A. A. DAVE, J. ( 1 ) THIS application is directed against the judgment and decree of the Bench of the Small Cause Court Ahmedabad setting aside the decree of the trial Court and dismissing the plaintiffs suit With costs. ( 2 ) THE facts giving rise to this application in a nut-shell are as under : The appellants are the sons of deceased Kashiram who was a tenant of the suit premises bearing M. C. No. 2025-2 situated in Bhanderi pole Dariapur ward No. 1 Ahmedabad. At the time of the death of Kashiram the appellants and their mother Saraswati were residing with him. Kashiram died on 9-7-1948. After his death Saraswati went on paying the rent of the suit premises which was accepted by the landlord till a dispute arose in 1959. In 1959 the landlord filed a suit No. H. R. P. 1877 of 1959 against Saraswati for eviction on the ground of non payment of arrears of rent. A decree for eviction was passed against her but in appeal the appellate Court in Civil appeal No. 143 of 1962 reversed the decree. But the High Court in revision application No. 98 of 1964 restored the decree of the trial Court on 13-3-1967. The present appellants therefore filed a suit alleging that as they were not parties to the previous decree the same was not binding on them. According to them they were residing with deceased Kashiram at the time of his death and as such they were tenants of the suit premises. They therefore contended that the decree obtained against Saraswati was not binding on them. According to them the landlord had obtained it fraudulently and illegally. They stated that when the previous suit was filed against Saraswati they were minors. They therefore prayed that a declaration be made that they were the tenants of the suit premises and prayed for a further declaration that the decree obtained by the landlord against Saraswati was not binding on them and prayed for an injunction restraining the defendant landlord from executing the decree. The suit was decreed by the trial Court. However the Small Cause Bench reversed the decree and dismissed the suit. Against the said judgment and decree of the Small Cause Bench at Ahmedabad this revision application has been preferred to this court. ( 3 ) MR. The suit was decreed by the trial Court. However the Small Cause Bench reversed the decree and dismissed the suit. Against the said judgment and decree of the Small Cause Bench at Ahmedabad this revision application has been preferred to this court. ( 3 ) MR. H. M. Mehta learned Advocate for the appellants urged that under sec. 5 (11) (c) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act any member of the tenants family residing with him at the time of his death as may be decided in default of an agreement by the court would be a tenant. He urged that both the applicants at the time of the death of their father were minors. It was not possible for them to arrive at an agreement as to who should be a tenant in place of their father. Under these circumstances he urged that when an agreement was not possible between the parties due to minority of the applicants it was the Court which could appoint any member of the tenants family as a tenant in the place of the deceased tenant. No such declaration was sought from the Court and the position remained that after the death of Kashiram the widow as well as the minor sons continued in possession of the suit premises as tenants and rent was being paid by Saraswati on behalf of them all. He urged that under the circumstances it cannot be said that Bai Saraswati alone was the tenant of the suit premises. He submitted that it was not for the landlord to choose any member of the family as tenant in place of the deceased tenant and if he filed a suit against Saraswati treating her as tenant and obtained a decree fraudulently that decree naturally would not bind the other members of the family who had equal right to stay in the premises in view of the definition of `tenant in sec. 5 (11) (c ). He therefore urged that the decree obtained by the landlord against Saraswati cannot be said to be binding on the appellants and therefore the view taken by the bench of the Small Cause Court Ahmedabad that impliedly the plaintiffs had acquiesced in Bai Saraswati being treated as tenant was not correct. ( 4 ) A preliminary point has been taken by Mr. ( 4 ) A preliminary point has been taken by Mr. M. H. Chhatrapati learned advocate for the opponent landlord that the suit as framed was not tenable. He urged that the court under the Bombay Rent Control Act had no jurisdiction to entertain such a suit. He submitted that a suit should have been filed in regular court for getting reliefs as claimed by the plaintiffs in the present suit. On merits he urged that when the plaintiffs were minors Saraswati who was their mother naturally would act on behalf of herself as well as on behalf of her minor sons. He urged that it was not the case of the minors that is the present applicants that Saraswati had failed to look after their interest properly and that she in collusion with the landlord had allowed the decree for eviction to be passed. He urged that for 11 long years Saraswati had paid the rent of the suit premises which was accepted by the landlord. This would show that she was accepted as a tenant of the suit premises. Mr. Chhatrapati urged that after the death of the original tenant the tenancy could not remain in abeyance and if Saraswati being the only major member of the tenants family at the time of his death continued as a tenant