Bombay High Court
Jitendra S/O. Vasantrao Nagarkar vs Mohanlal S/O. Maluramji Agrawal on 7 July, 2016
Bench: A.S. Chandurkar
919-J-WP-3788-15 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3788 OF 2015
Jitendra s/o Vasantrao Nagarkar
Aged about 48 years, Occ. Service,
R/o Arvi, Tahsil Arvi,
Dist. Wardha. ... Petitioner.
-vs-
Mohanlal s/o Maluramji Agrawal,
Aged about 66 years, Occ. Business,
Resident of Arvi, Tahsil Arvi,
Dist. Wardha. ... Respondent
Shri Rohit Joshi, Advocate for petitioner.
Shri S. K. Bhoyar, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : July 07, 2016
Oral Judgment :
Rule. Heard finally with consent of learned counsel for the
parties.
The petitioner who is a tenant in the premises owned by the
respondent is aggrieved by the judgment of the Appellate Court dated
27/01/2015 in R.C.A. No.41 of 2011 whereby the said appeal preferred by
the petitioner challenging the decree for eviction has been dismissed.
2. It is the case of the respondent that the petitioner is a tenant of
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the house property owned by him paying rent of Rs.37.88 ps per month.
According to the respondent as the petitioner was in arrears of rent, he had
issued a notice under provisions of Section 15(2) of the Maharashtra Rent
Control Act, 1999 (for short, the said Act) dated 11/02/2008. This notice
was received by the petitioner on 19/02/2008, but the arrears of rent were
not paid. On 01/03/2008 suit for eviction on the ground of the tenant being
in arrears of rent as well as on the ground of the landlord's bonafide need
came to be filed.
Written statement was filed by the petitioner stating therein that
he was not in arrears of rent. The ground of bonafide need was also denied.
3. The trial Court recorded a finding that the petitioner was in
arrears of rent since July 2008 and only part amount of arrears of Rs.1213/-
had been deposited on 31/07/2008. It was further held that the respondent
was in bonafide need of the suit premises. The suit was accordingly
decreed.
In the appeal preferred by the petitioner, the Appellate Court
reversed the finding as regards bonafide need of the landlord. However, the
finding that the tenant was in arrears of rent came to be confirmed. Being
aggrieved, the tenant has filed this writ petition.
4. Shri R. Joshi, the learned counsel for the petitioner submits that
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the suit in question was admittedly filed before the expiry of ninety days
after service of the demand notice on the tenant. According to him, the suit
could not have been filed before the expiry of the period of ninety days as
stipulated under Section 15(2) of the said Act. The Court in fact did not get
any jurisdiction to entertain such a premature suit and hence the decree for
eviction as passed was without jurisdiction. He further submitted that the
objection in this regard was not raised by the tenant either in the written
statement nor was the same urged before the Court. The learned counsel
relied upon the judgment of the Honourable Supreme Court in (2005) 4
Supreme Court Cases 315 Vithalbhai (P) Ltd. vs. Union Bank of India and
submitted that the defect of presenting the suit prior to expiry of ninety days
was not curable and it was a case of jurisdiction being exercised in a manner
contrary to law. He also placed reliance on the judgment of learned Single
Judge in 1994 (1) Mh.L.J. 290 Digambar Hari Sonpatki vs. Kishnichand
Nerumal Parwani to submit that a legal plea could be raised for the first
time even at this stage though such plea was not raised earlier.
5. Shri S. K. Bhoyar, the learned counsel for the respondent
supported the impugned judgment. According to him, the plea as raised by
the petitioner had not been raised either before the trial Court or before the
Appellate Court. The same could not be permitted to be raised for the first
time in writ jurisdiction. He however did not dispute the factual aspect of
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the matter that the suit was indeed filed prior to expiry of ninety days from
the service of the demand notice. He submitted that as the tenant was in
arrears of rent, the decree for eviction was rightly passed.
6. I have given due consideration to the respective submissions. The
facts on record indicate that the respondent who is the landlord had issued a
notice to the tenant on 11/02/2008 demanding arrears of rent. This notice
was served on the tenant on 19/02/2008 but the same was not complied.
