Chagla, C.J:— The only question that arises in this appeal is whether the suit filed by the plaintiffs is maintainable in this Court or it should be transferred to the Court of Small Causes under the provisions of Bombay Act, LVII[57] of 1947. It would appear that the plaintiffs were the tenants of the defendants who are trustees of a charitable trust in respect of three go downs for some time prior to the explosion that took place in Bombay on 14th April, 1944. In the explosion two of the go downs were destroyed. The plaintiffs vacated the third godown as it was required by the defendants for storing certain articles. Thereafter the plaintiffs wanted to resume possession of the third godown, and according to the plaintiffs the defendants agreed to give possession of the third godown provided the plaintiffs not only paid the rent of Rs. 125 which was the proper rent, but also a pugree aggregating to Rs. 6,200 worked out on the basis of Rs. 100 being paid per month for a period of 18 months during which the tenancy was to continue. According to the plaintiffs it was also agreed that with regard to the tenancy of certain months anterior to the explosion for which the plaintiffs had not paid rent, they should pay a pugree of Rs. 60 a month for be months, which came to Rs. 345. According to the plaintiffs, they paid these two pugrees and went into possession of the godown and they filed the present suit for recovering that amount.
2. Now, the learned Judge held that this suit was not a suit for recovery of the pugree, but it was a suit for the recovery of excess rent paid by the plaintiffs, and, therefore, this Court had no jurisdiction to try the suit but the suit was triable by the Court of Small Causes. It is rather significant to note what the defence of the defendants was with regard to the claim of the plaintiffs. Defendant 1 took no part in the proceedings, Defendant 2's contention was that these amounts claimed by the plaintiffs were pugrees, but they were paid to defendant 7 and that defendant S. 6 and 7 had on different occasions admitted that this pugree had been received from the plaintiffs. With regard to defendants 3 to 7, who put in a joint written statement, their contention was that after the tenancy terminated on the explosion having taken place, the plaintiffs were no longer the tenants of the defendants but they were mere licensees, and the defendants required the plaintiffs as a term of the license to contribute the sums of Rs. 5,200 and Rs. 345 as a donation to a charity fund which had been set up. Therefore, it is important to note that it was the case neither of the plaintiff's nor of any of the defendants that the sum that the plaintiffs were claiming was excess rent or an amount paid as sent in addition to the rent chargeable under the Bent Restriction Act. The plaintiffs' case was it was pugree. The case of defendant 2 was it was pugree. The case of defendants 3 to 7 was that there was no tenancy, the plaintiffs were merely the licensees, and the amount paid was certainly not rent but a donation paid to a oharity fund. At the hearing counsel for defendants 3 to 7 gave up the contention that the plaintiffs were the licensees. He admitted the position taken up by the plaintiffs that they were the tenants. Then the learned Judge, without there being any specific issue on the point and; without there being any proper pleadings as I have pointed out, on his own as it were came to the conclusion that what the plaintiffs claimed in the suit was not pugree but excess rent. It seems to us that the learned Judge was in error in coming to that conclusion. But even assuming that the learned Judge was right, as in my opinion the matter is concluded by a proper construction of S. 60 of Bombay Act LVII[57] of 1947, it is unnecessary to go further into this question.
3. Now, on the question of jurisdiction, som bay act lvii[57] of 1947 contains two sections which are pertinent to the question of jurisdiction that the High Court has with regard to suits falling under the Act. Section 28 deals with suits to be filed after the coming into operation of this Act. That section is in very wide terms and ousts the jurisdiction of this Court to try all suits and proceedings between a landlord and a tenant relating to the recovery of rent or possession of any premises to which the provisions of the Act apply. It also ousts the jurisdiction of this Court to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. With regard to pending suits, the Legislature enacted S. 50 and it will be apparent that S. 50 is much narrower in its application than S. 28. Section 60 provides that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply (the rest of the words are not material) which are pending in any Court, shall be transferred to the Courts mentioned in the Act. Therefore, as far as pending suits are concerned, it is only suits relating to the recovery or fixing of rent or possession of premises between a landlord and a tenant that had to be transferred to the Small Causes Court. It will be important to note that the Legislature in S. 50 does not deal with any suits relating to any claim arising out of this Act. Therefore, it is again clear that all suits pending in this Court when the Act came into force had not to be transferred to the Small Causes Court. It was only the restricted class of suits mentioned in S. 60 that had to be transferred and in respect of which this Court had no jurisdiction.
4. Now, whether the plaintiffs' suit is to recover excess rent or pugree which he has paid to his landlord, it certainly is not and cannot be a suit for recovery of rent. A suit for recovery of rent can only be filed by a landlord against a tenant and that is the only kind of suit contemplated by S. 50. When a tenant pays pugree or when he pays excess rent he is certainly not filing a suit for the recovery of rent. The suit he is filing is to recover the amount which his landlord has wrongfully obtained from him and to which he is not entitled. To use a well known English expression, it would really be a suit for moneys had and received by the defendants, and I cannot understand how by any stretch of language could it ever be suggested that an action by a tenant to recover excess moneys paid to the landlord could ever be described as a suit for the recovery of rent. Mr. Taraporewalla says that S. 20 gives the right to a tenant to recover excess rent, and S. 18 gives him the right to recover any premium paid by him, and, therefore, Mr. Taraporewalla's contention is that as a tenant has been given the right under S. 20 to recover excess rent, in filing this suit what the plaintiffs are doing is to recover excess rent to which they have, been given the right under Section 20 of the Act. It is true that the plaintiffs in filing this suit are availing them, selves of the right given to them under R. 20. They are filing a suit in respect of a claim arising out of the Act. But these suits are not made transferable under S. 60. Even if it is a suit to recover excess rent paid by the plaintiffs to the defendants under S. 20, in my opinion that suit cannot be characterised or described as a suit for the recovery of rent. It is a well established canon of construction that when the Legislature ousts the jurisdiction of the High Court, the language used by the Legislature must be very strictly construed and the Court must lean against holding that the Legislature has attempted to oust the jurisdiction of this Court except in those classes of cases which are clearly and specifically indicated by the Legislature. The only class of cases which are clearly and specifically indicated by the Legislature are suits for the recovery of rent, and, as I have said earlier, such suits can only be filed by a landlord against a tenant for the recovery of rent. But really when we are considering the question of jurisdiction we must accept all the averments and allegations contained in the plaint. A plea as to jurisdiction which is tried as a preliminary issue is in the nature of a demurrer and the defendants can only contend that this Court has no jurisdiction on the allegation that assuming all that is said in the plaint is true, still the Court could have no jurisdiction.
5. If we were to take the averments of the plaintiffs in their plaint, they have filed the suit for the recovery not of excess rent but of pugree. The learned Judge concedes that if this was a suit for the recovery of pugree, this Court would have jurisdiction. They may ultimately fail to establish their case, but as far as jurisdiction is concerned, it was incumbent on the learned Judge to accept the averments made by the plaintiffs in the plaint.
6. In my opinion, therefore, this is clearly a suit which does not fall within the purview on S. 50 of Bombay Act LVII[57] of 1947 and, there, fore, this Court has jurisdiction to try the suit. The order, therefore, made by the learned Judge that this suit should be transferred to the Small Cause Court is erroneous and must be set aside.
7. The result, therefore, is that the appeal is allowed with costs. The appellants will also be entitled to the costs occasioned by the trial of the preliminary issue before the trial Court. Respondents 3 to 7 to pay the costs of the appellants as well as of respondent 2.
8. Coyajee, J.:— I agree.
9. Appeal allowed.