Holding

A suit under Section 28 of the Bombay Rents Act is not maintainable unless a landlord‑tenant relationship as defined by Section 5(11)(c)(i) exists; in this case such a relationship did not exist, so the Small Causes Court lacked jurisdiction.

Summary

The landlord of a flat in Greater Bombay filed a suit under Section 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 seeking eviction of the occupant, who claimed tenancy rights as a family member of the deceased tenant. The Small Causes Court entertained the suit, but the appellate court held that no landlord‑tenant relationship existed because the occupant did not satisfy the criteria of Section 5(11)(c)(i) – namely, being a member of the tenant’s family, residing with the tenant at his death, and having the family’s agreement. The Supreme Court affirmed that a suit under Section 28 is maintainable only when such a relationship is established; consequently, the Small Causes Court lacked jurisdiction. The Court also ruled that its power under Article 142 cannot be used to override the statutory scheme of the Rent Act. The appeals were dismissed, and the Court directed that any fresh suit be filed with the limitation period excluded for the time already spent.

Issues considered

Whether a suit for eviction filed under Section 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 is maintainable when the alleged occupant is not a tenant within the meaning of the Act.
Interpretation of the term ‘tenant’ under Section 5(11)(c)(i) of the Act, especially concerning family members residing with the deceased tenant.
Whether the Court of Small Causes, Bombay has jurisdiction to entertain the suit in the absence of a landlord‑tenant relationship.
Whether the Supreme Court may invoke Article 142 of the Constitution to grant relief contrary to the statutory provisions of the Rent Act.

Legislation cited

Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947s. 28, s. 5(11)(c)(i)
Limitation Act, 1963s. 14

Subjects

landlord-tenant relationshipevictionBombay Rents ActSection 28 jurisdictiondefinition of tenantArticle 142limitation periodSmall Causes Courtmaintainability

Judgment

[2009] 14 (ADDL.) S.C.R. 777

LAXMIDAS MORARJI (DEAD ) BY LRS. A
v.
MISS BEHROSE DARAS MADAN
(Civil Appeal No. 5786 of 2002 etc.)
SEPTEMBER 18, 2009
___, B
•
[8.N. AGRAWAL, G.S. SINGHVI AND H.L. DATTU, JJ.}

.... -,j
Bombay Rents, Hotel and Lodging Houses Rates Control
Act, 1947 - s. 28 - Suit under - Maintainability of - Held:
Suit u/s. 28 is maintainable provided landlord-tenant c
relationship is established - On facts, tenant-landlord
relationship not established between the landlord and the
person in possession of suit premises - Therefore, suit not
maintainable.
D
"· ~ Constitution of India, 1950 - Article 142 - Jurisdiction
under - Scope of - Held : The power is though not controlled
by statutory provisions, it cannot be used to supplant the Jaw
:applicable to the case - The power has to be used sparingly
in cases which cannot be effectively and appropriately tackled
E
by the existing provisions of Jaw.
_., Words and Phrases - 'Tenant' - Meaning of, in the
. context of s.5(11)(c)(i) of Bombay Rents, Hotel and Lodging
Houses Rates Control Act, 1947.
,. F
After death of deceased tenant, appellant-plaintiff
(landlord) issued notice to the trustees and executors of

- Will of the deceased tenant. No notice was issued to the
person in possession of suit property (defendant No. 5).
Thereafter, he filed suit before Court of Small Causes. In G
the suit, plaintiff specifically stated that defendants 1 to
;>;-
4 (executors and trustees of will) had parted with the
possession of the suit premises for defendant No.5
(respondent); and that defendant No. 5 was not the
777 H
778 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

A tenant. However, she was made a party by way of ~

caution. Small Causes Court dismissed the suit holding
that defendant No.5 was entitled to claim tenancy right.
Appellate Court held that suit was not maintainable in · . 1--

absence of landlord-tenant relationship between the
B plaintiff and executors of Will. High Court dismissed the ;::=-
writ petition which was filed questioning the order passed
by the appellate court. Review application against the
same was also dismissed by High Court. Hence, the
).-
present appeals. 4')1111

c The issue for consideration before this Court was
whether the suit filed by the owner of the suit premises
>
was maintainable before the Small Causes Court. I

