SUDHAKAR PRALHAD PHAGADE Vs. SUBHASH MAHADEO TOKEKAR

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 27th March, 1991 passed by the IV Additional District Judge, Pune in Civil Revision No. 10 of 1987.

(2.) THE petitioner claims to be tenant in respect of ground floor shop premises in 322, Narayan Peth, Pune 411030. The petitioner claims that on 23rd March 1978 the petitioner and respondent No. 1 entered into an agreementing in writing in respect of neighbouring premises by which respondent No. 1 created tenancy rights in favour of the petitioner. According to the petitioner, on the same day, another oral agreement was arrived at between the parties in respect of the suit premises whereby it was agreed that the suit premises is let out to the petitioner and possession thereof was to be handed over to the petitioner on 5th April, 1978. The petitioner further claims that in consideration of the said oral agreement, the petitioner paid a sum of Rs. 2,500/- by cheque and Rs. 10,000/- by cash. The petitioner relies on receipt issued by respondent No. 1 for having received the amount by cheque. The petitioner has also relied on the receipt issued by respondent No. 1 towards the amount paid by cash. The case made out by the petitioner is that finishing work of the suit premises was underway and therefore the parties agreed that the possession of the suit premises will be made over to the petitioner on 5th April, 1978. In other words, the petitioners case is that there was a concluded contract between the petitioner and respondent No. 1 creating tenancy rights in respect of the suit premises. However, respondent No. 1 failed to hand over possession of the suit premises to the petitioner and instead occupied the same for his personal use. In the circumstances, the petitioner filed the suit for recovery of possession of the suit premises before the Small Causes Court at Pune being Civil Suit No. 455 of 1981.

(3.) THE respondents resisted the said suit by filing written statement, in which, besides denying the material facts, raised a specific plea that the agreement referred to by the petitioner does not create relationship of landlord and tenant between the parties; and that in absence of such relationship, the suit as filed before the Small Causes Court was not maintainable in view of express bar contained in section 28 of the Bombay Rent Act.