1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.216 OF 2007 Kasturchand S/o.Chandmal Mutha, Age-55 years, Occu-Business, R/o.Guruwar Peth, Ambejogai, Tq.Ambejogai, Dist. Beed PETITIONER VERSUS Shaikh Rahim S/o.Shaikh Ismail Bagwan, Age-42 years, Occu-Business, R/o.Mandi Bazar, Ambejogai, Tq.Ambejogai, Dist. Beed RESPONDENT Mr.G.K.Thigale, learned counsel for petitioner.. Mr.Dhananjay Deshpande, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 24/03/2010 PER COURT : 1. By the present revision application, the petitioner/original applicant in Rent Case No.90/RCA-2 has challenged the judgment of Learned District Judge, Beed in Rent Appeal No.4/2001, dated 03/08/2006. 2. Heard learned counsel for petitioner, also heard learned counsel for respondent, as the revision to be disposed of at the stage of admission itself. 2 3. Such of the facts, which gave rise to file this revision can be summarized as : The petitioner herein has filed application u/s. 15 of The Hyderabad Rent Act for restoration of possession that was premises let out to the respondent, wherein it is claimed that the applicant has let out the open area admeasuring 27ft x 30 ft, framing part of premises bearing Principal House No.1/56 situated at Mandi Bazar, Ambejogai, referred as a suit shop. This application was moved for the eviction of respondent from said premises on the ground of willful default, bonafide purpose, which application came to be allowed by the order of Rent Controller vide his order dated 31/03/2001. It appears that being aggrieved by the said order of eviction, rent appeal was filed by the respondent before District Court, Beed by preferring Rent Appeal No.4/2001 which came to be allowed vide judgment and order dated 03/08/2006, which is impugned before this Court. 4. Considering the submissions across the bar and the grounds on which the appeal was allowed by Learned District Judge, point for consideration before this Court is whether the property which was let out by the petitioner/applicant to the respondent, covered under the ambit of the provisions of Hydrabad House Rent (Eviction, Lease Control) Act of 1954, (hereinafter referred as Hyderabad Rent Control Act). It can not be disputed that under the Hyderabad Rent Control Act, the house is defined u/s. 2(b), which read as follows. In this Act, unless there is anything repugnant in the subject or context, 3 (b) “House” means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purpose and includes : (i) the garden, grounds, garages and out-houses, if any, appurtenant to such building or hut or part of such building or hut and or to let or to be let alongwith such building or hut or part thereof. (ii) any furniture supplied or any fittings affixed by the landlord for use in such building or hut provided but the expression does not include a room in a hotel or boarding house; From this definition one fact is clear that u/s. 2(b) of The Hyderabad Rent Control Act, if the open space is let out by the owner, that open space will not be covered under the definition of the “house” under the provisions of The Hyderabad Rent Control Act. This aspect also can be considered from the description of the property which is given by the applicant in his petition for eviction before the Rent Controller. In para no.1, of the application specific description of the property was given by the applicant as open space at the north side of Shop No.1/56 in Mandibazar, Ambejogai, admeausring 27 ft x 30 ft, was let out to the non applicant/respondent, on monthly rent basis of Rs. 50/- from 01/01/1975. During the course of submissions, it is tried to contend on behalf of appellant that on this open space, tin shed was constructed/ put up by the opponent where he is doing the business. In the premise, the court require to consider the purpose for which the property was let out by the landlord. 4 5. This court has an occasion to deal with the identical situation in the matter of Abdul Sattar Khan deceased by L.Rs. Sayeeda Begum w/o. Abdul Sattar and others Vs. Abdul Gani Khan S/o.Nawaz Khan, reported in 1991 Mh.L.J. 183, wherein this Court has observed that if it is a lease of open plot to tenant on which he constructed the rooms, the said open plot is not governed under the Hyderabad Rent Control Act and suit for eviction under the said act is not tenable. My attention is drawn towards the written statement filed by the opponent in the application filed before the Rent Controller, wherein it is contended that no objection is raised by the respondent that the provisions of the Rent Act are not applicable to the application filed for eviction by the petitioner landlord. 6. These contentions raised before this Court are not tenable on the simple ground that, when the application for eviction is filed under the provisions of Rent Act, it is for the court concerned to decide whether the application is tenable or not, as this is a legal preposition which require to be considered by the court concerned and the parties have not to chose the forum, whether the forum is proper or not. 7. In view of this legal position, the rent appeal was allowed by the learned District Court for the reasons quoted in para no.6 which is by typographical error, typed as para no.5, wherein it is held that from the evidence and the pleadings of the parties, the fact is clear that the property was let out by the petitioner to the respondent, was 5 a open premises. If it is so, it do not cover under the provisions of Hyderabad Rent Control Act. In the premise, the application for eviction of the tenant from the premises let out, is not maintainable under the provisions of The Rent Act. Hence, I do not find any perversity or illegality in the impugned order passed in Rent Appeal No.4/2001, hence the revision application sans any merit, rejected. 8. Considering the peculiar circumstances, no order as to costs. 9. It is hereby made clear that even though this civil revision application is rejected, the petitioner landlord is not precluded from taking the permissible remedy in law for eviction of respondent. (A.V.POTDAR, J.) khs/MAR 2010/cra-216-07