JUDGMENT- The above First Appeal is filed by the defendants in Suit No. 655 of 1960, in the Bombay City Civil Court at Bombay. On February 22, 1960, the plaintiffs-respondents filed the suit (a) for a declaration that the leave and licence granted to the defendants was revoked and the defendants were trespassers having no right to enter upon or remain on the suit premises; (b) that the defendants be ordered by mandatory injunction to forthwith remove themselves, their servants and agents and their belongings, if any, from the suit premises and the defendants be ordered to hand over to the plaintiff vacant possession of the suit premises; (c) that the defendants, their servants and agents be restrained by an order and injunction from trespassing and continuing to trespass and/or entering' or remaining upon the suit premises and/or any part thereof and for mesne profits and costs and other incidental reliefs. 2. The allegations in the plaint may be briefly summarised as follows: The suit premises consist of two rooms, one room admeasuring 12' x 15' and another admeasuring 10’ x 10' on the 3rd floor of a building known as "Zaveri Bhuvan" situate at 21-A, Second Agiary Lane, Bombay-3. Plaintiff No. 1 Lallubhai Talakchand was carrying on business in the name and style of Jayantilal Shantilal and Company in the said premises in or about 1.943. Defendant No. 1 Shantilal Kalidas Shah is the son of the brother of plaintiff No.1. The business was continued by plaintiff No. 1 upto about 1945. Thereafter in 1945, the name of the business was changed to Lallubhai Talakchand and Company and the business win done in that name upto 1951. The rent was paid by Lallubhai, plaintiff No. 1. In the year 1951 the name of the business was again changed to Dahyalal Lallaubhai and Company and plaintiff No. 1 admitted certain other persons as partners in the business. That partnership firm is plaintiff No.2. It is registered under the Indian Partnership Act. 3. It was alleged that defendant No. 1 was helping plaintiff No.1 in his business. He was sleeping, with plaintiff No. 1's permission, at night in the store room of the premises till 1950 when he acquired a suitable residential block at Zaveri Bhuvan, Nariman Road, Vile Parle. Since that time, defendant No. 1 has been residing at Vile Parle at the said address. Defendants Nos. He was sleeping, with plaintiff No. 1's permission, at night in the store room of the premises till 1950 when he acquired a suitable residential block at Zaveri Bhuvan, Nariman Road, Vile Parle. Since that time, defendant No. 1 has been residing at Vile Parle at the said address. Defendants Nos. 2 and 3 are the brothers of defendant No. 1. They too were sleeping in' the store-room with plaintiff No.1's permission. Defendants Nos. 4, 5, 6 and 7 subsequently started staying in the store-room. 4. On September 29, 1959, all the defendants physically prevented plaintiff No. 1's son Jayantilal from entering the premises. They assaulted him. Thereafter plaintiff No. 1 and his son made several attempts to settle the matter amicably and to persuade the defendants to adopt a reasonable attitude. It was of no avail. In the second week of November, the defendants threatened plaintiff No. 1 that nobody would be allowed to enter even the office room in which the business was carried on. The defendants trespassed into the office room. It is alleged in plaint para. 6 : "The plaintiffs submit that the defendant No.1 was given permission to occupy the said premises only as a licensee. The defendant No. 1 has now gone to Vile Parle as stated above. The defendants No.2 and No.3 were also given permission by the plaintiffs to stay in the said store room. The defendants Nos. 3 to 7 have been brought in by the defendants Nos. 2 and 3 as the stated above. The leave and licence and the permission granted to the first defendant and/or the defendants Nos. 2 and 3 have been revoked and withdrawn after which the occupation of the defendants Nos. 2 and 3 is only as trespassers. The defendants Nos. 3 to 7 are also trespassers and have no right to continue on the premises. The plaintiffs submit that in any event leave and licence and/or permission granted to the defendants or any of them is hereby revoked and they and each of them are now trespassers on the said premises. The defendants and each of them are not entitled to continue on the said premises." In view of this position, the plaintiffs filed the above suit claiming the aforesaid reliefs. 5. The suit was stoutly resisted by the defendants Nos. 1, 2 and 4 to 7. The defendants and each of them are not entitled to continue on the said premises." In view of this position, the plaintiffs filed the above suit claiming the aforesaid reliefs. 