Dismissing the appeals, the Court
D 'f'
.,,,
Held : 1. The definition of 'tenant' under Bombay
Rents, Hotel and Lodging Houses Rates Control Act,
1947 means any person by whom or in whose account
rent is payable for any premises. Section 5(11)(c) (i) of the
E Act, is too exhaustive to include any member of the
tenant's family residing with the tenant at the time of his
death. There are two requirements u/s. 5 (11) of the Act, ,..
which must be fulfilled before a person may be called
'tenant' under sub-clause(c); firstly, he must be a member )..

of the tenant's family and secondly, he must have been
F residing with the tenant at the time of his death. Besides, 'I

fulfilling these conditions, he must have agreed upon to

G
be a tenant by the members of the tenant's family. In
default of such agreement, the decision of the court shall
be binding on ·such members. [Para 16] [786-D-F] -I
I

2. The Rent Control Act is a special enactment {,(

conferring certain special rights and imposing certain
special obligations upon landlords and tenants. The Rent
Control Act imposes restrictions on the right of landlord • )

H
LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS 779
BEHROSE DARAS MADAN
to evict his tenants on the grounds other than what is A
-.j specified in the statute.Mere denial of relationship of
landlord and tenant cannot oust the jurisdiction unless
it is specifically provided in the statute. If the Rent
Controller finds that the opposite party is not a tenant of
the landlord, he must dismiss the landlord's application B
for eviction, but if he finds that sue~ a plea by the opposite
party is not true and that the opposite party is a tenant
of the landlord, then, if the ground of eviction is proved,
he must order eviction of the tenant. [Para 20] [788-H;
" 780-A-B; E-G] c
3. Section 28 of the Act deals with the jurisdiction of
the courts, to decide on issues arising out of the Act. In
a suit relating to possession of the premises where the
relationship of landlord and tenant admittedly subsists
..... between the parties, jurisdiction to entertain and try such D
-~
a suit is in the courts specified in Section 28. All
"" applications made under the Act are also to be

- entertained ~nd disposed of by the courts specified in
Section 28 and no other. In all such suits or proceedings
the courts specified in Section 28 also have the E
jurisdiction to decide all claims of questions arising out
of the Act or any of its provisions. In the instant case, the
suit premises is situate within the jurisdiction of Greater
Bombay. In view of Section 28 of the Act, the Court of
.i
Small Causes, Bombay, will have jurisdiction. The F
appellants have filed a suit for eviction. The suit is
maintainable provided that a landlord-tenant relationship
is established. However, it is clear from the pleadings of
the appellants that the~ do not consider respondent No.5
as a tenant. In furtherance of this stand, the appellants G
have gone on to adduce evidence to prove that
respondent does not qualify the conditions to be deemed
"" as tenant under the Act. Therefore, the inevitable
conclusion is that Small Causes Court at Bombay had no
jurisdiction to entertain the suit filed by the owners of the H
.
780 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
'

A suit premises. [Para 21] [790-A-D]
Om Prakash Gupta v. Rattan Singh and Ors. (1964) 1
..
SCR 259; Khem Chand Dayalji and Co. vs. Mohammed
Bhaichand (1969) 1 sec 884, relied on.
8 4. Article 142 of the Constitution of India, being in the
nature of a residuary power based on equitable
principles, the courts have thought it advisable to leave
the powers under the article undefined. The power under
Article 142 is a constitutional power and, hence, not ;. <
c restricted by statutory enactments. Though the Supreme
Court would not pass any order under Article 142 of the
Constitution which would amount to supplanting
substantive law applicable or ignoring express statutory
provisions dealing with the subject, at the same time these
D constitutional powers cannot in any way, be controlled ~

by any statutory provisions. However, it is to be made
clear that this power cannot be used to supolant the law
'f -
applicable to the case. This means that acting under
Article 142, the Supreme Court cannot pass an order or
E grant relief, which is totally inconsistent or goes against
the substantive or statutory enactments pertaining to the
case. The power is to be used sparingly in cases which
cannot be effectively and appropriately tackled by the
existing provisions of law or when the existing provisions
F of law cannot bring about complete justice between the
i.

parties. [Para 23] [790-G-H; 791-A-C]

Dhananajaya Sharma vs. State of Haryana and Ors.
(1995) 3 SCC 757; Teri Oat Estate Pvt. Ltd. vs .. U. T.
Chandigarh (2004) 2 sec 130, relied on.
G
Case Law Reference:
Para 20 ...
(1964) 1 SCR 259 Relied on.