and fulfilled the obligations of a tenant it would not lie in the mouth of the plaintiffs to say that Saraswati was not a tenant and that a declaration should have been sought from the court as to who was the tenant in place of the deceased tenant. ( 5 ) TO deal with the question of jurisdiction it will be necessary to refer to sec. 28 of the Act. ( 5 ) TO deal with the question of jurisdiction it will be necessary to refer to sec. 28 of the Act. Sec. 28 (1) says that :- (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not but for this provision be within its jurisdiction (A) in Greater Bombay the Court of Small Causes Bombay; (aa) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act 1887 such Court and; (B) elsewhere the court of the Civil Judge (Junior Division) 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 ordinary jurisdiction shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the 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 this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-sec. (2) no other Court shall have jurisdiction to entertain any such suit proceeding or application to deal with such claim or question. THUS in a suit between the landlord and the tenant relating to recovery of rent or possession of any premises the court mentioned in this section will have exclusive jurisdiction to entertain the same. That court will have jurisdiction to deal with and decide any application made under this Act or to deal with any claim or question arising out of this Act or any of its provisions. Mr. H. M. Mehta learned advocate for the appellants submitted that in order to decide whether a particular member of the tenants family gets right of a tenant as defined in sec. 5 (11) (c) of the Act an application could be entertained only by the court under the Act and not by any other court. Mr. Chhatrapati on the other hand urged that sec. 5 (11) (c) of the Act merely defines a `tenant. It has nothing to do with the jurisdiction of the Court. 5 (11) (c) of the Act an application could be entertained only by the court under the Act and not by any other court. Mr. Chhatrapati on the other hand urged that sec. 5 (11) (c) of the Act merely defines a `tenant. It has nothing to do with the jurisdiction of the Court. He submitted that the question whether a particular member of the tenants family is a tenant or not is not within the exclusive jurisdiction of that court and such a question could be decided by any other court. He urged that the question whether the decree obtained by the landlord was fraudulent or illegal and being fraudulent and illegal was not binding on the plaintiff is not a matter which was within the exclusive jurisdiction of the court under the Rent Control Act and that a suit for such a declaration should have been filed in a regular court. He referred to the case of Bishan Baboo Vashisth v. Maharashtra Watch and Gramophone Company 69 B. L. R. 229. wherein at page 231 it was observed that :-IT is manifest that the following conditions must be satisfied in order that a suit or proceeding should be triable by the Courts of exclusive jurisdiction mentioned in cl. (a) (aa) and (b) of sub-sec. (1) of sec. 28:- (1) The suit or proceeding must be between a landlord and tenant. Unless this condition is satisfied sec. 28 can have no application. If this condition is satisfied it is further necessary that either (2) the suit or proceeding must relate to the recovery of (i) rent or (ii) possession of premises to which the provisions of Part III of the Act apply or (3) Some application must have been made under the Act or the suit or proceeding must involve a claim or question arising out of the Act or out of any of its provisions. IF in addition to the first condition either of the two other conditions is satisfied the suit would lie in the Court of exclusive jurisdiction. RELYING on these observations Mr. Chhatrapati urged that in order that a court may have exclusive jurisdiction a suit or proceeding must relate to the recovery of rent or possession of the premises and that the dispute should be between the landlord and the tenant. He submitted that in the instant case the plaintiffs were not the tenants. RELYING on these observations Mr. Chhatrapati urged that in order that a court may have exclusive jurisdiction a suit or proceeding must relate to the recovery of rent or possession of the premises and that the dispute should be between the landlord and the tenant. He submitted that in the instant case the plaintiffs were not the tenants. No declaration was given in favour of the plaintiffs by any court that they were the tenants. In the previous suit a decree was obtained against Saraswati on the basis that she was the tenant which decree was confirmed by the High Court He therefore urged that it would not be open to the court under the Rent Control Act to entertain this proceeding because the dispute did not arise between the landlord and the tenant and that it did not relate to recovery of rent or possession of the premises. It is difficult to agree with Mr. Chhatrapati on this point. Even the learned Judge in the decision referred to above at page 232 has observed that :-ONE can conceive of an exceptional class of disputes between a landlord and tenant in which the possession of premises occupied by the tenant is not a matter in issue but those cases are few and far between. IN the instant case there is a dispute between the landlord and the tenants about legal status of the tenant. It does not rest