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Judgment
R.S. Dalvi, J.—Issues have been framed in the suit. The issue of jurisdiction has to be decided as a preliminary issue. Defendant No. 2 has challenged the inherent jurisdiction of this Court. Defendant No. 2 claims that the suit should have been filed in the Small Causes Court, Bombay and that the civil Court''s inherent jurisdiction is barred. That has to be decided.
The suit is filed by the plaintiffs, who are the siblings of defendant No. 2, not only against defendant No. 2 but also against defendant No. 1 who is the developer of the suit property and defendant Nos. 3 and 4 who are the owners of the suit property. The suit is filed for cancellation of an agreement dated 09.10.2009, for declaration that an affidavit dated 09.09.2009 of plaintiff No. 1 is void, for further declaration that the surrender of the right, title and interest in suit premises by the mother of the parties is void, for declaration that plaintiff Nos. 1 and 2 are equally entitled to the share in the estate of their father and mother, for declaration that an action of demolition of the premises is illegal, for an injunction against further action under the agreement dated 09.10.2009 as also another agreement dated 30.05.2008, for amending plans and obtaining the occupation certificate of the new building, for a mandatory order directing defendant No. 1 to allot an equivalent premises on ownership basis as also monetary payments to the plaintiffs, for damages and for money decree of Rs.70 lacs to the plaintiffs.
The plaintiffs contend that they as the siblings of defendant No. 2 are equally entitled with defendant No. 2 to the rights in respect of the suit premises. The suit premises was initially tenanted by their father. He left a will bequeathing the tenancy rights. The plaintiffs have challenged the heritability of the tenancy rights. The plaintiffs have averred that the will is of no legal efficacy. The plaintiffs have also averred that there is no relationship of landlord and tenant between the plaintiff and defendant No. 1 against whom the cancellation of the agreement dated 09.10.2009 is sought.
In para 4 of the plaint the plaintiffs have set out how the agreement dated 09.10.2009 came to be executed. The plaintiffs have alleged collusion of defendant Nos. 1 and 2 with defendant Nos. 3 and 4 in para 4(d) of the plaint. The plaintiffs claim that their mother resided with their father at the time of the death. She became entitled to tenancy rights. (That would be under Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947). The plaintiffs have averred that on the death of their mother all the siblings became equally entitled to 1/3rd share in the suit premises. The plaintiffs challenged the agreement showing that defendant No. 2 was alone residing in the suit premises. The plaintiffs have further challenged the surrender of the suit premises, the consequent demolition of the building and the construction plans. The plaintiffs have alleged suppression of facts and misrepresentation in obtaining the affidavit from plaintiff No. 1 dated 09.09.2009.
In para 5 of the plaint the plaintiffs claim their rights as legal heirs of the original tenant who were not residing at the time of his death with the original tenant. The plaintiffs have further averred that the only protection afforded by the Rent Act to the family members residing with the original tenant is from being evicted. The plaintiffs have claimed monetary reliefs of compensation or damages as also allotment an equal area given to defendant No. 2 by defendant No. 1 from defendant No. 1 so that the plaintiffs are treated on par with defendant No. 2 as the heirs of their deceased parents.
In para 10 of the plaint the plaintiffs have averred collusion between defendant Nos. 1, 3 and 4. Accordingly the suit is for the decree of cancellation of the agreement executed by the defendants inter se, the declaration in respect of the affidavit executed by plaintiff No. 1 and the surrender of the rights in the suit premises as also further declaration in respect of their 1/3rd share, the demolition of the suit premises etc. The plaintiffs claim alternate accommodation from the developer as also damages and compensation upon the aforesaid facts.
The Civil Court''s jurisdiction is barred in respect of the suits for recovery of rent or recovery of possession or for any relief under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and later the Maharashtra Rent Control Act, 1999. The other civil actions even between a landlord and a tenant or between tenants remain with the Civil Courts.
This is not a suit for recovery of rent. It is not a suit for claiming any relief under the aforesaid Rent Act. It is stated to be the suit for recovery of possession of the tenanted premises. Mr. Kanade on behalf of defendant No. 2 argued that prayer (h) is for recovery of possession. Prayer (h) runs thus:
(h) In the alternative, to the prayer (a) to (g) this Hon''ble Court be pleased to direct Defendant No. 1 to allot identical equivalent premises on ownership basis free of costs in favour of each of the Plaintiffs so as to ensure equality amongst the legal heirs including monetary payments which are being made or which were made by Defendant No. 1 to Defendant No. 2.
It is plain to see that prayer (h) is also not for recovery of possession. It is not for recovery of possession between a landlord and tenant. It is for allotment of another premises. That would be in addition to the allotment of the premises in lieu of the premises earlier tenanted by the father and mother of the parties. Prayer (h) is also for monetary payments.
Under Section 19 of the Presidency Small Cause Courts Act, 1982 (the SCC Act) the jurisdiction of the Small Cause Courts is excluded for several suits stated therein.
Suits for determination of any other right to or interest in immovable property are excluded under Section 19(g) of the SCC Act.
Suits to obtain an injunction are excluded under Section 19(i) of the SCC Act.
Suits for cancellation and rectification of the instruments are excluded under Section 19(j) of the SCC Act.
Suits for declaratory decrees are excluded under Section 19(s) of the SCC Act.
Consequently this suit is excluded under the aforesaid provisions it being a suit for cancellation of an agreement, various declarations, injunctions as also damages.
Mr. Kanade drew my attention to the judgment in the case of ING Vysya Bank Limited Vs. Modern India Limited and Another, (2008) 2 ALLMR 357 : (2008) 1 ARBLR 561 : (2008) 2 BomCR 255 : (2008) 2 MhLj 653 in which an arbitration was sought in a dispute between a licensor and licensee and an application under Section 9 of the Arbitration and Conciliation Act, 1996 came to be made. Hence between such parties, the Court held that the suit was for recovery of possession or recovery of licence fee, rent or other charges. The suit would have had to be filed only in the Court of Small Causes. The Court, of course, set out the well settled preposition that the pith and substance of the pleadings must be seen and not only garb or cloak which is left around it, and that the Court must look at the kernel and not the chaff.
Seeing the kernel of the suit it is clear that the suit is for cancellation of a document and for various declarations and also for damages for which the Civil Court''s inherent jurisdiction is not barred even if it is between a landlord and tenant or between two parties who are stated to be two equal tenants.
It may be mentioned that the claim of the plaintiffs in the case may be covered by the case of Vasant Pratap Pandit Vs. Dr Anant Trimbak Sabnis, (1994) 3 JT 267 : (1994) 2 SCALE 541 : (1994) 3 SCC 481 : (1994) 3 SCR 451 : (1994) 2 UJ 273 upon the purview of Section 5(11)(c)(i) qua the heritable rights of heirs of a deceased tenant considered in para 14 thereof.
Hence the issue of jurisdiction is answered in the affirmative holding that this Court has inherent jurisdiction to try the suit.
Issues are framed. The plaintiffs shall file their affidavit of evidence as also affidavit of documents within two weeks.
The Suit is adjourned to 20.04.2015 for considering the admissibility of the documents of the plaintiffs.