Kondiba Dhondiba Dal... v. Narayan Namdeo Nanwa...

P.S Patankar, J.:— The main question involved is whether the L.P.A is maintainable in the present case.

2. The respondent was allowed to construct two rooms by the appellant by an agreement dated 25th September, 1982 and the same was let out to the respondent. The rent was Rs. 50/-.

3. The Respondent filed Civil Suit No. 2441 of 1987 claiming perpetual injunction against the appellant as he was trying to disturb the possession. However, according to the respondent, he came to be dispossessed during 17th December, 1989 to 19th December, 1989 when he was out of station. Hence, he amended the plaint and prayed for possession.

4. The learned Civil Judge, Junior Division, Pune, by order dated 25th September, 1992, held that the appellant was in possession of the premises on the date of the suit, but was dispossessed during the pendency of the suit. But the relief of possession cannot be granted as he had no jurisdiction in view of section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereafter referred to as “the bombay rent act”) and the contention of the appellant in that respect was accepted. Hence, the suit came to be dismissed.

5. The respondent then filed the suit under section 28 of the Bombay Rent Act for declaration of his tenancy in respect of those premises and possession thereof on 16-12-1992. It was contended on behalf of the respondent that an agreement was entered into between the parties on 25th August, 1985 and pursuant thereto, on 1-11-1985, the respondent voluntarily handed over the possession and hence he cannot claim the declaration of his tenancy rights. There was no forcible dispossession and the relationship between them has come to an end. Therefore, the said Court was having no jurisdiction. However, the defence was not accepted and the contention came to be negatived by the trial Court. The suit for declaration and possession was decreed on 30-1-1996. The appellant preferred appeal. Only two contentions were canvassed before the Appellate Court i.e the respondent has failed to prove that he was illegally dispossessed and it was an error to hold that the appellant has failed to prove that the respondent has voluntarily handed over possession to him on 1-11-1985. Both these points came to be held by the Appellate Court in favour of the respondent. The Appeal came to be dismissed.

6. The appellant then filed Writ Petition No. 780 of 1999. It is clear from the order passed by the learned Single Judge dated 12th February, 1999 that only two contentions came to be pressed by the appellant. It was contended that the trial Court had no jurisdiction to decide the suit and the suit was barred by limitation. The learned Single Judge analysed the pleadings, etc. and held that the Small Cause Court was having jurisdiction to deal with the suit in view of section 28 of the Bombay Rent Act. It was also held that the point regarding suit being barred by limitation was raised for the first time before this Court. No issue was raised in that respect in the trial Court. No such point was pressed before the Appellate Court. The learned Single Judge held that it is a mixed question of law and fact and declined to entertain it. This is challenged here.

7. We may note that the title of the Writ Petition shows that it was filed under Article 226 of the Constitution. A prayer was made for getting a Writ of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution for setting aside the orders passed by the two Courts below. In this background, the question arises is whether this Court exercised jurisdiction under Article 227 or under Article 226 of the Constitution of India. It is contended that the appellant had filed Writ Petition under Article 226 of the Constitution of India. It was the choice of the appellant and it cannot be treated as filed under Article 227 of the Constitution of India and shut out the appellant from filing L.P.A

8. It is not possible to accede to the above submission. Whether a petition is filed under Article 226 or under Article 227 or under both is to be found on the basis of the facts, pleadings, points raised and prayers made in the petition. It is necessary to find out from all these factors which jurisdiction the learned Single Judge was really called upon to exercise.

9. The learned counsel for the appellant relied upon the observations of the Division Bench of this Court in para 24 in 1999 Vol. 101 (3) Bom. L.R 824, Madhukar Chandrabhan Mohite v. Balkrishna Govind Salakhe. The Division Bench in para 24 was considering what the Full Bench of this Court has said in the matter of Jagdish Balwantrao Abhyankar v. State of Maharashtra (reported in 1993 Mh. L.J 958. We shall straightaway refer to what has been laid down by the Full Bench. The Full Bench after considering mainly the Apex Court Judgment in the case of Umaji v. Smt. Radhikabai, 1986 Supp SCC 401 : AIR 1986 SC 1272, held as under:—

“30. We hence formulate our conclusions as given below:—

(i) The right to elect or choose a remedy against the order of the subordinate Court or Tribunal, that is, whether to file a petition under Article 226 or under Article 227 or both under Article 226 and Article 227 of the Constitution rests with the party aggrieved by the said order.

