TARACHAND GULABCHAND ZAVER Vs. WAIBHAV GUEST HOUSE

JUDGEMENT

(1.) THIS petition challenges the order dated 4th March 1983 made by the Additional Chief Judge, Small Causes Court, Bombay in Appeal No. 510 of 1980 under Article 227 of the Constitution of India.

(2.) FOR the view that I am taking and propose to pass final order in this matter, not many facts are necessary to be stated, nor advert to legal position. The factual matrix is this that the building known as "Saileela" situate at Jogeshwari (East), Bombay is owned by one Bamchandra Nimbalkar. He also claims to be a partner of M/s. Waibhav Guest House which is respondent in this petition. A part of Saileela building is let out by Shri Nimbalkar to M/s. Waibhav Guest House was given to the petitioner on payment of Rs. 450.00 per month. For failure of the petitioner to pay the monthly rates and falling in arrears thereto and also for committing some their nuisance, it appears that on behalf of M/s. Waibhav Guest House, an application was moved before the Controller purported to be an application under Section 39 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "the Rent Act"). Some sort of jurisdictional point was raised by the petitioner that Room No. 127 was never part of M/s. Waibhav Guest House and that he is tenant of Shri Nimbalkar in respect of Room No. 17. It appears that the petitioner in support also examined some officials of the Bombay Municipal Corporation. Based upon the evidence, the Controller found that on the date of the application instituted by M/s. Waibhav Guest House, the same did not have a renewed licence from corporation as the licence had expired on 31st December 1979. The Controller, therefore, held that he has no jurisdiction to entertain the application of the respondent - M/s. Waibhav Guest House and by his order 12th September 1980 rejected the same.

(3.) THIS appellate order is challenged in the present petition. The petition was nstituted in April 1983 and rule and interim stay was granted, with the result the appellate order remanding the proceedings never saw the light of the day before the Controller. This petition itself is pending before this Court since April 1983. I have heard Shri Prem S. Gidwani, learned counsel appearing for the petitioner and Shri Belosey, learned counsel appearing for the respondent. The petitioner insists that he is tenant in respect of Room No. 17, the tenancy having been settled on him by Shri Ramachandra Nimbalkar sometime in July 1979. Respondents claim before the Controller is that the petitioner is a lodger of Room No. 17 and sought a certificate for his eviction under Section 39 of the Rent Act for his failure to pay the monthly rate as also for commission of nuisance, etc. The petitioner had insisted upon a decision on a point of jurisdiction from the Controller on the basis he is a tenant and not a lodger. Though the decision was in his favour, it was altogether for different reason, namely, that there was no renewal of a licence of a Lodging House. Admittedly, the petitioner had signed a form as a lodger when he entered the premises in July 1979. The appellate Court in the impugned judgment rightly held that the matter requires consideration and the contradictory stands taken by the parties. The appellate Court, therefore, remanded the matter to the Controller by the impugned order. In my view, the order of remand cannot be faulted and there is no infirmity whatsoever. On the contrary, I find that the approach by the Additional Chief Judge, Small Causes Court, Bombay in the appeal was correct and the matter between the parties requires to be adjudicated one way or the other. No interference is called for.