1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3952 of 2009 (M/s. Rajendra Paper Mart and others v. Prakashchand T. Parekh and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri Nitin Lalwani, Advocate for Petitioners. Shri A.A. Shelat, Advocate, for Shri M.P. Jain, Advocate, for Respondents. Coram : R.C. Chavan, J. Dated : 16 th September, 2009 1. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 2. This petition by the tenants is one more last ditch attempt to cling to the property after having lost in all the Courts. 3. The learned counsel for the petitioners submitted that in this case, the suit was commenced after the landlords claimed to have given a notice to quit after securing permission from the Rent Controller on 5-9-1998 under the C.P. and Berar Rent Control Order. The tenants had preferred an appeal before the Additional Collector, who had stayed the order of the Rent Controller on 21-9-1998. In this case, the notice to quit was issued during the period when the order of the Rent Controller 2 was stayed. Therefore, according to the learned counsel for the petitioners, this notice did not at all give rise to any cause of action to file a suit. He relied on the judgment of the Supreme Court in M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, reported at AIR 1992 SC 1439, and the judgment of the High Court of Andhra Pradesh in Mohd. Burhanuddin v. Savitri Bai, reported at AIR 1975 AP 168, to support his contention that when an Appellate Court stays the order of the First Court, the Court at first instance is bound to obey the order of the Appellate Court as soon as it gets notice of the order and that if it continues the proceedings further, those proceedings are nullity. The learned counsel for the petitioners, therefore, submitted that the notice issued during the operation of the stay order did not give rise to any cause of action to the respondent-landlords to file a suit. He submitted that the stay continued because the petitioners had been approaching various Courts and pointed out that in Writ Petition No.2521 of 2003, on 7-1-2004, a learned Single Judge of this Court had also granted interim stay to the orders of the Rent Controller and the Appellate Authority. It is, however, not in dispute that eventually the order of the Rent Controller has been upheld. The learned counsel for the petitioners points out that even on the date on which the learned Judge of the Small Causes Court decreed the landlords’ suit, i.e. 17-8-1986, this stay granted in the writ petition was in operation. 4. Though in M/s. Shree Chamundi Mopeds Ltd. there was question of continuation of a suit for ejectment under the Karnataka Rent Act, while proceedings before the BIFR or the appellate authority under the Sick Industrial Companies (Special Provisions) Act, 1985 were pending, the similarity ends here. 3 The Supreme Court held in paras 12 and 13 that pendency of such proceedings would not affect proceedings before a Rent Court. However, the Court was also considering the effect of stay granted by Delhi High Court on 10-5-1991, to the order of the appellate authority on 7-1-1991 dismissing appeal against order of BIFR on 26-4-1990, holding that the company was unviable and had to be wound up. The petition in Delhi High Court was still pending when the Supreme Court heard the matter. Accordingly, a petition for winding up was considered by a learned Single Judge of Karnataka High Court and allowed on 14-8-1991, holding that stay by Delhi High Court did not stand in the way of proceeding with the matter. The Supreme Court held that stay by Delhi High Court did stand in the way of proceeding with the matter. The Supreme Court held that stay by Delhi High Court did not have the effect of reviving proceedings before BIFR or the appellate authority and so could not stall winding up proceedings in Karnataka High Court. In para 10 of the judgment, the Supreme Court observed as under : “10. ... While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from 4 existence.” The learned counsel for the petitioners, ignoring the whole judgment and the context, attempts to single out the words that the order, which has been stayed would not be operative from the date of passing of the stay order. 5. The question in judgment of High Court of Andhra Pradesh was about proceedings in execution taken by executing court after the knowledge of stay granted by appellate court to the decree sought to be executed. Execution of a decree, which was stayed, cannot be compared to issuance of a notice under Section 106 of the Property Act. 6. The question of stay of proceedings in Civil Courts, particularly in C.P. and Berar area, had attracted the attention of this Court in the past and it had been consistently held that a landlord, who obtains permission for issuing a quit notice, may proceed further, subject, however, to the decision of appeals/petitions arising out of the permission granted by the Rent Controller. This was so, because the scheme under the C.P. and Berar Rent Control Order is peculiar. A landlord had to first seek permission from the Rent Controller for issuing a quit notice by making out grounds for ejectment enumerated in the Rent Control Order. Then he had to go through the hierarchy of the Rent Courts, mostly culminating in a writ petition in this Court. He had to go to the Civil Court by filing a suit on the basis of a quit notice, for which a permission was granted by the Rent Controller. He was required to again travel from the Trial Court to the High Court for eventually getting the right to evict a tenant, maturing into a decree. Because of this double jeopardy to which 5 the landlords were subject to in this area, the landlords were permitted to continue actions, subject, however, to the decision of the litigation arising out of the permission granted by the Rent Controller. There was one aberration in the judgment of this Court in Mathew Charian v. Rajkumar Ramavatar, reported at 1982 Mh.L.J. 724, wherein a learned Single Judge had held that an appeal against the order of the Rent Controller takes away the right of the landlord to serve a quit notice. Because the matter is sub judice. This judgment has been considered by a Division Bench of this Court in Prabhakar Atmaram Kale v. Bharat Santaji More and another, reported at 1983 Mh.L.J. 426, wherein this Court had held that entitlement of a right and its consummation are two different concepts and the notice determining the lease after obtaining the permission of the Controller does not automatically stand invalidated as soon as an appeal is filed by the tenant. 