(ii) When the party has invoked the jurisdiction of the High Court under Article 226, it is not open to the High Court to exercise jurisdiction under Article 227 of the Constitution when a relief can be granted to the party under the Article invoked. Therefore, there cannot be a test whether the High Court was justified in exercising its powers or the reliefs granted where under Article 227 of the Constitution.

(iii) Where the facts justify filing an application either under Article 226 or under Article 227 and the party chooses to file the application under both these Articles, the Court ought to treat the application as one filed under Article 226 if the substantial part of the order appealed against is under Article 226. If in deciding such an application made under Articles 226 and 227 of the Constitution, the Single Judge of the High Court grants ancillary directions which pertain to Article 227, then by the reason of such ancillary directions being given in the order, the petition should not be treated as one under Article 227, but should be treated as one under Article 226, so that a party is not deprived of his valuable right of an intra-Court appeal under clause 15 of the Letters Patent.”

10. The Full Bench considering para 106 of Umaji's case (cited supra) in para 10 observed as under:—

“10. The Supreme Court in Umaji's case (para 106) had also dealt with a case where the petition was filed under Articles 226 and 227 of the Constitution. In considering the question whether appeal would lie when the petitions are filed under Articles 226 and 227, the test which is made applicable by the Supreme Court is that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file the application under both the Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Article 226 and if in deciding the matter in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of order sought to be appealed is under Article 226.”

(emphasis supplied)

11. This does not support the proposition sought to be canvassed by the learned Advocate for the appellant.

12. The Division Bench not only considered the Full Bench Judgment in the case of Jagdish Balwantrao Abhyankar, but the Apex Court Judgment in Umaji's case and other cases decided by the Apex Court and observed in paras 25 and 26 as under:—

“25. On a careful consideration of the above decisions of the Apex Court and of this Court, it is clear that if the Single Judge has exercised jurisdiction under Article 226 a L.P.A is clearly maintainable under Clause 15. If the order passed by the Single Judge is only under Article 227 then a L.P.A is not maintainable in view of the exclusion under clause 15 viz. no appeal being maintainable against the order passed in exercise of the powers of superintendence under the provisions of section 107 of the Government of India Act, 1935 (which was similar to Art. 227). The approach of the Court has been to find out whether the facts justify the filing of the petition under Article 226 or Article 227. The words “facts justify” have been used by the Apex Court in para 106 of its Judgment in Umaji's case.

“26. In our view, the following tests can be applied to come to the conclusion whether the facts justify the filing of a petition either under Article 226 or Article 227 of the Constitution.

(i) The first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the Apex Court in Mangalbhai's case where in paragraph 6 of the Judgment, the Apex Court has observed that where in the totality of facts and circumstances of the case, the pleadings of the parties in the writ petition and the Judgment of the Single Judge leaves no manner of doubt that it was an order passed under Article 226, a L.P.A would be maintainable. Similar observations are to be found in Sushilabai's case where a reference is made in para 3 of the Judgment to the grounds taken in Writ Petition, if unmistakably go to show that it was a petition under Article 226, the L.P.A would be maintainable.

(ii) The second test would be the approach and the observations of the Single Judge as to whether he was exercising the powers under Article 226 or Article 227. The Apex Court held this in para 6 of its Judgment in Mangalbhai's case and similar observations are to be found in Sushilabai's case in paras 3 and 4 of the Judgment.

(iii) The third factor which is relevant is whether the person, authority or State against whom a writ is sought, was made a party which is the requirement of a petition under Article 226, unlike a petition under Article 227 where the Court or Tribunal is not required to be made a party. This test emerges from the observations of the Apex Court in Umaji's case. We must hasten to add that, recently, in the case of Savitridevi v. The District Judge, Gorakhpur, the Apex Court has disapproved the practice of the judicial officers being shown as respondents in the petitions filed in the High Court and Special Leave Petitions filed in the Apex Court. The observations pertain to the judicial officers being made parties in proceedings as against a person, authority or a State being required to be made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227.

