Naik, J.
1. This is an appeal from the order of the learned Judge, City Civil Court, Bombay, making absolute a notice of motion in terms of prayer (a) with a modification.
2. The facts giving rise to this appeal are briefly these: The plaintiffs respondents filed S. C. Suit No. 6798 of 1971 for a permanent injunction restraining the defendant from demolishing or otherwise removing the suit premises, namely Stall in Shop No. 3 on ground floor situated in house No. 19, Parsi Bazar Street, Bombay and/or from encroaching upon and/or entering upon and/or in any manner disturbing the plaintiffs' quiet and peaceful possession of the suit premises.
3. The allegations in the plaint on which the relief was founded are these: The defendants are monthly tenants in respect of the shop No. 3, including a Stall admeasuring approximately 51/2' x 51/2' situated at house No. 19, Parsi Bazar Street. Bombay. The plaintiffs are the sub-tenants of that Stall which for brevity's sake is referred to in the plaint as 'suit premises'. Plaintiff No. 1 and plaintiff No. 2 are carrying on the business of the sale of pens and stamps respectively in the said stall. As sub-tenants for the last 18 years they are in the exclusive possession of the suit premises and have been paying Rs. 30/- per month to the defendants as and by way of rent of the suit premises. On 4th September, 1971, one Ahmedali Alimohamed and Gulamali Alimohamed, the partners of the defendants asked the plaintiffs to remove their articles lying in the suit stall by saying that the defendants intended to remove the said stall and construct a new premises as they have started renovating the said property being shop No. 3. The plaintiffs informed the defendants that they were occupying the suit premises as their monthly sub-tenants and that the defendants had no right to interfere with their possession. Under the guise of renovating the suit shop premises, the defendants were unlawfully trying to dispossess the plaintiffs and depriving them of their right to use and occupy the suit premises for business purposes. As the plaintiffs were reluctant to vacate, on 8th September, 1971, the partners of the defendants' firm gave threats to the plaintiffs that if the plaintiffs failed to remove their articles and vacate the suit premises by 10th September, 1971, they would be driven out of the suit premises by force and that the articles lying in the suit premises would be thrown away. Thus, stated the plaintiffs, the defendants are trying to dispossess the plaintiffs forcibly and otherwise than in due course of law. They therefore filed the suit for a permanent injunction and on the same day they also took out a notice of motion for an ad interim injunction.
4. Rule being issued, the defendants appeared and resisted the notice of motion. The defendants by their affidavit-in-reply to the notice of motion pointed out that having regard to the averments and statements made in the plaint itself, the City Civil Court had no jurisdiction to entertain and try the suit in view of the provisions of Section 28 of the Bombay Rent Act. On merits they denied that the plaintiffs were sub-tenants or that the Stall in question was premises within the meaning of the Bombay Rent Act. They contended that the stall was a temporary and shift able stall board which was merely hanging on the wall without touching the ground and that it was about 3 ft. above the ground. According to them originally they were carrying on the business of hardware and since they wanted to start the business of readymade cloth, they started renovating the shop premises and that is why they requested the plaintiffs to remove their stall by revoking the permission. They emphatically denied that the plaintiffs are sub-tenants. They therefore pointed out that no injunction could be issued.
5. The learned Judge repelled the contentions of the defendants and he made the notice of motion absolute in terms of prayer (a) with the addition of words 'except by due process of law'.
6. Aggrieved by that order, the original defendants have preferred this appeal.
7. Mr. Abhyankar, the learned Advocate for the appellants has challenged the order firstly, on the ground that since the defendants by their affidavit-in-reply bad challenged the jurisdiction of the court to entertain the suit in view of Section 9-A of the Code of Civil Procedure, as amended by the Civil Procedure Code (Maharashtra Act No. XXV of 1970), the Court ought to have decided the issue of jurisdiction as a preliminary issue. Mr. Abhyankar further argues that since on a plain reading of the plaint it is a suit which is covered by the provisions of Section 28 of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'), the City Civil Court was clearly in error in holding that it had jurisdiction to entertain the suit.
8. I shall consider these contentions in that order, Section 9-A of the Code of Civil Procedure in its application to the State of Maharashtra is to this effect:--
'9-A (1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any oi the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.'
9. As evidently the defendants by their affidavit-in-reply had challenged the jurisdiction of the Court to entertain the suit, it was incumbent upon the learned Judge to determine that question as a preliminary issue before making the order absolute. Mr. Abhyankar, therefore, is clearly right in his submission.