H

'
LAXMIDAS MORARJI (DEAD) BY LRS. v. MISS 781
BEHROSE DARAS MADAN

(1964) 1 SCR 259 Relied on. Para 21 A
(1995) 3 sec 1s1 Relied on. Para 22

(2004) 2 sec 130 Relied on. Para 23

CIVIL APPELLATE JURISDICTION : Civil Appeal No. B
5786 of 2002.

From the Judgment & Order dated 30.8.2001 of the High
Court of Judicature at Bombay in Civil Application No. 5701
~
of 2000 in Writ Petition No. 519 of 1987;
c
WITH
C.A. No. 5787 of 2002.

E.R. Kumar, Sameer Parekh, Sumit Goel, Somanadri
Goud (Parekh & Co.) for the Appellants. D
t ~-

- Behrose Darab Madan (Respondent-In-person), Ashok K.
Mahajan for the Respondents.

The Judgment of the Court was delivered by
E
H.L. DATTU, J. 1. These appeals are directed against the
'""I
decision of Bombay High Court in Writ Petition No.519of1987
dated 12.02.1998 and the order passed in Civil Application
.. No.5701 of 2000 in Writ Petition No.519 of 1987 dated
30.8.2001. By the impugned order, the High Court, has F
dismissed both the writ petitions and also the civil application.

2. The facts leading to these appeals are as under:-

Mr. Salehbhai Alibhai Rangwala was the owner of a
building then known as Mohamedali Mansion, situated at 241, G
'¥ Princess Street, Bombay. The Flat No. 2-B on the second floor
of the building, (hereinafter referred to as 'the suit premises')
had been let out to one Dosabai, the brother of Ms. Dhanbai
Batliwala, (hereinafter referred to as the 'deceased-tenant'), on
H
782 SUPREME COURT REPORTS [2009} 14 (ADDL.) S.C.R

A a monthly rent of Rs. 104.10 paisa. Dhanbai was staying with
her brother in the suit premises. After the death of her brother
in the year 1953, Dhanbhai became the tenant of the suit
premises by virtue of Section 5(11)(c)(i) of the Bombay Rents,
Hotel and Lodging Houses Rates Control Act, 1947 ('the Act'
B for short). She expired on 17.12.1963. It appears that the \
deceased tenant in her last will dated 24th April, 1959 had
appointed the trustees and executors of her will. Sometime in
the early part of the year 1965, the original owner had sent
notice to the trustees and executors of the will of the deceased y .
c tenant to hand over the vacant possession of the suit premises
and also to pay the arrears of rent alleged to be due from
01.11.1964. Since the trustees and executors of the will failed
to vacate the suit premises, the original owner filed Suit No.310
of 1S67 before the Court of Small Causes at Bombay, against
0 the trustees and the respondent in this appeal, inter-aJia
seeking recovery of possession of the suit premises and for_
payment of Rs.3018.90 paisa, being the am=iars of rent for the
period from 01.11.1964 to 31.03.1967. In the suit filed, it was
specifically stated, that, the defendant No. 5 (respondent) is not
the tenant and has no legal and valid claim over the suit
E premises and therefore no notice was required to be given to
her, however, she is arrayed as a party in the suit by way of
caution and to avoid any technical objection in future. It was also
mentioned in the suit, that, the defendants 1 to 4 (trustees and
executors of the will) have parted with the possession of the
F suit premises to defendant No.5, respondent in this appeal.

3. In the written statement filed, respondent apart from
others, had stated that the court of. small causes at Bombay has
no jurisdiction to entertain the petition, since t~e landlord of the
G premises has not accepted her as a tenant of the suit premises;
she has been adopted as a daughter by the deceased tenant;
deceased tenant has by her last will, bequeathed the tenancy
rights of the suit premises; she is the daughter of sister of the
deceased tenant and was residing with the deceased tenant
H and, therefore, would fit in to the definition of a tenant as
LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS 783
BEHROSE DARAB MADAN [H.L. DATIU, J.]

envisaged under Section 5(11)(c)(i) of the Act and, therefore, A
entitled to an eviction notice.

