respect of the suit premises in favour of the
petitioner has been challenged by the petitioner on the
ground that it is void ab - initio and the same has been

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procured under coercion. The plaint read as a whole shows
that the petitioner has not accepted that he is a tenant
in respect of the suit premises. In fact the petitioner
is contending that the agreement of tenancy is void ab
initio. The petitioner is claiming that he is entitled to
one third undivided ownership right, title and interest
in the said property. In the prayer (a) of the plaint a
relief is sought to be claimed in a very peculiar
language. The opening part of the said prayer is ".......
even as the monthly contractual and/or statutory tenant
the plaintiff is entitled to quiet and peaceful exclusive
possession, use, occupation and enjoyment of the suit
premises......." . In the plaint the petitioner has not
accepted that he is the tenant and the respondent is the
landlord of the suit premises. The contention in the
plaint is that the agreement of tenancy is void ab initio
and in fact the petitioner is entitled to one third share
in the said property as a co-owner. Apart from the fact
that the petitioner has not specifically pleaded the
existence of tenant-landlord relationship, in the
averments made in the plaint, no claim or question
arising out of the provisions of the said Act of 1947 is
raised. There is a prayer made claiming a right to put up
radio and television antennas on the terrace of the
building. In absence of the the material averments in the
plaint conferring jurisdiction on the Court under Section
28 of the Said Act of 1947, the prayers made in the suit
will not give jurisdiction to the special court. Unless
there is a foundation for the prayers made in the body of
the plaint, only on the basis of the prayers made in the
suit ,the special Court under section 28 does not get
jurisdiction. In the suit the specific case of the
petitioner is that the agreement (Exhibit A to the

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plaint) is unenforceable and void ab initio. The said
agreement purports to create a tenancy in respect of the
suit premises in favour of the petitioner. Therefore,
going by averments made in the plaint, this is not a suit
between a tenant and landlord. It was sought to be
contended that the declaration claimed is that the
agreement is contrary to section 18 (3) of the said Act
Of 1947. However the substantive declaration claimed in
respect of the agreement is that the agreement has been
procured without free consent of the petitioner and the
same is void ab initio. Therefore the only conclusion is
that if the plaint is read as a whole, the Court of Small
Causes has no jurisdiction to entertain and try the suit.

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11] Moreover, the respondent has already filed a suit against
the petitioner for eviction. In the said suit respondent has
accepted the petitioner as a tenant. It is true that this by
itself will not affect the decision on the issue of
jurisdiction. However, this Court is exercising power of
superintendence under Article 227 of the Constitution of
India. Both the Courts have recorded concurrent findings on
the issue of jurisdiction. No case is made out for
interference in writ jurisdiction. The impugned judgements and
orders deserve to be confirmed. Now the trial court may have
to pass an order of return of the plaint.

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12] Writ petition is rejected. Rule stands discharged with no
orders as to costs. The interim relief operating in the writ
petition will continue to operate for a period of twelve weeks
from today.

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JUDGE

Yogesh K. Kusumgar v. Shashank P. Shroff and Ors.

Case brief

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Yogesh K. Kusumgar v. Shashank P. Shroff and Ors.

Case brief

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