The suit was filed on 01/03/2008. In this factual background, the aspect
whether the petitioner can be permitted to raise the plea that the suit as filed
was before expiry of the statutory period of ninety days from service of the
demand notice deserves to be considered.
The provisions of Section 15(2) of the said Act read thus :
Sec. 15(2) :- No suit for recovery of possession shall be instituted by a
landlord against the tenant on the ground of non-payment of the standard
rent or permitted increases due, until the expiration of ninety days next after
notice in writing of the demand of the standard rent or permitted increases
has been served upon the tenant in the manner provided in section 106 of the
Transfer of Property Act, 1882.
What has been prohibited is the institution of a suit for recovery
of possession against the tenant on the ground of non-payment of standard
rent or permitted increases. Unless the period of ninety days has expired
after service of the notice of demand on the tenant, such suit cannot be
instituted. Hence there would be no jurisdiction with the Court to entertain
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a suit that has been instituted prior to the expiry of the statutory period of
ninety days. In Vitthalbhai (P) Ltd. (supra) the Honourable Supreme Court
considered the fate of a premature suit. In paragraph 22 thereof it was
observed thus :
" ... However, the court shall not exercise its discretion in favour of decreeing a
premature suit in the following cases (i) when there is a mandatory bar created
by a statute which disables the plaintiff from filing the suit on or before a
particular date or the occurrence of a particular event: (ii) when the institution
of the suit before the lapse of a particular time or occurrence of a particular
event would have the effect of defeating a public policy or public purpose; (iii) if
such premature institution renders the presentation itself patently void and the
invalidity is incurable such as when it goes to the root of the court's jurisdiction;
and (iv) where the lis is not confined to parties alone and affects and involves
persons other than those arrayed as parties, such as in an election petition which
affects and involves the entire constituency."
The case in hand pertains to contingency no.(i) as contemplated
by the Honourable Supreme Court. The said defect of premature institution
also renders the presentation of the suit void thereby affecting the court's
jurisdiction.
7. From the facts noted herein above, it is crystal clear that the suit
was filed by the respondent prior to expiry of ninety days from the service of
the demand notice. The presentation of the suit itself being void and going
to the court's jurisdiction, the aforesaid plea would have to be permitted to
be raised though it was not raised earlier. The aforesaid defect being
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incurable as the landlord could not have cured the said defect after filing the
suit is without any doubt. Even if such plea was raised in the written
statement, the defect in question was incurable. On the other hand if it is
found that the Court has entertained the suit on the basis of presentation of
the plaint which was patently void and affecting the jurisdiction of the Court,
said legal plea would have to be permitted to be raised. This plea does not
call for any factual adjudication as the date of service of the notice on the
tenant and the date of presentation of the plaint are not in dispute.
Moreover, the decree for eviction has been passed only on the ground of
arrears of rent. The observations of learned Single Judge in paragraph 6 of
the decision in Digambar Hari Sonpatki (supra) can be relied upon.
8. In view of aforesaid, the only conclusion that can be drawn from
the aforesaid facts is that the suit for eviction was filed in a manner contrary
to provisions of Section 15(2) of the said Act. The trial Court had no
jurisdiction to entertain such a prematurely instituted suit. The Appellate
Court by dismissing the appeal also exercised jurisdiction thereby confirming
the decree passed in the suit of which the trial Court could not have taken
cognizance. The only inevitable result is that the decree passed by the trial
Court as maintained by the Appellate Court is without jurisdiction.
9. In view of aforesaid, the judgment of the Appellate Court dated
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27/01/2015 in R.C.A. No.41/2011 as well the judgment of the trial Court
dated 15/01/2011 in R.C.S. No.16/08 are quashed and set aside. It is held
that the suit is liable to be dismissed as having been filed prior to the
statutory period prescribed under Section 15(2) of the said Act. This
adjudication however, shall not preclude the respondent from initiating fresh
proceedings for eviction of the petitioner in case any fresh cause of action
arises.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
919-J-WP-3788-15 8/8
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