4. The Small Causes Court, while dismissing the suit by
its order dated 02.07 .1977, held that, the law of adoption is
f unknown to the Parsis and the defen_dant No.5 (respondent)
B
has proved the fact that she was residing with the deceased
tenant as a member of her family and as such she is entitled
to claim tenancy rights under the provisions of Section
5(11)(c)(i) of the Act.

5. The original owner along with the predecessor of the c
present petitioners, being aggrieved by the judgment of the
court of Small Causes at Bombay preferred an appeal before
the court of Small Causes at Bombay in Appeal No.74of1978.
The appellate court, on consideration of oral and documentary
evidence held that, there was no landlord and tenant D
" relationship between executors of will and the petitioners and
therefore the suit itself was not maintainable. The respondent
...'·
I

retains the tenancy rights as she was the adopted daughter of
the deceased tenant under her will dated 2nd April, 1959 and
was a member of her family residing with her at the time of her E
death. It was also observed that bequeath of the tenancy rights
either of the residential premises or of shop premises cannot
""""" be given effect to, unless the concerned person satisfies the
-4 requirement of Section 5(11)(c)(i) of the Act and lastly the
defendants 1 to 4 have not produced any evidence to show that
F
the adoption is unknown to Parsis. In view of the above findings
the appellate court had dismissed the appeal.

6. Against the decision of the Appellate Court, the
appellant filed writ petition before the High Court. The learned
single Judge dismissed the writ petition, being of the opinion G
that there is no perversity in the findings and· the conclusions
reached by the Trial Court and the first appellate court and also
has observed that no exception can be taken to the findings
recorded by the trial court that the respondent would inherit the
tenancy of the suit premises as she was residing with the tenant H
784 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A as a member of the family of the tenant.

7. Since the aforesaid order had been passed without
hearing the learned counsel for the petitioner, an application
for review came to be filed by the petitioners to review the order
passed in the Writ Petition. It was dismissed vide order dated
B
30.08.2001.

8. Appellants have preferred separate appeals before this
Court, inter alia, questioning the order passed by the High Court
in the writ petition and the civil application filed for review of ,, "-
c the ·order passed in writ petition.

9. These appeals were heard in part on 15th April, 2009
and 30th July, 2009 and when the matters were taken up for
hearing on 6th August, 2009, the learned counsel for the
0 respondent stated that as desired by the respondent, he has
given no objection to her and she wants to argue the matter in
person. The respondent was present before the Court. Instead
of arguing the matter, she sought an adjournment. The same
..,
-.,_"
was declined, since the appeals were pending on the Board
for last seven years and the learned counsel for the appellant
E
had closed his submissions.

10. The learned senior counsel Mr. Rohington Nariman ,.
submitted, that, the respondent is not a member of the
deceased tenant's family and was not residing with the ~-

F deceased at the time of her death and therefore respondent
cannot claim to be the tenant of the suit premises. In aid of his
submission, the learned senior counsel invites our attention to
the definition of tenant under Bombay Rent Act. The learned
senior counsel has also taken us through the pleadings and the
G evidence on record to substantiate that the respondent cannot
claim any right, much less tenancy right, in the suit premises
under the deceased tenant.

11. We do not think it necessary to discuss in detail the
evidence adduced by the parties in view of the course we
H
LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS 785
BEHROSE DARAS MADAN [H.L. DATTU, J.]
1
propose to adopt in deciding these appeals. A

12. The primary issue which falls for our consideration and
decision is, whether the suit filed by the owner of the suit
premises was maintainable before the Small Causes Court,
Bombay. B

13. The specific case of the plaintiff in the suit filed was
that the respondent is not a tenant and has no legal and valid
). claim over the suit premises and tnerefore no notice was
required to be given to her. However, she is arrayed as a party
in the suit by way of caution and to avoid any technical objection C
in future. It was also mentioned in the suit that the defendants
1 to 4 (trustees and executors of the will) have parted with the
possession of the suit premises to defendant No.5 (respondent
ln this appeal). It was also mentioned that the suit is for recovery
~ of the suit premises to which the provisions of Bombay Rent D
Control Act would·apply.