(iv) The fourth factor would be the relief prayed for in the petition. Where the relief prayed for is for issuance of a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari, such writs would normally be issued in exercise of powers under Article 226 where such writs are directed against the person, authority and State. Where, however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court by Article 227 which is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law, the exercise of jurisdiction would be under Article 227. This test merges from the observations made in para 99 of the judgment in Umaji's case.

(v) The fifth factor is whether the jurisdiction invoked in the petition irrespective of the label mentioned in the title of the petition, was primarily of original nature in which case it would be a petition under Article 226 or whether it was invoked in the nature of supervisory jurisdiction, in which case it would be under Article 227. The observations to this effect are found in para 100 of the judgment in Umaji's case reproduced above, where there is a reference to some Privy Council decisions.

(vi) The sixth test to be applied would be the real nature of the order passed by the Single Judge. Where substantial part of the order is under Article 226, the mere fact that, in the final order, the Court gives ancillary directions which may pertain to Article 227, ought not to deprive the party of a right of an appeal under clause 15 of the Letters Patent. This test emerges from para 106 of the judgment in Umaji's case. It is reiterated by the Apex Court in the case of Ratnagiri District Central Co-operative Bank (supra).”

13. Thus, it is clear from the above that a petition may be filed under Article 227 or 226 or under both. If it is filed under Article 226 then facts should justify such filing and prayers can be granted. If it is not so, then it can be said that there are two ways open for the Court. Court can straightaway dismiss the petition or for doing justice it can examine as if filed under Article 227 and see whether any relief can be granted to the party. This is precisely what has been done by the learned Single Judge in this case.

14. In the light of the above stated facts and position, let us examine the contents of the pleadings. The petition gives in nutshell the facts and the earlier decisions in paras 1 to 4 under the caption Facts of the petition. Para 5 thereof mentions that the Small Cause Court has no jurisdiction to entertain the suit under section 6 of the Specific Relief Act and it was an error on the part of the Small Cause Court to entertain it. In para 6, certain dates and facts are mentioned. Then there are Grounds of Objections mentioned. Ground 1 mentions that the suit was not maintainable in the Small Cause Court and that the two judgments of the Division Bench of this Court were relied upon in that respect. In Grounds 2 and 3, there is a mention made about those judgments. Ground 4 mentions that in the plaint filed there was no reference to section 6 of the Specific Relief Act but it should be treated as suit filed under section 6 of the Specific Relief Act as there was averment of forcible dispossession. Ground 5 says that the plaint mentioned that the suit was filed under section 28 of the Bombay Rent Act but the said section is merely procedural one and not substantial law. It is submitted that when it was alleged that there was forcible dispossession and possession was claimed, it was a suit under section 6 of the Specific Relief Act. Ground 6 mentions that it should have been treated as a suit under section 6 of the Specific Relief Act. Ground 7 says that the substance of the averments in the plaint should be taken into consideration and the jurisdiction to be found out on that basis. Ground 8 mentions that the learned trial Judge has committed an error in not framing the question of jurisdiction though the same was raised. Ground 9 mentions that section 6 of the Specific Relief Act requires that the suit should be filed within six months and as it was not filed, the same ought to have been dismissed. Ground 10 mentions how the observations made by the Appellate Court were wrong. Ground 11 mentions that the conclusion drawn by the Appellate Court that the respondent was dispossessed between 17th December, 1989 to 19th December, 1989 was not correct. Again, Grounds 12 and 13 refer to certain observations made by the Appellate Court which are to the effect that the respondent has failed to prove that the respondent has surrendered possession voluntarily on 1-11-1985 and stated that this was not correct. In Grounds 14 and 15, it has been pointed out that it was an error to come to such a conclusion and it ought to have been held that the respondent has voluntarily surrendered possession. Then there is a caption of ‘Concluding Paragraph which are relating to this Court's jurisdiction, limitation, etc. The last is the prayer clause. In substance prayer is for quashing and setting aside the judgments and orders passed by the trial Court and the Appellate Court.

