IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 9160 OF 2007 Date of Decision : 12.2.2008. For Approval and Signature : The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? ***** [2] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT WRIT WRIT PETITION NO. 9160 of 2007 PETITION NO. 9160 of 2007 PETITION NO. 9160 of 2007 Mr. Rahul Kumar Agarwal ...Petitioner. Age 47 yrs, occupation-business prsently rsiding at Row House C-04, Kubera Gardens, Salunke Vihar, Pune. Vs. Mr. Sameer Suresh Gupta ...Respondent. through Prashant Suresh Gupta, r/o. 7, Jevan Pradeep Society, H.K.M.Rd., Model Colony, Shivaji Nagar, Pune 16. Shri Amol B. Desai for the petitioner. Shri Madhav Jamdar for the respondent No.1. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : February 12, 2008. : February 12, 2008. : February 12, 2008. P.C. 1. Rule. Rule made returnable forthwith by consent and heard finally. 2. Aggrieved by the Order dated 2.11.2007 passed by the Competent Authority Pune, rejecting the Application of the petitioner under Section 10 of the Code of Civil Procedure ("CPC" for short) for stay of the proceedings before him for eviction under the Maharashtra Rent Control Act, 1999 ("MRC Act, 1999" for short), the petitioner has filed this petition [3] impugning the said order. 3. The case of the petitioner before the Competent Authority was that he alongwith one Mr. P.S. Gupta had executed an agreement of leave and license dated 30.7.2003 ("the said agreement" for short) with the respondent in respect of a three bed room row-house at Pune ("the said house" for short) which belongs to the respondent, for a period of three years commencing from 1.7.2003 to 30.3.2006 It is the petitioner’s case that though the said agreement was termed as leave and license agreement, the said house was in fact given to him on tenancy basis. The rent was fixed @ 9500/- per month inclusive of taxes and other charges. According to the petitioner, the said agreement was required to be compulsorily registered under Section 55 of the MRC Act and the responsibility of getting the said agreement registered was on the respondent. However, the agreement was neither stamped nor registered. It is his case that no receipts are issued to him though he has been paying the amount of rent by cheques. The respondents accepted the said rent even after the expiry of the Agreement till 31.3.2007. According to the petitioner, there were attempts made by the respondent to evict him from the said house illegally and he had therefore, filed a suit in the Court of Small Causes at Pune being Suit No. 236 of 2007 for a [4] declaration that he is the tenant of the said house and for a declaration that the agreement of leave and licence was null and void. 4. Pursuant to the order passed by the Small Causes Court, Pune, on an interim Application, the respondent was restrained from evicting the petitioner from the said house without following due process of law. The respondent appeared in the suit and raised preliminary objection to the jurisdiction of the Small Causes Court to entertain and try the suit by filing an application under order VII Rule 11 of the CPC, which application came to be rejected by an order dated 19th June, 2007. 5. During the pendency of the said suit, the respondent filed an Application before the Competent Authority, Pune, under MRC Act, 1999, for eviction of the petitioner on the ground that the leave and license agreement had come an end on 31st March, 2006 and also prayed for recovery of arrears of license fees and damages. According to the respondent, the relationship between the petitioner and the respondent was that of licensor and licensee, therefore, the Competent Authority alone had jurisdiction to entertain and try the Application. [5] 6. The petitioner, thereafter, moved an Application under Section 10 of the CPC praying that the main Application of the respondent before the Competent Authority be stayed until the final decision of the suit pending in the Small Causes Court, Pune. This Application for stay of the proceedings before the Competent Authority was rejected by the impugned order passed by the Competent Authority - hence the present petition. 