-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 578 OF 2003 Shri Vaikunth Vinayak Burye, aged about 43 years, resident of Tarchi Bhat, Siolim, represented by his lawful Attorney Shri Chandrakant Vaikunth Burye. …... Petitioner V e r s u s Shri Madhukar Pundalik Sangelkar, Owner of Saraswati Bar, Tarchi Bhat, Siolim, Goa. …... Respondent Mr. Parag Rao, Advocate for the Petitioner. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the Respondent. Coram :- F. M. REIS, J Date : 12 th September, 2011. ORAL JUDGMENT The above Petition challenges the Order dated 16.01.2003, passed in Civil Misc. Application no.419/2002 in Fair Rent Case no. 1/1991. By the impugned Order, the application filed by the Respondent for amendment of the written statement filed in the above Fair Rent Case came to be allowed. 2. Shri Rao, the learned Counsel appearing for the Petitioner has assailed the impugned Order and submitted that the learned Judge has wrongly exercised its jurisdiction in allowing the application for amendment as, according to -2- him, the question of raising an issue which has been decided by the Appellate Board by Judgment dated 23.08.2002 was sought to be reopened by the Respondent no.1. The learned Counsel further submitted that the question as to whether the Petitioner is a landlord or not has already been considered by the Board while disposing of the said Appeal and, as such, the Respondents were precluded from filing the said application to dispute the claim of the Petitioner that they are the landlord of the suit premises. The learned Counsel has taken me through the Order passed by the Appellate Board as well as in the impugned Order and pointed out that the learned Judge has erroneously allowed the application and, as such, the application deserves to be rejected. 3. On the other hand, Shri Lotlikar, the learned Senior Counsel appearing for the Respondent, has supported the impugned Order. The learned Counsel has submitted that the Board whilst passing the said Judgment has come to the conclusion that there was an implied admission on the part of the Respondent that the Petitioner is the landlord of the suit premises and according to him, the amendment sought to be incorporated in the reply filed by the Respondent is to explain the said implied admission which, in any event, does not exist. The learned Counsel further submitted that as per the documents produced by the Petitioners themselves which transpire that the Petitioner is not a landlord of the suit premises and, as such, the Respondents are entitled to incorporate the said aspect in the written statement filed by the Respondent. The learned Counsel further took me through the impugned Order and submitted that there is no jurisdiction error committed by the learned Judge and, as such, the Petition deserves to be rejected. -3- 4. Having heard the learned Counsel and on perusal of the records of the proceedings, I find that the Board whilst disposing of the Rent Appeal no. 4/2000 by Judgment dated 23.08.2002 has held at Para 9 thus : “9. In an enquiry under section 12(1) of the said Act, only two questions arise for determination and they are : (i) Whether the applicant is landlord or tenant. (ii) What is the fair rent payable per annum. The Trial Judge had framed the issue no.1 as to what is the fair rent of shop no.3 but did not frame any issues as to whether the applicant proves that he is landlord and opponent his tenant. The opponent never objected to these issues framed but allowed the enquiry to be completed. Hence, there was implied admission on the part of the opponent that the applicant is landlord and this was even prior to the framing of issues i.e. by way of reply dated 22.11.91 (Exh. 5).” 5. By the proposed amendment, the Respondents are seeking to dispute the claim of the Petitioner that they are landlords of the suit premises. On the face of the findings rendered by the Board, as referred to herein above, it was not open for the learned Judge whilst passing the impugned Order to consider the said application for amendment which would be otherwise contrary to the findings arrived therein. But however, under Section 18 of the Rent Control Act, there is no bar for any tenant to file an application before the Rent Controller when there is a bonafide dispute as to whom the rent in respect of the premises are to be paid. As such, the Respondent can very well file an application under Section 18 of the said -4- Act for such adjudication if he is so advised. In case such an application is filed, any observations or findings by the Board in the said Judgment or in the proceedings initiated by the Petitioners for the purpose of fixation of fair rent would not come in the way of the Respondent in filing any such application. The Authority shall decide such application on its own merits without being influenced in any such findings therein. Subject to above, I find justification in the contention of the learned Counsel appearing for the Petitioner that the learned Judge has exercised its jurisdiction with material irregularity whilst passing the impugned Judgment considering the Judgment passed by the Board referred to herein above. The findings of the Board to the effect that there was an implied admission, would be relevant only for the purpose of fixation of the rent filed by the Petitioner. As such, the Respondent was not entitled to seek leave to amend the written statement. 6. In the circumstances, subject to the above, the impugned Order dated 16.01.2003 is quashed and set aside. Rule is made absolute in the above terms with no orders as to costs. F .M. REIS, J. arp/*