14. Apart from others, it was the defence of the defendant
No.5 (respondent in this appeal), that the Small Causes Court,
Bombay does not have jurisdiction to try the suit, if the plaintiff E
were to assert that she is not the tenant of the suit premises.

15. To decide the issues which have been raised for our
-i consideration and decision, it is necessary to notice the

definition of "tenant" and jurisdiction of courts under the Bombay
Rents, Hotel and Lodging Houses Rates Control Act, 1947. F
Section 5( 11) of the Act reads :

"(11)"tenant" means any person by whom or on whose
account rent is payable for any premises and includes,-

(a) xx xx xx xx G

[(aa) xx xx xx xx

(b) xx xx xx xx
H
786 SUPREME COURT REPORTS [2009] 14 (ADDL.) $.C.R.

A [(bb) xx xx xx xx

[(bba) xx xx xx xx

[(c) (i) in relation to any premises let for residence, when
the tenant dies, whether the death has occurred before or
B after the commencement of the Bombay Rents, Hotel and
Lodging House Rates Control (Amendment) Act, 1978,
any member of the tenant's family residing with the tenant
at the time of his death or, in the absence of such member,
any heir of the deceased tenant, as may be decided in "
c default of agreement by the Court."

16. The definition of 'tenant' under the Act, means any
person by whom or in whose account rent is payable for any
premises. Section 5(11)(c) (i) of the Act, is too exhaustive to
D include any member of the-tenant's family residing with the ""')
tenant at the time of his death. There are two requirements
under Section 5(11) of the Act, which must be fulfilled before a
r
person may be called 'tenant' under sub-clause(c); firstly, he
must be a member of the tenant's family and secondly, he must
have been residing with the tenant at the time of his death.
E
Besides, fulfilling these conditions, he must have agreed upon
to be a tenant by the members of the tenant's family. In default
of such agreement, the decision of the court shall be bindings
,_
on such members.
F 17. Section 28 of the Act provides the Small Causes Court
with special jurisdiction to try the cases under the Act. The
Section is as under:

"Jurisdiction of Courts
G (1) Notwithstanding anything contained in any law and
-1-
notwithstanding that by reason of the arriount of the claim
or for any other reason, the suit or proceeding would not,
but for this provision, be within its jurisdiction.-

H (a) in Greater Bombay, the Court of Small Causes,
LAXMIDAS MORARJI (DEAD) BY LRS. v. MISS 787
BEHROSE DARAS MADAN [H.L. DATTU, J.]

Bombay, A
.. 'I

[(aa) in any area for which, a Court of Small Causes is
established under the Provincial Small Causes Courts Act,
1887, such Court and]

(b) elsewhere, the Court of the Civil Judge (Junior Division) B
having jurisdiction in the area in which the premises are
situate or, if there is no such Civil Judge the Court of the
Civil Judge (Senior Division) having jurisdiction, shall have
jurisdiction to entertain and try any suit or proceeding
between a landlord and a tenant relating to the recovery c
of rent or possession of any premises to which any of the
provisions of this Part apply [or between a licensor and a
., licensee relating to the recovery of the licence fee or
charge] and to decide any application made undei this Act
~ and to deal with any claim or question arising out of this 0
Act or any of its provisions and [subject to the provisions
of sub-section (2)], no other court shall have jurisdiction to
entertain any such suit, proceedings, or application or to
deal with such claim or question.

[(2) (a) Notwithstanding anYthing contained in clause(aa)
E

- ~
of sub-section(1 ), the District Court may at any stage
withdraw any such suit, proceeding or application pending
in a Court of Small Causes established for any area under

- the Provincial Small Causes Courts Act, 1887 and transfer
the same for trial or disposal to the Court of the Civil Judge
(Senior Division) having ordinary jurisdiction in such area.]
F

(b) Where any suit, proceeding or application has been
withdrawn under clause(a), the Court of the Civil Judge
(Senior Division) which thereafter tries such suit, G
-~ proceedings or application, as the case may be, may
either re-try it or proceed from the stage at which it was
withdrawn.

