1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5664 OF 2009 1) Suryakant Jaywantrao Sonawane, ] Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] ] 2) Vasantrao Jaywantrao Sonawane, ]... Petitioners Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] Both Residing at 135/2 Somwar Peth, ] Pune 411 011. ] Versus 1) Ramakant Sadashiv Yadav, ] Age 64 years, Occu.- Business, ] Residing at 348 Somwar Peth, ]... Respondent Pune 411 011. ] WITH WRIT PETITION NO. 5673 OF 2009 1) Suryakant Jaywantrao Sonawane, ] Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] ] 2) Vasantrao Jaywantrao Sonawane, ]... Petitioners Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] Both Residing at 135/2 Somwar Peth, ] 2 Pune 411 011. ] Versus 1) Bajirao Manikrao More, ] Age 67 years, Occu.- Business, ] Residing at 348 Somwar Peth, ]... Respondent Pune 411 011. ] AND ] At Post Khed, Taluka – Karjat, ] District -Ahmednagar. ] WITH WRIT PETITION NO. 6521 OF 2009 1) Suryakant Jaywantrao Sonawane, ] Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] ] 2) Vasantrao Jaywantrao Sonawane, ]... Petitioners Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] Both Residing at 135/2 Somwar Peth, ] Pune 411 011. ] Versus 1) Ramakant Sadashiv Yadav, ] Age 64 years, Occu.- Business, ] Residing at 348 Somwar Peth, ]... Respondent Pune 411 011. ] WITH WRIT PETITION NO. 6520 OF 2009 3 1) Suryakant Jaywantrao Sonawane, ] Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] ] 2) Vasantrao Jaywantrao Sonawane, ]... Petitioners Age – 56 years, Occu.-Agriculturist, ] And Lodging. ] Both Residing at 135/2 Somwar Peth, ] Pune 411 011. ] Versus 1) Bajirao Manikrao More, ] Age 67 years, Occu.- Business, ] Residing at 348 Somwar Peth, ]... Respondent Pune 411 011. ] AND ] At Post Khed, Taluka – Karjat, ] District -Ahmednagar. ] Mr.V.B.Tapkir for the Petitioners in all the Petitions. Mr.Jaydeep Deo for Respondent in all the Petitions. CORAM : A.S. OKA, J. DATE : 16 th OCTOBER, 2009 ORAL JUDGMENT : I heard the submission made by the learned counsel appearing for the Petitioners. These petitions can be disposed of by a common Judgment. 4 2. The Petitions arise out of two separate suits filed by the Petitioners against two different tenants. Writ Petition No. 6521 of 2009 and Writ Petition No.5664 of 2009 arise out of suit No. 56 of 2006 and other two petitions arise out of suit No.58 of 2006. The controversy involved in both the suits is the same. These suits were filed by the Petitioners for eviction under Section 16(1)(i) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the “said Act of 1999). In both the suits a contention have been raised that the Petitioners require the possession of the suit premises for demolition of the existing building and for construction of a new building. It is stated that a plan has been already approved by the Municipal Corporation. It is contended that the Petitioners are willing to allot to the tenants a premises having an area equivalent to the suit premises in the newly constructed building. The suits were contested by the tenants. One of the main issues which was considered by the Trial Court in both suits was that as a decree for eviction was claimed under section 16 (1) (i) of the said Act of 1999, whether the Petitioners have complied with requirements of sub clauses 5 (a) to (d) of sub-section 6 of section 16 of the said Act. The Trial Court observed that on the sanctioned plan the premises which are earmarked for the tenants were not shown as residential tenements. It was found that an undertaking as required clause (d) of sub-section 6 of section 16 was filed on 11 th August, 2006 i.e. after the institution of the suit. The suit were dismissed to the extent of prayer for possession. Appeals were preferred by the Petitioners. In the Appeals, the Petitioners applied for amendment of the plaint. In the application, it was pointed out that as an objection was raised that the premises designated for the tenants were not residential premises, on 13 th October, 2008, the Petitioners have obtained a revised permission and as per the revised plan, residential premises of equal area have been earmarked for the tenants. For bringing the subsequent events on record, the amendment of the plaint was sought. The Applications were rejected by the Appellate Court by observing that as compliances were not made before the institution of the suits, no purpose will be served by granting the amendment. After the said Applications were rejected, the Petitioners made 6 Applications for seeking permission to withdraw the Appeals and suits with liberty to file a fresh suit on the ground that due to technical defect, the suits were likely to fail. The said Applications were rejected by the Appellate Court. 