NAGPUR BENCH AT NAGPUR Writ Petition No. 1281 /2009 (Harendra Ratilal Tanna v. Uttara Avinash Ghike)

Shri Gupta, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 1, 2009. None appears on behalf of the petitioner. Shri Gupta appears on behalf of the sole respondent. I have perused the impugned orders with the assistance of the learned counsel for the respondent. On a perusal of the same, it is clear that both the Courts did not commit any error, much less, a jurisdictional error in rejecting the application filed by the petitioner to dismiss the suit for want of notice under the provisions of Section 106 of the Transfer of Property Act. The petitioner is the original defendant. A suit was filed by the respondent before the Court of Small Causes for ejectment, possession and damages against the respondent. The said suit was filed by the respondent under 2 the provisions of the Maharashtra Rent Control Act and it was categorically pleaded by the respondent in paragraph 5 of the plaint that she was in need of the suit premises for bona fide occupation under Section 16(1)(g) of the Maharashtra Rent Control Act.

The petitioner-defendant filed the written statement and raised a preliminary objection to the tenability of the suit on the ground that the landlady had not issued a notice under Section 106 of the Transfer of Property Act before institution of the suit. In the absence of notice under Section 106 of the Transfer of Property Act, terminating the tenancy of the petitioner, according to the petitioner, the suit could not have been filed. The Small Causes Court, Nagpur rejected the application filed by the petitioner for dismissal of the suit on the ground that before filing a suit for eviction under the provisions of Section 16(1)(g) of the Maharashtra Rent Control Act, 1999, it was not necessary for a landlord to issue notice under Section 106 of the Transfer of Property Act. The Small Causes Court, Nagpur had relied on the reported judgments of this Court while passing the impugned order dated 18.01.2008 rejecting the application for dismissal of the suit.

3 The order passed by the Small Causes Court was challenged by the petitioner before the District Judge, Nagpur. The appellate Court, however, by the impugned order dated 18.12.2008, rejected the regular civil appeal filed by the petitioner by upholding the finding recorded by the trial Court that a notice under Section 106 of the Transfer of Property Act was not required for instituting a suit under the provisions of Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. There is no error whatsoever in the orders passed by both the Courts, much less, a jurisdictional error so as to interfere with the same in exercise of the extraordinary writ jurisdiction. The petition fails and is dismissed with no order as to costs. APTE JUDGE