7. The learned Counsel for the petitioner submitted that the Competent Authority had erred in rejecting the Application for stay of the proceedings before him. He invited my attention to Section 10 of the CPC which deals with the stay of suits. It is his contention that since the civil suit before the Small Causes Court was filed prior in point of time and the issue involved in both the proceedings were substantially the same, the Competent Authority ought to have allowed the application for stay. The learned Counsel invited my attention to Section 24 and various sections in Chapter VIII of the MRC Act, 1999. The learned Counsel submitted that the Competent Authority has wrongly rejected his Application by the impugned order on the ground that Section 10 of the CPC is attracted only when both the proceedings are suits, and that the Application before the Competent Authority was [6] not a suit but was an Application under the MRC Act 1999. He has further submitted that Small Causes Court by its order dated 26.6.2007 has already granted temporary injunction restraining the respondent from dispossessing him from the suit premises without due process of law and the petitioner had sanguine hopes that his suit before the Small causes Court would be decreed and he would be declared as tenant of the said house. He also submitted that the respondent has also accepted the rent after expiry period of leave and licence agreement, therefore, his case that he is a tenant of the suit premises is further fortified. He has also sought to argue that suit premises was given for residential as well as for commercial purpose and, therefore, Section 24 of the MRC Act would not be attracted in the facts of the present case. 8. Per contra, the learned Counsel for the respondent supported the impugned order and submitted that the Competent Authority has rightly rejected the Application of the petitioner for stay of the proceedings before him. He has invited my attention to section 39 of the MRC Act, 1999 which provides that the provisions of Chapter VIII are to have over-riding effect. He also pointed out Sec. 47 of MRC Act, 1999 and submitted that the trial Court’s jurisdiction is expressly barred in the case in hand. [7] 9. Pointing out the provisions of MRC Act, 1999, the learned Counsel for the respondent contended that since the execution of the leave and licence agreement has not been disputed and since the agreement is in writing, it would be conclusive evidence of the facts stated therein and it would not be open for the petitioner to claim that he is a tenant of the said house. Placing reliance on the decision in case of MANILAL MANILAL MANILAL PREMJI GALA VS. BOMMAN P. IRANI & ORS, PREMJI GALA VS. BOMMAN P. IRANI & ORS, PREMJI GALA VS. BOMMAN P. IRANI & ORS, reported reported reported in 2002(supp) Bom.C.R. 623, in 2002(supp) Bom.C.R. 623, in 2002(supp) Bom.C.R. 623, The Ld. Counsel submitted that Section 10 would not be attracted in the facts of the present case as the reliefs claimed were mutually exclusive. It is further contended that the Small Causes Court is not competent to grant the relief claimed in the Application preferred before the Competent Authority inasmuch as the said agreement was a leave and licence agreement and not a tenancy agreement. 10. I have perused the impugned order and the material on record and considered the rival contentions of the parties. 11. The only point which arises for consideration in this petition is whether the Competent Authority was right in rejecting the application for stay of the [8] proceeding U/s. 10 of the CPC before him. 12. It would be necessary at this stage to examine Section 10 of the CPC, which reads thus - "S.10. S.10. S.10. Stay of Suit Stay of Suit Stay of Suit :- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by (the central Government and having like jurisdiction or before the Supreme Court Explanation :- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action. 13. Bare reading of the above section would disclose that in order to attract Section 10 of the CPC all the below-mentioned conditions need to be [9] satisfied. (i) The forum should be the ‘Court’, whether the suit is pending in the same court or different courts; (ii) Both the proceedings should be ‘suits’; (iii) The matter in ‘issue’ should be directly and substantially the ‘same’ in both the suits; (iv) The suits should be between the ‘same parties’ litigating under the same title; (v) The Court in which subsequent suit is filed should have ‘jurisdiction’ to grant the relief claimed in the subsequent suit. 14. Insofar as the item No. (i) is concerned it is to be noted that the Competent Authority which is established is not a ‘Court’. This issue was dealt with by the Hon’ble Supreme Court in case of PRAKASH H. PRAKASH H. PRAKASH H. JAIN JAIN JAIN VS. MARIE FERNANDES (Ms) reported in 2003(8) SCC VS. MARIE FERNANDES (Ms) reported in 2003(8) SCC VS. MARIE FERNANDES (Ms) reported in 2003(8) SCC 431, 431, 431, wherein it was held that the Competent Authority under the MRC Act, 1999, is a Statutory Authority and not ‘Court’. The Hon’ble Supreme Court whilst dealing [10] with the said issue in para 12 observed thus :- " 12.The provisions of Chapter VIII stand apart, distinctly and divorced from the rest of the Act, except to the extent indicated therein itself and for that matter has been given an overriding effect over any other provisions in the very Act or any other law for the time being in force, though for enforcement of other remedies or even similar remedies under the provisions other than Chapter