3. Writ Petition Nos. 6521 of 2009 and 6520 of 2009 have been filed by the Petitioners for challenging the orders by which applications for amendment of the Plaint were rejected and other two Petitions take exception to the order on the subsequent Applications preferred by the Petitioners. Today an affidavit of the 2 nd Petitioner in these Petitions has been tendered by the learned counsel appearing for the Petitioners in which it is stated that the Petitioners want to withdraw the Writ Petition No. 6520 of 2009 and 6521 of 2009 and that they want to proceed with Writ Petition Nos.5664 of 2009 and 5673 of 2009 where the challenge is to the subsequent orders by which applications made by the Petitioners seeking permission to withdraw the suits with liberty to institute fresh suits have been rejected. 7 4. The learned counsel appearing for the Petitioners in these Petitions submitted that the claim of the Petitioners could not have been thrown out on the ground of technicality. He submitted that if the Court was of the view that the procedural requirements incorporated under section 16 (6) were required to be complied with as a condition precedent for filing a suit for eviction, the subsequent application ought to have been allowed for permitting the Petitioners to file a afresh suit. The learned counsel appearing for the tenants submitted that the suits filed by the Petitioners were defective and nothing prevented the Petitioners from filing separate suits based on the subsequent revision of the sanctioned plan. He submitted that no case for interference is made out and the Petitioners be saddled the costs. 5. I have carefully considered the submissions. Perusal of the Judgment of the Trial Court in both the suits shows that what is found by the Trial Court is that there was no compliance with the procedural requirements in as much as in the sanctioned plan, the premises earmarked for allotment to tenants 8 were not shown as residential premises and requisite undertakings were not filed before the institution of the suit. It was pointed out that the premises earmarked for allotment of the tenants were shown as the office premises on the sanctioned plan. So in substance, the suits have been dismissed on technical ground of non-compliance with the procedural requirements of the said Act of 1999. While rejecting the applications made for amendment of the plaint, the Appellate Court observed that the amendment was redundant in as much as mandatory requirements which were required to be complied with before institution of the suits were not complied with. Thus, in fact, the ground on which the applications for amendment were rejected is that suits are likely to fail on the ground of formal or technical defect. After having recorded such a finding, there was no proprietary in rejecting the subsequent applications made by the Petitioners. Now the Petitioners have came out with the case that they have complied with the mandatory requirements. Whether the Petitioners have a case on merits or not is a matter to be decided if at all subsequent suits 9 are filed. These were the cases where there was a formal defect in the suits within the meaning of clause (a) of sub Rule (3) of Rule 1 of the Order XXIII of the said Code. Therefore, there was a ground for granting permission to the Plaintiffs to withdraw the suits with liberty to institute a fresh suits in respect of the subject matter of the suits. The Appeal being a continuation of the proceedings of the suit, an order under sub Rule (3) of Rule 1 of Order XXIII of the said Code could have been passed. 6. Therefore, the applications made by the Petitioners in both the Petitions ought to have been allowed by granting permission to withdraw the suits with liberty as prayed. The prayer made by the learned counsel for the Respondent of saddling the Petitioners with costs also deserves to be accepted. In both the cases the amount of costs is quantified at Rs.7500/-. 7. Hence, I pass the following order : :: O R D E R :: 10 i. The Writ Petition Nos. 6521 of 2009 and 6520 of 2009 are dismissed as withdrawn. ii. The Writ Petition Nos. 5664 of 2009 and 5673 of 2009 are allowed. The impugned orders dated 24 th April, 2009 are quashed and set aside. iii. The application at Exhibit 26 in Civil Appeal No.124 of 2008 and the Application at Exhibit 25 in Civil Appeal No.125 of 2008 are hereby allowed. The suits subject matter of these two Appeals are permitted to be withdrawn with liberty to institute fresh suits in respect of subject matter of the said suits. iv. In each case, the Petitioners will pay costs of Rs.7500/- to the Respondent tenant. Payments of costs will be a condition precedent for filing a fresh 11 suit. v. All the contentions of all the parties on the merits of the fresh suits are kept open. [A.S. OKA, J.]