1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION No. 2081/2010. Smt. Indumati M. Dange and others -: versus :- Anil Kumar C. Agrawal. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JUNE 07, 2010. Heard Shri J.M. Gandhi, learned counsel for petitioners and Shri Neeraj Patil, learned counsel for respondent/caveator. Petitioners/tenant have challenged concurrent judgment and decrees delivered by the Joint Civil Judge, Junior Division in Regular Civil Suit No. 114/2003 on 21.02.2007 and judgment dated 10.03.2010 delivered by the District Judge-9 at Nagpur in Regular Civil Appeal No. 158/2007, maintaining it. Shri Gandhi, learned counsel contends that the civil suit as filed was not before the competent Court, as Small Causes Court at Nagpur alone would have taken cognizance thereof. He points out that even permission to terminate the tenancy under Clause 13[3] of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 was obtained from the Rent Controller at Nagpur. Relevant 2 notifications issued under the Provincial Small Causes Court Act, 1887 are pressed into service to urge that the Court constituted then had jurisdiction over the revenue taluq of Nagpur and at that time, no separate Kamptee Tahsil was in existence. He has further contended that the Rent Controller had denied permission to respondent and that denial was maintained in appeal under Clause 21 of the Rent Control Order. In Writ Petition, the permission was granted by this Court to terminate the tenancy, but then, the original tenant Moreshwar had expired during the pendency of the Writ Petition and his legal heirs [present petitioners] were brought on record. Their counsel who had expired in the meanwhile, did not appear before this Court at the time of final hearing and this Court did not get any assistance. In this situation, he points out that after the permission was granted, though Notice under Section 106 of the Transfer of Property Act was issued to all the petitioners, it was not served on two petitioners, and hence the decree for their eviction as filed is misconceived. Reliance is being placed upon the judgment of Hon'ble Apex Court reported at AIR 1990 SC 2053 (Textile Association (India) Bombay Unit .vrs. Balmohan Gopal Kurup and another) and judgment of Division Bench of Allahabad High Court reported at AIR 1977 Allahabad 38 (Ramesh Chand Bose .vrs. Gopeshwar Pd. Sharma). Lastly, attention is invited to the fact that on the basis of permission granted by this Court, a notice under Section 106 of the Transfer of Property Act was issued and that notice was pointed out to be faulty by the present petitioners in their written statement. Inspite of that plea the 3 suit was prosecuted further and after its dismissal on that ground a fresh notice under section 106, came to be issued. He contends that as the permission granted had lapsed, issuance of fresh notice on the basis of such permission is not valid. He further states that the suit was not withdrawn with any liberty and hence, filing of fresh suit was barred. Shri Patil, learned counsel appearing for respondent on the other hand states that the petitioners were joint tenants and not tenants in common. He relies upon the judgment reported at (1989) 3 SCC 77 (H.C. Pandey .vrs. G.C. Paul), to urge that service of quit notice on some of the legal heirs in such circumstances is situation and valid. He further argues that as the notice under section 106 of the Transfer of Property Act was found to be invalid, the tenancy was not terminated and hence, the permission was not exhausted. He further argues that the Kamptee Tahsil was in existence at relevant time and the issue is considered by this Court in earlier round of litigation in Writ Petition No.1797/2005 on 15.04.2005. Shri Gandhi, learned counsel in reply contends that though this Court has made some observations in the order dated 15.04.2005, those observations are without any assistance of actual arguments on the points and according to him a wrong observation or finding in such circumstances by this Court on the point of jurisdiction cannot operate as res- judicata. He has placed reliance upon the judgment reported at AIR 1971 SC 2355 (Mathura Prasad Sarjoo Jaiswal .vrs. Dossibai N. B. Jeejeebhoy) to support his contentions. The Appellate Court has considered the order of 4 this Court dated 15.04.2005 and in that order it has been found that the Small Cause Court at Nagpur had jurisdiction only on revenue taluq at Nagpur. In any case when the permission was granted by this Court and quit notice was issued and suit came to be instituted, the revenue taluq was in existence and hence, the Small Cause Court at Nagpur could not have exercised any jurisdiction in relation to the revenue taluq at Kamptee. Obtaining of permission from Rent Controller at Nagpur is not determinative in this respect in any way, because, the scope of and extent of the jurisdiction available to that Rent Controller has not been brought on record before this Court or before the trial Court. I, therefore, find that the objection to jurisdiction of Joint Civil Judge, Junior Division, Kamptee in this matter is misconceived. The facts also show that after the death of original tenant - Moreshwar, his legal heirs were also brought on record and they also engaged Advocate to defend themselves before this Court. The said legal heirs were joint tenants and not tenants in common, as held by the Hon'ble Apex Court in judgment in case of H.C. Pandey .vrs. G.C. Paul (supra). Case of Textile Association (India) Bombay Unit .vrs. Balmohan Gopal Kurup and another (supra), shows that eviction proceedings were initiated by the landlord were after the death of tenant and against some of his legal heirs. The said judgment of Hon'ble Apex Court therefore, has no application in the present facts. In view of the judgment in case of H.C. Pandey .vrs. G.C. Paul (supra), the judgment of Division Bench of Allahabad High Court also does not require any 5 consideration. The service of notice upon some of the legal heirs of deceased Moreshwar is admitted position and hence the contentions that, there was no valid service of notice has been rightly rejected by the Courts below. The respondent had sought permission under Clause 13[3][vi] of the Rent Control Order i.e., of bonafide need of landlord. After getting that permission from High Court, they had also issued notice under section 106 of the Transfer of Property Act and that notice was found invalid. Thus it is apparent that they were making efforts to obtain possession and for that purpose they were banking upon the permission obtained by them. After the notice was found to be invalid, they issued fresh notice. In this situation, the defence that permission stood lapsed or exhausted and that subsequent suit was barred by principles of res-judicata, are not relevant and does not arise for consideration. No case is made out warranting interference in exercise of writ jurisdiction. Writ Petition is therefore, dismissed with no order as to costs. JUDGE Rgd.