ssm 1 906.wp.9417.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9417 OF 2010 Mr. Ashok Vitthal Kondhare and others ....Petitioners Versus Mr. Raosaheb Namdeo Veer and others ....Respondents ___________ Shri. G. S. Godbole i/b Karan Thorat for the Petitioners. Shri. Madhav Jamdar for the Respondents. CORAM: B. R. GAVAI, J. DATED : 15 TH MARCH, 2011 P.C.: The present Writ Petition arises out of concurrent orders passed by the learned 2 nd Additional Judge, Small Causes Court, Pune in Civil Suit No. 95 of 2004 thereby decreeing the suit of the Respondent and the order passed by the Extra Jt. Adhoc District Judge, Pune in Civil Appeal No. 162 of 2006 thereby dismissing the Appeal filed by the present Petitioners. 2. The Plaintiffs who are owners of the suit property filed a ssm 2 906.wp.9417.10 suit for eviction and possession on the basis of notice issued to the defendants on 4 th February, 2004 whereby terminating the tenancy with effect from 29 th February, 2004. It was the contention of the Plaintiffs that one Namdeo Veer, the Predecessor in title of Plaintiffs had given suit plot to the predecessor of Defendants by name Shri. Baburao Kondhare who was the owner of the joint plot, who had requested for letting out the suit property for storage of fire wood. It was the contention of the Plaintiffs that the suit property was an open plot. According to the Plaintiffs since the Defendants had stopped the business of storage of fire wood and also made construction without the permission of the Plaintiffs, a notice was issued to the Defendants on 3 rd October, 2002 terminating the tenancy of the suit property with effect from 31 st October, 2002. Since, the Defendants failed to act upon the notice, a Civil Suit No. 144 of 2003 was filed and the said suit was withdrawn. Subsequently, after issuing a fresh notice as aforesaid, the suit came to be filed. It was the contention of the ssm 3 906.wp.9417.10 Petitioners / Defendants that the plot of land was letting out alongwith the structure thereon, as such the suit as filed was not tenable, in as much as the Petitioners were entitled to protection of the Bombay Rents, Hotel, Rates Control Act, 1947 (hereinafter referred to as Bombay Rent Act). The learned Trial Court rejected the objection of the Petitioners regarding tenability of the suit in view of protection under the Bombay Rent Act. The learned Trial Court came to a finding of fact that since the premises were an open plot of land, the provisions of Maharashtra Rent Control Act were not applicable and as such, the suit filed under the provisions of the Transfer of Property Act was tenable and as such, the suit was decreed. Being aggrieved thereby, an Appeal was preferred and the same was dismissed. Hence, the present Petition. 3. Mr. Godbole, learned Counsel for the Petitioner submitted that both the Courts below have proceeded on a premise that it was for the Defendants to prove that the premises which were let out to ssm 4 906.wp.9417.10 the Defendants were not a open plot. He submits that since it was the contention of the Plaintiffs that the suit premises were an open plot of land, the burden was on the Plaintiffs to discharge the same. It is submitted that the Plaintiffs have not discharged their burden to establish that the premises were an open plot of land. In that view of the matter, the Petitioners were entitled to protection of Maharashtra Rent Control Act. It is therefore, submitted that the learned Trial Court ought to have dismissed the suit. The learned Counsel further submitted that in view of Section 2 of Maharashtra Rent Control Act, 1947, an open plot of land was included in the definition of premises. The protection granted under the said Act would also continue to operate even after coming into force of the Maharashtra Rent Control Act. He, therefore, submits that since this aspect is not taken into consideration by both the Courts below, the impugned orders suffer on this ground also. 4. Mr. Jamdar, learned Counsel for the Respondents/ ssm 5 906.wp.9417.10 Plaintiffs submitted that the Plaintiffs have discharged the burden to establish that the premises were an open plot of land by examining Shri. Raosaheb Veer i.e. the Plaintiff No. 1, who was present when the transaction took place. He submit that though the said witness was thoroughly cross-examined, nothing damaging could be found in his cross-examination. It is also submitted that on the contrary, the Respondents/Defendants have withheld the best witness available to them, who was present when the transaction took place. It is, therefore, submitted the in that view of the matter, no error can be found with the impugned order. In sofar as the submission of the learned Counsel for the Petitioner regarding the provisions of Section 2 (2) of the Maharashtra Rent Control Act is concerned, the learned Counsel submit that in view of the judgment delivered by the single Judge of this Court in the case of Maharaji Bajrangi Vishwakarma and others V/s. Sayeedabai Haji Sayyad Gani, the said contention would not be applicable to the present Petitioners. ssm 6 906.wp.9417.10 5. Since, the issue regarding applicability of Section 2(2) of the Maharashtra Rent Control Act, 1999, is a legal issue, I think it appropriate to consider the same first. The learned single Judge of this Court in the case of Maharaji Bajrangi Vishwakarma and others V/s. Sayeedabai Haji Sayyad Gani, has after considering the said provisions observed thus: “The learned Counsel for the appellants submitted that while deciding the second appeal, the Court had not considered the implications of Clause (2) of section 2 of the Maharashtra Rent Control Act, 1999. According to the learned Counsel, the amended provisions of the rent Control Order would continue to apply to the suit premises in view of provisions of Clause (2) of section 2. Section 2 reads as under:- “(1) This Act shall, in the first instance, apply