on the free will of the landlord as to who should be the tenant after the death of the original tenant. It is not for him to pick and choose any member of the tenants family and consider him as a tenant. Law has not left any discretion with the landlord. Under sec. 5 (11) (c) the word the tenant would include any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by court. By very nature of the minority of both the plaintiffs that is the present applicants the question of any agreement between them and their mother interse did not arise. The minor plaintiffs were incapable of giving their consent. By very nature of the minority of both the plaintiffs that is the present applicants the question of any agreement between them and their mother interse did not arise. The minor plaintiffs were incapable of giving their consent. Thus any agreement between the members of the tenants family residing with him at the time of his death could not be possible in view of the special circumstances of this case In such a case it could be said that there was default of agreement and in default of agreement it is the court which could declare as to which member of the tenants family would be a tenant in his place. Mr. Chhatrapati urged that in that case it was necessary for such members of the family to approach the court for a declaration as to which of them was a tenant. He urged that in the instant case none of the members of the tenants family had approached the court for such a declaration and all the time the mother continued to act as a tenant and went on paying rent. In the circumstances he urged that if the members of the family did not choose to approach the court for such a declaration the tenancy could not remain in abeyance and therefore the landlord could not be blamed if he accepted the only major member of the family as a tenant and dealt with her as such. He stated that for 11 long years Bai Saraswati was held to be the tenant. Even when the suit for eviction was filed against her no defence was taken by her that she was not the tenant and that in the absence of any declaration given by the court in this connection her sons would also be tenants along with her or without her. He urged that it would not be proper now to permit the plaintiffs to agitate this question after a lapse of several years and to defeat the just claim of the landlord who had obtained a decree for eviction for non-payment of rent. In my opinion the submissions made by Mr. Chhatrapati are devoid of real merit. The court cannot refuse to interpret the section and give proper decision merely because that would work hardship on one party or the other. Mr. In my opinion the submissions made by Mr. Chhatrapati are devoid of real merit. The court cannot refuse to interpret the section and give proper decision merely because that would work hardship on one party or the other. Mr. Chhatrapati urged that after the death of the tenant no new tenancy is created between the parties but the old tenancy continued and the mother having discharged the obligations of a tenant it would not be fair now to open this question once again and to declare that the decree which was obtained by the landlord for non-payment of arrears of rent was not binding on the present applicants. He urged that no fraudulent act or negligence on the part of mother was imputed by the present applicant in their suit filed for a declaration that the decree in the previous suit was not binding on them. When the mother as the natural guardian of the plaintiffs acted as a tenant and fulfilled all the obligations which a tenant was required to do she to all intent and purpose was a tenant being a member of the tenants family residing with him at the time of his death and the decree obtained against her would be binding on the present applicants who were then minors and were residing with her. In my opinion merely because the mother went on paying the rent all these years and the landlord treated her as tenant she cannot be termed a tenant as defined in sec. 5 (11) (c) referred to above. Any one of the three members residing at the time of the death of Kashiram was entitled to be treated as a tenant. Merely because the present applicants were minors the law did not preclude them from being held as tenants. Thus merely because the mother was the only major member the plaintiffs who were then minors did not lose the protection as tenants as given in sec. 51 (c) of the Act. As the plaintiffs were incapable of any agreement on account of their minority the court would step in and if the mother wanted to be treated as a tenant she ought to have given an application to the court for being declared a tenant under sec. 5 (11) (c) of the Act. 51 (c) of the Act. As the plaintiffs were incapable of any agreement on account of their minority the court would step in and if the mother wanted to be treated as a tenant she ought to have given an application to the court for being declared a tenant under sec. 5 (11) (c) of the Act. No such application was given by the mother nor did the landlord ask the Court to decide as to out of these three persons who was entitled to be considered as a tenant in his suit filed for eviction. He even did not care to join the minors as parties to the suit and arbitrarily treated the widow as tenant of the suit premises. There is nothing on record to show that Bai Saraswati who went on paying rent may not have done so on behalf of the family. Thus merely because Saraswati continued to pay rent