Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 (Judg.)Revision Application No.69 of 2022
CNR No.MHSCA30006982022 Presented on : 09.06.2022
Registered on : 10.08.2022
Decided on : 17.01.2024
Duration : Yrs. Ms. Ds.
01 07 08
IN THE COURT OF SMALL CAUSES AT BOMBAY
(APPELLATE COURT)
(BANDRA BRANCH)
Revision Application No.69 of 2022
In
Order below exhibit 18
In
R.A.E Suit No.57 of 2018
(1) Mrs.Shobana Kamlesh Jain
aged about 56 years, Occ.:Business
(2) Mrs.Rekha Bharat Jain
aged about 48 years
Indian Inhabitant,carrying on business
at Shop No.6, rear portion of the
Ground floor, Narayan Bhuvan, situated
at Narayandas Dayabhai Marg, Opposite
Jain Temple, Old Bazar Road, Bandra ….Applicant
(West), Mumbai 400 050. (Orig.Defendant)
Versus
M/s.Indrayani Estate Developers Pvt.Ltd.
A company incorporated under the
Indian Companies Act, 1956 (As
amended up-to- date) having its
Registered Office at Shop No.1, Hari
Niwas Road No.30, Bandra (West),
Mumbai 400 050. through its director
Mr.Kiran P.Thakker.
2. Sohanlal Jain
(Full name not known)
3. Vipul Jain
Age : Not known
Both occupying premises No.6, Front portion
of the Ground Floor, Narayan Bhuvan,
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2 (Judg.)Revision Application No.69 of 2022
situated at Narayandas Dayabhai Marg,
Opposite Jain Temple, Old Bazar Road, ….Respondents
Bandra (West), Mumbai 400 050. (Orig.Plaintiffs)
Advocates appeared :
Mr. R.R.Sharma, Advocate for Applicant.
Mr.Kaushal K.Thakkar, Advocate for Respondents.
Coram : M. S. Pathan,
Addl. Chief Judge
&
D. S. Dabhade, Judge
C.R. No.41,
Date : 17.01.2024
ORAL JUDGEMENT
(Per M.S.Pathan, Addl.Chief Judge)
Being aggrieved of Judgement and order dated 07.04.2022
passed below exhibit 18 in RAE Suit No.57 of 2018 by the learned trial
Judge of Court Room No.33, whereby the application of defendant, for
allowing her to deposit rent together with permitted increases was
rejected, the original defendant has therefore preferred this Revision
Petition. The brief facts led to Revision Petition are as under.
2. The original defendant has taken out an application below
exhibit 18, seeking permission to deposit rent along with permitted
increases @ 15% per annum. According to her, right from 01.04.2012
up till 31.12.2019, total rent comes to the tune of Rs.28,039/-, for it is
required to be deposited. He further sought permission to continue him
to deposit same until the suit is adjudicated.
3. Say of respondents/plaintiffs was called upon. They have
categorically submitted that, the suit building was declared by the
Municipal Corporation as of C-1 category, and as per order of the
Hon’ble Bombay High Court, it has been demolished. Therefore, after
demolition of the structure, the tenancy rights have been extinguished,
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3 (Judg.)Revision Application No.69 of 2022
for application is not tenable.
4. Heard learned counsel appearing for appellant
Mr.R.R.Sharma and replied by the learned counsel appearing for
respondents Mr.Kaushal K. Thakkar. Having regard to facts and
circumstances of case, following points arise for our consideration, to
which we record our findings against each of them, for the reasons
stated below.
POINTS FINDINGS
1. Is revision petitioner entitled to deposit rent with No
permitted increases ?
2. Whether Revision Application is tenable ? No
3. Is interference at the hands of this court needed ? No
R E A S O N S
As to all points :
5. The learned counsel appearing for revision petitioner
Mr.Sharma has categorically urged that, the suit has been filed prior to
demolition of the suit premises and, therefore, in view of the Judgment
of the Hon’ble Apex Court in M/s.Shah Ratanshi Khimji and Sons
V/s.Proposed Kumbhar Sons Hotel Pvt.Ltd and ors.[AIR 2014 SC
2895], the rights in the tenancy does not extinguish even after
destruction of building, as the land over which the structure is
constructed still continues to exists.
