Bombay High Court
Abdul Kadir Suleman (Died) Thr Lrs ... vs Huned Nuruddin Kadiyani on 29 November, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:25050
1 8-CRA.103-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
8 CRA NO.103 OF 2023
ABDUL KADIR SULEMAN (DIED) THR LRS JULEKHABEE
ABDUL KADIR SULEMAN AND ORS
VERSUS
HUNED NURUDDIN KADIYANI
...
Advocate for Applicants : Mr. S. V. Natu h/f Mr. Pandit Sushil P.
Advocate for Respondent : Mr. Jayant R. Shah.
...
CORAM : S. G. MEHARE, J.
DATE : 29.11.2023
PER COURT :-
1. Heard the learned counsel for the applicants/tenants and
the learned counsel for the respondent/landlord.
2. The landlord has filed a suit for eviction under the
Maharashtra Rent Control Act, 1999 on the ground of default
in payment of the rent and for bona fide need. The trial court
decreed the suit. The First Appellate Court dismissed the
appeal with costs by its judgment and decree dated
07.10.2022.
3. Learned counsel for the applicants raised a sole question
that the open plot was the suit property. They had landlord-
tenant relationship. It was rented to the tenant. A open plot is
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not 'premises' as defined under Section 7(9) of the
Maharashtra Rent Control Act, 1999. Therefore, the suit as
framed and presented was not tenable under the Maharashtra
Rent Control Act. He would submit that both Courts did not
pay heed to such a prime legal issue. They have incorrectly
considered that the issue of the level of the Court having
jurisdiction and erroneously passed the decree of the eviction.
4. Learned counsel for the landlord would submit that no
objection as such was raised before the trial court, the tenants
have submitted to the jurisdiction of the civil court. Hence,
such objection could not be raised first time before this Court.
However, he did not deny that the land in question is an open
plot rented to the tenant.
5. Perused the impugned judgments and decrees. The
Courts have dealt with the issue of jurisdiction of the Courts
that whether the suit is filed with the Court of Civil Judge
Senior Division or Junior Division. However, nobody touched a
root objection that the suit itself is barred under the
Maharashtra Rent Control Act, as the suit property is not
"premises" as defined under Section 7(9) of the Maharashtra
Rent Control Act.
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6. Learned counsel for the tenant would submit that the
term "premises" has been interpreted in the case of Smt.
Savitribai Vishnupant Vaske Vs. Faruk Abdulrahim Patel and
others ; 2010 (5) Mh.L.J. 357 . The same view has been taken
in the case of Pradeep Advertising Agency, Nagpur Vs. Sri
Aurbindo Circle, Registered Society, Nagpur and others ; 2015
(2) Maharashtra Law Journal 167 and in the case of M/s.
Auto Hirers and another Vs. Commerce Centre Co-operative
Society Ltd ; 2018 (3) Maharashtra Law Journal 942.
7. The term "premises" as defined does not include the
open plot. Since the open plot is not the premises, the suit of
landlord for eviction under the Maharashtra Rent Control Act
could not be entertained. Hence, the ratio laid down in the
above cases squarely applicable to the case at hand.
8. Learned counsel for the landlord expressed an
apprehension that the finding of this Court may come in the
way of the landlord if he files a suit for eviction under the
general law of the transfer of property. The law is clear and
well settled that the landlord has right to seek eviction if
available under the another law. Under the Maharashtra Rent
Control Act, there are grounds for eviction. However, where
the Maharashtra Rent Control Act is not applicable, such suits
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are governed under the General Law i.e. Transfer of Property
Act. In view of the legal position, the Court find no substance
in the apprehension of the landlord that his further suit for
eviction under the General Law would be barred.
9. The discussion made above, led this Court to pass the
following order :
ORDER
(i) Civil Revision Application is allowed.
(ii) The impugned judgments and decrees passed by
the learned Joint Civil Judge Junior Division,
Shahada in Regular Civil Suit No.15 of 2005,
dated 11.07.2006 and the learned Ad-hoc District
Judge, Shahada in Regular Civil Appeal No.21 of
2006, dated 07.10.2022 stand quashed and set
aside, as the suit is not tenable under the
Maharashtra Rent Control Act.
(iii) No order as to costs.
(iv) The landlord is at liberty to seek the remedy
available under the another law.
(S. G. MEHARE, J.)
...
vmk/-
