1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5167 OF 1993 Smt. Mandakini Purshottam Bhide, ) (Now deceased since 25-6-1999 ) ) Through her legal heirs - ) (1) Shri Avinash Purshottam Bhide, ) Since deceased on 17.5.2008 by ) by heirs and legal representatives viz: ) 1a) Smt. Mala Avinash Bhide, ) Age about 60 years, Occ. Household, ) 1b) Smt. Rashmi Avinash Bhide, ) age about 32 years, Occu – Household, ) 1c) Shri Nivrutti Avinash Bhide, ) age about 30 years, Occ. Business, ) Nos.1(a) to 1(c) all residing at 575, ) Narayan Peth, Pune – 411 030. ) 2. Smt. Manjiri Atul Bhide, ) aged 50, Occ. Household. ) 3. Dhananjay Purushottam Bhide, ) aged 34 years, Occ: Business, ) All residing at 575, Narayan Peth, ) Pune – 411 030. ).. Petitioners (Org. Plaintiffs ) Versus 1. M/s. Mahajan & Associates Pvt. Ltd., ) A Private Limited Company, ) having its office at 362 Sadashiv Peth, ) Pune. ) 2. M/s. Makarand Construction Company, ) A Partnership Firm having its office ) at 83/12, A-2, Druvatara, ) Erandavane, Pune – 411 004. ) 2 3. Shri P.P. @ Prabhakar Purshottam Joshi, ) since deceased by his heirs and L.Rs. ) 3a) Shri Makarand Prabhakar Joshi, ) adult, ) 3b) Shri Shriram Prabhakar Joshi, ) Adult, ) Both residing at 364, Narayan Peth, ) Laxmi Road, Pune. ) 4. Mrs. U.P. Joshi, ) Age adult, Occ : Business, ) 5. Metox Fine Chemicals Private Ltd., ) 6. V.P. Khare, ) ( WP dismissed against Nos.5 & 6 by ) order dt.11/7/96.) ) 7. M.Y. Lagate, ) Age adult, Occ : Business, ) R/at : 2024, Sadashiv Peth, ) Pune – 30. ) 8. N.B. Hoshing, ) ( WP dismissed by order dt.11/7/96.) ).. Respondents (Org.Defendants ) -- Shri G.M.Khambete for the Petitioners. Shri P.K. Dhakephalkar, Senior Counsel for Respondent Nos.1 to 4. Shri S.U. Dhakephalkar for Respondent Nos.3(a) and 3(b). -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 1. JUDGMENT : . Heard learned counsel appearing for the Petitioners. The Petitioners are the heirs and legal representatives of the original Plaintiff- 3 Petitioner Smt. Mandakini Bhide. The Respondents are the original Defendants. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. 2. The original Petitioner claimed to be the owner of an open plot of land more particularly described in Paragraph 1 of the Plaint. The case of the Petitioner is that the 1st Respondent approached her and requested for grant of a long lease of the suit plot more particularly described in Paragraph 1 of the Plaint. Accordingly, a Lease Deed dated 27th December, 1974 was executed for a period of 99 years. Various terms and conditions incorporated under the lease are referred to in the Plaint. According to the case of the Petitioner, as per Clause 11 of the Lease Deed, lease was granted to the 1st Respondent for the purposes of construction. The 1st Respondent was authorized to construct on the suit plot and to give shops, offices and flats constructed thereon on rental basis or on ownership basis. Under the said clause, the 1st Respondent was permitted to transfer the leasehold rights in favour of a Co-operative Housing Society or Association registered under the Maharashtra Ownership Apartments Act, 1970 or in favour of an Associations of individuals. The allegation in the Plaint is that the 5th Respondent has unlawfully taken the suit plot from the 1st Respondent and has carried out construction thereon. Further allegation made in the Plaint is that the 1st Respondent has illegally assigned the suit plot to the 5th Respondent and thus was indulging in 4 profiteering from the said illegal transfer to the 5th Respondent. It is alleged that the construction activities are being carried out in breach of the terms and conditions of the tenancy. It is alleged that the 1st Respondent has not paid the amount of Rs.65,000/- as agreed upon. In the Plaint, there is a specific assertion that the 1st Respondent is not protected by the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as “the said Act” ). Paragraph 27 of the Plaint asserts that the suit has been specifically filed under Section 26 of the Provincial Small Cause Court Act,1887 (hereinafter referred to as the said Act of 1887) as amended from 1st January, 1985. Subsequently, an amendment was carried out to the Plaint by contending that if the Court comes to a conclusion that the provisions of the said Act are applicable, then the Respondents are liable to be evicted from the suit premises under the provisions of the said Act. 3. The suit was contested by the 1st and the 4th Respondents/Defendants by filing a Written Statement. One of the contentions raised is that the provisions of the said Act are applicable to the suit plot. The other allegations were made in the Plaint were denied by the 1st and the 4th Respondents. 4. The Trial Court framed various issues. The first issue was whether the Court of Small Causes had jurisdiction to entertain and try the suit under the General Law. Issue No.7 was as regards the applicability of 5 the provisions of the said Act. The Trial Court recorded a finding that the provisions of the said Act are not applicable to the suit plot. The Trial Court proceeded to dismiss the suit on merits. An appeal was preferred by the Original Petitioner. It appears that in the Appeal, no contention was raised by the Original Petitioner that the provisions of the said Act were applicable. The Appellate Court dismissed the appeal. 