1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1303 /2009 (Abdul Razique Abdul Jabbar VERSUS Hotel Balbir Inn Pvt. Ltd.) WITH Writ Petition No. 1099 /2009 (Gangadhar Domaji Kurwade VERSUS Hotel Balbir Inn Pvt. Ltd.) WITH Writ Petition No. 1069 /2009 (Kusumbai wd/o Madhukar Adikane & others VERSUS Hotel Balbir Inn Pvt. Ltd.) WITH Writ Petition No. 1325 /2009 (Vijay Gangadhar Kurwade VERSUS Hotel Balbir Inn Pvt. Ltd.) WITH Writ Petition No. 1223 /2009 (Manohar Shivram Adikene VERSUS Hotel Balbir Inn Pvt. Ltd.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.G. Deshpande, counsel for the petitioner in W.P.No.1303/2009. Shri P.A. Abhyankar, counsel for the petitioner in rest of the four petitions. Shri Anand S. Jaiswal and Shri A.G. Gharote, counsel for the R-sole. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 14, 2009. Since almost identical questions arise for determination in these writ petitions, they are heard together and are decided by this common order. By these petitions, the petitioners impugn the judgments passed by the trial Court granting a decree for possession and arrears of rent in favour of the respondent landlord as also the judgments passed by the first appellate Court confirming the judgment and decree in all the cases. 2 The respondent-company is the owner of the suit properties and the petitioners in all the writ petitions are the lessees. Both the Courts have concurrently held that the respondent/plaintiff became the owner of the suit property in view of the registered sale-deed dated 30.09.2004. The Courts held that the plaintiff had succeeded in proving his title over the suit property. A finding of fact was recorded by both the Courts that the predecessor in title of the plaintiff had leased out the open land to the petitioners/defendants in all the suits. The Courts further found that it had jurisdiction to try and decide the suits filed by the respondent. Since the premises were open plots and the suits were filed in the year 2005, the Courts held that neither the provisions of C.P. & Berar Letting of Houses and Rent Control Order, 1949 nor the provisions of Maharashtra Rent Control Act, 1999 applied to the facts of the case. Since the notice issued under Section 106 of the Transfer of Property Act to each of the petitioners was held to be legal and valid, the Courts held that the tenancy of the petitioners was validly terminated by the respondent. The findings on these issues are pure findings of facts and cannot be interfered with, in exercise of the extra ordinary writ jurisdiction. 3 The submission made on behalf of the petitioners in all the writ petitions other than Writ Petition No.1303/2009, that there was no resolution empowering one of the Directors of the respondent-company to institute the suit and the suit was liable to be dismissed as the said Director was not competent to institute the suit on behalf of the company, is liable to be rejected in view of the fact that both the Courts have dealt with this issue in detail and have relied on the resolution filed by the plaintiff on record. Since both the Courts have concurrently held that the Director was authorized by the company to institute the suit on behalf of the company by the resolution dated 07.02.2005, the said finding also cannot be interfered with, in exercise of the writ jurisdiction. It is submitted on behalf of the petitioner in Writ Petition No.1069/2009 that the petitioner was not afforded an opportunity by the trial Court to advance the oral arguments and, therefore, the judgment passed by the trial Court is liable to be set aside on the ground of violation of principles of natural justice. The submission made on behalf of the petitioner in Writ Petition No.1069/2009 is totally ill founded as no such ground is raised by the petitioner in the memorandum of 4 appeal filed before the first appellate Court. It was not the case of the petitioner in the memorandum of appeal filed before the first appellate Court that the petitioner was prevented by the trial Court to tender oral arguments in the civil suit. On a perusal of the Roznama, it is clear that the defendants closed their evidence on 17.04.2008 and the matter was fixed for arguments on 21.04.2008. On 21.04.2008, the petitioner sought for an adjournment. The Courts refused to grant the same and the matter was posted for judgment on 28.04.2008. On 28.04.2008, the petitioner filed an application seeking permission to advance oral arguments in the matter. The application was allowed and it can be gathered from a combined reading of the order sheet dated 21.04.2008 and 28.04.2008 that the counsel for the petitioner had argued the matter. The judgment of the trial Court also makes a reference to the arguments advanced by the counsel for the petitioner. The aforesaid facts clearly show that the ground raised by the petitioner before this Court about the absence of opportunity to tender oral arguments is an after thought and is also incorrect. Therefore, there is no question of remanding the matter in Writ Petition No.1069/2009 to the trial Court for a fresh decision on merits. 