1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1368 OF 2009 Mr.Ashok Rajaram Shinde. ..Petitioner. V/s. Navsanjivan Vidyalaya. ..Respondent. Mr.S.P.Deo for Petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. 2. This Petition takes exception to the Order passed by the Trial Court on application for rejection of the plaint under order 7 Rule 11 filed by the Petitioner. The Respondent claims to be the tenant and has filed proceedings under section 29 of the Maharashtra Rent Control Act, 1999. That proceeding is opposed by the Petitioner on the ground that so long as the declaratory suit filed by the Respondent is finally decided, it necessarily follows that as of now the Respondent is not a tenant and if so, had no locus to file proceeding under section 29 of the Act. This argument has been rejected by the Court below on the reasoning that whether the 2 Respondent is a tenant or not is a question of fact, which cannot be the basis to reject the plaint on the finding that it is barred by law. 3. In the first place, the Court below was right in observing that whether the Respondent is a tenant or otherwise is a question of fact. Moreover, the fact that the suit filed by the Respondent for declaration that he is tenant in respect of the suit premises against the Petitioner, does not necessarily follow that the Respondent is not a tenant. The issue regarding relationship between the parties will be finally adjudicated in the said pending suit. In the event that suit were to succeed in favour of the Respondent, then the declaration will relate back to the date of entry of the Respondent in the suit premises in the capacity as tenant. Judicial notice can be taken of the fact that decision on such suit may take some time. In such a situation, the person claiming to be tenant cannot be made remediless. Notably, the question whether the Respondent is a tenant will be finally answered in the declaratory suit. However, that question can also be incidently examined by the rent court while entertaining the application under section 29 for the limited purpose of granting of relief in that application. If such a 3 course is adopted, it would meet the ends of justice. It will obviate the situation of rendering the person claiming to be tenant who has filed declaratory suit, remediless inspite of the statutory mandate under section 29 of the Act merely because his declaratory suit has remained undecided. 3. Accordingly, this Petition is devoid of merit. The same is dismissed with the above observations. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)