Judgment:
M.S. Parikh, J.
1. Rule. Service of Rule waived by Mr. H.S. Munshaw, learned Advocate for the respondents in both the matters.
2. By consent of the parties both these matters are taken up for final disposal at the admission stage. This common judgment is rendered at the request of both the learned Advocates since the matters arise between the same parties and from the same proceeding.
3. The petitioner alleging that he has been the tenant of the suit premises filed H.R.P. Suit No. 1246 of 1996 for obtaining the relief of permanent injunction restraining the respondents from ousting him from the suit premises without due process of law. He preferred interim injunction application Ex. 5 in the said suit. The respondents filed their reply at Ex. 16 against the interim injunction application Ex. 5 and also moved application Ex. 20 inter-alia alleging that there was no relationship of landlord and tenant between the parties and that therefore, there was no jurisdiction with the trial Court to entertain the suit. They asserted that they have been in possession of the suit premises for the last 22 years, that the petitioner did not file the suit with clean hands, that he misguided the Court for obtaining the relief of ad interim injunction, that the petitioner being a head-strong person had been in collusion with the Court staff and the Court Commissioner and created false evidence in his favour by abusing the process of the Court, that the suit was filed on 26th August 1996 and the process of the suit was served on 2nd September 1996, that on 18th September 1996 they found, on inquiry, that the locks applied to the suit premises by them were changed, that the grills of the door were in broken condition and that under the guise of the process of the Court the petitioner unlawfully entered the suit premises and therefore, the possession of the suit premises should be restored to the respondents.
3A. The learned Judge of the Ahmedabad Small Causes Court No. 6 heard the matter and by his order dated IXth October 1996 rejected the petitioner's interim injunction application Ex. 5 and granted the respondents' application for restitution of possession Ex. 20, directed the petitioner to remove himself from the occupation of the suit premises within two days and directed the respondents that they should not transfer the suit premises in any manner whatsoever to any third party till the suit is finally disposed of and that the petitioner should also not hand over the possession of the suit premises to any one except the respondent No. 1 before the Court and that if the order of the learned trial Judge was not complied with, further order would be passed below Ex. 20.
4. The petitioner carried the matter before the learned Judges of the Appellate Bench, who in H.R.P. Appeal Nos. 87 of 1996 and 88 of 1996 rendered their judgment and order dated 1st November 1996 agreeing with the findings of the learned trial Judge and dismissed both the Appeals filed by the present petitioner.
5. The petitioner has challenged the aforesaid decisions of the lower Courts in both these revisions under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act' for short) as also under See. 115 of the Code of Civil Procedure.
6. I have heard the learned Advocates appearing for the rival parties and the short question which arises for consideration is whether there is any error of law or any error of jurisdiction committed by the Courts below in reaching the conclusions which have been complained of before this Court.
7. It is not in dispute that the respondents alleged that they were not in a position to occupy the suit premises at the relevant point of time as they were harassed by some anti-social elements and that they had to close the same by applying their locks and that is how for a period of about 4 to 5 months they had been out of the suit premises having themselves locked the same. They, however, apprehended that some anti-social elements might dispossess them from the suit premises. They, therefore, filed Civil Suit No. 5887 of 1995 on 18th November 1995 against about 18 persons in the City Civil Court at Ahmedabad praying for the relief of injunction restraining the named defendants in the said suit from dispossessing the present respondents from the suit premises. They produced necessary documentary evidence in support of their case before the City Civil Court. Reference has been made to the relevant bill of electricity dated 9-5-1996 in which date of reading of the meter is shown as 26th April 1996 and in that the premises has been shown as closed. In the background of such allegations as well as in the background of the admitted fact that the respondents have been the owners of the suit premises the Courts below have proceeded to appreciate the material placed before them and have positively come to the conclusion that the petitioner failed to establish his possession of the suit premises on the date of filing his suit. Both the Courts below have referred to number of circumstances which had taken place during the course of the proceeding of the injunction application and they have come to the conclusion that the respondents were in possession of the suit premises as on the date of the suit or thereabout. The Appellate Court dealing with the facts and circumstances revolving round what happened during the course of the proceeding before the trial Court has observed in Paragraphs 17 and 18 of its judgment as under :
