JUDGMENT - P.S. SHAH, J.:---This first appeal has arisen in peculiar circumstances. The appellant Rajrupsingh Ramdularsingh filed Suit No. 6929 of 1973 against the respondent Chhotalal Makhanlal in the City Civil Court, Bombay, for setting aside the order dated December 13, 1962, passed by the Court of Small Causes in Obstructionist Notice No. 676 of 1962 in Ejectment Application No. 689/E of 1959, and for the consequential relief of permanent injunction restraining the respondent from executing the warrant of possession against the appellant pursuant to the aforesaid order dated December 13, 1962. According to the plaint, the appellant claims to be in occupation of the suit room being Room No. 8 in Sind Mercantile Syndicate Building, situated at 311-331, New Charni Road, Bombay, as the sub-tenant of one Dwarkaprasad Joshi. The respondent filed Ejectment Application No. 686/E of 1959 against one Khiliram Badri and Lajjaram under the provisions of section 41 of the Small Causes Courts Act in the year 1959. In this Ejectment Application No. 686/E of 1959, an ex parte order for delivery of possession was passed in favour of the respondent on September 8, 1961. According to the appellant, neither the respondent who had obtained the ejectment order nor the alleged licensee were residing in the suit room at the time of the filing of the ejectment application. His case is that he has been in exclusive possession of the suit room since the year 1957 and has been paying the rent thereof to the landlord. In substance, the plaint recites that the appellant is in possession of the suit room as a lawful sub-tenant of the original tenant Dwarkaprasad Joshi, and neither the respondent nor his alleged licensee had any right or possession in the suit room when the ejectment application was very filed by the respondent. According to him, the order passed in ejectment application is not binding on him and the respondent has no right to execute the order in ejectment application against him. 2. After the obstructionist notice of motion taken out by the respondent against the appellant was made absolute, the appellant filed a substantive suit under Order 21, Rule 103 of the Code of Civil Procedure, viz. 2. After the obstructionist notice of motion taken out by the respondent against the appellant was made absolute, the appellant filed a substantive suit under Order 21, Rule 103 of the Code of Civil Procedure, viz. Suit No. 5973 of 1962 in the Court of Small Causes on the basis of his title as a sub-tenant of Dwarkaprasad Joshi claiming that the ex parte order dated September 8, 1961 in Ejectment Application and the order dated December 13, 1962 on the Obstructionist Notice were not binding on him and praying for setting aside the said order and for an injunction restraining the respondent from executing the aforesaid order. By its order dated August 4, 1964, the Court of Small Causes returned the plaint for presentation to the proper Court holding that the Small Causes Court had no jurisdiction to try the suit. The appellant, therefore, filed the said plaint in the City Civil Court which was numbered as Suit No. 4560 of 1964. By his order dated August 12, 1961, Judge Suresh of the City Civil Court directed that the plaint should be returned to the plaintiff-appellant for presentation in the property Court. He took the view that the order passed in the Ejectment Application Court not be set aside the without the plaintiff proving his title, and since that title is the title of lawful sub-tenancy within the meaning of the Rent Act, the City Court would have no jurisdiction to entertain and try the suit. In short, he held that it was the Court of Small Causes which could entertain the suit. The appellant, therefore, again filed the plaint returned by the City Court to the Small Causes Court. This plaint was numbered as Declaratory Suit No. 845/4839 of 1971. The Small Causes Court again took the view that it had no jurisdiction to try the suit and passed an Order directing return of the plain to the appellant for presentation in the proper Court. The plaintiff preferred an appeal to the Appellate Bench of the Court of Small Causes which was numbered as Appeal No. 246 of 1972. The Small Causes Court again took the view that it had no jurisdiction to try the suit and passed an Order directing return of the plain to the appellant for presentation in the proper Court. The plaintiff preferred an appeal to the Appellate Bench of the Court of Small Causes which was numbered as Appeal No. 246 of 1972. On August 14, 1973, the Appellate Bench on a consideration of the averments in the plaint came to the conclusion that the suit was outside the purview of the provisions of section 28 of the Rent Act, and, therefore, confirmed the order of the return of the plaint passed by the Small Causes Court. This order of the Appellate Bench was challenged in a writ petition filed by the plaintiff in this Court under Article 227 of the Constitution. This writ petition was summarily dismissed by Nathwani, J. on 3-9-1973. The plaintiff, therefore, again refiled the plaint in the City Court which was numbered as Suit No. 6929 of 1973. By the order dated January 28, 1974, the City Court rejected the plaint on the ground that it had no jurisdiction to entertain the suit. The Court felt bound by the previous order in the earlier suit wherein the Court had already taken the view that it had no jurisdiction to entertain and try the suit. It is this order passed by the City Court which has been challenged by the appellant in this appeal. 