WRIT PETITION NO. 3818 OF 2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
Mohd. Aziz Ul Haq s/o Mohammad
Abdul Haq (since deceased through
Legal Representatives)
Versus
Dilip Murlidhar Lohiya,
CORAM :
B.P. DHARMADHIKARI, J.
OCTOBER 18, 2008.
Citation; 2009 (2) BomCR921,2008(6)MhLj482
It is to be noted that these proceedings were initially
filed as Civil Revision Application under Section 25 of the
Provincial Small Causes Courts Act, 1887, read with Section 115
of Civil Procedure Code.
When the matter was called out on
29.08.2008, this Court has in view of the judgment in the case of
Dilip Bidesh vs. Shiv Gopal, reported at 2005 (4) Mh. L.J. 967,
found that said revision was not maintainable.
The revision
applicant then sought permission to convert revision into a writ
petition and that permission was accordingly granted by reasoned
order, after noticing the fact that revision was filed way back in
1995 and the matter was going on before various Courts since
2.
1986.
After conversion of revision into present writ petition,
the matter has been again listed for final hearing. Shri Panpalia,
Advocate, who had filed Vakalatnama for the respondent, has
stated that on 24.01.2002 itself, he filed pursis vide Stamp No.
679 of 2002, seeking leave to withdraw Vakalatnama in view of
the letter of client dated 15.1.2002 annexed with that pursis. The
perusal of xerox copy of that letter on record shows that the
respondent instructed Shri Panpalia, Advocate to hand over the
papers and file with him to Shri G.B. Lohiya, Advocate and also to
give no objection to said advocate. Shri Panpalia, Advocate states
that accordingly, he had handed over the papers and no
objection. Nobody has thereafter appeared for the respondent.
In view of the statement made by Shri Panpalia, Advocate, he is
discharged from the matter.
3.
Shri Chandurkar, learned counsel states that the
controversy in this writ petition is very narrow. He also states
that in view of the judgment of this Court dated 29.08.2008 in
Civil Revision Application No. 654 of 1995, the controversy
stands concluded in his favour. As such, the only question which
arose was whether it is necessary to issue notice of the matter
4.
again to the respondent after its conversion into a writ petition.
Shri Chandurkar, learned counsel has relied upon the
judgment of the Hon'ble Karnataka High Court in the case of
Noor Abdul Jaleel vs. V. Achuthan, reported at AIR 1982 Kant.
237, judgment of learned Single Judge of Andhra Pradesh High
Court in M. Krishnamurthy vs. Y. Ramamurthi, reported at AIR
1957 Andhra Pradesh 654 and judgment of learned Single Judge
of Rajasthan High Court in Maya Devi & Anr. vs. Hari Singh,
reported at 2002 A I H C NOC 26.
5.
The perusal of Division Bench judgment of Karnataka
High Court shows that the Division Bench there found that Civil
Procedure Code, particularly Order 3, Rule 4 of CPC does not
require Court to invite a party whose advocate out of disgust
retires from the case. It has been observed that as per sound
principle, before permitting an advocate to retire, the Court has
to enquire whether the advocate has intimated his intention to
client, not to proceed with the case. But after the advocate is
permitted to retire, the Court is not required to adjourn the case
and issue notice to party in default. The other discussion is about
the enquiry to be conducted after permitting the advocate to
retire and the discretionary powers in the matter.
In Madhura Krishnamurthy vs. Y. Ramamurthi (supra),
6.
the Hon'ble High Court has observed that Vakalatnama in favour
of an advocate in proceedings seeking leave to sue in forma
pauperis, does not come to an end till the suit is properly
disposed of. If the proceedings are returned by the Court for
want of jurisdiction, the Vakalatnama can be used for other
purposes in the same matter. The High Court has observed that
such Vakalatnama could be used along with other papers
returned back by the Court. The Hon'ble Rajasthan High court in
Maya Devi & Anr. vs. Hari Singh (supra) has observed that when
the application for restoration of suit is dismissed in default, it is
part of proceedings in the suit and advocate for the defendant
does not require fresh appointment to contest such application.