VIII, altogether different procedure has been provided for. It is unnecessary to once again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted thereunder is not "Court" and the mere fact that such authority is deemed to be court only for limited and specific purposes, cannot make it a court for all or any other purpose and at any rate for the purpose of either making the provisions of the limitation Act, 1963 attracted to proceedings before such competent authority or clothe such authority with any power to be exercised under the Limitation Act. It is by now well settled by innumerable judgments of various courts including this Court, that when a statute enacts that anything shall be deemed to be some other thing the only meaning possible is that whereas the said thing is not in reality that something, the legislative enactment requires it to be treated as if it is so. Similarly, though full effect must be given to the legal fiction, it should not be extended beyond the purpose for which the fiction has been created and all the more, when the deeming clause itself confines, as in the present case, the creation of fiction for only a limited purpose as indicated therein. Consequently, under the very scheme of provisions enacted in Chapter VIII of the Act the avowed legislative purpose obviously made known patently by those very provisions, the competent authority can by no means be said to be "Court" for any and every purpose and that too for availing of or exercising powers under the Limitation Act, 1963." Since the Competent Authority is not a ‘Court’, the [11] condition at item No.(i) cannot be said to have been satisfied. 15. Insofar as item (ii) is concerned the proceedings before the Competent Authority is not a ‘suit’ and therefore the provisions of Section 10 could not be applicable in the facts of the present case. This issue had come up for consideration in the case of NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES VS. C. PARAMESHWARA, reported in 2005(2) SCC 256, wherein the Hon’ble Supreme Court held thus - ".......The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute......" Thus condition at item No. (ii) is also not satisfied. 16. In so far as item (iii) is concerned it is to be noted that the ‘issue’ in the suit before the Small Causes Court would be ‘whether the petitioner can be declared as tenant of the said house’. This is not the ‘issue’ in the Application before the competent Authority and the Competent Authority is not empowered to declare the petitioner as a tenant of the suit premises. Moreover the ‘issue’ in relation to the "eviction" of the petitioner from the said house exists in the Application before the Competent Authority but [12] is clearly absent in the pending suit. Thus the condition at item No. (iii) that ‘the matter in issue should be directly and substantially the same in both the suits’ is clearly not satisfied. It may be mentioned here that whether this condition is satisfied or not, can also be looked at from the angle of Section 11 of the CPC to see whether on a final decision being reached in the previous suit, such decision could operate as res judicata. The reliefs being mutually exclusive, Section 10 of CPC would have no application as has been laid down in the case of MANILAL PREMJI MANILAL PREMJI MANILAL PREMJI GALA GALA GALA (Supra) (Supra) (Supra) relied upon by the Ld. Counsel for the respondent. 17. In so far as item (iv) is concerned, the suit should be between the same parties litigating under the same title. In the instant case, it can be said that the parties are substantially the same in both the proceedings and, therefore, this condition at item (iv)can be said to have been met in relation to Section 10 of the CPC. 18. In so far as item (v) is concerned, which relates to ‘jurisdiction’ of the Court, Section 39 and 47 of the MRC Act, needs to be referred to and are reproduced hereunder :- [13] "S. "S. "S. 39. Provisions of this Chapter to have 39. Provisions of this Chapter to have 39. Provisions of this Chapter to have over-riding over-riding over-riding effect : effect : effect : The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force." S.47- S.47- S.47- Bar of jurisdiction: Bar of jurisdiction: Bar of jurisdiction: Save as otherwise expressly provided in this Act, on Civil Court shall have jurisdiction ;in respect of any matter which the Competent Authority or the State Government or an officer authorised by it is empowered by or under this Act, to decide, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power so conferred on the Competent Authority or the State Government or such officer. 