3. Mr. Garg the learned Counsel appearing for the appellant, contended before me that the City Court had jurisdiction to entertain and try the plaintiffs suit. He submitted that the previous decision of the City Court in the earlier suit could not operate as a bar for filing the present suit as the Court then had wrongly held that it had no jurisdiction to try the suit on an erroneous interpretation of the provisions of the Rent Act. In this connection, he relied on the decision of the Supreme Court in (Mathura Prasad v. Dossibai)1, A.I.R. 1971 S.C. 2355. On the other hand, Mr. Shetty, the learned Counsel for the defendant-respondent, supported the view taken by the trial Court and contended that the decision of the City Court in the previously instituted suit would operate as res judicata against the plaintiff. On the other hand, Mr. Shetty, the learned Counsel for the defendant-respondent, supported the view taken by the trial Court and contended that the decision of the City Court in the previously instituted suit would operate as res judicata against the plaintiff. In any event, he submitted that on the averments of the plaint, it must be held that it is only the Rent Court which will have jurisdiction to try the suit and the suit filed in the City Civil Court is misconceived. 4. The plaintiffs attempt to get redress both in the City Court and Small Causes Court has so far failed because the City Court has held that it is the Court of Small Causes which has jurisdiction, while the Court of Small Causes has held that the City Court had jurisdiction, with the result that the plaintiff has been denied the opportunity of being heard and get a decision on merits. Undoubtedly, the plaintiff was entitled to get his claim in suit adjudicated upon by the Special Court viz. the Court of Small Causes or the City Civil Court. The short question for consideration is whether the previous order passed on August 12, 1971 in Suit No. 4560 of 1964 taking the view that the City Court had no jurisdiction and directing return of the plaint to the plaintiff for presentation in a proper Court, that is, the Court of Small Causes operates as res judicata against the plaintiff. If the said order does not create bar of res judicata, the next question for consideration would be whether the City Court was competent to entertain the plaint filed by the plaintiff. The trial Court has rejected the plaint solely on the ground that it is bound by the said previous decision of the City Court. 5. It is now well settled that the question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. In the case of Mathura Prasad v. Dissibai, the Supreme Court observed : "A question of jurisdiction of the Court or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J. observed in (Tarini Charan Bhattacharjees case)2, A.I.R. 1928 Cal. In the case of Mathura Prasad v. Dissibai, the Supreme Court observed : "A question of jurisdiction of the Court or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J. observed in (Tarini Charan Bhattacharjees case)2, A.I.R. 1928 Cal. 777. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter alia, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this as ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not posses under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise." In the present case, we find that the plaintiffs suit has been prolonged both by the Court of Small Causes and the City Court solely on the preliminary ground that they had no jurisdiction to entertain or try the plaintiffs suit. The City Court has refused to adjudicate upon the plaintiffs plaint taking the view that it was the Court of Small Causes which could entertain and adjudicate upon the plaintiffs rights claimed by him in the suit. In view of the clear enunciation of the law on the point by the Supreme Court, it is clear that the trial Court was in error in throwing out the plaintiffs suit in limine by invoking the bar or res judicata. As observed by it the Supreme Court, the question relating to the jurisdiction of the City Court could not be deemed to have been finally determined by the earlier decision by the same Court if it is shown to be based on an erroneous interpretation of law. 6. As observed by it the Supreme Court, the question relating to the jurisdiction of the City Court could not be deemed to have been finally determined by the earlier decision by the same Court if it is shown to be based on an erroneous interpretation of law. 6. The next question for consideration is whether the suit as framed could lie in the City Court. The question of jurisdiction of the Court has to be determined on the averments made in the plaint. In the case of (Sarfarazali v. Maneck)3, 78 Bom.L.R. 704(D.B.) The Division Bench of this Court has taken the view as follows : "The jurisdiction of a Court is normally and ordinarily to be determined at the time of inception of a suit. This jurisdiction should not be controlled or affected by any subsequent contention that may be taken up by the defendant. Hence the decision whether a Court other than the Small Causes Court has jurisdiction to try particular suit is to be determined on the basis of the averments made in the plaint. The defence raised by the defendant is irrelevant for this purpose. If ultimately at the trial it is found that the allegations of the plaintiff are not substantiated and the defence is true it is open to the Court to return the plaint for presentation to the proper Court or to dismiss it if the circumstances so warrant." In view of the provisions of section 28 of the Rent Act, the question of the exclusive jurisdiction of the Court of Small Causes would arise only if the person invoking the jurisdiction of the Court alleges that the other party is tenant or landlord and the question is one which is referred to in section 28. Apart from a suit relating to recovery of rent or possession, the exclusive jurisdiction is vested in the Court of Small Causes when it is required to deal with any claim or question arising out the provisions