7. The learned counsel for the petitioners submitted that the present case is not one where merely an appeal was filed, but the stay was also obtained and, therefore, the judgment of the Division Bench of this Court is distinguishable. 8. This contention has to be rejected. Stay of order of the Rent Controller would only mean that the landlord would not be able to consummate the right accrued by grant of the permission till the challenge to grant of permission is negatived by the higher Courts where the tenant could challenge it. The order of the Rent Controller was not wiped out (to borrow expression from M/s. Shree Chamundi Mopeds Ltd.). Any action taken under such an order would only be eclipsed till the operation of order is stayed. It may be noted that it is not the 6 petitioners’ case that permission was eventually set aside. 9. Here is a case of the tenants, who have lost in every Court and now attempts to bank on a stay to deprive the landlords of the fruits of their long-drawn legal battle. Therefore, the contentions based on issuance of notice during the pendency of the stay order, have to be rejected. In any case, a notice in a suit for ejectment from premises to which Rent Legislation applies is only a formality, landlord having already given sufficient indication of his intention to terminate tenancy by fighting through hierarchy of Courts. 10. The learned counsel for the petitioners next submitted that the suit premises come in slum area and, therefore, in view of the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, unless prior permission from the Competent Authority is obtained, the landlords could not have recovered the possession of the premises. 11. For this, it has to be first established that the premises in question are situated in slum area. It appears from the judgments of the Courts below that the tenants had examined witnesses to show that the premises were in the slum area. The learned counsel for the petitioners submitted that the conclusions drawn by the tenants’ witness Rewatkar, who was an Engineer in the Municipal Corporation’s Slum Department, that because the house is a pukka construction, it does not come in slum area, was not correct and the question whether the house is in slum area or not, is not be determined on the nature of construction, but on the basis of whether it is included in the area defined in the 7 notification issued. He pointed out that notification dated 12-9-1991 would show that the house in question is included in the slum area. The notification merely gives the outlines of an area, which is notified as slum. There has to be some evidence to show that the house in question is in that area. Apart from the fact that witness Rewatkar for the tenants admitted that the house does not come in the slum area, the other witness Janorkar, who too is an official in Slum Department of Municipal Corporation, examined by the tenants also could not tell whether the house in question was in a slum area. 12. The learned counsel for the petitioners had a grievance that the learned Judges of the Courts below had applied standard of proof of a criminal trial to conclude that from the testimonies of the witnesses, it could not be conclusively said that the house comes in the slum area. It was for the petitioners to prove that the house comes in slum area and since no witnesses were stating so, the learned Judges could not have held otherwise. “Conclusively” is not same as “beyond reasonable doubt” which is the standard of proof in a criminal case. 13. The learned counsel for the petitioners next submitted that in Regular Civil Suit No.272 of 2001, in respect of the very same building number, filed by the same landlords, the learned Judge of the Small Causes Court held that the premises are situated in a notified slum area. He invoked the provisions of Section 42 of the Evidence Act to support his contention that since the judgment relates to a matter of public nature relevant to the enquiry, this judgment was relevant and could be said to have settled the questions once for all. In order to make the judgment binding to the parties to the present lis, it has to be shown that 8 such judgment relates to a matter of public nature. It may be seen from the illustration to the Section that when a public right is claimed and which is denied by one of the parties, like right of way, a judgment against such a party could be invoked by others as well, because it was a right to a public way. Such is not the present case. The right in question here is about occupying a particular building by a particular person. 14. Here, the question is not one of public nature or of a public right. The question is one in fact based on geographical boundaries of a slum area and, therefore, was required to prove as a fact. Inadequacy of evidence or a contest in one suit, which led to a particular result, cannot determine the fate of parties in another suit. Therefore, the judgment in Regular Civil Suit No. 272 of 2001 was rightly held by the Courts below as not decisive of the matter. 15. Thus, the petition has no merit. It is, therefore, dismissed. Judge. pdl