Bombay High Court
Radhakisan Ramnath Malpani vs Rajeh Dattatray Mahajan on 6 May, 2013
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.149 OF 2013
Radhakisan Ramnath Malpani,
Aged about 70 years,
Occupation - Business,
R/o Vishnuwadi, Bharat Kala Road,
Malkapur, Tq. Malkapur,
Dist. Buldhana. ... Appellant/
Ori. Defendant No.2
Versus
1. Rajeh Dattatray Mahajan, ... Ori. Plaintiff
Aged about 35 years,
Occupation - Business,
R/o Nandura Road,
Malkapur, Dist. Buldhana.
2. Rajkumari Gokulchand Urkat,
Adult, Occupation - Household Work,
R/o Vijay Agro Traders,
Main Road,
Hinganghat, Distt. Wardha. ... Ori. Defendants
Nos.1(a) and 1(b)
3. Leelabai w/o Nandlal Soni,
Adult, Occupation - Household Work,
R/o Kisanlal Sono Tilak Square,
Post & Taluq Yewala, Distt. Nasik. ... Respondents
Shri M.G. Sarda, Advocate for Appellant.
Shri S.R. Deshpande, Advocate for Respondent No.1.
CORAM : R.K. DESHPANDE, J.
Date of Reserving the Judgment : 29-4-2013
Date of Pronouncing the Judgment : 6-5-2013
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JUDGMENT :
1. Regular Civil Suit No.83 of 1997 for eviction and possession of the open land instituted by the respondent No.1/plaintiff-landlord was decreed by the Trial Court by its judgment and order dated 28-11-2011. Regular Civil Appeal No.191 of 2012 preferred by the appellant/defendant No.2- tenant challenging the decree passed by the Trial Court, was dismissed by the learned Ad hoc District Judge, Malkapur.
Hence, this second appeal by the original defendant No.2-tenant.
2. The factual position, which is not challenged during the course of arguments, needs to be stated as under :
The suit property was the open land owned by one Govind Vishnu Saoji (Mahajan). By executing the registered sale-deed dated 1-1-1943, it was transfered in the name of the appellant/defendant No.2 Radhakisan Ramnath Malpani for a fixed period of 61 years, ending on 31-12-2003. The lessor Govind Saoji died on 29-12-1968 and the property was bequeathed under his Will in favour of the adopted son Dattatray Mahajan, who allotted it to his son Rajesh Mahajan, ::: Downloaded on - 09/06/2013 13:26:34 ::: 3 sa149.13.odt the respondent No.1/original plaintiff, in partition on 1-11-1978.
3. The respondent No.1/plaintiff Rajesh Mahajan filed Regular Civil Suit No.83 of 1997 on 11-6-1997 against the appellant/defendant No.2 Radhakisan Malpani for eviction and possession of the open land, which is the suit property, on the ground of breach of the terms and conditions of the lease agreement dated 1-1-1943. During the pendency of this suit, the Maharashtra Rent Control Act, 1999 came into force with effect from 31-3-2000, and the lease period of 61 years also expired on 31-12-2003. By way of an application for amendment filed on 20-6-2005, the respondent No.1/plaintiff introduced a new ground of lease coming to an end by efflux of time. The said application for amendment was allowed by the Trial Court on 2-7-2005.
4. The Trial Court rejected the claim of the respondent No.1/plaintiff for eviction and possession on the ground of breach of the conditions of the registered lease-deed.
However, it allowed the said claim on the ground that the lease was determinable by efflux of time. The Trial Court recorded the finding that after expiry of the lease period on 31-12-2013, almost seven years have lapsed, but no case of mutual ::: Downloaded on - 09/06/2013 13:26:34 ::: 4 sa149.13.odt extension of the lease period is made out. Relying upon the decision of this Court in the case of Manoramabai wd/o Shamrao Saoji and others v. Municipal Council, Saoner and another, reported in 2010(4) All MR 76, the Trial Court held that in case where the lease is for a fixed period coming to an end after expiry of it, notice under Section 106 of the Transfer of Property Act, 1882 is not necessary unless the tenant is holding over and the suit cannot be dismissed for non-issuance of such notice. The Trial Court also held that the suit property is open land and hence does not come within the purview of the Maharashtra Rent Control Act, 1999.