10. As regards the question of jurisdiction and the construction and effect of Section 28 of 'the Act, it is important to bear in mind the observations of the Full Bench decision reported in Dattatraya Krishna v. Jairam Ganesh, : AIR1965Bom177 (FB). The relevant observations are at page 671:
'The position, therefore, is that 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 farm 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 Mm 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 the 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.
One of the matters in respect of which exclusive jurisdiction is conferred on the special Court is 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 Part II of the Act apply. Three conditions must be satisfied before a suit or proceeding can be said to be of this nature. It must be a suit or proceeding between a landlord and a tenant. The suit or proceeding may be instituted either by a landlord or by a tenant, but it must be in his capacity as the landlord or the tenant as the case may be. It must also be against the tenant or landlord, though persons deriving title through or under him may also be made parties to the suit. The suit or proceeding must also be in respect of premises to which any of the provisions of Part II of the Act apply. The third condition which is to be satisfied is that the suit or proceeding must relate to recovery of rent or possession of such premises.'
11. It would, therefore, appear that three conditions must be satisfied for conferring, exclusive jurisdiction on the special Court. It is, however, interesting to note that contrary to the stand taken by the Parties in the trial Court, in the arguments before me, the stand taken by each of them is exactly the one which was taken by the opposite party in the trial Court. For instance, while it is argued by Mr. Lalit that in the absence of evidence about the degree of annexures it would be hazardous to hold that the stall which hangs by two nails is a permanent fitting affixed to the building, it is argued by Mr. Abhyankar with equal force, contrary to the affidavit-in-reply of the defendant, that the suit stall would be premises within the meaning of the Act. I must at once make it clear that while deciding the question of jurisdiction I am not at all influenced by the stand taken by the defendants in their affidavit-in-reply inasmuch as the question of jurisdiction has got to be decided from the averments made in the plaint itself. That takes me to the definition of 'premises' in the Act to which Part II applies and the allegations in the plaint.
12. Section 5(8)(b)(iii) of the Act defines 'premises' as,
'any building or part of a building let or given on licence separately other than a farm building including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.'
13. The plaintiffs have described the property in para 1 of their plaint as Shop No. 3 including a stall admeasuring approximately 51/2' X 51/2' of which the defendants are alleged to foe monthly tenants. In para 2 of the plaint, the plaintiffs have alleged that the stall admeasuring 51/2' x 51/2' in the defendants' said property bearing Shop No. 3 has been referred to by them throughout the plaint for the sake of brevity as the 'suit premises'. It is further stated in that very paragraph that the plaintiffs have taken out photographs of the said premises and they crave leave to refer to and rely upon the said photographs. The plaintiffs have no doubt averred in para 6 of the plaint that there are racks and shelves which are attached to the wall of the suit premises. But that allegation is not decisive in view of their averment in para 2 of the plaint to the effect that for the sake of brevity they have throughout referred to the suit stall as premises.
14. The question, therefore, to be considered is whether this stall which is like a cupboard (as appears from the photographs which are part of the plaint) hanging on the outside wall of the shop premises in the possession of the defendants and abuts on the footpath could be said to be premises as defined in the Act. After seeing the photographs of the stall which are part of the plaint, it appears to me too hazardous to conclude that the stall can be called fittings affixed to the building for the more beneficial enjoyment of the building or part of the building. Therefore, notwithstanding the fact the plaintiffs have throughout alleged in their plaint that this stall is described by them for brevity's sake as a premises' and that they are the subtenants of these premises, it is difficult for me to hold that the stall in question is premises within the meaning of Section 5(8) of the Act. At any rate with the meagre material available from the plaint and the photographs. I feel that it would be too hazardous to hold that such a stall could be a premises as defined in Section 5(8) of the Act. If I am right in that view it would follow that the case is not covered by the provisions of Section 28 of the Act, and, therefore, the special Court could not have jurisdiction to try the suit and it is the City Civil Court alone which has jurisdiction to entertain and try the suit. That, in my opinion, should be sufficient to dispose of this appeal.