With the result of suit in default, authority of advocate does not
7.
stand determined.
Here, it is apparent that the respondent himself has
communicated his desire to Shri Panpalia, Advocate and
discharged him from his obligation.
In view of the position
emerging on record, it is clear that the respondent himself is at
fault for not taking appropriate steps to see that other advocate
mentioned by him in the letter or some other advocate appears to
protect his interest. It is, therefore, obvious that when revision is
allowed to be converted into a writ petition, Vakalatnama had
not come to an end and had the advocate for the respondent
appeared in Civil Revision Application, he could have continued
to appear even in present writ petition. Shri Chandurkar, learned
counsel for the petitioner at this stage states that the petitioner
has also not filed any fresh Vakalatnama and advocate
representing him in revision has continued to appear for him
even in writ petition.
8.
Coming to the controversy on merits, Shri Chandurkar,
learned counsel for the petitioner has pointed out that when
tenancy was duly determined vide notice under Section 106 of
Transfer of Property Act, on 08.03.1986, and Small Cause Civil
Suit was filed for recovery of possession against the respondent –
tenant or then till its decree, the provisions of C.P. & Berar
Letting of Premises and Rent Control Order, 1949, (hereinafter
referred to as Rent Control Order) were not applicable to lease of
open sites. He states that after decree was passed in favour of
present petitioner, the amendments were made and the
permission of Rent Controller became necessary. In view of this
position, on 27.10.1994, the Joint District Judge, Akola, allowed
appeal No.193 of 1989 preferred by the respondent and then the
petitioner approached this Court in Civil Revision Application. It
is his contention that the Rent Control Order as amended could
not have been applied to the case of present petitioner as his suit
He, however, points out that after the
was already decreed.
provisions of Maharashtra Rent Control Act, 1999, became
applicable with effect from 31.3.2000, the requirement of
permission under Rent Control Order ceased to exist. In view of
this subsequent development, he urges that right of the petitioner
ig
– landlord which was eclipsed on account of amendment to Rent
Control Order, again revived and therefore, the impugned
judgment and decree of appellate Court needs to be quashed and
set aside and the decree of trial Court needs to be restored.
9.
The
facts
demonstrated
that
on
02.05.1983, a
registered lease deed for the period of 35 months i.e. from
02.05.1983 to 01.04.1986 was entered into between the
petitioner and the respondent. On 08.03.1986, vide notice under
Section 106 of Transfer of Property Act, the petitioner terminated
the respondent's tenancy and as the respondent did not vacate
the premises, filed Small Cause Civil Suit No. 268 of 1987 for
recovery of possession.
On 27.4.1989, the trial Court decreed
that suit with cost. The said judgment and decree of trial Court
was then challenged by present respondent in Regular Civil Suit
No. 193 of 1989 and Joint District Judge, Akola, vide judgment
dated 27.10.1994 partly allowed that appeal. The perusal of said
judgment shows that the appellate Court found that amendment
to provisions of Rent Control Order required the petitioner –
In this respect, it is to be noted that by first amendment
10.
landlord to obtain permission of Rent Controller.
effected on 21.7.1989, the word “house” appearing in Rent
Control Order was replaced by word “premises” and then on
26.10.1989 clause 13A came to be added to Rent Control Order.
As per that clause 13A, the landlord was prohibited from
obtaining a decree or from executing a decree in relation to open
plots without first obtaining permission of Rent Controller, as
contemplated by clause 13(3) thereof. Clause 13(3) enumerates
various grounds under which the landlord can move Rent
Controller and seek permission to terminate the tenancy of the
tenant. Those grounds are not very relevant for consideration in
This position was prevailing even on
this writ petition.
27.10.1994 when the lower appellate Court decided the appeal of
the respondent. However, the provisions of Maharashtra Rent
Control Act, 1999, then came into force on 31.3.2000 and the
requirement of obtaining permission of Rent Controller even for
determining the tenancy of open plots ceased to apply. When
this amendment came into force, the matter was pending before
this Court in Civil Revision Application, which has been later on
converted into Writ Petition.
