1 WP 9239 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9239 OF 2010 Balasaheb V. Gade ...Petitioner Vs. Shivaji Tukaram Karde ...Respondent ----- Mr.N.V. Walavalkar, Senior Counsel i/b. Mr. Jeetendra Sachev for Petitioner Mr.Chetan Akerkar for Respondent ----- CORAM: V.M. KANADE J. DATED: 26th April, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondent. 2. By consent of parties, the petition is taken up for final disposal at the stage of admission. 3. The Petitioner is the Applicant, who had filed an application under section 24 of the Maharashtra Rent Control Act, 1999 against the Respondent. After the notice was served on the Respondent, the Respondent raised the preliminary objection regarding maintainability of the application under section 24 of the said Act before the Competent Court. The Petitioner herein had contended that there was an oral leave and license agreement. It was submitted that in respect of the 2 WP 9239 of 2010 oral leave and license agreement, an application under section 24 of the said Act is not maintainable. While deciding this application, the Trial Court came to the conclusion that the preliminary issue regarding maintainability of the application would be decided at the time of final hearing of the application under section 24 and submitted that the respondent herein was at liberty to make a submission regarding the jurisdiction after evidence was led by both the parties. 4. Being aggrieved by the said order, the Respondent preferred a revision application before the Additional Commissioner, Kokan Division, Mumbai. This application was allowed and the Revisional Court came to the conclusion that the Competent Authority did not have jurisdiction to decide the application. Being aggrieved by the aforesaid order, the Petitioner has filed this petition under Article 227 of the Constitution of India. 5. It is, firstly, submitted that the Revisional Court committed an error of law which is apparent on the face of record since the Revisional Court decided on merits that the said application filed by the Petitioner herein is not maintainable. It is submitted that such a course of action was not open for the Revisional Court. It is, secondly, submitted that on the basis of the notices, 3 WP 9239 of 2010 which were sent and the application which was filed, the Revisional Court held that the Respondent was the gratuitous licensee and, therefore, the remedy available to the Petitioner was to file a suit under section 41 of the Presidency Small Cause Courts Act. 6. On the other hand, the learned counsel appearing on behalf of the Respondent strenuously urged that in view of the averments made in the application filed by the Petitioner under section 24, the application was not maintainable since the Petitioner was relying on the oral leave and license agreement. It was submitted that though under the old Act, such an application could be filed, under the new Act, as per the provisions of section 55(i) there is a specific bar for entertaining oral leave and license application. He, however, fairly conceded that so far as the observation of the Revisional Court regarding the right of the Petitioner to file a suit under section 41 of the Small Cause Courts Act, Mumbai, was concerned, the said observation was made inadvertently since the property is situated at Kharghar which was beyond the jurisdiction of Presidency Small Cause Courts Act. The learned counsel has invited my attention to the judgment of the Learned Single Judge of this Court in the case of Raj Prasanna Kondur vs. Arif Taher Khan and others[2005(4) Bom. C.R.383]. Reliance 4 WP 9239 of 2010 was also placed by the learned counsel for the Respondent on a judgment of the Learned Single Judge of this Court in the case of N.P.Karandikar (since deceased) through Legal Representatives & Ors. vs. Nanji Khimji & Co. [2006(4) Bom.C.R.520]. The Learned Single Judge of this Court in the said case had observed that the preliminary issue ought to have been framed by the Competent Authority when an application regarding maintainability of the application under section 24 is filed. 7. In my view, the Revisional Court has clearly committed an error of law which is apparent on the face of record. The Trial Court had merely postponed the issue of jurisdiction and had clarified that the said issue would be decided along with the other issues after evidence was led by both the parties. The Trial Court, therefore, had not decided the issue of jurisdiction either in favour of the Petitioner or in favour of the Respondent. But had merely kept the issue open. The Revisional Court, however, either could have directed the Trial Court to decide the issue peremptorily before deciding the other issues but could not have assessed the material on record and given a finding on the basis of notices issued by the Petitioner and application filed that 5 WP 9239 of 2010 the Respondent was the gratuitous licensee. Secondly, the observation that such a suit could be filed under section 41 of the Presidency Small Cause Courts Act also is totally inconceivable. So far as the submissions made by the Respondent regarding the question whether an application under section 24 is maintainable in the case of oral leave and license agreement, the said question is not yet decided by the Trial Court and, therefore, it would be open for the Respondent to make a submission and rely on the judgment which he has referred to before this Court. 8. The procedure which is laid down under section 24 of the Maharashtra Rent Control Act is essentially a summary procedure and, therefore, the Competent Court obviously thought that instead of deciding the issue in a peace- meal manner, it would be appropriate in the interest of justice if all issues are heard together in order to avoid delay and repetition of arguments. In my view, the Trial Court was justified in the facts and circumstances of the case in relegating the issue of jurisdiction to the final hearing stage. Reliance has been placed by the learned counsel appearing on behalf of the Respondent on the judgment in the case of N.P. Karandikar (since deceased) through Legal Representative 6 WP 9239 of 2010 (supra), in my view, the ratio laid down in the said judgment will not apply to the facts of the present case. Since in the said case, the facts are that initially a suit was filed for specific performance and in the said suit, specific performance was sought on the basis of the oral agreement between the parties, and in the alternative for damages. An application was filed in the said suit under Order 7 Rule 11 and the suit was dismissed. This was not challenged and prior to the institution of the suit, an application was moved under section 13-A(2) of the Bombay Rent Act which is similar to the provisions under section 24 of the Maharashtra Rent Control Act. In the suit for specific performance as also in the application under section 13-A(2), there was an averment to the effect that the Original Opponent was bound to vacate the flats upon being put in possession of the bungalow and upon his failure to do so, the contract was treated as leave and license with effect from 1st June, 1992. In view of the said fact, the Learned Single Judge came to the conclusion that the Competent Court ought to have framed the preliminary issue regarding maintainability of the application. In paragraph 16 of the said judgment, the Learned Judge has also observed that the application for deciding maintainability of the proceedings did not raise either 7 WP 9239 of 2010 disputed question of fact or mixed question of law and fact. The ratio of the said judgment, therefore, in my view, will not apply to the facts of the present case. It is always open for the Competent Court to decide the matter in its entirety, the summary procedure has to be followed and to that extent the Order 14 Rule 2 is relevant. Perusal of the aforesaid two rules, clearly discloses that discretion is vested in the Court either to decide the issue of jurisdiction as a preliminary issue or to decide the issue along with the issue of jurisdiction under Order 14 as amended. 9. The Competent Authority has observed that evidence will have to be lead to establish the averments made in the application under section 24 and, therefore, the Petitioner herein is entitled to lead evidence and only thereafter, the issue of jurisdiction would be properly decided. It is obvious that the Respondent is not keen in contesting the application on merits. 10. As a result, the writ petition is allowed. The judgment and order passed by the Revisional Court is set aside. The Competent Court is directed to decide the application as expeditiously as possible and, in any case, within a period of one year. All contentions which are 8 WP 9239 of 2010 raised by the Petitioner and Respondent are kept open and they shall be decided on merits and in accordance with law. Writ petition is disposed of. (V.M. KANADE J.)