2009 (Shri Mahadeo Damduji Sathawane vs. Shri Madhukar Govindrao Nimburkar) Office Notes & Anr. v. Rohidas Bapusaheb Tupe

Heard Shri Bhuibhar, learned counsel for the petitioner – tenant and Shri Jetha, learned counsel for the Respondents - landlords. Shri Bhuibhar, learned counsel has contended that the respondents could not have withdrawn the proceedings pending before the Rent Controller under C.P. and Berar Rent Control Order, 1949, (hereinafter referred to as Rent Control Order, 1949) in view of the provisions of Section 58(2)(a) of Maharashtra Rent Control Act, 1999 (hereinafter referred to 1999 Act), and institution of fresh proceedings under 1999 Act by them is unsustainable. He states that this issue was specifically raised before the Small Causes Court and appellate Court but Small Causes Court has avoided to consider it and though appellate Court mentions it, but does not appreciate it. He invites attention to judgment in the case of Balasaheb Anantrao Bahirat vs. Rohidas Bapusaheb Tupe, reported at 2007 (3) Mh.L.J. 467, particularly para 8 to urge that there provisions of 2 Section 58(2)(a) of 1999 Act have been clearly interpreted and hence fresh proceedings were not maintainable.

He further points out that after the date of impugned appellate judgment, this Court has in Chandrakant Pudlikrao Randive vs. Lalit Kantilal Thakkar, reported at 2009 (5) Mh.L.J. 287, taken a view that such fresh proceedings are legally sustainable but then he points out that the earlier judgment mentioned above, has not been looked into therein. Shri Jetha, learned counsel argues that the provisions of Section 58(2)(a) do not preclude landlord from withdrawing Rent Control proceedings instituted under Rent Control Order, 1949. He further states that in earlier Rent Control Proceedings, bonafide need pressed was of landlord himself while in Small Cause Court, the need pointed out was of son of landlord. Hence, in any case, according to him, the question of law sought to be raised by Shri Bhuibhar, learned counsel is only academic in present matter. The perusal of judgment in the case of Balasaheb Anantrao Bahirat vs.

Rohidas Bapusaheb Tupe, (supra) particularly para 8 shows that there the provisions of Section 58(2)(a) of the 1999 Act are interpreted to note that in view thereof, the provisions of old enactment continue to govern the proceedings which were already instituted and were pending on 31.03.2000 when 1999 Act came into force. 1999 Act regulate the proceedings which are instituted on or after 31.03.2000. 3 That judgment nowhere deals with the question of entitlement of landlord to withdraw the proceedings instituted by him under Rent Control Order 1949 or his right to press very same claim under 1999 Act. Chandrakant Pundlikrao Randive vs. Lalit Kantilal Thakkar (supra) is the only judgment of this Court which looks into this issue and finds that the landlord is entitled to withdraw his proceedings from the file of Rent Controller under Rent Control Order, 1949 and file fresh suit before Small Causes Court under 1999 Act.

It is, therefore, apparent that there is no inconsistency between two judgments. In any case, as need pressed into service by the respondents before the Rent Controller under Rent Control Order, 1949 and before Small Causes Court under 1999 Act are distinct, the earlier proceedings were not relevant and did not have any bearing on new proceedings filed under 1999 Act. I, therefore, find that no case is made out warranting any interference in the concurrent findings of the lower Courts. Writ Petition is dismissed. No order as to costs. At this stage, Shri Bhuibhar, learned counsel states that the possession of the petitioner should be protected for a period of four weeks from today so as to enable the petitioner to take the matter further. Shri Jetha, learned counsel states that the petitioner has not even cleared money part of the decree and is enjoying the possession free of costs. 4 In the circumstances, possession of the petitioner is protected till 9th February 2010 subject to the petitioner depositing the costs as awarded and also the amount calculated @ monthly rent for the period up to 31.12.2009 by 1st February 2010. The interim order shall cease to operate automatically after 9th February

2010. *GS. JUDGE