(c) The Court of the Civil Judge tl";i11~ •.my suit, proceeding
H
....
788 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A or application withdrawn under clause (a) from the Court l(

of Small Causes, shall, for purposes of such suit, •
proceeding or application, as the case may be, be
deemed to be the Court of Small Causes.]

Explanation- In this Section "proceeding" does not include
B
an execution proceeding arising out of a decree passed
before the coming into operation of this Act."

18. Section 28 of the Act begins with a non-obstante
cl~use. By Section 28 of the Act, the legislature has designated
"
c certain courts to entertain and try any suit or proceeding
between a landlord and a tenant relating to recovery of rent or
possession of any premises to which any of the provisions of
this part apply and to decide any application made under
...
Bombay Rent Act and to deal with any cla;m or question arising
D out of Bombay Rent Act or any of its provisions. The designated "1
courts are, the Court of Small Causes in Greater Bombay, a
Court of Small Causes established under the Provincial Small
Causes Courts Act, 18S7, in any area where such court is
established and in other areas, the court of Civil Judge (Junior
E Division) having jurisdiction in the area in which the premises
are situated or if there is no such Civil Judge, the court of Civil
Judge (Senior Division) having ordinary jurisdiction. I

19. This Court in the case of Khem Chand Day.alji and
Co. vs. Mohammed Bhaichand (1969) 1 SCC 884, while
F discussing the provision prescribing the jurisdiction to the Small
Causes Court, has noticed, that "by Section 28 of the Act
-
certain courts were designated as courts of exclusive
jurisdiction to entertain and try suits and proceedings between
a landlord and tenant relating to recovery of rent or possession
G to which the provisions of the Act applied and also decide
~.
claims or questions arising under the Act."

20. The Rent Control Act is a special enactment conferring
certain special rights and imposing certain special obligations
H
-
LAXMIDAS MORARJI (DEAD ) BY LRS. v. MISS 789
BEHROSE DARAB MADAN [H.L. DATTU, J.]
upon landlords and tenants. The Rent Control Act imposes A
'i restrictions on the right of la'ndlord to evict his tenants on the
grounds other than what is specified in the Statute. This court
in the case of Om Prakash Gupta vs. Rattan Singh and Ors.
(1964) 1 SCR 259, has observed, that, ordinarily, it is for the
civil courts to determine whether and if so, what jural B
relationship exists between the litigating parties. The Tribunals
under the Act being creatures of the Statute have limited
jurisdiction and have to function within the limits of the Statute
)
creating them. But within the provisions of the Act, they are
Tribunals of exclusive jurisdiction and their orders are final and c
not liable to be questioned in collateral proceedings, like a
separate application in execution proceedings. The Court has
further observed, that, therefore, there is no substance in the
contention that as soon as the appellant denies the relationship
#
of landlord and tenant, the jurisdiction of the authorities under
D
~
)'
the Act is completely ousted. A landlord must be very ill-advised
to start proceedings under the Act, if there is no relationship of
landlord and tenant. If a person in possession of the premises
is not a tenant, the owner of the premises would be entitled to
institute a suit for ejectment in the civil courts, untrammeled by
the provisions of the Act. It is only when he happens to be the E
tenant of the premises in an urban area, the provisions of the
Act are attracted. Mere denial of relationship of landlord and
tenant cannot oust the jurisdiction unless it is specifically
.. provided in the Statute. If the Rent Controller finds that the
opposite party is not a tenant of the landlord, he must dismiss F
the landlord's application for eviction, but if he finds that such
a plea by the opposite party is not true and that the opposite
party is a tenant of the landlord, then, if the ground of eviction
is proved, he must order eviction of the tenant.
G
21. Section 28 of the Bombay Rent Act deals with the
~ jurisdiction of the Courts, to decide on issues arising out of th$
Act. In a suit relating to possession of the premises where the
relationship of landlord and tenant admittedly subsists between
the parties, jurisdiction to entertain ar. 1~ t~ such a suit is in the H
790 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A courts specified in Section 28. All applications made under the
~
Act are also to be entertained and disposed of by ttie courts >