5. The suit was stoutly resisted by the defendants Nos. 1, 2 and 4 to 7. According to the defendants, the story made out by the plaintiffs that plaintiff No.1 was carrying on business in the suit premises since 1943 was false. They contended that the true facts were that defendants Nos. 1,2 and 3 were carrying on business as jewellers in the name of "Shantilal Brothers" since 1935. They intended to start a new and separate business in the name and style of "Jayantilal Shantilal" with a known acquaintance by name Jayantilal Punamchand Shah, and for that purpose the suit premises were rented by defendant No.2 in the year 1942. The suit premises were used for business and also for residence. The premises were accordingly rented by defendant No.2 in the name of "Jayantilal Shantilal", Jayantilal representing the abovenamed Jayantilal Punamchand Shah and Shantilal representing defendant No.1. At the request of plaintiff No. 1, in or about the year 1937, defandants Nos. 1,2 and 3 allowed him to work with them as their agent and broker, he being their close relative and also an elderly person. 6. They further contended that plaintiff No. 1 was falsely endeavouring to associate himself with and claim as his own the said business of the defendant", in the name and style of "Jayantilal Shantilal". By accident Jayantilal happens to be also the name of his son, though his son Jayantilal was aged 8 or 9 years in the year 1943. In other words, the defendants contended that the premises were rented not by plaintiff No. 1 but by the defendants for their business and residence. They further submitted that the premises consisted not only of one room, as stated by the plaintiffs but also of one terrace, open to the sky, in front of the office room, admeasuring 9' x 13½. They denied the allegation of the plaintiffs that the premises consisted of one office room and another store-room and stated that the so called store-room was a kitchen, which was being used since 1942 to the knowledge of the plaintiffs by the defendants and their family members as a cooking room. 7. They denied the allegation of the plaintiffs that the premises consisted of one office room and another store-room and stated that the so called store-room was a kitchen, which was being used since 1942 to the knowledge of the plaintiffs by the defendants and their family members as a cooking room. 7. It is further stated in the written statement that the defendants continued the business of 'Jayantilal Shantilal' but it was denied that plaintiff No.1 carried on business on the name of Messrs. Lallubhai Talakchand and Company upto 1951, as alleged by the plaintiffs •. On the contrary, they say that plaintiff No.1 ceased to be working as the defendants' agent and broker in the year 1951 and wanted to do the business of his own. Defendant No 2 granted him the leave and licence to occupy a small portion in a corner of the office room during the day time to take rest and see and attend to the correspondence of the new business of Dahyalal Lallubhai and Company. 8. In other words, according to the defendants it was plaintiff No. 1 who was a licensee in the suit premises. They denied that the rent in respect of the said premises was all along or at any time paid in the name of Lallubhai Talakchand, plaintiff No I. With reference to para. 6 of the plaint, which is quoted above, they say as follows: "In brief, the defendants deny the alleged leave and licence to defendant No.1 or for the matter of that to any of the defendants and further deny the alleged revocation and withdrawal by the plaintiffs of the said alleged leave and licence and consequently also deny the alleged trespass and defendants deny that they have no right to go to or remain and continue on the premises. Defendants say that they are in full and lawful occupation of the entire premises in their own right and they are therefore fully entitled to remain and continue to the occupation of the said premises…….” They denied all other allegations made in the plaint with regard to assault and trespass and submitted in para. 17 of the written statement that the City Civil Court had no jurisdiction to entertain the suit contending that the allegation of trespass was made only with a view to confer jurisdiction wrongly on the City Civil Court. 17 of the written statement that the City Civil Court had no jurisdiction to entertain the suit contending that the allegation of trespass was made only with a view to confer jurisdiction wrongly on the City Civil Court. In view of these contentions they further submitted that the suit of the plaintiffs was liable to be dismissed. 