5. The Appellate Court has concurred with the findings recorded by the Trial Court. In addition to it, the Appellate Court has held that the remedy of the general law, i.e. the Transfer of Property Act, 1882, was available, and the landlord cannot be compelled to institute the proceedings before the Rent Controller for grant of permission to issue notice determining the lease, as contemplated under clause 13(1)(b) of the C.P. & Berar Letting of Premises and Rent Control Order, 1949 (for short,"the Rent Control Order"). The Appellate Court has further held that the provisions of Section 58 of the Maharashtra Rent Control Act, 1999 gave an option to the ::: Downloaded on - 09/06/2013 13:26:34 ::: 5 sa149.13.odt landlord to continue with the proceedings before the Rent Controller under the repealed Rent Control Order, or to institute the fresh proceedings under the new Act. It has further been held that the proceedings for recovery of possession in respect of the lease of open plot was not governed by the provisions of the Maharashtra Rent Control Act, and hence the Civil Court has jurisdiction to entertain, try and decide the suit. It has further been held that even notice under Section 106 of the Transfer of Property Act was not necessary, as the application for amendment to the plaint, introducing the ground of lease, coming to an end by efflux of time, was allowed. The reliance is placed upon the decision of this Court in Manoramabai Saoji's case, cited supra.
6. The only point urged by Shri Sarda, the learned counsel appearing for the appellant, is that in view of clause (4A) of the Rent Control Order, introduced on 27-6-1989, the leases in respect of open lands were also governed by the provisions of the Rent Control Order. According to him, the suit in question was not maintainable in view of non-compliance of the mandatory provision under sub-clause (1) of Clause 13 of the Rent Control Order, which requires the landlord to obtain a written permission of the Rent Controller to give notice to the ::: Downloaded on - 09/06/2013 13:26:34 ::: 6 sa149.13.odt tenant determining the lease either on the ground of the breach of the terms and conditions of the lease agreement, or where the lease is determinable by efflux of time limited thereby, requiring the tenant to vacate the premises by process of law. Relying upon the provisions of sub-section (2) of Section 58 of the Maharashtra Rent Control Act, he has urged that the proceedings of the suit in question have to be continued and disposed of only in accordance with the provisions of the C.P. & Berar Regulation of Letting of Accommodation Act, 1946, and the C.P. & Berar Rent Control Order therein (hereinafter jointly referred to as "the Rent Control Legislations"), which have been repealed, as if the provisions of the Rent Control Legislations were in force, and the Maharashtra Rent Control Act was not passed.
7. Shri Sarda submits on facts that undisputedly no permission of the Rent Controller under clause 13(1) of the Rent Control Order was obtained for institution of the suit in question, and hence the said suit ought to have been dismissed on that ground alone by the Courts below. In support of his contentions, he has relied upon the decision of this Court in the case of Shrikrishna Jugalkishore Goenka v. Govind Trimbak Vaidya, reported in 2009(1) ALL MR 602. In the alternative, he ::: Downloaded on - 09/06/2013 13:26:34 ::: 7 sa149.13.odt has also relied upon the provision of Section 7 of the General Clauses Act, 1904, and the decision of this Court in the case of Soamchand Sankharia v. Sing Light House & another, reported in 2002(Suppl) Bom.C.R. 658, to urge that even in the absence of applicability of Section 58(2) of the Maharashtra Rent Control Act, the proceedings under the Rent Control Order instituted under the repealed Rent Control Order will continue to be governed by the law as was prevailing prior to coming into force of the Maharashtra Rent Control Act, 1999.
8. Shri S.R. Deshpande, the learned counsel appearing for the respondent No.1/plaintiff-landlord, has opposed the aforesaid contentions. He has urged that Section 58(2) of the Maharashtra Rent Control Act deals with all the applications, suits or other proceedings pending under the repealed Rent Control Order and it does not deal with the proceedings invoking the ordinary jurisdiction of the Civil Court to seek eviction of the tenant and possession from him under the general law, i.e. the Transfer of Property Act. He supports the view taken by the Courts below and submits that in the present case, the permission of the Rent Controller was not required to determine the tenancy in question. He has relied upon the decision of this Court in the case of Ashwinikumar ::: Downloaded on - 09/06/2013 13:26:34 ::: 8 sa149.13.odt Govardhandas Gandhi & another v. Gangadhar Dattatraya Gadgil, reported in 1990(1) Mh.L.J. 18. He, therefore, submits that the Civil Court had jurisdiction to entertain, try and decide the suit in question not only on the date when it was instituted, i.e. on 11-6-1997, but also on the date when the amendment was made in the plaint, i.e. on 2-7-2005, introducing the ground of determining the lease by efflux of time. He further submits that undisputedly the lease in respect of open land is not governed by the provisions of the Maharashtra Rent Control Act, and hence the ordinary jurisdiction of the Civil Court was available.
