1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3417/2010 Shri Naresh Y. Ganvir Vs. Chandrashekhar B. Zunke Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S. P. Kshirsagar, Adv. for the petitioner. Mr. P. U. Nandanwar, Advocate for the respondent. CORAM: B.P.DHARMADHIKARI, J. DATE : 23rd SEPTMBER, 2010. 1] Heard finally with consent by making Rule returnable forthwith. 2] The tenant has challenged the judgment passed by Adhoc district Judge-2, Nagpur dated 13th January 2010 in Regular Civil Appeal No.109/2004 dismissing his appeal and maintaining the judgment and decree dated 23.1.2004 passed by Second Additional Judge, Small Causes Court, Nagpur granting decree of eviction to the respondent-plaintiff. 3] Contention of Advocate Kshirsagar is that the respondent has already filed proceedings under Clause 13(3) (i) (ii) of Central Provinces and Berar Letting of Premises and Rent Control Order, 1949 seeking permission to evict the present petitioner and those proceedings are still going on. Because of pendency of those 2 proceedings, the subsequent suit filed vide Suit No. 259/2001 after issuing a notice under Section 15(2) of the the Maharashtra Rent Control Act, 1999 is unsustainable. He contends that Rent Control Authority can reach a finding that the present petitioner is not a defaulter and that finding will be binding on Civil Court. The Civil Court, therefore, cannot record an inconsistent or contradictory finding. According to him, when there is possibility of such inconsistent or contradictory finding being reached, the proceedings subsequently initiated i. e. Regular Civil Suit No. 259/2001 must be held to be not maintainable. He is relying upon the provisions of Section 58( 2) (a) and ( c) of the Maharashtra Rent Control Order to substantiate his contention. 3] Advocate Nandanwar for the respondent, on the other hand, submitted that the proceedings before the Rent Controller are filed before coming into force of Maharashtra Rent Control Act. After that Act came into force as per provisions of Section 15 thereof a notice calling upon the petitioner to clear arrears has been issued and thereafter the suit has been filed. The suit as filed is based upon a distinct cause of action and there is no possibility of conflict in findings or conflict of judgment in the matter. 4] The facts show that the proceedings before Rent 3 Controller are still going on. The Rent Controller under Clause 13(i) of Rent Control Order can find the petitioner tenant in arrears for a period exceeding six months on the date of filing of application before him and direct the petitioner to clear that amount within particular time. If the amount is not so cleared, permission under that clause stands granted. Under Clause 13(3) (2) he can find the petitioner a habitual default after noticing that rent has not been cleared as per agreement or as per understanding between the parties. It is true that for said purpose he can look into even subsequent conduct of tenant and landlord in the matter. After such permission, landlord has to issue notice under Section 106 of Transfer of Property Act and then file a suit to recover possession. 5] However, proceedings under Section 15 of Maharashtra Rent Control Act 1999 depend upon a written demand by the landlord and that demand has to be by a notice under Section 15(2) of the Maharashtra Rent Control Act, 1999 calling upon the tenant to clear the arrears and then if the amount is not cleared within a period of 90 days the suit for eviction can be filed. The tenant can even thereafter clear arrears within further period of 90 days after he is served with summons in such suit. If he defaults in payment of the rent even thereafter as per the scheme of Act, a decree of eviction can be passed. Thus, under Section 15(2) concept of habitual defaulter 4 is alien and totally irrelevant. I, therefore, find that the provisions of the C. P. & Berar (Letting of Premises) & Rent Control Order and present Maharashtra Rent Control Act in this matter operate in separate and distinct fields and both do not overlap in any manner. Perusal of Section 58 (2) of Maharashtra Rent Control Act shows that it enables parties to continue to prosecute the proceedings pending on its commencement as per the law under which those proceedings are filed before coming into force of Maharashtra Rent Control Act, 1999. Vide Said Section 58(2) an enabling provision has been made and that provision cannot be construed as a disabling provision. Its purpose is not to deny the benefit of New Act i. e. Maharashtra Rent Control Act, 1999 to parties. It does not require parties to elect between two remedies at least in present facts as causes here are distinct. Therefore, I do not find any substance in the petition. The writ petition is dismissed. Rule discharged. No costs. JUDGE Ambulkar.