19. A plain reading of the above two provisions clearly bar the jurisdiction of the Civil Court and lays down that the provisions of Chapter VIII of the MRC Act which deal with summary disposal of the applications filed before the Competent Authority in respect of registered leave and license agreements, in relation to residential premises, would have an [14] overriding effect. It can be safely said that both the forums in the instant case viz. Small Causes Court and the Competent Authority would not have concurrent jurisdiction in respect of the subject matter of the proceedings and, therefore, the condition at item No. (v) is also not satisfied. 20. Thus in the instant case out of the five conditions enumerated above, except for condition (iv), none of the other conditions are satisfied and Section 10 of the CPC would clearly not be attracted in the instant case and the question therefore of staying the Application before the Competent Authority cannot arise. 21. A similar issue had come up for consideration before a Single Judge of this Court in case of RAJENDRA RAJENDRA RAJENDRA B. B. B. NAIR VS. SURESH D DYANMOTHE & ANR. reported in NAIR VS. SURESH D DYANMOTHE & ANR. reported in NAIR VS. SURESH D DYANMOTHE & ANR. reported in 2002 2002 2002 AIR (BOM) 382, AIR (BOM) 382, AIR (BOM) 382, wherein it was observed as follows :- "The pendency of the declaratory suit which has been filed by the Respondent before the Small Causes Court cannot be detract from the legal position which ensues under Section 13A-2 or affect the jurisdiction, statutorily conferred upon the Competent Authority of ordering the eviction of a licensee whose entitlement to occupy the premises has come to an end upon the expiry of the licence. The provisions of Section 13-A 2 have effect, notwithstanding anything contained in the rent Act. A licensee cannot claim an immunity from the obligation cast upon him by Section 13A-2 to vacate the [15] premises upon the expiry of the licence by the institution of a Declaratory Suit in the Small Causes Court. Nor can he claim an immunity from the jurisdiction of the Competent Authority to order him to vacate when he fails to do so upon the expiry of the licence. Section 13A-2 frowns upon such subterfuge and it is the plain duty and obligation of the Court to give effect to the legislative mandate". 22. The learned Single Judge in the said judgment also referred to the Judgment in case of AUTOMATIC ELECTRIC LTD. VS. SHARADCHANDRA VINAYAKA TIPNIS 1996 (1) Mh.L.J. 619, wherein the statement of object and reasons underlying the introduction of Section 13A-2 by the Maharashtra Act 18 of 1987 was referred to. In the statement of objects and reasons, it was acknowledged by the legislature that many landlords do not let out premises of grant a licence in view of the difficulty in getting back the premises under the provisions of the Act. In view of the long delays involved in prosecuting litigation before Courts of law while getting back possession of the premises, the Legislature had introduced a speedy remedy in Section 13A-2 and created a special machinery so as to encourage landlords to give premises out on a licence with an assurance that they will get back premises immediately after the expiry of the period of licence. . I respectfully concur with the findings of the Ld. Single Judge. [16] 23. It may be noted that Section 13A-2 of the Old Rent Act (Bombay Rent Act, 1947) is pari materia with Section 24 of the MRC Act. It may also be stated that it is possible that to defeat the right of the landlord to get back the suit premises, the weapon of stay can be misused as an unscrupulous licensee may, in a given case, just prior to expiry of the licence period come forward and file declaratory suit claiming tenancy rights so as to defeat the right of the licensor to summarily evict him and thereby frustrate the object and purpose for which the relevant sections laying down summary procedure were introduced. It has also to be noted that in the instant case, the execution of the leave and license agreement is admitted. It would therefore not be correct to deprive the landlord/ licensor to take benefit of the summary procedure as provided under the MRC Act by staying the Application before the Competent Authority under section 10 of CPC as prayed by the petitioner. 24. Lastly it may be stated that the object underlying section 10 of the CPC is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and to avoid conflicting findings on issues which are directly and substantially in issue in previously [17] instituted suit and Section 10 enacts merely a rule of procedure and it would ultimately depend upon the discretion of the Court, considering the facts and circumstances whether in a given case, stay of the suit ought to be granted or not. 25. In view of the aforesaid discussion, in my view no fault can be found with the impugned order and the impugned order does not warrant interference in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution. 26. Consequently the writ petition is dismissed. Rule discharged. No order as to costs. [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]