-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.1849 OF 2007 APPLICATION NO.1849 OF 2007 APPLICATION NO.1849 OF 2007 IN IN IN SECOND SECOND SECOND APPEAL ST.NO.29378 OF 2007 APPEAL ST.NO.29378 OF 2007 APPEAL ST.NO.29378 OF 2007 Sarla Manikchand Bhandari ...Applicant vs. Uddhav Krishnaji Thombare @ Karanjekar & ors. ...Respondents Mr.S.G.Deshmukh for the Applicant Mr.Vishwanath Talkute for the Respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JANUARY 8,2008. : JANUARY 8,2008. : JANUARY 8,2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the Applicant and the Advocate for the respondent No.1. This is an application for condonation of delay in preferring a Second Appeal. A preliminary objection is raised by the Advocate for the first Respondent that the first Respondent-plaintiff by filing a pursis before the trial court accepted the defendants in the suit as his tenants and the trial court has passed a decree for eviction by invoking the jurisdiction under section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. He, therefore, submitted that as the suit was filed under the provisions of the said Act of 1947 and the decree has been passed under the said Act of 1947, Second Appeal is not maintainable. 2. The submission of the learned Advocate for the Applicant is that on plain reading of the plaint filed by the first -2- Respondent, the suit could not be under the provisions of the said Act of 1947. The first Respondent has not admitted the status of the defendant Nos.1 to 4 as tenants. He submitted that on plain reading of the plaint it is obvious that the first Respondent did not invoke the jurisdiction of the court under section 28 of the said Act of 1947. He, therefore, submitted that the Second Appeal is very much maintainable. 3. I have carefully considered the submissions. In paragraph 40 of the Judgment of the Appellate Court, it is held thus : "40. It was also next criticism levelled by the learned counsel for the appellant about the tenability of the suit is that the plaintiff has not admitted the status of the of the defendants as tenant and suit seems to be filed under the provisions of Bombay Rent Act. The grounds appearing in the plaint seems also to be under the provisions of Bombay Rent Act. Unless the plaintiff admits the status of the defendant as a tenant the suit under Bombay Rent Act is not tenable. It is true that in plaint the plaintiff has contended that the defendants are not tenant but at the time of the trial. The defendants themselves have filed application Exh.291 and asked the plaintiff to clarify whether the suit is under Rent Act or elsewhere. In reply to the application of the defendants the plaintiff filed pursis Exh-294 and -3- admitted the status of the defendant as a tenant and about the nature of the suit. The learned trial court after hearing both the parties has passed order on that pursis and treated the suit under Bombay Rent Act. Therefore, the appellant cannot challenge said fact in this appeal." 4. Perusal of the decree passed by the trial court shows that the decree of eviction has been passed under the said Act of 1947 and the decree has been confirmed in the Appeal. 5. Whether the suit was maintainable under the said Act of 1947 is altogether a different issue. However, the decree passed by the court is in purported exercise of jurisdiction under section 28 of the said Act of 1947. Hence, in view of provisions of the said Act of 1947, Second Appeal is not maintainable against the impugned Judgments and Decrees. Therefore, this Civil Application is not entertained and the same is dismissed on the ground that the Second Appeal is not maintainable. 6. The Registry will return the certified copies of the impugned Judgments and Decrees to the Advocate for the Applicant. To enable the Applicant to file appropriate proceedings, Ad-interim relief granted on 19th December 2007 is extended by a period of six weeks from today. -4- JUDGE JUDGE JUDGE