A writ petition challenging the trial court's order refusing to allow filing of an undertaking under the Maharashtra Rent Control Act during the evidence stage was dismissed. The High Court held the order was not arbitrary and the petitioner was not remediless.
No costs. Writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6615 OF 2007
IN
INT.NOTICE NO.733 OF 2007
IN
R.A.E. SUIT NO. 594 OF 2004
M/s.Neelkanth Mansions P.ltd
and Ors....Petitioners
Versus
Mr.Chandrakant Kantilal Rashputra ....Respondents
Mr.K.D.Jha for the petitioners.
Mr.C.J.Sawant for the respondents.
CORAM: S.C.DHARMADHIKARI, J.
14th December, 2007.
P.C. :
1.Heard the learned counsel appearing for the
parties. This Writ Petition is directed against an
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Order passed by the Trial Court on an interim notice
bearing no. 733 of 2007 on 29.6.2007.
2.This was an interim notice taken out by the
petitioner/plaintiff. The suit which was filed is
admittedly praying that possession be handed over by
the defendant/resondent before me, so as to enable the
petitioner/landlady to put up a new construction.
3.The Learned Judge has refused to consider the
prayer of the petitioner/plaintiff to allow him to file
additional Affidavit of evidence, additional affidavit
of documents and Undertaking.
4.It is undisputed before me that when the
Plaint was lodged in the trial court, the written
Undertaking as per Section 16(6)of the Maharashtra Rent
Control Act was not filed. The Learned Judge has
adverted to the said provision and considering the
mandate flowing from the same has taken a view that the
permission to file an Undertaking after the suit was
filed and listed before him at the stage oaf evidence
is not permissible. Section 16(6)(d reads as under :
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"Section 16(6)(d) - (d)that the landlord has
given an undertaking,-
(i)that the plans and estimates for the
new building or new floor or floors to be
erected by the landlord include premises for
each tenant with carpet area equivalent to the
area of the premises in his occupation in the
building sought to be demolished subject to a
variation of five per cent in the area;
(ii)that the premisesspecified in
sub-clause (i)will be offeredto the
concerned tenant or tenants in the re-erected
building or, as the case may be, on the new
floor or floors;
(iii)that where the carpet area of premises
in the new building or on the new floor or
floors is more than the carpet area specified
in sub-clause (i) the landlord shall, without
prejudice to the liability of the landlord
under sub-clause (i), obtain the consent ‘in
writing’ of the tenant or tenants concerned to
accept the premises with larger area; and on
the tenant or tenants declining to give such
consent the landlord shall be entitled to put
the additional floor area to any permissible
use;
(iv)that the work of demolishing the
premises shall be commenced by, the landlord
not later than one month, and shall be
completed not later than three months, from
the date he recovers possession of the entire
premises; and
(v)that the work of erection of the new
building or new floor or floors shall be
completed by the landlord not later than
fifteen months from the said date:
Provided that, where the court is satisfied
that the work of demolishing the premises
could not be commenced or completed, or the
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work of erection of the new building or, as
the case may be, the new floor or floors could
not be completed, within time, for reasons
beyond the control of the landlord, the court
may, by order, for reasons to be recorded,
extend the period by such further periods, not
exceeding three months at a time as may, from
time to time, be specified by it, so however
that the extended period shall not exceed
twelve months in the aggregate. "
5.The Learned Judge has observed that the
decisions relied upon by the petitioner/plaintiff can
be of no assistance. The matter is at the stage of
evidence. At that stage, additional documents
including the Undertaking cannot be filed. Apart from
the fact that the Learned Judge has adverted to Order
18 Rule 17 of the CPC and Section 151 thereof,
ultimately, he has held that at this belated stage, no
permission can be granted to the witness to file an
Undertaking and fill up the lacuna.
6.In the peculiar facts of this case, I do not
feel that the discretion exercised by the Learned Judge
is either arbitrary or capricious or untenable in law,
so as to, warrant interference under Article 227 of the
Constitution of India.
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7.Mr.Jha, learned counsel for the petitioner
could not dispute that the petitioner can always file a
fresh suit and an undertaking therewith. It is not as
if he is remediless in the matter. Therefore, the
petition is devoid of any merits and in accordingly
dismissed. No costs.
sd/-
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3 issues framed by the court
Whether the High Court should interfere with the trial court's refusal to permit filing an undertaking under Section 16(6) of the Maharashtra Rent Control Act at the evidence stage.
Whether the discretion exercised by the learned Judge in refusing the prayer was arbitrary, capricious, or untenable in law.
Whether the petitioner was remediless and thus entitled to equitable relief under Article 227 of the Constitution.
4 provisions across 3 enactments
M/s. Neelkanth Mansions P.ltd and Ors.
Mr. Chandrakant Kantilal Rashputra
S.C. Dhar madhikari
J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court