1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 12796 OF 2009 IN SECOND APPEAL NO. 792 OF 2009 Mr. Rajendra Deshmukh, Advocate for the applicant. Mr. R.N.Dhorde, Advocate instructed by Mr. R.V.Naiknaware, Advocate for Resp.nos. 1 & 2. CORAM : S.V. GANGAPURWALA, J. DATE : 16/11/2010 PER COURT : 1. By the present Civil Application, the applicant has assailed the notice/letter/Order dated 02/12/2009 passed by the respondent/Municipal Council. 2. The present applicant had instituted Civil Suit for injunction against the Municipal Council on the ground that he is a tenant over the property. The Trial Court had decreed the Suit and had restrained the Municipal Council from obstructing the possession of the plaintiff over the suit premises without following lawful procedure. 3. The Municipal Council preferred Appeal. The Appeal filed by the Municipal Council came to be allowed and the Suit filed by the applicant came to be dismissed. The present applicant preferred Second Appeal No. 792 of 2009. This Court vide Order dated 9/11/2009 admitted the Second Appeal. At the same time, granted liberty to the Municipal Council to terminate the tenancy of the appellant in a lawful manner and if the applicant is found liable for eviction, then necessary action may be taken. For ready reference, the said Order is reproduced 2 hereunder : “ 1) The plaintiff’s Suit for injunction came to be decreed. The Trial Court held that the tenancy of the plaintiff could not be terminated without following due procedure of law. However, the decree has been reversed by the first Appellate Court. 2) Upon hearing the learned counsel for the parties, the following substantial question of law are formulated for the decision of Second Appeal : (i) Whether in the facts and circumstances of the case, the plaintiff (Appellant) could have claimed status as ‘ tenant ’ without continuity of the tenancy under any written agreement and whether such tenancy could be continued without following relevant provisions of Section 92 of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965 and, therefore, the appellant is not entitled in continuing of the Suit ? (ii) Whether in the facts and circumstances of the case, the first Appellate Court committed patent error while dismissing the Suit for the reason that there was no cause of action available when the eviction was apprehended and the right of the appellant was denied by the respondents ? 3 3) Admit. 4) The appellant to furnish private paper book within ten weeks. 5) I am told that now the Municipal Council has given notice of termination of the tenancy to the appellant. It is made clear that though the Second Appeal is admitted, yet the termination of the tenancy of the appellant may be effected in lawful manner, and if he would be found to be liable for eviction, then necessary action may be taken. 6) Civil Application is disposed of in above terms ”. 4. After the aforesaid order was passed by this Court, the Municipal Council issued notice dated 2/12/2009 giving reference of notice dated 16/1/2009. 5. I have heard Mr. Rejendra Deshmukh, the learned counsel for the applicant and Mr. R.N. Dhorde, learned counsel for respondent nos. 1 and 2. 6. The cause of action to file Suit was an apprehension in the mind of the applicant that he may be dispossessed without following due process of law. Though the Second Appeal is admitted, this Court had granted liberty to the respondent/municipal council to take recourse as per law. The defendant – municipal council thereafter had issued notice dated 2/12/2009 giving reference of earlier notice dated 16/1/2009. The challenge to the said notice would be a distinct and separate cause of action. The cause of action for institution of the Suit and the cause of action challenging the said notice being distinct and 4 separate, can not be merged together, interalia the said notice can not be challenged by way of present Civil Application in the pending Second Appeal, which is based on separate cause of action. 7. In light of the above, without entering into the merits of the rival contentions of the parties, the present Civil Application is disposed off with liberty to the applicant to take appropriate proceedings before the appropriate forum as would be permissible under law. 8. Mr. Deshmukh states that the statement was made by Mr. Dhorde, the learned counsel for respondents that they would not give effect to the notice till the decision of the present Civil Application and the said statement may be continued for 15 days. Mr. Dhorde, the learned counsel for the respondent objects for the same on the ground that the same would be impediment for public cause. However, as the said statement was in force for months together, the statement of the learned counsel for the respondent that they would not effectuate the notice is continued for further 7 days from today. The present Civil application is accordingly disposed off. The parties may act upon copy of this Order duly authenticated by the Court Shirastedar. [ S.V. GANGAPURWALA ] JUDGE knp/CA 12796.09 in SA 792.09