of the Act. 7. On the averments in the plaint in this case, it is not disputed that is not a suit between a landlord and a tenant. However, the contention of Mr. Shetty, the learned Counsel for the respondent, is that the claim made in the plaint is one arising out of the provisions of the Rent Act, and, therefore, the City Court will have no jurisdiction. However, the contention of Mr. Shetty, the learned Counsel for the respondent, is that the claim made in the plaint is one arising out of the provisions of the Rent Act, and, therefore, the City Court will have no jurisdiction. According to him, such a suit can only be filed in the Court of Small Causes. In the present case, the plaintiffs suit is based on the allegation that he is the lawful sub-tenant of one Dwarkaprasad Joshi, who was the original tenant of the suit premises. According to the averments in the plaint the defendant did not have any right in the suit premises, and the order obtained by him in the Ejectment Application No. 686/E of 1959 against Khiali Ram in the Court of Small Causes under section 41 of the Presidency Small Causes Courts Act is not binding on him, and the defendant cannot seek to execute the warrant of possession against him or his licensees. On reading the plaint, it is clear the plaintiff has pleaded sub-tenancy as his title on which his suit is based, but the plaint nowhere suggest that the defendant is a landlord or a tenant. There is also nothing to suggest in the plaint that there is any claim or question within the provisions of the Rent Act. In short, what the plaintiff claims is that he is in possession as a sub-tenant and the defendant or the persons against whom he has obtained the ejectment order have no rights in the suit premises. It is impossible to say that the claim made in such a suit could fall within the provision of section 28 of the Rent Act the reasons why the City Court ordered return of the plaint in Suit No. 4560 of 1964 are contained in paragraph 3 of the order of the City Court dated August 12, 1971. The learned Judge observed : "In my view, since the decree or the order passed in the ejectment application cannot be set aside without plaintiff proving his title, and since that title is the title of lawful sub-tenancy within the meaning of Bombay Rent Act, 1947, this Court will have no jurisdiction to entertain and try this suit. Question of sub-tenancy is a question arising under the Bombay Rent Act, 1947. Question of sub-tenancy is a question arising under the Bombay Rent Act, 1947. The suit need not necessarily be between a landlord and tenant and in this connection, a reference may be made to a decision reported in 73 Bom.L.R. 320." It is true that having regard to the wording of section 28 of the Rent Act, a claim or question arising out of the Act or any of its provision need not be necessarily one between a landlord and a tenant, and even in such a case, the special Court will have jurisdiction to deal with such a claim or question under section 28(1). However, the averments in the plaint do not at all show that there is any claim or question arising out of the Act or an of its provisions, nor do they show that there was relationship of landlord and tenant between the plaintiff and the defendant. Merely because the plaintiff pleads that he is a lawful sub-tenant by way of his title to the suit property, that cannot by itself take away the jurisdiction of the City Court to try the suit. There is nothing in the plaint to show that the cause of action or the relied claimed constitute any claim or question arising under the provisions of the Rent Act. Undisputedly, this is not a suit between a landlord and a tenant. The plaintiffs simple case is that he has the right to possession of the suit premises as a lawful sub-tenant and the defendant has no right, title to interest whatsoever therein and, therefore, the ejectment order obtained by him against Chhayaram and another is not executable against him. Such a suit is not covered by section 28 of the Rent Act. It would therefore, be clear that the City Court which was patently in error in rejecting the plaintiffs suit in limine on the ground of want of jurisdiction. In my view, it is the City Court which has jurisdiction to entertain and try the plaintiffs suit. 8. In the result, the appeal must be allowed, the judgment and order dated January 28, 1974, passed by the City Court in Suit No. 6929/73 is set aside, and the suit is remanded back to the trial Court for disposal according to law on merits. The order in ejectment application was passed in the year 1961. 8. In the result, the appeal must be allowed, the judgment and order dated January 28, 1974, passed by the City Court in Suit No. 6929/73 is set aside, and the suit is remanded back to the trial Court for disposal according to law on merits. The order in ejectment application was passed in the year 1961. It was sought to be executed against the plaintiff in the year 1962, and the Obstructionist Notice taken out by the defendant was made absolute. Immediately thereafter, the plaintiff filed a Declaratory Suit in the Small Causes Court, and since then, as both the Court of Small Causes and the City Court took the view that they had no jurisdiction to entertain and try the plaintiffs suit, there has been no decision on merits of the plaintiffs claim. Thus the litigation between the parties is pending for the last 15 years. It is, therefore, necessary that the suit should be expeditiously decided by the City Court. Mr. Shetty for the defendant states that he would file his written statement in the City Court within two weeks. The trial Court shall try and finally dispose of the suit up to 30th June, 1978. Order passed this Court to continue till June 30th, 1978. 10. There shall be no order as to costs. -----