This position is considered by me in Civil Revision
11.
Application No. 654 of 1995 decided on 29.08.2008.
The
relevant observations as contained in paras 6 & 7 of said
judgment. Those observations are as under :
“6.
Advocate Shri Haq, points out the judgment
in judgment in the case of Marutrao Pandurang Zende
.vrs. Eknath Shivram Jagtap (1980 Mh.L.J. 238), in
which in similar circumstances, this court has found
that disability of landlord in relevant Rent Legislation
in removing the tenant from the suit premises does
remain in possession of the suit premises.
If the
the disability
provision of Rent Act are withdrawn
not bestow a corresponding right upon the tenant to
upon the landlord is removed and landlord can
proceed against the tenant in accordance with the
general law as if protection under the Rent Act is not
available to the tenant. It has been observed that if
during the pendency of the appeal, provision of
relevant Rent Act are withdrawn from the area in
question, the appeal has to be disposed of in
accordance with general law and in accordance with
the provisions of Rent Act. This court has relied upon
the judgment of Hon'ble Apex Court reported at AIR
1974 SC 396 (Qudrat Ullah .vrs. Municipal Board,
Bareilly), in support of the conclusions drawn.
Recently this court has in 2006 [2] All M.R. 133
(Maharaji wd/o Bajrangi Vishwakarma .vrs. Sayeedabi
Haji Sayyad Gani), has again taken similar view and in
this judgment, the provisions of Maharashtra Rent Act,
1999 with provisions of C.P. and Berar Letting
of
Houses and Rent Control Order 1949 are looked into.
7.
All these three judgments conclusively show
that right of landlord which got eclipsed on account of
Rent Control Legislation revives after the Rent Control
Legislation is removed and the landlord therefore can
prosecute his suit further under the General Law i.e.
as per the provisions of Transfer of Property Act. In
the present matter, the suit was filed by the
respondent / landlord on 5.5.1984 when the Rent
Control Legislation was not applicable to open plots.
At that time C.P. and Berar Regulation of Letting of
Accommodation Act, 1946
with 1949 Order there
under (hereinafter referred to as “1946 Act” and
“1949 Order”) only regulated the tenancies of houses.
In the year 1989 for the first time open plots were
added in the 1949 Order and thus tenants of open
plots also were protected.
Hence when application
was moved by the applicant tenant in 1995 the
protection was available even to the tenants of open
plots. However, with the repeal of the 1946 Act and
1949 Order, by virtue of provisions of Maharashtra
Rent Control Act, 1999 the said requirement is now
not in existence.
Thus the protection which was
available to the revision applicant/tenant from 1989
till the year 2000 is now no longer available.
The
right of landlord to proceed as per general law stood
eclipsed from 1989 to 2000, but as on the date of
filing of the suit there was no such protection to the
tenant filing a suit itself was not barred. After coming
into force of the provisions of Maharashtra Rent Act,
protection.
1999 the revision applicant ceased to enjoy said
Jurisdiction of Civil Court to pass decree
of eviction and execute it is restored and hence the
respondent landlord therefore, can proceed further
with his suit in accordance with the general law.”
12.
In view of these observations, it is clear that the present
controversy is squarely covered by said judgment. The right of
landlord to proceed as per provisions of Transfer of Property Act,
stood eclipsed from 1989 to 2000 and then revived again after
coming into force Maharashtra Rent Control Act, 1999. The Civil
Court, therefore, can pass a decree or execute a decree against a
tenant of open plot under General law. In view of this position, it
is apparent that in changed circumstances, the judgment and
decree dated 27.10.1994 delivered by Joint District Judge, Akola,
in Regular Civil Appeal No. 193 of 1989 is unsustainable. The
same is accordingly quashed and set aside. The judgment and
decree dated 27.4.1989 delivered in Small Cause Civil Suit No.
268 of 1987 by 5th Joint Civil Judge, Junior Division, Akola, is
hereby restored.
Writ Petition is thus allowed.
Rule accordingly.
13.
However, in the circumstances of the case, there shall be no order
as to costs.
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