SHAIKH ARIF SHABBIR Vs. LAXMIBAI BHAGWANRAO DIVEKAR

JUDGEMENT

(1.) This Writ Petition under Art. 227 of the Constitution of India arises out of an order dated 9th June, 2009 passed by the competent authority on an application filed by the Respondents under Sec. 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said Act of 1999). An order of eviction was passed by the competent authority against the Petitioners on the said application. A revision application preferred by the Petitioners has been dismissed by the Revisional Authority. These are the two impugned orders in this Writ Petition under Art. 227 of the Constitution of India.

(2.) The case of the Respondents is that the suit premises being Row House No.31 together with terrace and garden situated at Village Hadapsar, Taluka - Haveli, District - Pune, was purchased by one Bhagwanrao Marutrao Divekar (the deceased husband of the 1st Respondent) and the 2nd Respondent herein. According to the case of the Respondents, in May, 2009, the Petitioners approached the deceased husband of the 1st Respondent and in presence of the 2nd Respondent requested that they be allowed to use the suit premises for a short period of 11 months from 1st June, 2005 to 30th April, 2006. Accordingly, an agreement of leave and licence was executed by the deceased husband of the 2nd Respondent in his capacity as the legal representatives of Bhagwanrao. The 2nd Respondent also executed the said agreement. The terms and conditions of licence have been incorporated in the said agreement. The licence period came to an end on 30th April, 2006. The case of the Respondents is that thereafter the Respondents were to remove themselves from the suit premises. According to the Respondents, on the request made by the Petitioners, a fresh leave and licence agreement dated 10th Feb., 2007 was executed by the said deceased Chandrakant and the Petitioners by which a licence was granted to the Petitioners to use and occupy the suit premises. According to the case of the Respondents, the said Chandrakant requested the Petitioners to cooperate with the process of registration of the agreement. However, the Petitioners did not cooperate. In Dec., 2007, the said Chandrakant, the husband of the 2nd Respondent expired. At that stage, the 2nd Respondent requested the Petitioners to vacate the premises on the ground that the Respondents needed the suit premises. At that stage, the Petitioners assured the 2nd Respondent that construction of their bungalow in Indraprastha Society will be completed very soon and as soon as the construction was over, the Petitioners would vacate the suit premises. It was alleged that the Petitioners failed to keep their promises and in fact they filed a civil suit in the year 2008 in the Civil Court at Pune. In the civil suit, it was contended by the Petitioners that they were tenants of the Respondents in respect of the suit premises from 1st June, 2005. Thereafter, the application under Sec. 24(1) was filed by the Respondents before the competent authority on 17th Nov., 2008. After service of the notice of the application, the 1st Respondent filed an affidavit seeking leave to defend the application. By an order dated 20th May, 2009, leave to defend the application was not granted. By the judgment and order dated 9th June, 2009, the competent authority passed an order of eviction. Being aggrieved by the said judgment and order, the Petitioners preferred the Revision Application before the Additional Commissioner, Pune, which has been dismissed.

(3.) The learned counsel appearing for the Petitioners submitted that the declaratory suit filed by them is prior in point of time. The learned counsel appearing for the Petitioners submitted that an application made by the Petitioners for grant of leave to defend was erroneously rejected by the competent authority and in fact the leave ought to have been granted. He submitted that the order by which the leave to defend was declined by the competent authority was specifically challenged in the revision application preferred before the learned Additional Commissioner, Pune. He submitted that the revision application could not have been dismissed on the ground that the leave to defend was not granted to the Petitioners especially when there is a specific challenge in the revision application to the order by which the leave to defend the application was declined. He submitted that while challenging the final order of eviction by filing a revision application, the Petitioners were entitled to challenge the earlier order passed during the pendency of the application of not granting the leave.