9. Thus the real dispute between the parties was as to whether the plaintiffs were the tenants of the suit premises or the defendants were the tenants of the suit premises. That was a question which directly arose under the Bombay Rent Act. Yet the landlord was not made a party. The original landlord having died before the suit, the landlord's son was examined as a witness 00 behalf of the plaintiffs. He supported the plaintiffs; but the defendants produced certain rent receipts at Exh. 7 (collectively) as receipts in their possession. These receipts are in the name of "Jayantilal Shantilal". Not a single rent receipt is produced in the name of plaintiff No.2. The plaintiffs have also produced about 192 rent receipts at Exh. C (collectively) all standing in the name of "Jayantilal Shantilal". Although it was stated in plaint para. 1 that the rent in respect of the premises was all along paid in the name of Lallubhai Talakchand, the plaintiffs have neither produced accounts nor the rent receipts. They failed to show that the rent was paid by Lallubhai Talakchand and Company. I am now told that the accounts were just shown to the Court. But it is difficult to believe that a man with the name Lallubhai Talakchand will agree to take the receipt in the name of Jayantilal Shantilal merely because Jayantilal happened to be a minor son of Lallubhai. 10., Whatever it is, there can be no doubt that the questions which arose in the suit were essentially questions or claims "arising out of" the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, within the meaning of section 28. In view of section 28 (1) the City Civil Court had no jurisdiction to deal with claims or questions arising between the parties. In view of section 28 (1) the City Civil Court had no jurisdiction to deal with claims or questions arising between the parties. If this matter was res integra, I would have no doubt whatsoever regarding the want of jurisdiction of the City Civil Court~ because vital questions and aspects of the dispute between the plaintiffs and the defendants were questions 'which had to be decided under the Rent Act, having regard to the definition of the words ''landlord'' and "tenant" in that Act. 11. It is, however, contended on behalf of the plaintiff that for determining the question of the jurisdiction of the City Civil Court, the Court must took only at the plaint and ignore the written statement. In support of the contention, reliance was placed on a decision of the Supreme Court in Raizada Topandas v. Gorakhram1. But in that case Sarkar J. in his concurring Judgment expressly stated (p. 114): “I think it unnecessary to decide the dispute whether it is permissible under the section to look at the defence for ascertaining whether a claim or question under the Act arises in the suit.” That case arose out of a decision on a preliminary issue as to whether the City Civil Court had jurisdiction. No other question was decided by the City Civil Court of by the High Court of by the Supreme Court in that case; that is why Sarkar J. made the above observation and further stated in that very paragraph: “... It is important to remember that the question now is whether a Court has jurisdiction to deal with a claim or question and not whether a Court has jurisdiction to entertain a suit." In the present case, we have to see both the questions and decide whether the City Civil Court could entertain the present suit which involved directly and substantially no question other than the question which ought to have been decided under the-Bombay Rent Act. In my judgment, therefore, the plaintiff respondents cannot rely on Raizada Topandas’s case in the facts and circumstances of the present case. 12. In my judgment, therefore, the plaintiff respondents cannot rely on Raizada Topandas’s case in the facts and circumstances of the present case. 12. On the contrary, I am bound by the decision of the Full Bench of this Court in Dattatraya Krishna v. Jairam Ganeshi, where it is observed inter alia (p. 671) : “…..If a dispute is subsequently raised by the defendant about the existence of relationship of landlord and tenant, the continuance of the suit in the special Court will depend on the decision of the Court on that issue." With respect, this observation will necessarily mean that if, after the written statement is filed in the City Civil Court, that Court will cease to have jurisdiction, when it is found notwithstanding the allegations camouflaged or otherwise in the plaint for taking the suit, outside the scope and ambit of section 28 of the Bombay Rent Act, then it is a substantial dispute between the parties involving a question under the Bombay Rent Act. Hence it must fall within the scope of the bar enacted under section 28 of the Bombay Rent Act, which was, with respect, analysed very neatly by S. K. Das J. in the judgment in Raizada Topandas v. Gorakhram. 