VIKRANT ENGINEERS Vs. SHRIDHAR BHASKAR PARANJAPE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenges the order dated 14-8-1986 passed by the IInd Extra Joint District Judge, Pune in Civil Appeal No. 862/1984. That appeal was filed by the respondents challenging the judgment and decree dated 20-7-1984 passed by the IVth Addl. Small Causes Judge, Pune in Civil Suit No. 184/79. That civil suit was filed by the present petitioners, claiming therein that the respondents Shridhar Bhaskar Paranjape and Bhaskar Tukaram Joshi, the original defendants Nos. 1 and 2 are the owners of a final plot of land No. 9 Survey No. 91, Pune. It was alleged that as the defendants did not have enough funds to raise a construction on that plot of land they approached the plaintiffs and an agreement was entered into between the plaintiffs and the defendants on 24-2-1971. As per that agreement the plaintiffs were to advance an amount of Rs. 20,000/- to the defendants. The defendants were to construct a building on that land, which would be suitable for a factory and that after completing the building, a lease would be granted to the plaintiffs of that building for a period of 50 years at the monthly rent of Rs. 200/ -. It was alleged that thereafter the defendants raised construction on the plot. But as per the agreement they did not create lease of the building in favour of the plaintiffs and did not hand over possession of the building to the plaintiffs as agreed to by the agreement. Therefore a suit was filed for a direction to the defendant to execute lease deed as per the agreement dated 24-2-1972 in favour of the plaintiffs. A direction was sought for fixation of the Standard Rent at Rs. 200/- per month and further direction was also sought against the defendants to hand over possession of the building to the plaintiff. The trial Court decided the suit by its order dated 20th July, 1984 and the trial Court decreed the suit in favour of the plaintiffs and directed the defendant No. 1 to execute lease deed as per the agreement dated 24-2-1971. The Court also directed the defendants Nos. 1 and 2 to deliver possession of the building as per the agreement to the plaintiffs. In the appeal filed by the defendant No. 1 the Appellate Court, however, held that the suit for specific performance of contract to grant lease was not tenable under section 28 of the Bombay Rent Act and therefore, the Appellate Court allowed the appeal filed by the defendant No. 1, set aside the judgment and order passed by the trial Court and dismissed the suit. Therefore it is the order of the Appellate Court which is challenged by the original plaintiffs in the present petition.

(2.) SHRI Anturkar, the learned Counsel appearing for the petitioners urged before me that the suit for specific performance of an agreement to grant lease of the building in favour of the petitioners and/or in the alternative form, to refund of the earnest money, was tenable under section 28 of the Bombay Rent Act. He submitted that a suit for compensation or for refund of the amount advanced would be tenable under section 28 of the Bombay Rent Act, because the suit arises out of provisions of section 18 of the Bombay Rent Act. In the submission of the learned Counsel if it is held that a suit for refund of the consideration is tenable under section 28 of the Act and at the same time if it is held that a suit for lease deed, which also arises out of the same agreement is not tenable under section 28 of the Bombay Rent Act, then it would amount to driving the litigants to two suits, namely, a suit in ordinary Civil Court of general jurisdiction for an executive of a lease deed and the other for compensation or for refund of the earnest money. The learned Counsel by referring to the provisions of Specific Relief Act, pointed out that in a suit for specific performance of a contract, a claim for refund of the earnest money and also a claim for compensation can always be made. By referring to the provisions of Orders II, Rule 2 of Civil Procedure Code, he submitted that failure of the defendants to perform their part of contract gives a right to the plaintiffs to claim two reliefs namely, a relief for specific performance of the contract and for compensation or refund of the earnest money then in the teeth of the provisions of Rule 2 of the Order II the plaintiff cannot file a suit only for a part the relief which he is entitled to. The learned Counsel further submitted that section 28 of the Act, therefore, is to be so read that it permits filing of one suit where both the reliefs can be claimed by the plaintiffs. The learned Counsel also submitted that section 28 of the Act confers jurisdiction on the Court under the Bombay Rent Act, to try any proceeding or to deal with any claim or question arising out of this Act or any of its provisions. In the submission of the learned Counsel the claim of the plaintiffs for execution of the lease deed therefore, can be tried under section 28 of the Act.

(3.) ON the other hand the learned Counsel appearing for the original defendants relying on the judgment of the Division Bench of this Court in Civil Revision Application No. 616/72, the case of (Govindji Vanmalidas v. Makhai Ladhabai and others) decided on 16th and 17th July, 1975, submitted that a suit for possession between prospective lessee and prospective landlord is not tenable under the provisions of section 28 of the Act. The learned Counsel further relying on a judgment of the Supreme Court in the case of (Sushila Kashinath Dhonde and others v. Harilal Govindji Bhogani and others) A. I. R. 1971 S. C. 1495 : 1969 (3) S. C. C. 223, submitted that in a suit for possession filed under section 28 of the Bombay Rent Act there has to be existing relationship of landlord and tenant between the plaintiff and defendant. As there is no existing relationship of landlord and tenant in the present case, the suit as framed and filed by the plaintiffs would not be tenable before the Court under section 28 of the Bombay Rent Act.