KBP 4765-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4765 OF 2009 Ansar Khali Shaikh ..Petitioner Vs. Sayyad ali Sher Ali ..Respondent ......... Mr.M.S.Karnik, for petitioner. ......... CORAM : A.S.OKA, J.. DATE : 13 th August, 2009. P.C. : 1] I have heard submissions of the learned counsel appearing for the petitioner. The respondent filed an application under Section 23 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act of 1999”) for eviction of the petitioner. A contention was raised that in the said application that the respondent was an employee of a Municipal Corporation and he requires the premises which is in possession of the petitioner as a tenant for his bona fide use. An application was made by the petitioner before the competent authority for taking his written statement on record. The said application was rejected by the competent authority as the KBP 4765-09.sxw 2 same was not filed within a period of 30 days as provided in Section 43(4)(a) of the said Act of 1999. A Revision Application was preferred against the said order. By the impugned order, the said Revision Application has been rejected. 2] The learned counsel appearing for the petitioner has referred to a decision of this Court in the case of Prakash H. Jain Vs. Marie Fernandes (MS) (jugdment and order dated 17 th July, 2002 in W.P. No.1575 of 2002) which has been confirmed by the Apex Court by its decision (Prakash H. Jain Vs.Marie Fernandes (Ms) [(2003)8 SCC 43]. The view taken by this Court which has been affirmed by the Apex Court is that the competent authority under the said Act of 1999 does not possess any power to extend the period of 30 days provided under sub-section 4(a) of Section 43 of the said Act of 1999 for filing an Affidavit seeking a leave to defend. The view taken by this Court which is affirmed by the Apex Court is that there is no power vesting with the competent authority to condone the delay, and therefore, on failure of the tenant or licensee to file the Affidavit within 30 days, he is disentitled to grant of leave to defend. 3] The learned counsel appearing for the petitioner pointed out that in the said decisions, sub-section 5 of Section 43 of the said Act of 1999 has not been considered in as much as the competent authority is bound to follow the practice and procedure of the Court of Small Causes. He invited my KBP 4765-09.sxw 3 attention to the provisions of the Presidency Small Causes Courts Act, 1882. He submitted that in view of sub-section 5 of Section 43 of the said Act of 1999, the applicability of relevant provisions of the Code of Civil Procedure, 1908 is not excluded. He submitted that as the competent authority is bound to follow the procedure which is adopted by the Court of the Small Causes, various provisions of the said Code of 1908 were applicable to the proceedings before the competent authority. He submitted that the competent authority is not powerless to extend the time provided under sub- section 4 (a) of Section 43 of the said Act of 1999. He submitted that there is no adjudication made by this Court as well as the Apex Court on this aspect. He further submitted that on a plain reading of the application for eviction filed by respondent, Section 23 will have no application as the respondent cannot be a “landlord” within the meaning of Clause A of the sub-section 1 of Section 23. He pointed out that the respondent claimed to be an employee of a Municipal Corporation who is still in employment. He submitted that as a result of the impugned order, the petitioner will be even prevented from raising question of jurisdiction. He, therefore, submitted that a leave deserves to be granted to the petitioner to defend the eviction proceedings. 4] As far as the first submission is concerned, the Apex Court in the case of Prakash (Supra) has already laid down the law on the point. The Apex Court held that the extension of time cannot be granted by the competent KBP 4765-09.sxw 4 authority for filing an Affidavit seeking leave to defend. Therefore, the submission based on sub-section5 of the Section 43 of the said Act of 1999 cannot be considered by this court in view of the binding precedent. 5] As far as the second submission is concerned, it is obvious that the competent authority will get the jurisdiction provided an application at the instance of respondent is maintainable under Section 23 of the said Act of 1999. Though the petitioner is not entitled to defend the application, before passing the order of eviction, the competent authority will have to naturally consider whether the respondent is a landlord within the meaning of Clause “A” of Section 1 of Section 23 of the said Act of 1999. 6] Subject to what is observed above, there is no merit in the Writ Petition. Writ Petition is rejected. ( A.S.OKA, J. )