1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 536 0F 2010 *** Meraj Ali @ Moin Ali Khan S/o Abdul Majidkhan Versus M/s. Ubed & Ahsan Copper & Brass Merchant *** Mr. H. I. Pathan, Advocate for the Petitioner. Mr. Upendra B. Bilolikar, Advocate for the Respondent No.1/ caveator. *** 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. Present petitioner is plaintiff in Regular Civil Suit No.100 of 2009 pending in the Court of learned Civil Judge, Junior Division, Nanded. Copy of the plaint Annexure-B is on record. It appears that the petitioner/ plaintiff seeks eviction of the defendants under the provisions of Maharashtra Rent Control Act, (the said Act, for short). Plaintiff also seeks a decree of perpetual injunction restraining the defendants from interfering or obstructing and from causing nuisance to others in relation to suit shop bearing municipal No. 5-2-129 situated at M.G.Road, Habib Talkies, Nanded. In fact, Annexure-B is not the complete copy of the plaint. It is copy of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the application Exhibit-61 filed by the defendants. Said application appears to have been filed by the defendants under section 14 of the said Act. It has been stated in this application that suit filed by the plaintiff is for eviction and perpetual injunction. Suit property is shop bearing municipal No. 5-2-129. In para 2, it is stated that plaintiff had filed an application for temporary injunction against the defendants, restraining from interfering into 3’x20’ area out of 10’x20’ i.e. the shop in the possession of the defendants, as a tenant. Further, it has been stated in para 3 that, meantime acquisition proceeding was undertaken by the local authority, during the pendency of the suit. Front portion of the suit shop was demolished by the local authority and in that process shutter of the shop, which is under the occupation of the defendants, allegedly as tenant, was removed; front pillars also have been demolished. Due to this demolition by the local authority, other pillars of the property have become weak and need support of the walls or other pillars. According to the defendants, goods worth Rs.2 Lacs are lying in the suit property, it needs repairs i.e. fixation of 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. shutters for the protection of property and goods of the defendants. On request of the defendants, petitioner/ plaintiff did not pay any heed. Defendants issued notice under section 14 of the said Act, to the plaintiff for carrying out necessary repairs and to keep the property in habitable condition. This notice was issued on 10th November, 2009. Defendants have further stated that the notice was not accepted by the plaintiff. R.P.A.D. envelope and courier thus returned back to the defendants. One copy of the notice was also sent to the plaintiff by certificate of under posting. With these pleadings, defendants have prayed for direction against the plaintiff to fix the shutter from front side and construct eastern and southern wall or fix tin sheet. It has been alternatively prayed that defendant be permitted to carry out the said work within the scope of section 14 of the said Act and for that purpose plaintiff be restrained. This application was filed by the defendants on 25th November, 2009. 4. The trial Court, after hearing the parties, passed the order below Exhibit 61 i.e. the application filed by the defendants on 19th December, 2009. Two points were 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. framed by the trial Court, whether defendant is entitled for repair and whether the defendant is entitled for injunction against plaintiff. 5. Trial Court allowed the application directing the plaintiff to make the repairs in the suit shop i.e. fix shutter at the front side and fix the tin cover in the suit shop by taking necessary permission from the local authority. Further directions are given in para 1, B. C. which I have read and considered. 6. Counsel for the parties also drew my attention to the order passed by the first Appellate Court in Regular Civil Appeal No. 187 of 1986 Annexure-A. 7. This petition, I am allowing, on short ground. Indisputably suit in question is filed by the petitioner/ plaintiff seeking eviction. This suit may end either in decree in favour of the plaintiff or dismissed by the trial Court after recording the evidence. In substance, plaintiff may succeed or fail in this suit. Point is that, so long defendant is not filing counter claim, and/ or set off, or cross-suit, there is no question of any decree or order by the trial Court in favour of the defendant in the suit 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. filed by the plaintiff. As of today, indisputably, there is no counter claim filed by the defendant, neither set off raised. Section 14 has made available remedy but then it has to be exhausted in accordance with the provisions of law. Direction, the nature of which is claimed by the defendants, I have considered minutely. It is in the nature of mandatory injunction, either as a final relief or interim mandatory injunction. Such relief can be sought by the party by filing appropriate suit or proceeding. Indisputably, defendants have not filed any such suit or proceeding. The trial Court while considering this aspect of the matter, as to whether in the facts and circumstances of the present case, application Exhibit-61 filed by the defendants was at all maintainable. This was not considered and that is the reason why I am inclined to quash and set aside the order in extraordinary jurisdiction. This court, while exercising jurisdiction under Article 227 of the Constitution, is duty bound to see whether the subordinate Court has followed the due process contemplated under the law. In other words, this Court is concerned with the decision making process followed by the 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Court, if it is not in accordance with the provisions of law, this Court has to step in and correct the order passed by the subordinate Court so as to keep the subordinate court within its bounds and limits. 8. The impugned order, being perverse, illegal, is quashed and set aside. Counsel for the defendants seeks leave to file appropriate proceeding. Needless to say that defendants are at liberty to file proceedings in accordance with the provisions of law and in that case the Court concerned shall consider the said proceeding in accordance with the provisions of law, without being influenced by this order. In this order, I have not entered into merits and the controversy among the parties. 9. Writ petition is allowed with liberty to the defendants to file appropriate proceeding, if they desire to do so. Rule is made absolute in above terms. No order as to costs. [S.B.DESHMUKH, J.] Dated:25/01/2010. ans/536