1 wp4904.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4904 OF 2011 Mahesh Mathur. ....Petitioner Vs. Rohinton Shroff & ors. ....Respondents Mr. P.S. Dani, h/f. Mr. Sameer Bhalekar, Advocate for Petitioner. Mr. V. R. Dhond with Ms. Ferzana Behramkamdin i/b. FZB & Associates, Advocate for Respondent Nos. 1 to 3. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 17, 2011 P.C. 1. Rule. Rule made returnable forthwith. Petition is taken up for final hearing forthwith by consent of the respective Advocates. Mr. Dhond waives service on behalf of the Respondents. 2. Heard Mr. Dani, Advocate for the Petitioner and Mr. V.R. Dhond, Advocate for Respondent Nos. 1 to 3. 3. The Trial Court has recorded a clear finding that the suit summons was 2 wp4904.11 served on 25/10/2007 and the Written Statement was filed on 26/11/2007. Application Exh. 9 is filed on 9/1/2008. 4. The Revisional Court has recorded the following findings in paragraph-6 of the impugned order : “... The writ of summons was served on 25.10.2007, however, this application filed under Section 15(3) of the MRC Act, on 9th January, 2008 i.e. after expiry of 90 days. ......... Admittedly, the application is not filed within 90 days from the date of service of summons. Therefore, this application is not maintainable. The trial Court has rightly rejected the application.” 5. On a query from the Court Mr. Dhond fairly states that these findings are factually incorrect. The Revisional Court has also held that the revision is not maintainable. The question regarding maintainability of a Revision Application under section 34 of the Maharashtra Rent Control Act, 1999 has already been referred to the Division Bench though there is some controversy as to whether such reference was warranted or not. 6. Mr. Dhond states that the Petitioner has already filed RAN Application No. 57 of 2010 under section 8 of the Maharashtra Rent Control Act, 1999 which is pending before the Court of Small Causes. 7. After hearing Advocate for the Petitioner and Respondents and by 3 wp4904.11 consent of the respective parties, and their advocates, the Writ Petition is disposed of in terms of following order : a) The impugned Judgment and Order dated 18/10/2008 passed by the learned Judge of the Court of Small Causes at Mumbai presiding in C.R No. 16 below Exh. 9 in R.A.E. Suit No. 992/1582 of 2007 being Exh. F to this Petition, as also the impugned Judgment and Order dated 22/2/2011 passed by the Division Bench of the Court of Small Causes at Mumbai in Revision Application No. 13 of 2009 being Exh. H to this Writ Petition are quashed and set aside. Exh. 9 of 2008 in R.A.E. Suit No. 992/1582 of 2007 is restored to file. The Petitioner is permitted to make a comprehensive amendment to the said Application which will be treated as an Application filed under section 8 of the Maharashtra Rent Control Act, 1999 filed on 9/1/2008. b) The Petitioner is permitted to withdraw R.A.N. Application No. 57 of 2010 with liberty to incorporate all the pleadings in the said RAN Application No. 57 of 2010 by amending his Application Exh. 9 of 2008. c) For statistical and administrative purposes, the Office of the 4 wp4904.11 Court of Small Causes is directed to assign a number to the said Application Exh. 9 of 2008 which is now directed to be treated as an Application for fixation of standard rent under section 8 of the Maharashtra Rent Control Act, 1999 and the same shall be numbered as R.A.N. Application. d) The Respondents will also be entitled to treat the affidavit reply already filed by them for opposing RAN Application No. 57 of 2010 as reply to Exh. 9 of 2008 which is now to be treated as a separate RAN Application after its amendments by the Petitioner. In case respondents so desire, they will also be entitled to file an additional reply or withdraw the reply filed by them for opposing RAN Application No. 57 of 2010 and file a composite reply to the amended Exh. 9 of 2008 which is to be treated as RAN Application. (e) RAE Suit No. 992/1582 of 2007 filed by the Respondents and Exh. 9 of 2008 which will now be treated as RAN Application after its amendment shall be heard together and preferably by recording common evidence. Hearing of the suit and standard rent application, which is clubbed together, is expedited and both the proceedings shall be disposed of not later than 31st March, 2012. 5 wp4904.11 f. It is made expressly clear that the contentions of the petitioner and Respondents about merits of the controversy involved in RAE Suit No. 992/1582 of 2007and the standard rent application which is clubbed for hearing with the said suit are expressly kept open and both the proceedings shall be decided by the learned Judge of the Trial Court in accordance with law. It is clarified that this order should not be construed to be an expression of opinion about merits of the controversy involved in the said suit and standard rent application. Rule made absolute in the aforesaid terms with no order as to costs. (GIRISH GODBOLE, J)