SITABAI KHEMCHAND JANGLA Vs. PADMA DHANRAJ NANGIA

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioners challenge the order passed by the Small Causes Court in Interim Notice No.85 of 1999 dated 7.5 1999. That notice was taken out by the petitioner for staying of the proceedings in the civil suit.

(2.) THE facts that are material and relevant for deciding this petition are that admittedly the petitioners are the landlords and the respondent is the tenant of a residential premises. The Bombay Municipal Corporation issued notices dated 3.9.1997 and 5 9 1997 to the petitioners under section 354 of the Bombay Municipal Corporation Act for carrying out certain repairs to the building. The said notice was not complied with. The Corporation therefore approached the Criminal Court and launched a prosecution against the petitioners under section 471 of the B.M.C. Act which is registered as Case No.20765/ME/97 and Case No.20766/ME/97. Those proceedings are presently pending in the Court of the Metropolitan Magistrate.

(3.) THE learned Counsel appearing for the petitioners relies on a judgment of the Supreme Court in the case of M.S.Sheriff & anr. vs. State of Madras, A.I.R. 1954, S.C. page 397, in support of his contention that the proceedings in civil suit should be stayed pending the criminal prosecution. The learned Counsel submits that the repairs for which the direction is sought in the civil suit are the same which the Corporation required the petitioners to carry out and therefore, according to the learned Counsel, the subject matter of the prosecution as also the prayer clause (b) of the plaint is the same. The learned Counsel submits that if the proceedings in the civil suit are also to go on, the petitioners would be required to disclose their defence and that will embarrass them. On the other hand the learned Counsel appearing for the respondent-tenant submits that the judgment of the Supreme Court in Sheriff's case does not lay any hard and fast rule that when the subject matter of the criminal proceedings and the civil suit are the same in which case the civil suit is required to be stayed. Relying on a judgment of the Supreme Court in the case of State of Rajasthan vs. Kalyan Sundaram Cement Industries Ltd., (1996) 3 S C.C. page 87, the learned Counsel submits that there is no such principle laid down by the Supreme Court. The learned Counsel also relies on a judgment of this Court in the case of Dhanrajmal Gobindra & Co. Pvt. Ltd. vs. State of Maharashtra, reported in 70 B.L.R. page 495 as also judgment of the Delhi High Court in the case of M/s.Star Paper Mills Ltd. vs. M/s Behari Lal Madanlal Jaipuria Ltd reported in A.I.R. 1990 Delhi page 241. The learned Counsel points out that so far as the question of causing embarrassment to the petitioners is concerned in the submission of the learned Counsel, the petitioners have already filed an affidavit in the notice taken out by the respondent-tenant for temporary injunction and in that affidavit they have submitted reply to each paragraph of the plaint and therefore, it cannot be said that if the civil suit is allowed to go on, they will be required to disclose their defence because, in the opinion of the learned Counsel, the petitioners have already disclosed their defence in their reply to the allegations in the plaint in the affidavit-in-reply dated 24.7.1998. The learned Counsel also submits that the criminal prosecution has not been launched by the respondent, but it has been launched by the Corporation. The respondent-tenant has no role to play in the criminal prosecution. He does not conduct the said prosecution and therefore, so far as those proceedings are concerned, he is not likely to get any relief in those proceedings.