15. However, if I have erred in my view that the stall in question is not premises within the meaning of Section 5(8) of the Act, it would be necessary to consider the rival contentions which are made before me. Mr. Abhyankar argues that as this is a suit between a landlord and a tenant 'relating to the recovery of possession of the suit premises', as that term is interpreted in the Full Bench decision in Dattatraya's case : AIR1965Bom177 and in the Division Bench decision in the Bombay Grain Dealers Association v. Lakshmichand Vasanji and Co., : AIR1969Bom342 , the City Civil Court has no jurisdiction to entertain the suit. As against that, Mr. Lalit, learned Advocate for the plaintiffs-respondents argues, that as this is a suit for an injunction and the plaintiffs have nowhere stated that they have filed the suit in their capacity as tenants nor asked for any protection under the Rent Act, Section 28 of the Act has no application to the facts of the case. He also argues that it is perfectly open to him to file a suit for injunction inasmuch as the observations in the case of The Bombay Grain Dealers Association, : AIR1969Bom342 , are obiter. In support of his contention Mr. Lalit has relied upon the decision of Chandrachud, J., as his Lordship then was in Bishan Baboo Vashisth v. Maharashtra Watch and Gramophone Co. : AIR1967Bom434 .
16. Now, if we read the plaint it is manifestly clear that the plaintiffs have filed the suit in their capacity as the sub-tenants of the defendants. In terms plaintiffs have stated that they are the sub-tenants of the premises for the last 18 years by paying Rs. 30/- per month as and by way of rent and that they are in exclusive use, possession and enjoyment of the said premises. It is, therefore, clear that the plaintiffs have in fact filed the suit against the defendants in their capacity as a tenant and a landlord. There is no doubt that as the premises are situate in Bombay the provisions of Part II of the Act apply to the same. The only question is as to whether it is a suit or proceeding relating to the recovery of possession of the said premises. No doubt at first blush it would appear that since this is a suit for permanent injunction it could not be said with any stretch of imagination that this is a suit relating to the recovery of possession But then the question to be considered is as to what is meant by a suit relating to recovery of possession which expression occurs in Section 28 of the Act. If the Legislature intended to cover only a suit for recovery of possession, then, nothing would have prevented the Legislature from stating so in clear terms. Since the Legislature has advisedly used the words 'suit relating to the recovery of possession', it would evidently mean something more than the mere expression, 'suit for recovery of possession'. These words have been interpreted thus by the Full Bench in Dattatraya's case : AIR1965Bom177 (FB) as under:--
'The words used are 'relating to recovery of rent or possession' and not 'for recovery of rent or possession'. The words 'relating to' are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this section. Thus a suit in which the plaintiff seeks to get rid of an order of his eviction by an injunction restraining the defendant from interfering with his possession, will also be covered by this section.
Section 28 confers jurisdiction upon the Special Court not only to decide questions referred to in the section, but also all matters which are incidental or ancillary to determination of these questions.'
17. It was on that reasoning that the Full Bench decision gave negative replies to the following two questions which were formulated for its consideration:-- (p. 668)
'(1) Whether the City Civil Court, Bombay has 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; and
(2) Whether the City Civil Court, Bombay, has 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 Section 41 of the Presidency Small Cause Courts Act, or from executing the order for eviction obtained by him in such application ?'
18. Again, in the case of Bombay Grain Dealers Association. : AIR1969Bom342 , after posing the question, when it is said that in order that the suit must fall within the jurisdiction of the Small Causes Court, it must relate under the I part of the section to recovery of possession, which are those suits the Division Bench has observed as under:
'If a person is seeking to prevent the obtaining of possession by the landlord, it could be said that it relates both to possession of the premises and it also relates to recovery of possession of the same. In each of these cases what the landlord is doing or attempting to do is to recover possession from the tenant. It may be that in one case the landlord may be attempting to recover possession by obtaining an order of a Court which is not final, in another case it may be that he is trying to recover possession in an illegal manner bv force. Nonetheless what the landlord is attempting is to recover possession. If the plaintiff comes to Court and says 'This is what the landlord is doing. You prevent him from doing so', certainly the suit is one which relates to the recovery of possession'.
Again at page 197, it is observed:--
'Whether the landlord is trying to recover possession by an order of a Court which is not conclusive or illegally by force cannot affect the question. The suit is one which relates to recovery of possession by the landlord.'
19. Further on referring to the Full Bench ruling in Dattatraya's case : AIR1965Bom177 it is observed,
'We may again refer to the Full Bench decision which has said that once a suit or a proceeding falls within the jurisdiction of a Court, the Court is entitled to make such consequential orders as are necessary for the effective enforcement of the rights declared or given by it. It was on this principle that the Full Bench held that even though under the Rent Restriction Act the relief to an injunction is not referred to anywhere, the Court would have jurisdiction to grant injunction in proper cases where the suit fell within its jurisdiction, and at least in the appeals before it injunctions were asked for. Evidently, therefore, the mere fact that the suit is for injunction will not take the case out of the jurisdiction of the Special Court if the other conditions of the exercise of jurisdiction are satisfied.'
