Bombay High Court
Vijay Madhukar Kesari vs Sagar Madhukar Gunjal on 17 February, 2025
2025:BHC-AUG:4523
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4198 OF 2024
Vijay s/o Madhukar Kesari,
Age : 64 years, Occu : Medical Practitioner,
R/o 5603, Delhi Gate, Ahmednagar ...... PETITIONER
(Ori. Defendant)
VERSUS
Sagar s/o Madhukar Gunjal,
Age : 53 years, Occu: Legal Practitioner,
R/o House no. 19A, Janak, Shinde Mala,
Savedi, Ahmednagar. ...... RESPONDENT
(Ori. Plaintiff)
Mr. S. V. Dixit, Advocate for Petitioner
Mr. A. M. Gholap, Advocate for Respondent
CORAM : R. M. JOSHI, J.
RESERVED ON : 05th February,2025
PRONOUNCED ON : 17th February, 2025
JUDGMENT :
-
1. This petition takes exception to the impugned order passed
below Exhibit 65 by the Trial Court in Regular Civil Suit No. 296/2018
whereby the primary issue with regard to the jurisdiction of the Court to
entertain the suit came to be decided in affirmative. The
petitioner/original defendant being aggrieved by the said judgment has
preferred this petition.
2. For the sake of convenience parties are referred to as
"Plaintiff" and "Defendant".
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3. The facts which are necessary for the proper consideration of
the issue involved in this petition are narrated in brief as under :-
Plaintiff is an Advocate by profession. His father also was
pursuing legal profession. The suit premise was let out to him by the
defendant for the purpose of conducting his profession as an Advocate.
After death of father, plaintiff requested the defendant to accept him as a
tenant. Defendant did not accept plaintiff as a tenant. Plaintiff, therefore,
filed suit bearing Regular Civil Suit No. 296/2018 for declaration that the
tenant in respect of the suit property.
4. Defendant filed written statement. He raised preliminary
issue with regard to the maintainability of the suit. Trial Court framed
issue about the maintainability of the suit by order dated 15.09.2022
This order came to be challenged by plaintiff in Writ Petition
No.11212/2022 unsuccessfully. Pursuant thereto parties were permitted
to lead evidence before the Trial Court on the preliminary issue. By
impugned order, learned Trial Court accepted the contention of the
plaintiff about maintainability of the suit.
5. Learned counsel for the petitioner-defendant submits that the
Trial Court has committed error in not considering the provisions of
Maharashtra Rent Control Act, 1999 (for short "the Act of 1999") in
proper perspective. It is his submission that after enactment of
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Maharashtra Rent Control Act, the provisions of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (for short "the Act of
1947") ceased to have application. It is his further submission that the
definition of premise has been modified considerably with a specific
intention that the promises let out for any profession is excluded. It is his
submission that the Hon'ble Supreme Court in various judgments has
held that the profession of a Lawyer is not a business. It is his
submission that the reliance placed by the learned counsel for the
respondent/plaintiff on the judgment in case of S. Mohan Lal vs. R.
Kondiah 1979 AIR 1132 has no application to the present case as the
same has been passed in respect of a proceedings in Andhra Pradesh
Buildings (Lease, Rent and Eviction) Control Act, 1960. He placed
reliance on the judgment of Co-ordinate bench of this Court in case of
Savitribai Vishnupati Vaske and others Vs. Faruk Abdulrahim
Patel and others (2010) 5 Mah LJ 357 in order to submit that as per
Section 58 of the Act of 1999, the status of a tenant under the Act of
1947 comes to an end and as such there was no relationship of landlord
and tenant between the plaintiff and defendant therein. According to
him, this judgment is passed in the context of the issue in respect of an
open land. By relying upon bill VI of 1993, it is his submission that there
is conscious exclusion of premises let out to the Advocates/Legal
Professionals. It is his submission that deletion of Section 5(8A) from the
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Act of 1947, is sufficient to hold that one provision of the Act of 1999
would not apply to the present case.
6. Per contra learned counsel for the plaintiff supported the
impugned order by contending that at this stage the merit of the claim of
rival parties could not have been gone into by the Trial Court and it was
only to see as to whether the suit is maintainable. It is his submission
that the suit is filed for seeking declaration under Section 34 of the
Specific Relief Act and it is only the Civil Court which is competent to
issue any declaration. It is his submission that owing to Section 2 of the
Act of 1999, the premises which was covered by the Act of 1947
continues to have application of the provisions of the present act. It is
his submission that in view of the undisputed facts that the father of
plaintiff was a lawyer and was permitted to conduct his legal profession
from the suit premise and the plaintiff also being a Lawyer, is entitled to
succeed the said tenancy from his father. To support his submission that
the legal profession is a business in the context of the Rent Act, he
placed reliance on the judgment of Hon'ble Supreme Court in case of S.
Monhan Lal (cited supra).
7. In the instant case, Trial Court framed and decided following
preliminary issue :-
"Whether this Court is having jurisdiction to try and entertain
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suit in present form.