specified in Section 28 and no other. In all such suits or
proceedings the courts specified in Section 28 also have the ., ii..._
jurisdiction to decide all claims of questions arising out of the f.
B Act or any of its provisions. In the instant case, the suit premises
is situate within the jurisdiction of Greater Bombay. In view of
Section 28 of the Act, the Court of Small Causes, Bombay, will
have jurisdiction. The appellants have filed a suit for eviction.
The suit is maintainable provided that a landlord-tenant
c relationship is established. However, it is clear from the
pleadings of the appellants that they do not consider
respondent No.5 as a tenant. In furtherance of this stand, the
appellants have gone on to adduce evidence to prove that
respondent does not qualify the conditions to be deemed as
•
tenant under the Bombay Rent Act. In the light of the principles
D
stated by this Court in Om Prakash Gupta's case (1964) 1 SCC "( ~

259, the inevitable conclusion is that Small Cau~es Court at ·
Bombay had no jurisdiction to entertain the suit filed by the
owners of the suit premises.
.....
E 22. The learned senior counsel for the appellant would
submit that the lis between the parties is pending before
various forums from last four decades and even as of now the
landlord of the premises is unable to get vacant possession of
the suit premises and, therefore, we should ex&icise our power I·

F under Article 142 of the Constitution of India and direct the.
respondent to quit and deliver vacant possession of the suit
premises to the landlord. Reliance is placed on the decision
of this court in the case of Dhanajaya Sharma vs. State of
Haryana and Others; ((1995) 3 SCC 757).
G
23. Article 142 being in the nature of a residuary power
based on equitable principles, the courts have thought it
advisable to leave the powers under the article undefined. The
power under Article 142 of the Constitution is a Constitutional
power and, hence, not restricted by statutory enactments.
H

-
LAXMIDAS MORARJI {DEAD) BY LRS. v. MISS 791
BEHROSE DARAS MADAN [H.L. DATIU, J.]

Though the Supreme Court would not pass any order under A
Article 142 of the Constitution which would amount to
supplanting substantive law applicable or ignoring express
~· statutory provisions dealing with the subject, at the same time
these Constitutional powers cannot in any way, be controlled
by any statutory provisions. However, it is to be made clear that B
this power cannot be used to supplant the law applicable to the
case. This means that acting under Article 142, the Supreme
Court cannot pass an order or grant relief, which is totally
inconsistent or goes against the substantive or statutory
enactments pertaining to the case. The power is to be used c
sparingly in cases which cannot be effectively and appropriately
tackled by the existing provisions of law or when the existing
provisions of law cannot bring about complete justice between
the parties. It would be useful at this stage to refer to the
observations made by this Court in the case of Teri Oat Estates D
(P) Ltd. vs. U. T Chandigarh [(2004) 2 SCC 130], "sympathy
or sentiment by itself cannot be a ground for passing an order
in relation to where the appellants miserably fail to establish a
legal right. Despite an extraordinary constituted jurisdiction
contained in Article 142 of the Constitution, the Supreme Court E
ordinarily would not pass an order which would be in
contravention of a statutory provision."

24. In view of the aforesaid settled legal principles, it is not
possible to accept the request of learned senior counsel for the
appellant. F
25. Since we are of the opinion that the Small Causes
Court at Bombay had no jurisdiction to entertain the suit, we
have not pronounced any opinion on t~e merits of the appellant's
case.
G
26. As the appellants were bonafide prosecuting the suit
before the court which had no jurisdiction to entertain the same,
we direct, that if along with the plaint, an application under
Section 14 of the Limitation Act, 1963 is filed the time from the
date of institution of the suit till this day shall be excluded in H
792 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A computing the period of limitation in filing the suit. It is further
directed that if any such suit is filed, the same and consequent
appeal/appeals/revision shall be disposed of within a period
of one year from the date of its filing in view of the fact that
unfortunately the present eviction matter remained pending for
B forty two long years.

27. Civil Appeal No. 5786 of 2002 is, accordingly,
dismissed.

28. In view of the dismissal of Civil Appeal No.5786 of
C 2002 ·by us today, Civil Appeal No.5787 of 2002 does not
survive and is, accordingly, dismissed. No order as to costs.

K~K.T. Appeals dismissed.

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