17. At this stage, we also refer one unfortunate part of the record. The plaintiff filed suit on 26-8-1996 along with ad-interim injunction application Exh. 5 and along with the application praying for appointment of the Court Commissioner. The trial Court was not satisfied at the initial stage and hence instead of grating temporary injunction. Court only issued show-cause notice upon the defendants returnable on 2-9-1996. The Rojnama shows that process fees were not paid by the plaintiff and therefore, he applied to the Court on 2-9-1996 for paying the process fees and therefore, on 2-9-1996, matter was adjourned to 23-9-1996. The process fees were paid on 2-9-1996 and therefore, process were issued. The important thing is that instead of issuing notice, as per order passed by the learned Judge below Exh. 5, concerned clerk issued injunction and said injunction is served upon the defendants also. Hence, in response of the service of the injunction, defendants filed their reply on 23-9-1996. However, Rojnama shows that reply has been filed on 19-9-1996. Mr. D.B. Shah, learned Advocate who appears on behalf of the plaintiff, submitted that learned trial Judge was much prejudiced by these facts and the learned trial Judge believed that either in collusion with staff members of the Court, or by committing fraud, the plaintiff has tried to prove his case. Mr. Shah submitted that the learned trial Judge has judged the matter from wrong angle and particularly keeping the fact in mind that whatever mischief is made, it is made and played by the plaintiff only. We have carefully gone through the Rojnama of the suit. It is true that returnable date of the notice issued by learned Judge as per order passed below Exh. was of 2-9-1996. It is obvious that no process fees were paid initially and therefore, process were not issued. The application was moved by the plaintiff on 2-9-1996 requesting the Court to give time to pay process fees and as said application was allowed, process fees were paid on 2-9-1996. The process were issued on 4-9-1996 and it is a matter of record that instead of issuing show-cause notice, clerk concerned issued injunction. We do not enter into any detail at this stage, that whether concerned clerk intentionally committed a mistake or not. We also do not enter into the detail that whether the plaintiff himself was an instrument in obtaining such orders. However, the record speaks itself that injunction was served upon the defendant. There is also some error appears in Rojnama that matter was kept on 23-9-1996 for filing appearance and reply by defendants, but instead of that Rojnama shows that reply and affidavit have been filed by defendants on 19-9-1996. At this stage, we can say that apparently, there is some mistake in writing date because reply filed by the defendants as well as affidavit filed in support of the reply, make it clear that it was filed on 23-9-1996 only. We are also of the opinion that because of the mistake on the part of the clerk concerned, it is not advisable to find any guilt with the plaintiff. We are also of the opinion that it will be too high to hold at this interlocutory stage that plaintiff colluded with staff members of the Court. We have gone through entire record and we find that there is no circumstance which may lead us to hold that any undue advantage is taken by the plaintiff because of the mistake committed by the clerk concerned in issuing injunction order instead of show-cause notice.
18. Now, joining link with our original discussion, we say that the plaintiff is not in a position to establish his tenancy rights of the suit premises as alleged by him. At this stage, we find one more strong circumstance in favour of the defendant that plaintiff moved an application Exh. 7 in the suit praying for appointment of the Court Commissioner to prepare sketch and notes of the prevailing situation of the suit premises. This application was allowed by the Court, on the same day, i.e., on 26-8-1996, the day on which the suit was filed. As stated above that process fees were paid on 2-9-1996, and therefore, Court Commissioner must have received commission letter on 3-9-1996 or 4-9-1996. Surprising fact is that Commissioner visited the suit premises on only 18-9-1996. i.e.. after 22 days from the date of the order passed below application Exh. 7 by the trial Court. We feel that conduct of the plaintiff is not natural. When suit was filed by the plaintiff he was not having any documentary evidence with him except the affidavits of two witnesses and therefore, application Exh. 7 praying for appointment of the Court Commissioner must have been moved to show and to prove his possession of the suit premises. However, the Commissioner visited the site on 18-9-1996 and found the plaintiff in possession of the suit premises. At this stage, we only say that conduct of the plaintiff in getting commission work done by the Commissioner is unnatural and this circumstance will be considered while considering application moved by the defendants for restoration of possession of the suit premises.
8. In the background of the gross facts before the Court the learned Judges of the Appellate Bench referred to the decisions cited before them and came to the conclusion that the case before the Appellate Court was an exceptional case in which it was necessary for the ends of justice to restore the possession of the suit premises to the respondents.
9. Mr. B.S. Patel, learned Advocate, however, firstly submitted that Courts below could not have exercised their inherent powers under the Rent Act as there is no such provision for exercise of such powers. Mr. Patel's attention was then drawn to Section 31 of the Rent Act read with Rule 8 of the Rules framed under the Rent Act which indicate that the provisions of the Code of Civil Procedure would apply consistently with the provisions of the Rent Act to the proceedings before a Court under the Rent Act. In my opinion that being the position of law as under the Rent Act the first submission about the lack of inherent powers in the Courts below cannot be accepted. Mr. Patel, then submitted that the Appellate Court found that unless the matter was inquired into no responsibility on the particular person of the Court staff could be fastened. If that was so the petitioner could not have been held to be responsible for committing abuse of process of Court and if the petitioner was not found to be responsible for the same the Court could not have ordered restoration of possession of the suit premises in favour of the respondents. In my opinion, there is no substance in this submission. Both the Courts below have upon the material which was prima facie appearing before the Court came to the conclusion that this was an exceptional case where it was established that the respondents-owners were in possession of the suit premises and that they were dispossessed of the same and the process of the Court in one or the other form was taken advantage of. If that is so, the petitioner can hardly make any grievance before this Court about the erroneous exercise of jurisdiction by the Courts below in ordering restitution of possession of the suit premises taking recourse to Section 144 read with Section 151 of the Code of Civil Procedure.