8. The Courts have jurisdiction to try all suits of civil nature
excepting suits of which cognizance is either expressly or impliedly
barred. There is no challenge to the territorial or subject matter
jurisdiction of the Court to entertain the suit for declaration. The
objection of the defendant is about right of plaintiff to get such
declaration in view of the provisions of the Act of 1999."
9. There is no dispute about the fact that plaintiff is an Advocate
and his father late Madhukar was also an Advocate by profession.
Defendant is the owner of the suit premise and the said premise was let
out to late Madhukar on rent of Rs. 50/- plus Electricity charges to
pursue profession as a Lawyer. Plaintiff claims to succeed the said
tenancy being legal heir and successor of deceased Madhukar. Since,
defendant did not acknowledge him as a tenant, suit came to be filed for
seeking declaration that plaintiff be declared as a tenant of the premise
in capacity of legal heir of original tenant in respect of the suit property.
The defendant filed written statement denying the contentions of the
plaintiff and also raised issue of non-joinder of other LR's of Madhukar. It
is denied that the plaintiff has any legal right to claim tenancy under the
provisions of Maharashtra Rent Control Act. On the basis of application
moved by the defendant vide Exhibit 65, learned Trial Court passed order
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dated 15.09.2022 framing preliminary issue with regard to the
maintainability of the suit. This order came to be upheld in Writ Petition
No. 11212/2022. The parties, therefore, agitated the said issue before
the Trial Court and the Trial Court decided the same in favour of plaintiff.
10. Though, defendant has sought to raise issue of
maintainability of the suit, nothing was brought on record to indicate that
the jurisdiction of Civil Court to entertain the suit is barred by law
expressly or even by implication. The question raised by the defendant is
that the plaintiff is not and cannot become a tenant of the suit property.
While appreciating the issue of maintainability raised, there has to be
drawn a distinction between these two issues i.e., about the
maintainability of the suit and entitlement of the plaintiff to seek such
relief. The issue of the entitlement of plaintiff cannot be decided at this
stage and which would be subject matter of the decision of the Trial
Court at the final decision. Suffice it to say that wherever there is no
expressed or implied bar created by any provisions of law prohibiting
Civil Court to give declaration as sought by the plaintiff, it has to be held
that the suit is maintainable.
11. In considered view of this Court, reference made to the
judgment in case of Savitribai (cited supra) is misplaced at this stage of
proceeding. Perusal of the said judgment shows that the issue before this
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Court was as to application of the provisions of the Act of 1999 to the
open land. In the instant case, the question before the Trial Court is as to
whether the plaintiff can be considered as a "tenant" in respect of the
suit property. Section 7(9) of the Act of 1999 defines "premises" which
means any building or part of a building let or given on license separately
(other than a farm building) including the gardens, grounds, garages and
out-houses, if any, appurtenant to such building or part of a building it
also indicates any fittings affixed to such building or part of a building for
the more beneficial enjoyment thereof. There is no dispute about the
fact that suit premises is a building within the meaning of premises as
defined therein.
12. Section 7(15) defines "tenant" which means any person by
whom or on whose account rent is payable for any premises and includes
such a person who is a tenant, deemed tenant, sub-tenant permitted
under a contract or with permission/consent of the landlord or has
derived title under a tenant. Clause "d" of the said definition indicates
that :-
d) in relation to any premises, when the tenant dies,
whether the death occurred before or after the
commencement of this Act, any member or the tenant's
family, who, -
i) where they are let for residence, is residing,or
ii) where they are let for education, business,
trade or storage, is using the premises for any
such purpose,
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with the tenant at the time of his death, or, in the
absence of such member, any heir of deceased tenant.
13. Learned counsel for the petitioner had relied upon definition
of "premises" under the Act of 1947 more particularly clause 8A thereof
in order to contain that in the provisions Act, the premises let included
for the purpose of practicing any profession or carrying on any
occupation therein. In the Act of 1999, definition of the premises does
not indicate the purpose of use thereof however definition of tenant in
clause "d" indicates that the tenancy is transferable after the death of
tenant where the premise is let out for education, business, trade or
storage. A bare perusal of these provisions, therefore, indicate that issue
which would fall for consideration before the Trial Court is as to whether
the term "business" as referred therein includes profession of a lawyer.
Needless to reiterate that this issue cannot be decided as preliminary
issue.
14. Though, this Court does not wish to go into the issue of the
merits sought to be raised by the parties, since the same is subjected to
the decision of Trial Court, suffice it to say that prima facie there is
judgment of Hon'ble Supreme Court may be in respect of the Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Act, however, it is
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held therein that the business is a word of wide import capable of variety
meaning and the practice of law is a business within the meaning of
expression in Section 10(3)(a)(iii). Thus, the issues sought to be
canvassed by both sides are required to be decided at the time of final
decisions of the suit.
15. In order to cause interference in the impugned order, the
petitioner was required to show perversity therein. For want of any
perversity, this Court finds no reason to cause any interference therein in
exercise of writ jurisdiction. Hence, petition is dismissed.
16. The observation made herein above are limited strictly to the
decision of this petition and the Trial Court is not bound by the same.
Trial Court to decide the suit in accordance with law, without getting
influenced by any observation made herein above.
(R. M. JOSHI, J.)
bsj
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