to the landlord who accepted her as a tenant other members of the family of the tenant who were residing with him at the time of his death did not lose their right of being considered as tenants at the proper time. In an unreported decision the Bombay High Court has even gone to the length of observing that in the event one of the persons is held as a tenant that by itself does not extinguish the rights of other members of the family who were residing with the deceased tenant at the time of his death In the case of Minoo J. Patel v. J. B. Aga and others civil revision application No. 1556 of 1963 decided on 9th February 1966 as noted in the Bombay Rent Control Act by Dalal fourth edition at page 152 it was observed that. . . . . . IT would be extremely difficult to hold that by reason of the provisions of sec. 5 (11) (c) rights of hairs inter se of the deceased contractual tenant were or are sought to be extinguished. A person declared to be a tenant under this clause cannot defeat the rights of other heirs and a suit would lie for determination of such rights. WITH respect I agree with the view take by the Bombay High Court. 5 (11) (c) rights of hairs inter se of the deceased contractual tenant were or are sought to be extinguished. A person declared to be a tenant under this clause cannot defeat the rights of other heirs and a suit would lie for determination of such rights. WITH respect I agree with the view take by the Bombay High Court. The definition of a tenant as given in sec 5 (11) (e) of the Act leaves no room for doubt that in the absence of an agreement between members of the tenants family living with him at the time of his death as to who shall be a tenant in the place of the tenant or in default by an order of the court declaring any one member to be a tenant it would be open to any member of the tenants family to agitate this question in court. It would be more so in the case of minors who during their minority were unable to do so. After attaining majority they would be entitled to approach the court for such a declaration even if a decree for possession of the rental premises was passed in favour of the landlord provided the application was given by the minors after they reached majority within the period of limitation. I therefore do not agree with Mr. Chhatrapati that merely because Bai Saraswati for all these 11 years had acted as a tenant and that no objection was taken by the present applicants they should now be debarred from reagitating this question again. It is true that in some cases by permitting minors to reopen a question after a period of many years would be tantamount to an abuse of legal process. But merely because in some cases law may be abused by certain parties that should not prevent the court from entertaining a case if the same could be agitated before it after a long period. As observed earlier the word agreement used in the section did not imply agreement between the landlord and any one member of the deceasedtenants family. The word agreement would imply agreement amongst the members of the tenants family intersc only. In the present case as observed earlier such an agreement was out of question because both the applicants were minors. As observed earlier the word agreement used in the section did not imply agreement between the landlord and any one member of the deceasedtenants family. The word agreement would imply agreement amongst the members of the tenants family intersc only. In the present case as observed earlier such an agreement was out of question because both the applicants were minors. Under the circumstances when Bai Saraswati went on paying rent it could be presumed that she did so on behalf of them all and not particularly in her individual capacity. In my opinion it would therefore be open to the present applicants to seek a declaration that they were entitled to be declared as tenants under sec. 5 (1) (c) of the Act by a competent court. ( 6 ) MR. Chhatrapati urged that the word Court would not necessarily mean Court under the Rent Control Act but the Court would be a regular court. He urged that sec. 5 (11) (c) of the Act could not be invoked in order to decide the jurisdiction of the court. He urged that nowhere in the Act it was laid down that such a question could be decided by a court under the Rent Control Act and no other Court. T am unable to agree with him for the simple reason that when the word Court is used in any of the sections of the Rent Control Act without making any distinction the court would mean only the Court under the Rent Control Act and no other court. Therefore the question whether a particular member of the tenants family should be considered as a tenant could be decided only by the court as defined in the Rent Control Act and no other court. In the present suit the plaintiffs have sought a declaration that they were the tenants and therefore it cannot be said that Small Cause Court at Ahmedabad had no jurisdiction to entertain this suit. Mr. Chhatrapati urged that unless the plaintiffs were declared as tenants by the competent court it cannot be said that in the present suit there was a dispute between the landlord and tenant and therefore under sec. 28 of the Act the court under the Act would have no jurisdiction to entertain such a suit. Again I am unable to agree with Mr. Chhatrapati on this point. 