spb/- 1 cac182-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL APPLICATION NO. 182 OF 2010 IN CIVIL REVISION APPLICATION NO. 661 OF 2008 Smt. Gracy Joshph Gomes & Ors. ... Applicants. V/s. Austin Nazareth alias Namy Alex D’Silva ... Respondent. --- Mr. J.M. D’Silva for the Applicants. Mr. H.S. Venegavkar for the Respondent. ----- CORAM : G. S. GODBOLE, J. DATE : 14th SEPTEMBER, 2011. P.C. : 1 This Civil Application is filed by the original Respondent in Civil Revision Application being original Landlord-Plaintiff and seeks following reliefs : “(a) that it be held that the tenancy of the original deceased tenant the predecessor of the Petitioners in the suit premises stood extinguished as the suit premises is not in existence being collapsed and the Petitioners are not entitled to pursue the present remedy above Petition and the same requires to be rejected. spb/- 2 cac182-10.sxw (b) such other and further orders deem fit and proper; (c) costs if any.” 2 Mr. D’Silva at the outset states that since Respondent/original Defendant had filed Civil Application No. 128 of 2010, seeking permission to carry out repairs, this Civil Application is filed and since by a separate order passed today, the Civil Application No. 128/2010 has been directed to be placed before D.G.Karnik,J, even this Civil Application should be directed to be placed before before the same learned Judge. 3 There is no order, either judicial or administrative, clubbing the hearing of these Civil Applications though they arise out of the same proceedings. In the circumstances, this Civil Application has been heard on its own merits. 4 Mr.D’Silva relies on the Judgment of the learned single Judge A.M.Khanwilkar, J. in [2009 (5) Bom.C.R.-410] in the case of Sidharam Ganpati Mulage vs. Bashir Elahibaksh Tamboli and contends that since the entire structure of the suit premises has collapsed on account of natural calamity, the tenancy has been extinguished and hence, the Civil Application deserves to be allowed. spb/- 3 cac182-10.sxw 5 On the other hand Mr. Venegavkar, Advocate for the Respondent states that premises are in existence and all that has happened is that roof and some other portion of the premises was collapsed. Mr. Venegavkar submits that on account of negligence of the Landlord, such a situation had arisen. Mr. D’Silva also contends that in such situation it was open for the tenant to serve notice under section 23 of the Rent Act and thereafter carry out repairs on his own. I am unable to agree with the submission of Mr. D’Silva for more than one reasons. The premises are in existence and it is not in dispute that the roof and some other portion of the premises was collapsed. When Civil Application No. 128 of 2010 was filed, the tenant has placed on record letter dated 10.12.2009 issued by the Assistant Engineer of MCGM which indicates that replacing of the roof was required to be done. In the case before Justice A.M. Khanwilkar, cited supra, the facts were entirely different. In that case because of fire the entire structure of the tenanted shop premises was not only destroyed but only vacant land had remained. In that context, the learned Judge has relied upon the Judgment of the Supreme Court in the case reported in 2001 (1) S.C.C. 564. The facts in the present case are different. Whether the Respondent-Tenant can get permission to carry out substantial repairs or not is a matter which will have to be decided in the Civil Application No. 128 of 2010 in case the same has spb/- 4 cac182-10.sxw survived. However, prayers made in this Civil Application cannot be granted. 6 Civil Application is rejected. [G.S.GODBOLE, J.] .....