6. To retaliate this contention, the learned counsel appearing
for respondents Mr.Thakkar has categorically urged that, suit is not for
arrears of rent, it was filed on the grounds of subletting, change of user
and bona fide requirement and, therefore, there is no propriety to
deposit rent along with permitted increases, as it has not been asked by
plaintiffs. In support of his contention, he too has relied upon following
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case laws, which reads thus;
1. Sharadchandra Vasant Chitnis V/s.Neela Ashok
Korde and anr.[2008(1) Mh.L.J.873]
2. Gangadas Moujibhai Patel V/s.Harshvardhan
s/o.Balkrushna [2003(1) Mh.L.J.203]
3. Vannattankandy Ibrayi V/s.Kunhabdulla Hajee
[(2001) 1 SCC 564]
4. Abdul Khuddus V/s.H.M.Chandiramani (dead)
Thr.Lrs.[2021(10) SCALE 698]
7. We are privileged to go through ratio laid down in all case
laws (discussed supra). True, RAE Suit has been filed for eviction on
the grounds of subletting, change of user and bona fide requirement. It
is to be recalled that, plaintiffs have purchased this property from the
original landlord in the year 2012. Even thereafter, the tenancy of
revision petitioner was attorned by issuing rent receipt to the revision
petitioner until 2017, however, the suit premises was demolished in
January, 2020. It further appears that, the Judgment of M/s.Shah
Ratanshi’s case (discussed above) deals with rights of contractual
tenant, therefore, statutory tenant cannot seek re-possession after the
demolition of the building under section 108(B)(e) of the T.P.Act, as
rights and liabilities of a statutory tenant have to be found under the
Rent Act.
8. No doubt, the Judgement of Vannattankandy Ibrayi’s case
(discussed supra) relied by the respondent was overruled by the
Hon’ble Apex Court in M/s.Shah Ratanshi’s case (discussed supra).
However, it is to be recalled that, tenant under the provisions of the
T.P. Act, and the tenant before the provision of State Rent Act are
altogether different in their status. These are two different categories of
tenancy. In M/s.Shah Ratanshi’s case (discussed supra), there is no
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assertion that the property in question in the said case was governed by
the State Rent Act, it was a tenancy under the T.P.Act. Therefore, the
observation and the ratio culled at M/s.Shah Ratanshi’s case are not
applicable here.
9. In fact, in the recent Judgment of Abdul Khuddus’s case
(discussed supra), the Hon’ble Apex Court has categorically held that, if
the building is governed by the State Rent Act, the tenant cannot claim
benefit of section 106, 108 and 114 of the T.P. Act. Even otherwise, as
we have already stated that, suit has been filed by plaintiff on the
grounds of subletting, change of user and bona fide requirement. There
is no ground of arrears of rent, therefore, provision of section 15(1) or
(3) of the M.R.C Act will not come into play,as the suit has been filed
under section 16 of the M.R.C Act.
10. Besides this, the plaintiff has relied upon Sharadchandra’s
case (discussed supra) with a saying that, wherever the legislator
wanted to protect the tenants, and there is no such protection given
under the law, then it is to be held that, legislature did not want to give
such protection to the tenant. Obviously, in Gangadas’s case, the
Hon’ble High Court has held that, open land will not fall under the said
Rent Legislation. Therefore, having regards to all these facts, we find
that, there is absolutely no propriety of depositing rent, as no claim of
arrears of rent has been made against defendant, nor plaintiff is asking
for the rent.
11. Be that as it may, this is a revision against the order of
rejection of depositing of rent, which is not permissible in view of the
Full Bench Judgment of the Hon'ble Bombay High Court in case of
Bhartiben Shah V/s.Gracy Thomas [2013 (2) Bom.C.R.1 FB]. The
revision petitioner could not show, as to what substantial rights have
been affected and, therefore, from this angle as well, the revision is not
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tenable. The impugned judgement passed by the learned trial court is
absolutely perfect, for no need to disturb it. Viewed from this angle,
we answer all points accordingly and proceed to pass following order.
O R D E R
1. Revision Application is dismissed.
2. The order dated 07.04.2022 passed by the learned
trial Judge (Court Room No.33) below exhibit 18 in
RAE Suit No.57 of 2018, is hereby confirmed.
3. Costs in cause.
4. Inform to the trial Court accordingly.
I agree
Sd/- Sd/-
(D.S.Dabhade) (M.S. Pathan)
Judge Additional Chief Judge
Court Room No.41 Court Room No.41
Dt.17.01.2024 Dt. 17.01.2024
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