13. At page 110 he approved the principles stated by the Full Bench of the Allahabad High Court in Ananti v. Chhannu3: "The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If, ... he frames his suit in a manner not warranted by the facts, and goes for his relief to a Court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief …… If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendant are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of Court to which the Court belongs, the plaintiff's suit will have to be dismissed in its entirety." Having regard to these observations, the question as to whether the City Civil Court can decide the issues between the parties and give reliefs in the present case, is the crucial question. As stated above, the real dispute between the parties is as to whether the plaintiffs are the tenants or the defendants are the tenants. Those questions are questions which could be decided only under the Bombay Rent Act. 14. It was argued by Mr. Adik, the learned counsel for the respondents, that the present case is on fours with the Raizada's case and is not distinguishable and I must, therefore, hold that the City Civil Court had jurisdiction. As stated above, it is distinguishable because in this case the finding is not recorded on a preliminary issue regarding the jurisdiction. In the present case, the evidence and the contentions clearly show that the plaintiffs are basing their right substantially on their status as tenants under the Rent Act, with the rent receipts standing in the name of Jayantilal Shantilal though not in the name of plaintiffs No. 1 and No.2. Merely because the plaintiffs, claimed to have been in possession as tenants, the suit may not fall outside the jurisdiction of the City Civil Court. But in view of the real dispute between the parties as to whether the 'plaintiffs were the tenants or the defendants were the tenants, it must be held that the questions are questions which arise out of the Rent Act and even according to the principles laid down in Raizada's case by S.K. Das J., the suit must fall within the ambit of section 28 of the Bombay Rent Act. 15. 15. Apart from the decision of the Full Bench of this Court, referred to above, in view of the later decision of the Supreme Court in Sushila Kashinath v. Harilal Govindji4, it must be held that the City Civil Court had no jurisdiction to deal with any claim or questions arising out of the Bombay Rent Act or 'any 'of its provisions, notwithstanding that it was not the question or a claim arising between the landlord and tenant but between two persons as in the present case, who both claimed to be tenants of the suit premises. In that case, the Supreme Court, with respect, dealt with exhaustively the meaning of the words "arising out of the Act under section 28 of the Bombay Rent Act" and concluded at page 332 : "In view of the discussion contained in the above decisions and the reasons given by us earlier, it follows that the reliefs asked for by the plaintiff in the suit and the controversy raised by the defendants regarding the plaintiff's right to obtain those reliefs, all relate to 'claims or questions arising out of this fact or any of its provisions', and therefore, the Court having jurisdiction is the Special Court under section 28 of the Act." It is, therefore, clear that the Court must look at the controversy raised by the defendants and also see what is the real dispute between the parties. As stated above already, the real dispute between the parties in this case is a dispute as to whether the plaintiffs are tenants of the suit premises or the defendants are tenants. It is only when the defendants or any of them are not tenants that the plaintiffs are entitled to reliefs which the plaintiffs claimed in the suit. In my judgment, such a suit cannot lie in the City Civil Court having regard to the provisions of section 28 of the Bombay Rent Act. 16. In the result, the decree passed by the Judge of the City Civil Court at Bombay, on March 12 1964, is set aside and the plaintiffs' suit is dismissed. As "there was considerable doubt about the scope and nature of the jurisdiction of section 28 at the time when the suit was filed in the City Civil Court at Bombay, in 1960, the fair order for costs is that parties do bear their respective" costs throughout. As "there was considerable doubt about the scope and nature of the jurisdiction of section 28 at the time when the suit was filed in the City Civil Court at Bombay, in 1960, the fair order for costs is that parties do bear their respective" costs throughout. The appeal is allowed. Appeal allowed.