Dr Basudeo Shivdhari Ozha & Othrs vs Shyamlal Kodelal Jaiswal Yvt
2017 Latest Caselaw 9787 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                         Second Appeal No. 90 of 2005


 Dr. Basudeo Shivdhari Ozha [dead],
 through his legal heirs :

 1]      Bunty @ Robin Basudeo Ozha,
         aged about 30 years,
         occupation - business,
         resident of Itwara Chowk,
         Wani Road, Yavatmal.

 2]      Ku. Baby @ Nitu Basudeo Ozha,
         aged about 27 years,
         occupation - Household work,
         resident of Robin B. Ozha,
         Itwara Chowk, Wani Road,
         Yavatmal.
         Tq. & Distt. Yavatmal.        .....                     Appellants


                                   Versus


 Shyamlal son of Kodelal Jaiswal,
 aged about 53 years,
 occupation - Agriculturist,
 resident of Metikheda,
 Tq. Kalamb,
 Distt. Yavatmal.                              .....       Respondent


                                 *****
 Mr. R. M. Ahirrao, Adv., for the appellant.

 Mr. V. G. Wankhede, Adv., for respondent.

                                    *****



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                                CORAM :           A.S. CHANDURKAR, J.

                                Date       :      19th December, 2017


 ORAL JUDGMENT:

01. This appeal under Section 100 of the Code of Civil

Procedure, 1908 has been filed by the original defendants challenging

the judgment dated 21st August, 2004 passed by the appellate Court

dismissing their appeal and confirming the judgment of the trial Court

granting a decree for possession, subject to the outcome of Writ

Petition No. 3623 of 1999.

02. Facts, in brief, are that the appellants - defendants are

occupying the premises owned by the respondent-plaintiff as tenants.

The plaintiff initiated proceedings for grant of permission to issue quit

notice under provisions of the C. P. & Berar Letting of Premises & Rent

Control Order, 1989. The Rent Controller granted necessary permission

on 5th April, 1990. On that basis, the plaintiff issued a notice on 12th

May, 1990 determining the tenancy. As possession was not handed

over, suit for eviction on the basis of that permission came to be filed.

In the meanwhile, the permission granted by the Rent Controller was

subjected to a challenge before the Additional Collector who on 30th

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July, 1992 allowed the defendants' appeal. The plaintiff then filed a

Review Application which came to be allowed. The defendant, in turn,

challenged that order by filing Writ Petition No. 3623 of 1999. This

Court by judgment dated 16th July, 2010 set aside the order passed by

the Reviewing Authority and restored the order passed by the

Additional Collector. The plaintiff challenged this order by filing Letters

Patent Appeal No. 257 of 2011 which came to be dismissed on 22nd

December, 2011. In effect, the order passed by the Additional Collector

setting aside the permission granted by the Rent Controller has

attained finality.

03. This appeal was admitted on the following on the following

substantial questions of law:-

"[3] Whether once the permission to issue quit notice is stayed, the suit instituted on such permission deserves to be stayed till the validity of the permission is finally adjudicated upon?

[4] Whether there is any difference in the position when an appeal is merely pending against the order permitting issuance of quit notice and the position when the appellate authority grants stay to the effect and operation of the order granting permission to issue quit notice?"

In view of subsequent developments, an additional

substantial question of law is framed under Section 100 (5) of the Code

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of Civil Procedure, 1908, which is as follows:-

In view of the fact that the order granting permission to issue quit notice is not in existence, whether the decree as passed is sustainable?

Learned counsel for the parties have been heard on all the

substantial questions of law.

04. Shri R. M. Ahirrao, learned counsel for the appellants -

defendants, submitted that the suit as filed is not liable to be decreed

as the order granting permission to issue quit notice has now been set

aside. There is no order granting such permission to the plaintiff and,

therefore, the eviction of the defendants cannot be sought without any

such permission.

05. Shri V. G. Wankhede, learned counsel for the plaintiff,

submitted that though permission was initially granted by the Rent

Controller, this order was set aside by the Additional Collector. He

fairly states that in view of adjudication in Letters Patent Appeal No.

257 of 2011, the order of the Additional Collector setting aside the

order passed by the Rent Controller has attained finality. He, however,

states that it would be open for the plaintiff to seek eviction of the

defendants under provisions of the Maharashtra Rent Control Act,

1999.

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06. After hearing the respective counsel, I find that the order

passed by the Rent Controller, on the basis of which quit notice was

issued and the present suit for eviction came to be filed, no longer

survives. That order has been set aside by the Additional Collector and

said adjudication has attained finality. Therefore, the entire basis for

seeking eviction of the defendants does not survive. In view of

aforesaid, the substantial questions of law as framed while admitting

the appeal are not required to be answered. The additional substantial

question of law is answered by holding that the suit is liable to be

dismissed in absence of any permission to issue quit notice by the

Rent Controller. The suit is, therefore, liable to be dismissed.

07. Accordingly, following order is passed:-

[a] The judgment of the trial Court dated 31st January, 2001 in Small Cause Suit No. 43 of 1999 is set aside. The order passed in Regular Civil Appeal No. 40 of 2001 dated 21st August, 2004 is also set aside.

[b] In absence of any permission to issue quit notice, suit stands dismissed.

[c] It is open for the plaintiff to seek eviction of the

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defendants in accordance with law if any cause of action for the same arises. This adjudication would not come in his way if such course is adopted.

08. Second Appeal is allowed in aforesaid terms.

Judge

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