Case Note & Summary
The dispute arose from a lease of open land for a fixed term of 61 years executed on 1-1-1943 between the original lessor Govind Vishnu Saoji and the tenant Radhakisan Ramnath Malpani. The property passed to Rajesh Dattatray Mahajan, the plaintiff-landlord, through a Will and partition. The plaintiff filed Regular Civil Suit No.83 of 1997 on 11-6-1997 for eviction on ground of breach of lease conditions. During pendency, the Maharashtra Rent Control Act, 1999 came into force on 31-3-2000, and the lease period expired on 31-12-2003. The plaintiff amended the plaint on 2-7-2005 to add the ground of lease determinable by efflux of time. Both the Trial Court (judgment dated 28-11-2011) and the Appellate Court (dismissing Regular Civil Appeal No.191 of 2012) decreed the suit for eviction, holding that the open land was not covered by the Maharashtra Rent Control Act, that notice under Section 106 of the Transfer of Property Act was not required when the lease expired without holding over, and that permission of the Rent Controller under clause 13(1)(b) of the C.P. & Berar Rent Control Order was not necessary for a civil suit under general law. The tenant filed Second Appeal No.149 of 2013 before the Bombay High Court, Nagpur Bench. The appellant argued that the suit was not maintainable without the Rent Controller's written permission, relying on clause 4A of the Rent Control Order introduced in 1989 and Section 58(2) of the Maharashtra Rent Control Act, and contended that the suit should have been decided under the law as on the date of filing. The respondent-landlord opposed, asserting that the proceedings were under the general law and not governed by rent control legislations. The High Court, after hearing arguments, admitted the appeal on 24-4-2013 for consideration of substantial questions of law, including whether the suit was required to be decided as per the law prevailing on the date of filing in view of the provisions of the Maharashtra Rent Control Act, the effect of the opening words and non-obstante clause in Section 58. The judgment was reserved on 29-4-2013 and pronounced on 6-5-2013, but the provided text ends with the framing of the first question, leaving the final decision unstated in the extract.
Headnote
A) Transfer of Property Act - Lease Determined by Efflux of Time - Section 106, Transfer of Property Act, 1882 - When lease is for a fixed term and expires by efflux of time, no notice under Section 106 is necessary to determine the tenancy unless tenant is holding over; Trial Court and Appellate Court held that notice not required where lease period expired and no mutual extension shown (Paras 4-5). B) Maharashtra Rent Control Act, 1999 - Applicability to Open Land - Section 58(2), Maharashtra Rent Control Act, 1999 - Open land not covered by the Act; proceedings under general law not affected; suit for eviction of tenant on open land is maintainable before Civil Court and not governed by rent control provisions (Paras 4-5, 8). C) C.P. & Berar Rent Control Order, 1949 - Permission of Rent Controller - Clause 13(1)(b), C.P. & Berar Letting of Premises and Rent Control Order, 1949 - Requirement of permission of Rent Controller to determine lease applies only to proceedings under the Rent Control Order, not to suits under general law; landlord cannot be compelled to seek permission when lease expires by efflux of time (Paras 5, 8). D) Maharashtra Rent Control Act, 1999 - Saving Clause - Section 58(2), Maharashtra Rent Control Act, 1999 - Saving clause applies to applications, suits, or other proceedings pending under the repealed Rent Control Order, and not to civil suits filed under Transfer of Property Act; landlord had option to continue under old law or file fresh under new Act (Paras 5, 8). E) Code of Civil Procedure, 1908 - Amendment of Pleadings - Order VI Rule 17, Code of Civil Procedure, 1908 - After expiry of lease period during pendency of suit, amendment to plaint to introduce ground of lease by efflux of time is permissible; Trial Court allowed amendment on 2-7-2005 (Paras 3, 5). F) Substantial Questions of Law - Second Appeal - Section 100, Code of Civil Procedure, 1908 - High Court admitted second appeal and framed questions on whether suit was required to be decided as per law prevailing on date of filing, effect of opening words and non-obstante clause in Section 58 of Maharashtra Rent Control Act; hearing concluded and judgment reserved (Paras 6-9).
Issue of Consideration
Whether Regular Civil Suit No.83 of 1997 was required to be decided as per law prevailing on date of filing; whether opening words of Section 58 of Maharashtra Rent Control Act have overriding effect; effect of non-obstante clause in Section 58; maintainability of suit without permission of Rent Controller under Rent Control Order; applicability of Maharashtra Rent Control Act to open land lease; necessity of notice under Section 106 of Transfer of Property Act when lease expires by efflux of time
Final Decision
The High Court, after hearing arguments, admitted the appeal on 24-4-2013 for consideration of substantial questions of law as listed in paragraph 9, but the provided judgment text ends without recording the final order; the outcome of the second appeal is not stated in the extract.
Law Points
- lease determinable by efflux of time does not require notice under Section 106 of Transfer of Property Act unless holding over
- open land not governed by Maharashtra Rent Control Act
- permission of Rent Controller under clause 13(1) of C.P. & Berar Rent Control Order not required for suits under general law
- Section 58(2) of Maharashtra Rent Control Act applies only to proceedings under repealed Rent Control Order not to civil suits under Transfer of Property Act
- amendment of plaint to introduce ground of efflux of time allowed