to premises let for the purposes of residence, education, business, trade or storage in the areas specified in Schedule I and Schedule II. (2) Notwithstanding anything contained in sub- section (1), it shall also apply to the premises or, as the case may be, houses let out in the areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) or the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 issued under the Central ssm 7 906.wp.9417.10 Provinces and Berar Letting of Houses and Rent Control Order, 1949 issued under the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 (C.P. and Berar Act XI of 1946) and Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (Hyd. Act No.XX of 1954) were extended and applied before the date of commencement of this Act and such premises or houses continue to be so let on that date in such areas which are specified in Schedule I to this Act, notwithstanding that the area ceases to be of the description therein specified.” (Emphasis supplied) Ordinarily, provisions of the Maharashtra Act would apply to areas in Schedule I and II as per Clause (1) of section 2. Clause (2) is intended to take care of a situation where any area in Schedule I, to which erstwhile rent legislation applied, ceased to carry the description in Schedule I. Such contingencies could arise due to creation of new local bodies, change in the jurisdiction of such bodies and the like. The clause is not intended to cover leases of open plots which have been consciously excluded by the legislature while drafting the comprehensive Maharashtra Act. Had the Legislature intended that section 2(2) was meant to continue to bring open sites within the sweep of Maharashtra Act in spite of restrictive definition of premises in section 7(9) of the Maharashtra Act, the Legislature would not have referred to description of areas. In that case, the Legislature would have simply said that ssm 8 906.wp.9417.10 notwithstanding anything contained in sub section (1), the Act shall also apply to all premises and houses to which the erstwhile rent laws applied on the date of commencement of the Act. Such a clause would have taken in its sweep not only change in description of areas but also overridden the change brought about by Clause (9) of section 7. The Legislature could have even added a rider in Clause (9) of section 7 itself by saying that “premises” shall also include any leasehold to which the provisions of erstwhile rent laws applied: provided that such premises continue to be let on the date of commencement of the Act. Therefore, the phraseology used in drafting Clause (2) of section 2; the placement of this clause in section 2 to override Clause (1) of the said section; and conscious exclusion of open spaces in definition of “premises” in Clause (9) of section 7 all rule out the interpretation sought to be put by the learned Counsel. In view of this it would have to be held that the appellants do not have any protection under the Maharashtra Rent Control Act, 1999 and, therefore, their eviction ordered by the two courts below cannot be assailed.” I am respectfully agreed with a view taken by the single Judge of this Court. 6. The present case arises out of concurrent findings of fact ssm 9 906.wp.9417.10 that the scope of interference while sitting in the extraordinary jurisdiction under Article 227 of the Constitution of India would be very limited. Unless this Court finds that the finding recorded by both the Courts below are perverse, it is not permissible for this Court to interfere in its extraordinary jurisdiction. Both the Courts below on the basis of evidence led on behalf of the parties have come to a conclusion that the premises which were leased in the year 1955 was an open plot of land without any construction thereon. The story putforth by the Defendants, that the plot was let out alongwith the structure thereon has been, categorically, rejected by both the Courts below upon perusal of the evidence lead by both the parties. It is pertinent to note that the Petitioners have examined P.W.1 Raosaheb Veer, who was present when the predecessor in title Shri. Namdeo had agreed to let out the premises to Baburao Kondhare in the year 1955. This witness has, categorically, stated that the premises which are let out was an open plot of land. Though this witness has been ssm 10 906.wp.9417.10 cross-examined by the Defendants, nothing damaging has come forward in his cross-examination. Both the Courts below have found the evidence of this witness to be reliable. As against this, it has been noticed that though from the Defendants' side one Shri. Vitthal was present alongwith the deceased Baburao, when the transaction took place in the year 1955, for the reasons best known to the Defendants, they had not examined the said witness. In this factual document, both the Courts below found that the Plaintiffs had discharged the burden of establishing that the premises were open plot of land. No perversity is noticed in the orders passed by both the Courts below. 7. Both the Courts below therefore held that the tenancy for the suit property was validely terminated under Section 106 of the Transfer of Property Act and decreed a suit and dismissed the Appeal. 8. In that view of the matter, no perversity could be noticed in the approach adopted by the Courts below to warrant interference. Hence rejected. ssm 11 906.wp.9417.10 9. At this stage, Mr. Godbole, learned Counsel for the Petitioners submits that since the learned Counsel for the Respondents had made a statement that the Respondents would not take steps for execution of the decree till adjudication of the present proceedings, the same be continued for a further period of 8 weeks from today. Mr. Jamdar, the learned Counsel for the Respondents state that the Respondents/Plaintiffs would not execute the decree for a period of 6 weeks from today. As such no orders are necessary. (B. R. GAVAI, J)