10. It has finally been submitted by Mr. Patel, learned Advocate, that the Rent Court lacked jurisdiction in passing the impugned order of restoration of possession inasmuch as in the respondents' application for restitution of possession it has been categorically averred that there has been no relationship of landlord and tenant between the parties. Reference has been made to a decision of the Apex Court in the case of Raizada Topandas v. Gorakhram Gokalchand reported in : [1964]3SCR214 . In that case the plaintiff instituted a suit in the City Civil Court at Bombay, asking for a declaration that the defendants were not entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop. The allegations in the plaint were that defendants were granted licence to use the shop and they were wrongfully continuing in the said shop inspite of the termination of licence. The defence was that there was a relationship of landlord and tenant between the parties and the agreement between the parties had been given a form of a licence only as cloak to protect the plaintiffs from ejectment under the Rent Act. Setting out the general principle which would govern the jurisdiction at the inception of the suit the Apex Court held that Section 28(1) of the Rent Act was not attracted and the suit was not within the exclusive jurisdiction of the Rent Court and that the City Civil Court at Bombay, therefore, had jurisdiction to entertain the suit. Following general principle head-noted from Para 7 of the citation might be reproduced :
The plaintiff chooses his forum and files his suit. If he establishes the correctness of the facts he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts, and goes for his reliefs to a Court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognisable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognisable by the class of Court to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety.
11. In the present case, the petitioner himself invoked the jurisdiction of the Rent Court going with the allegations in the plaint that there was a subsisting relationship of landlord and the tenant between the parties. The petitioner himself having invoked such a jurisdiction could hardly make grievance about the lack of jurisdiction in the Rent Court agitated in defence by the respondents. What the respondents were praying before the Rent Court was that the process of the Rent Court was abused and as a result they were dispossessed. Hence, this decision will hardly provide any assistance to the cause set out by the petitioner before this Court.
12. Reference has then be made to an earlier decision of the Apex Court in the case of Choube Jagdish Prasad v. Ganga Prasad Chaturvedi reported in AIR 1959 SC 492. Head Note - A has been read for canvassing the principles. It would read :
There are two classes of cases dealing with the power of a Tribunal :
(1) where the legislature entrusts a Tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the legislature confers jurisdiction on such Tribunals to proceed in a case where a certain state of facts exists or is shown to exist. The difference is that in the former case the Tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists. Where the landlord asked for a determination of reasonable annual rent under Section 3-A of the V.P. (Temporary) Control of Rent and Eviction Act on the ground that the accommodation was constructed after June 30, 1946, the House Allotment Officer had power to determine the reasonable annual rent. (1888) 21 Q B D 113, Rel. on.
13. As stated above, once again it might be said that the petitioner had himself approached the Rent Court by setting out the facts so as to invoke the jurisdiction of the Rent Court. What the Court was required to consider was whether the process initiated by the petitioner himself was misused or has otherwise resulted in injustice to the respondents. It has to be observed that process of Court cannot be permitted to be misused by a party to the proceeding.
14. Both the decisions of the Apex Court cited by the learned Advocate for the petitioner would not be applicable to the present case.
15. It might be noted that the appellate Court has referred to a decision of this Court in the case of Bai Chanchal v. Motilal reported in 1986(1) GLR 216 for holding that party seeking injunction must show his lawful possession of the property, which in turn must be referrable to valid title a decision of the Patna High Court in the case of Smt. Indravatidevi v. Balu Ghosh and Ors. reported in : AIR1990Pat1 for saying that a Court would be right in granting in exercise of its inherent power a mandatory injunction in favour of the tenant and against the landlord directing the landlord to vacate the premises in question and put the tenant in possession thereof; a decision of this Court in the case of Jivanlal Jerambhai Patdiya v. Bhavanji Thakkar reported in AIR 1985 Gujarat 92 and another decision of this Court in Dhirajlal Vithaldas v. Rasikbhai Chandubhai reported in 1993(1) GCD 772 : 1993(1) GLR 206 observing in a similar manner that it is not only right but duty of the Court to undo wrong done to the party to the proceeding and that the exercise of inherent powers under Section 151 of the Code is based on the doctrine that no party can be allowed to take undue advantage of his own wrong. The appellate Court has also rightly distinguished the decision of this Court in the case of Ramshree Mahavir v. Girdharilal reported in 1970 (XI) GLR 971.
16. Under the aforesaid circumstances the Courts below rightly exercised their 7 jurisdiction referable to Section 144 read with Section 151 of the Code of Civil Procedure. In the result both these Revision Applications will fail. The Rule is, therefore, discharged with cost in both the matters.
17. At this stage Mr. B.S. Patel, learned Advocate for the petitioner seeks 'time to vacate the suit premises. Having heard the learned Advocates for the parties the time to vacate the suit premises granted by the Courts below will stand extended upto 28th April 1997.