20. It would, therefore, appear that both according to the Full Bench ruling in Dattatraya's case : AIR1965Bom177 (FB) and according to the Division Bench ruling in the case of Bombay Grain Dealers Association the expression 'suit relating to recovery of possession' would include a suit for an injunction, which may be necessitated because of the act of the landlord in trying to recover possession of the premises from the tenant bv force. It would, therefore, appear that the City Civil Court in the instant case had no jurisdiction to entertain the suit as there are specific allegations in the plaint that the defendants under the guise of renovation of their shop premises have been unlawfully trying to dispossess the plaintiffs and deprive them of their right to use and occupy the premises, as appears from the allegations in paragraphs 8, 9, 10 and 11 of the same. The suit, therefore, is of the type of suits referred to at page 195 in Bombay Grain Dealers Association's case : AIR1969Bom342 and, therefore, the suit shall have to be filed in the Court of Small Causes at Bombay and not in the City Civil Court.
21. It was however, argued by Mr. Lalit, learned Advocate for the plaintiffs-respondents that the Full Bench decision in Dattatraya's case : AIR1965Bom177 (FB), was concerned only with the two specific points for consideration which involved cases where a declaration of sub-tenancy coupled with the consequential relief of injunction was asked for. He also argues that the observations in the Bombay Grain Dealers Association's case : AIR1969Bom342 are obiter.
22. With regard to the Full Bench decision I am not impressed with the argument of Mr. Lalit. It is only because the Full Bench took the view that the words 'relating to recovery of possession' are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises, and that even if the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, that, it took the view that such a suit would come within the ambit of Section 28. It is because of that view that the Full Bench held that the City Civil Court had no jurisdiction to entertain the suit to get a declaration of sub-tenancy and injunction. It is true that in the case of Bombay Grain Dealers Association : AIR1969Bom342 after a plain reading of the plaint, the Division Bench took the view that although it was couched in the form of a suit for injunction, it was in fact a suit for possession, and, therefore, the case fell within the provisions of Section 28. It is because of that that Mr. Lalit argues that the observations in that case at page 195 of the report, which have been referred to in the earlier paragraphs, are obiter.
23. But then it is important to bear in mind that the matter came before the Division Bench in a Letters Patent Appeal against the judgment of a learned Single Judge. The learned Single Judge had taken the view that there is absolutely no provision in the Rent Act so as to enable the Special Court to entertain a suit for an injunction. The learned Judge had also tried to distinguish the decision of the Full Bench in Dattatraya's case : AIR1965Bom177 . He had also taken the view that the question as to whether the Special Court could take cognizance of a suit for injunction had not at all arisen in the Full Bench case. He had further observed that a question as to whether a Special Court could take cognizance of a suit for an injunction had really arisen in the case reported in : AIR1967Bom434 , decided by Chandrachud. J., as his Lordship then was, and that it was held in the said case that a suit for an injunction between the landlord and the tenant in regard to the premises or any part thereof is not a suit for recovery of possession and, therefore, the provisions of Section 28 of the Act are not attracted and the jurisdiction of the City Civil Court cannot be said to have been barred. It is in this view of the matter that the learned Single Judge had held that the City Civil Court had jurisdiction to entertain the suit in question and set aside the order of the trial Court.
24. It was against that judgment that a Letters Patent Appeal being preferred, the Division Bench considered the question of jurisdiction and about the interpretation of Section 28 of the Act at great length and it also took a review of the decisions in the Full Bench case of : AIR1965Bom177 (FB) and the decision of Chandrachud, J., also, in addition to other decisions of this Court and the Supreme Court. It is only after a detailed consideration of these decisions about the interpretation of Section 28 of the Act, that the Division Bench made observations at page 195 of the report which are referred to earlier. That being the position I feel I am bound by that considered view of the Division Bench, particularly because the allegations in the instant plaint are identical with the hypothetical case of threatened dispossession by the landlord which is considered by the Division Bench for illustrating its point of view.