5. The learned counsel appearing for the Petitioners submitted that in fact the provisions of the said Act were applicable to the suit plot. He invited my attention to the terms and conditions incorporated in the Lease Deed. He submitted that essentially the purpose of letting was to enable the 1st Respondent to carry on business or trade and, therefore, in view of Sub-section (1) of Section 6 of the said Act, the provisions of the said Act are applicable to the suit plot. He submitted that even under the provisions of Section 28 of the said Act, it is the Court of Small Causes which has exclusive jurisdiction to entertain and try the suit under the said Act. He submitted that there is a clear case of sub-letting by the 1st Respondent which is reflected even from the Written Statement and, therefore, he submitted that the Courts below ought to have passed a decree on the ground of sub-letting. 6. The learned Senior Counsel appearing for the Respondent Nos.1, 2 and 4 submitted that at no stage, the Petitioner came out with a case that the provisions of the said Act are applicable to the suit plot. He 6 submitted that even in the Appeal, the said contention has not been raised by the Petitioner. He submitted that the Appellate Court has confirmed the finding of the Trial Court as regards the forfeiture. He submitted that in fact there cannot be any forfeiture under Section 111(g)(i) of the Transfer of Property Act, 1882. He, therefore, submitted that no interference is called for. 7. I have given careful consideration to the submissions. Paragraph 18 of the Plaint reads thus:- “18. That the Plaintiff has already filed a civil suit bearing Reg.C.S.No.1916/83 for permanent injunction and the Hon’ble Civil Judge Jr. Division has also held that the Defendants are not protected by the Bombay Rent Act, which is conclusive and binding upon them.” 8. Paragraphs 27 and 29 of the Plaint read thus: - “27. That the suit is filed in this Hon’ble Court in pursuance of the amendment of Section 26 of the Provincial Small Cause Act, which has come into effect from 1.1.1985 which confers jurisdiction on this Hon’ble Court to try and decide the disputes between landlord and tenant. 29. That as the purpose for which the land was given on lease does not fit in any of the purposes of Bombay Rent Act, the Rent Act is not applicable to this transaction of lease, and hence the suit is not based on any of the legal provisions under the said act and no protection is available under the said Act to the Defendants in this suit.” 7 9. Thus, the suit proceeds on the footing that the provisions of the said Act are not applicable to the suit plot. In fact, it is specifically asserted that the suit is filed under Section 26 of Chapter IV-A of the Provincial Small Causes Court Act, 1887 as amended by the State of Maharashtra with effect from 1st January, 1985. It appears that by the amendment, Paragraph 29-A has been incorporated in the plaint, which reads thus: - “ 29-A. That the Plaintiff submits that without prejudice to the aforesaid contentions, if the Hon’ble Court comes to the conclusion that the Bombay Rent Act is applicable to the present suit, then the Defendants are liable to be evicted under the provisions of the said Act.” 10. There can be no dispute that in the Plaint there can be mutually exclusive and inconsistent pleas taken. But in such a case , the Plaintiff has to elect one of the inconsistent pleas at the time of trial. From the issues framed by the Trial Court, it appears that the Petitioner went for the trial with a contention that the provisions of the said Act were not applicable to the suit plot. The Trial Court recorded a finding that the provisions of the said Act were not applicable to the suit plot. From Paragraph 8 of the judgment of the Appellate Court, it appears that both the parties did not dispute the finding of the Trial Court that the suit plot is not governed by the provisions of the said Act. Thus, the Petitioner had given up her contention raised in the alternative that the provisions of the said Act were applicable to the suit plot. Now for the first time in writ 8 petition , it is sought to be contended by the Petitioner that the provisions of the said Act are applicable to the suit plot and a decree be passed under the said Act.. In my view, such a contention cannot be raised for the first time in the Writ Petition. The appeal before the District Court was preferred by the Petitioner. In the Memorandum of Appeal, no such case has been made out. Perusal of the judgment of the Appellate Court shows that no such submission was made at the time of hearing of the Appeal. Therefore, for the first time, in a Writ Petition under Article 227 of the Constitution of India, the Petitioner cannot be allowed to come out with a case that the said Act is applicable to the suit plot. It is not open for the Petitioner to raise such a contention. 11. The frame of the suit indicates that the suit is filed under Section 26 of the said Act of 1887. It appears from the judgment of the Appellate Court that what was argued by the Petitioner was that there was lawful termination of the tenancy by issuing a notice under Section 106 of the Transfer of Property Act, 1882. None of the grounds in the Writ Petition were agitated before the Appellate Court. 12. In the circumstances, no case for interference can be made out in writ jurisdiction. At this stage, the Petitioner cannot call upon the Court to pass a decree against the Respondent under the provisions of the said Act as no such contention was raised before the Appellate Court in the Appeal preferred by the Petitioner. 9 13. This is not a case for interference in the powers of superintendence of this Court. The Writ Petition accordingly is rejected. The rule is discharged with no order as to costs. (A.S.OKA, J) ash