SHANTARAM SHANKAR NAIK Vs. KAMAL MOHAN GIRI

JUDGEMENT

(1.) RULE . Respondent waives service. By consent, rule is made returnable forthwith.

(2.) THE subject matter of the present litigation, namely, a building known as Shanti Niwas, situate at Saraswat Colony, Dombivli is owned by the respondent and the present petitioners are the tenants in the said building. It is the case of the petitioners that the respondent was not amenable to cause repairs to the premises so as to keep the same in tenantable condition and on the contrary, the respondent by practicing fraud upon the Kalyan Municipal Corporation and/or in collusion with Kalyan Municipal Corporation got issued a notice under the provisions of the Bombay Provincial Municipal Corporation Act, 1949 and thereby made an attempt to evict the respondent under the pretext that the building stands in a dilapidated condition. It is alleged by the petitioner that by notice dated 16th April, 1994 under section 23 of the Bombay Rent Act the respondent was called upon to carry out repairs. But the respondent denied to effect the repairs relying upon notice dated 18th October, 1993 issued by Kalyan Municipal Corporation and neglected to carry repairs. The petitioners therefore filed Regular Civil Suit No.364 of 1994. Along with the said suit the petitioners filed application for temporary injunction to restrain the respondent from obstruction the petitioners from carrying out the repairs. The application was granted by the trial Court. Pursuant to the order passed by the trial Court, the petitioners have effected the repairs to the premises. The respondent preferred an appeal to the District Court, Thane against the order of injunction. The main contention of the respondent was that when the Corporation has directed demolition of the property, the trial Court ought not to have granted injunction. The appeal was allowed by the District Judge, Thane by order dated 13th October, 1997. The judgment of the District Court itself shows that repairs have already been carried out when he pronounced the judgment. Whatever may have been the legal submission, the appeal itself had become infructuous and there was no need for the District Court to interfere at that stage. On behalf of the petitioners it was made clear before the lower Appellate Court that they will not claim from the respondent landlord the cost of the repairs carried out either now or in the future and they had done the repair entirely at their own cost. The submission that such repair should not have been permitted in view of the demolition notice of the Kalyan Municipal Corporation, cannot be decided at the interim stage. The petitioners have already instituted a suit being Regular Civil Suit No.365 of 1994 challenging the demolition notice and the Kalyan Municipal Corporation has been made a party therein. All these submissions can be gone into in the aforesaid suit. Hence, petition is allowed. The impugned order dated 15th October, 1997 is set aside. All contentions of the respective parties are expressly kept open. The trial court is directed to decide the suit as expeditiously as possible and preferably within one month from today. Rule made absolute accordingly. No order as to costs.