25. Mr. Lalit drew my attention to the decision in Shiavax C. Cambata v. Sunderdas Ebji, : AIR1950Bom343 . That was a suit by a tenant to recover possession of demised premises from the landlord, brought under Section 9 of the Specific Relief Act, 1877. It was held that such a suit does not fall within the purview of Sections 28 and 50 of the Act. It was observed by Chagla, C. J., at page 385 as under:--
'...It is clear that the only issue that would arise in this suit and which would have to be determined by the Court would be whether the plaintiff was in possession of the premises in suit within six months from the filing of the suit, and if he was in possession whether he was dispossessed by the defendants If that issue is answered in favour of the plaintiff, a decree must go in his favour. If the issue is answered against him, the suit must be dismissed.'
Further on it is observed,--
'Although the plaintiff might have set out his title in the plaint, those averments were entirely unnecessary and irrelevant. It is clear that the defendants could not have raised an issue as to the plaintiff's title in the suit. He could not have contested the position that the plaintiff was not entitled to possession because he was not a tenant. He could only have contested the plaintiff's claim on the one simple and short ground, viz., that the plaintiff was not in possession within six months of the filing of the suit.'
It is also observed,
'...... In our opinion, it is only when a landlord or a tenant files a suit for possession as a landlord or a tenant and in his capacity as a landlord or a tenant and relying on his title as a landlord or a tenant that it becomes a suit of the description mentioned in Section 28 of the Act.'
It would therefore appear that the observations in that case are of no assistance to the plaintiffs inasmuch as that was a case under Section 9 of the Specific Relief Act.
26. Mr. Lalit has also invited my attention to the case of : AIR1967Bom434 . In that case, decided by Chandrachud, J., as his Lordship then was, the plaintiffs had filed a suit for an injunction restraining the landlords from formation of queues in the passage abutting on the plaintiffs' shop premises so as to interfere with their right of peaceful enjoyment of their shop premises. His Lordship held that as the main relief sought by the plaintiffs was an injunction against the defendants asking them to ensure that the queues in the passage do not block their access to the shops, it could not be said to be a suit relating to the recovery of possession. Therefore, the facts of that case are clearly distinguishable. In fact this case has been distinguished and referred to in the subsequent Division Bench decision in : AIR1969Bom342 . It is also significant to note that in this case at page 234, we find the following observations:--
'These averments in the plaint and the particular reliefs which I have set out above leave no doubt that the plaintiffs are not attempting directly or indirectly to secure or obtain the possession of the passage but that they want an order preventing the defendants from permitting the formation of queues in the passage in a manner which will obstruct the access to the shops.' Again at page 236, we find the following observations:--
'None of these reliefs strikes me as a back door method to obtain possession of any part of the premises included or alleged to be included in the lease of the plaintiffs. If these reliefs are considered in the context of the plaint as a whole, it would be clear that though the suit is between a landlord and tenant, it neither relates to recovery of possession nor does it raise a claim or question arising out of the Act or any of its provisions.'
In fact this ruling has been also considered by the Division Bench in Bombay Grain Dealers Association's case : AIR1969Bom342 , we find the following observations:--
'There may be a case where the landlord is not doing anything of the sort in relation to the actual possession of the premises of which the plaintiffs is the tenant. In such a case what the landlord is doing or attempting to do is to cause a nuisance to the tenant which prevents him from enjoying his property in the same manner as before. In a very remote way it might possibly be suggested that it relates to possession in the sense, that to some extent what the landlord is doing is connected with the plaintiff's possession of the tenanted premises. That, however, does not bring the suit within the ambit of the Act, because what the landlord is doing has not the direct connection with possession of the tenanted premises, which is necessary to bring the case within Section 28 of the Act.' .
That is how the decision of Chandrachud J., in Bishan's case, : AIR1967Bom434 is explained by the subsequent Division Bench in Bombay Grain Dealers Association's case.
27. It would, therefore, appear that if I were to take the view that the stall in question is premises within the meaning of Section 5(8) of the Act the case would be covered by Section 28 of the Act, and, therefore, the City Civil Court will have no jurisdiction. But since I have taken the view that the stall in question is not premises within the meaning of Section 5(8) of the Act, it would follow that the City Civil Court had jurisdiction to entertain the suit.
28. As regards the merits, they have not been argued before me. But it is enough to state that since the plaintiffs have been carrying on their business for the last 18 years and they are likely to be thrown on the streets, without any means of livelihood no case is made out for interfering with the order passed by the trial Court. In the circumstances of this case, I think there should be no order as to costs.
29. ORDER:-- Appeal dismissed. No order as to costs.