28 of the Act the court under the Act would have no jurisdiction to entertain such a suit. Again I am unable to agree with Mr. Chhatrapati on this point. In order to decide the jurisdiction of the court prima facie one has to refer to the averments made in the plaint. Merely because the landlord defendant in the suit denied the status of the plaintiffs as tenants. the court under the Rent Control Act would not lose its jurisdiction. The plaintiffs have filed the suit on the basis that they were the tenants because they were residing with their father at the time of his death. It would not be proper to ask the plaintiffs first to seek a declaration from court about their status and thereafter to file another suit. They can seek a composite relief in one and the same proceeding and if they sought composite relief for declaration that they were the tenants and that the decree obtained by the landlord against their mother could not be binding on them in my opinion the suit would be cognizable by the Court of Small Causes at Ahmedabad. I therefore hold that the Court of Small Causes at Ahmedabad had jurisdiction to entertain such a suit. ( 7 ) MR. Chhatrapati next urged that no such declaration could be given by the court in the absence of Bai Saraswati. There is great substance in the submission made by him. As stated in sec. 5 (11) (c) any member of the tenants family residing with him at the time of his death may be declared in default of agreement by a court to be a tenant. For ought we know if a question arose before the court as to who should have been appointed as a tenant in 1948 at the time of the death of the tenant the court may as well prefer Saraswati who was the only major member of the family being the mother and guardian of the minor sons. Saraswati therefore would be a necessary party to this proceeding. However in the absence of any order by the competent court declaring as to who was the tenant as defined in sec. 5 (11) (c) of the Act on the death of Kashiram the decree obtained by the landlord against Saraswati treating her as a tenant could not remain in operation. However in the absence of any order by the competent court declaring as to who was the tenant as defined in sec. 5 (11) (c) of the Act on the death of Kashiram the decree obtained by the landlord against Saraswati treating her as a tenant could not remain in operation. Such a decree could not be binding on the present plaintiffs. However as Bai Saraswati was not a party to the present proceeding no declaration could be given by the court in her absence and therefore the question whether the decree obtained against Saraswati would be binding on the present plaintiffs or not could not be decided without impleading her as a party to the suit. In the interest of justice therefore it would be just and fair to set aside the decree of the trial Court as well as the decree of the bench of the Small Cause Court at Ahmedabad and send back the papers to the trial Court with a direction to proceed further according to law in the light of the observations made above after giving an opportunity to the plaintiffs to implead Bai Saraswati as a party in the suit. ( 8 ) MR. Chhatrapati learned advocate for the opponent next urged that the suit was already barred by limitation. He submitted that applicant No. 1 Sudhakar had become major in the year 1960 and appellant No. 2 Arjun had come up age in 1966. He urged that none of them had given application to the court for a declaration that he was entitled to be declared a tenant in place of the deceased Kashiram. Mr. Chhatrapati stated that previous proceeding was already pending in the High Court when the present applicants became major and such an application could have been given by the present applicants for being impleaded as parties thereto. They could have also taken a separate proceeding in the proper court. Having failed to do so their suit now for a declaration would be barred not only by the provisions of the Limitation Act but also by acquiescence and laches. However Mr. H. M. Mehta learned advocate for the appellants urged that the suit filed by the appellants was not barred by limitation as the same was filed with three years from the date of the decree of the High Court. However Mr. H. M. Mehta learned advocate for the appellants urged that the suit filed by the appellants was not barred by limitation as the same was filed with three years from the date of the decree of the High Court. It is not necessary for me to decide this point at this stage. It is open to the parties to agitate this question in the trial Court if deemed proper. ( 9 ) IN the result the revision application succeeds. The judgment and decree of the Small Cause Court Bench as well as the judgment and decree of the trial Court are hereby set aside and the plaintiffs suit is remanded to the trial court with a direction to proceed further according to law in the light of the observations made above after permitting the plaintiffs to join Bai Saraswati as a party to the suit. The decree for eviction obtained by the landlord opponent against Bai Saraswati should not be executed till the present proceedings are decided by the trial Court. The opponent is restrained from executing the decree obtained by him against Bai Saraswati for possession of the suit premises till the present suit is finally decided by the court. ( 10 ) THE plaintiffs should take proper steps to join Bai Saraswati as a party within two months from the date of receipt of the record and proceedings by the trial Court. ( 11 ) IN view of the facts of this case no orders as to costs of this revision application. Rule made absolute. .