5 The submission made on behalf of the petitioners that the trial Court had no jurisdiction to entertain the suits is liable to be rejected, so also, it is necessary to hold that the judgment passed by this Court in the case of Mohd. Azizul Haq Versus Dilip reported in 2008(6) Mh.L.J. 482 and relied on by the counsel for the petitioner, would be totally inapplicable to the facts of this case as the instant case has been instituted on the basis of Section 106 notice issued in the year 2005, i.e., after the coming into force of the Maharashtra Rent Control Act, 1999 and a finding of fact is recorded by both the Courts that the suit property was a open plot and not ‘premises’ within the meaning of a term under the provisions of Maharashtra Rent Control Act, 1999. The reference made by the petitioner to the provisions of Section 33 of the Act of 1999 is totally misconceived as the suit property did not fall within the ambit of the word ‘Premises’ under the provisions of Section 7(9) of the Act of 1999 and, therefore, there is no question of making a reference to the provisions of Section 33 of the Act of 1999 as the said Act is not applicable to the facts of any of the suits. Though the findings recorded by both the Courts on all other issues cannot be interfered with, it is necessary to interfere with the findings recorded by the trial Court as 6 regards the entitlement of the plaintiff to recover the arrears of rent from the concerned defendants. It is rightly submitted on behalf of the petitioner that the trial and the appellate Court were not justified in granting a decree for arrears of rent for the period prior to the purchase of the property by the respondent. The respondent had purchased the property on 30.09.2004 and the respondent was entitled to claim the arrears of rent only for the period subsequent to 30.09.2004 and the Courts were not justified in granting a decree for arrears of rent for the period prior to 30.09.2004, in view of the provisions of Section 109 of the Transfer of Property Act. Shri Jaiswal, the learned counsel for the respondents at this juncture makes a statement,on instructions from the Directors of the respondent-Company, that the respondent-Company is ready to give up the claim for arrears of rent for the period prior to the institution of the suit. The respondent-Company would, therefore, not claim any arrears of rent till the date of filing of the suit. It is submitted on behalf of the petitioner in Writ Petition No.1303/2009 that the trial Court had no jurisdiction to entertain the suit in view of the interim relief granted by the High Court in Writ Petition No.1921/2001. It is submitted on behalf of the petitioner that this Court had, 7 in Writ Petition No.1921/2001, directed the predecessor in title of the respondent not to interfere with the possession of the petitioner or make any attempts to demolish the structure and evict the petitioners in an illegal manner. The submission made on behalf of the petitioner in Writ Petition No.1303/2009 is liable to be rejected as by instituting the suit for eviction, the respondent was not trying to evict the petitioners in an illegal manner but had taken recourse to the legal means to evict the petitioner. The submission made on behalf of the petitioner in Writ Petition No.1303/2009 that the notice under Section 106 of the Transfer of Property Act ought to have been a six months notice in view of the fact that the premises were leased out to the petitioner for the purpose of manufacturing purpose is also liable to be rejected as this plea is not raised by the petitioner in the written statement filed before the trial Court and the same was sought to be raised for the first time when the matter was argued before the first appellate Court. It is also brought to the notice of this Court by the learned counsel for the respondent that the petitioner had entered the witness box and had clearly admitted in his cross-examination that the tenancy was a monthly tenancy. In the absence of any plea about the lease being a manufacturing lease and in 8 view of the clear admission by the petitioner in his cross- examination, the submission has no force and is rejected. The judgment reported in AIR 1982 SC 27 and relied on by the counsel for the petitioner is totally inapplicable to the facts of this case and cannot advance the case of the petitioner any further. The submission made on behalf of the petitioner in Writ Petition No.1303/2009 that the eviction of the petitioner from the suit premises would deprive the petitioner of his means of livelihood and is, therefore, violative of the provisions of Article 21 of the Constitution of India is equally ill-founded and is, therefore, rejected. In the result, Writ Petition No.1069/2009 is hereby dismissed. The judgments passed by the first appellate Court in rest of the four writ petitions are modified. It is hereby held that the respondent-Company would not be entitled to the arrears of rent till the filing of the suit. The decree in that regard is set aside. The rest of the judgment and decree stands confirmed. No order as to costs. JUDGE APTE