9. On the basis of the rival submissions, the matter was admitted on 24-4-2013 for consideration of the following substantial questions of law :
(i) Whether Regular Civil Suit No.83 of 1997 between the respondent No.1-landlord and the appellant-tenant for eviction and possession in respect of the lease of open land, was required to be decided as per the law prevailing on the date of filing of the suit, i.e. on 11-6-1997, in view of the provision of repeal and saving contained in sub-section (2)(a) of Section 58 of the Maharashtra Rent Control Act, 1999?::: Downloaded on - 09/06/2013 13:26:34 ::: 9
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(ii) Whether the ordinary jurisdiction of a Civil Court was available to pass a decree in Regular Civil Suit No.83 of 1997 for eviction and possession between the respondent No.1-landlord and the appellant-tenant in respect of the open land on the ground of lease coming to an end by efflux of time, introduced by way of amendment on 2-7-2005?
10. It is not necessary for me to decide the substantial question of law at serial No.(i) above, for the reason that even if it is held that the suit in question, as was formulated and filed on 11-6-1997, was required to be dismissed, the decree for eviction and possession passed by the Trial Court, as confirmed in appeal, cannot be disturbed or set aside in view of the fact that the substantial question of law at serial No.(ii), needs to be answered in favour of the respondent No.1/plaintiff-landlord.
Hence, I proceed to deal with the substantial question of law at serial No.(ii).
11. As per the registered lease agreement in question, the period of lease fixed was of 61 years, commencing from 1-1-1943. Hence, the determination of lease by efflux of time, ::: Downloaded on - 09/06/2013 13:26:34 ::: 10 sa149.13.odt after a lapse of 61 years with effect from 31-12-2003, could not be at any point of time prior to the expiry of lease period. The cause of action for filing a suit for eviction and possession on such ground under Section 111(a) of the Transfer of Property Act, 1882, did not arise at any point of time prior to 31-12-2003. On the date of expiry of lease period, i.e. on 31-12-2003, the Rent Control Legislations were not in force, as the same were repealed by the provision of Section 58(1)(b) of the Maharashtra Rent Control Act, 1999, with effect from 31-3-2000. It is not in dispute that the leases in respect of open land are not governed by the provisions of the Maharashtra Rent Control Act. Hence, the only remedy available was to file a suit invoking the ordinary jurisdiction of a Civil Court for eviction of tenant and for possession under the general law of the Transfer of Property Act, and neither the provisions of the Rent Control Legislations, nor the provisions of the Maharashtra Rent Control Act were applicable, as the lease in question was for the open land.
12. No doubt, Regular Civil Suit No.83 of 1997 was filed for eviction and possession on 11-6-1997 on the ground of breach of the terms and conditions of the lease agreement.
The tenancy was thus terminable at the option of the lessor.
::: Downloaded on - 09/06/2013 13:26:34 ::: 11sa149.13.odt Hence, I proceed on the footing that such a suit was not maintainable on 11-6-1997, without the permission of the Rent Controller under the provision of clause 13(i)(a) of the Rent Control Order, which was then in force. The suit, as was formulated and filed, was required to be dismissed on that sole ground. However, the fact remained that the suit was not dismissed, but it remained pending till the Maharashtra Rent Control Act was brought into force on 31-3-2000 by repealing the earlier Rent Control Legislation, which was prevailing.
13. The respondent No.1/plaintiff filed an application for amendment on 20-6-2005, introducing a new ground for determination of lease by efflux of time, in Regular Civil Suit No.83 of 1997. The said application was allowed by the Trial Court on 2-7-2005. In the facts and circumstances of this case, the effect of amendment was that it was a suit instituted on 20-6-2005 for eviction and possession of the suit property on the basis of the cause of action, which arose on 31-12-2003.
Obviously, for the reasons stated in the earlier para, only the Civil Court had jurisdiction to entertain, try and decide such a suit, and neither the proceedings under the repealed Rent Control Legislations, nor under the Maharashtra Rent Control Act could be instituted. Hence, the substantial question of law ::: Downloaded on - 09/06/2013 13:26:34 ::: 12 sa149.13.odt at serial No.(ii) is answered, holding that the ordinary jurisdiction of a Civil Court was available to pass a decree in Regular Civil Suit No.83 of 1997 for eviction and possession between the respondent No.1-landlord and the appellant-tenant in respect of the open land on the ground of lease coming an end by efflux of time, introduced by way of amendment on 2-7-2005.
14. For the reasons stated above, the second appeal is dismissed. No order as to costs.
JUDGE.
PDL.
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