15. Thus the pleadings show that the burden of the song was the suit should have been treated as filed under section 6 of the Specific Relief Act and hence the Small Cause Court was having no objection. It is first to be noted that it was an error to contend that it was a suit under section 6 of the Specific Relief Act or that the suit ought to have been filed under section 6 of the Specific Relief Act. Obviously, choice was with the respondent-plaintiff. He could have filed suit under section 6 of Specific Relief Act claiming possession on the ground of forcible dispossession or for getting possession under section 28 of Bombay Rent Act as there was relationship of Landlord and Tenant. In the present case, in view of the earlier suit filed by him, it was not possible for him to file the suit within 6 months of dispossession as contemplated by section 6. Hence, he was required to file it under section 28 of the Bombay Rent Act. The suit was clearly maintainable as the respondent was admittedly the tenant and was dispossessed by the appellant who was the landlord. The suit was for a declaration of tenancy and for possession under section 28 of the Bombay Rent Act was maintainable. Even this contention was not raised in the trial Court or before the Appellate Court that the respondent ought to have filed suit under section 6 of the Specific Relief Act. Therefore, no issue or point was framed. For the first time in the High Court such an attempt was made and obviously, to say the least, an erroneous attempt. What was contended was there was no landlord and tenant relationship and hence the Court was having no jurisdiction. This has been negatived by all on appreciation of evidence.

16. If the tests laid down by the Division Bench as mentioned above are taken into consideration, it is clear from the facts, totality of the circumstances and the pleadings, it was clearly a petition under Article 227 of the Constitution of India. Further, the approach and the observations made by the learned Single Judge and considering the contentions raised before him and prayer made show that he was asked to exercise the Supervisory Jurisdiction under Article 227 of the Constitution of India. The real nature of the prayer made and the order passed go to show that the High Court was asked to exercise supervisory jurisdiction under Article 227 over the subordinate Courts. It is clear from the tests mentioned above that one cannot merely go by the title of the petition or the Article mentioned in prayer clause. One has to take into consideration all the facts, totality of the circumstances and the pleadings and to find out what jurisdiction was invoked of the High Court. Taking into consideration the same, we are of the opinion that the High Court was, in fact, called upon to exercise the jurisdiction under Article 227 of the Constitution of India and it was so exercised same.

17. It will be necessary to point out the Division Bench in the case of Madhukar C. Mohite (cited supra), has, in fact, quoted some of the orders passed by the Apex Court in the case of bombay rent act matters. We may refer to one. In para 2 of the said judgment, it has been pointed out the case of L.P.A No. 126 of 1997. It was a case arising under the Bombay Rent Act, L.P.A was admitted on 19-8-1997. At that time it was contended before the Division Bench by the respondent that the petition filed before the learned Single Judge was under Article 227 of the Constitution of India. However, the Division Bench felt that the petition mentioned Article 226 of the Constitution of India and, therefore, there was no question of Article 227 of the Constitution of India. This order of admission dated 19-8-1997 came to be challenged before the Apex Court. The Apex Court passed the following order:—

“Prima facie the writ petition appears to be filed under Article 227 but as the High Court has admitted the Letters Patent Appeal and has kept the question of law open for examination, we do not say anything further on this point. We only request the High Court to dispose of Letters Patent Appeal within two months.

The Special Leave Petition is disposed of accordingly.”

18. The learned Counsel for the respondent is right in submitting that taking into consideration the facts, totality of circumstances and the pleadings, this L.P.A is not maintainable and it has been filed just to delay handing over of possession to the respondent-tenant who has been illegally dispossessed about 11 years ago.

19. In view of the above position, we dismiss the L.P.A

20. Shri Anturkar, the learned counsel for the Appellant, prays for continuation of interim stay of handing over possession granted by this Court as his client desires to go to the Supreme Court. Interim stay to continue only for four weeks from today.

Letters Patent Appeal dismissed.