MADHUSUDAN R TALATHI Vs. NANDKUMAR CHINTAMAN KANE

JUDGEMENT

(1.) HEARD the learned Advocates for the parties. Perused the records. Rule. By consent, the rule is made returnable forthwith.

(2.) THE petitioners are challenging the order dated 29-11-2002 passed by the Court below on an application filed by the respondents for delivery of possession of the newly built premises in terms of the compromise decree dated 9-6-1998 passed by the Court below in Regn. Civil Suit No. 60 of 1997.

(3.) PLACING reliance upon the decision of the Apex Court in the matter of Ram Nath v. M/s. Ram Nath Chhittar Mal, reported in 1961 SC 104 and an unreported decision of the learned single Judge of this Court delivered on 29-1-2000 in Writ Petition No. 1048 of 1987, Prabhakar Raghunath Sansare v. Laxmibai Gopal Shere, it is sought to be contended on behalf of the petitioners that the rented premises in possession of the respondents was not delivered to the petitioners on or before 9-6-1998, as was agreed upon between the parties and as was also directed by the Court below in the consent decree and thereafter the premises collapsed on 1-7-1998 while it was in possession of the respondents and therefore the application under Section 17b of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the said Act") was not maintainable and the Court below having passed the order in contravention of the said provisions of law, the same is illegal. On the other hand, referring to the scheme relating to delivery of possession of the rented premises by the tenant to the landlord for the purpose of reconstruction, as disclosed from the provisions of Section 13 (1) (hh) r/w Sections 17, 17a, 17b and 17c of the said Act, and drawing attention to the decision of the Apex Court in Smt. Parvatibai Subhanrao Nalawade v. Anwarali Hasanali Makani, reported in 1993 Bom RC 404, it was sought to be contended that the records apparently disclose that the construction, including that of the premises, had commenced by the petitioners before 31-7-1998 without any grievance regarding non-compliance of any of the provisions of law and even the pursis filed by the parties on 23-6-1998 did not disclose any grievance of the petitioners for non-delivery of the possession on 9-6-1998, as was otherwise required to be delivered under the consent decree, and it is not the case of the petitioners that the construction of the new premises was delayed or withheld on account of the delay on the part of the respondents for delivery of the possession and hence no fault can be found with the impugned order.