Whether CJJD can entertain eviction suit in respect of service tenancy?

Insofar as the issue of jurisdiction raised by the defendant is concerned, admittedly there was no writing entered into between the plaintiffs and the defendant and the suit flat was handed over to the defendant for accommodation, he being an employee. No terms and conditions were agreed between the parties for payment of rent, royalty or any other compensation. The defendant in his cross-examination admitted that there was no such writing entered into between him and the plaintiffs and also with the wife of the plaintiff no. 2. The defendant also admitted that he had raised a false contention in the written statement that he was paying rent to the wife of the plaintiff no. 2. Upon making enquiry by this Court, learned counsel for the defendant upon instructions admitted that the defendant had not filed any suit for declaration for the alleged tenancy against the plaintiffs or the wife of the plaintiff no. 2 till date.

17. A perusal of section 22 of the M.R.C. Act, 1999 would clearly indicates that the proceedings for recovery of possession in case of tenancy created during the service period would lie before the competent authority only if there was any agreement between the landlord and employee creating service tenancy in respect of the premises or any part thereof. Admittedly there was no such writing executed between the parties. In my view section 22(2) of the M.R.C. Act, 1999 will stand attracted only if the conditions of section 22(1) of the M.R.C. Act, 1999 are satisfied. In my view, thus there is no substance in the submission made by learned counsel for the defendant that the learned Civil Judge, Junior Division, Nashik had no jurisdiction to entertain the suit and/or that the same could be tried only by the competent authority.

18. Admittedly, there is no Small Causes Court at Nashik. In view of section 33 of the M.R.C. Act, 1999, the learned Civil Judge, Junior Division, Nashik having jurisdiction in the area in which the premises is situated only could have exercised jurisdiction to entertain the suit.

IN THE HIGH COURT OF BOMBAY

Second Appeal (Stamp) No. 2792 of 2016 and Civil Application No. 242 of 2016

Decided On: 17.02.2016

 Rajendra Suryakant More  Vs. Fixolite Wires & Cables Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2016(3) MHLJ 584

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Bombay HC: Distinction between eviction on ground of bonafide need and eviction of service tenant under Maharashtra rent control Act

After hearing the learned counsel for the parties at length and after giving due consideration to their respective submissions, I find that the impugned order is unsustainable. Perusal of the plaint indicates that eviction of the non-applicant has been sought under provisions of section 16(1)(f) and 16(1)(g) of the said Act. As per provisions of section 16(1)(f), if the premises are let out for use as a residence by reason of the tenant being in service or employment and the tenant has ceased to be in service or employment, his eviction can be sought. Under section 22 of the said Act, if a landlord intends to let out any premises to his employee, then they may enter into a written agreement to create a service tenancy and such tenancy shall remain in force during the period of service or employment of the employee. After creation of such service tenancy, if the tenant ceases to be in service or employment of the landlord, then it is open for the landlord to apply to the Competent Authority who shall make an order that the tenant shall place the landlord in vacant possession. As per the First proviso to section 22 of the said Act, if an application is made after a period of thirty days of the expiry of the period stipulated under section 22(2) of the said Act, that period can be condoned. As per the Second proviso, in case the order of termination is under challenge before any Tribunal or Court, the order of eviction cannot be passed until the adjudication as regards the order of termination becomes final.

7. From the aforesaid, it can be seen that the provisions of section 16(1)(f) and section 22 operate in separate fields. For the purposes of the provisions of section 16(1)(f) of the said Act, there is no requirement of any agreement in writing and the tenancy may be one which is created even prior to coming into force of the said Act. However, section 22 requires an agreement in writing and the tenancy being created after the coming into force of the said Act. Reference in that regard can be made to the decision in Janabai Govindrao Korche (supra) that has been relied upon by the learned counsel for the applicant, wherein it is held that application of section 22 of the said Act is prospective in nature. In the present case, even according to the non-applicant, the tenancy has been created prior to twenty five years which is before coming into force of the said Act.

Further, the landlord has not approached the Competent Authority under section 22(2) of the said Act but has approached the Civil Court under section 33 read with section 16(1)(f) of the said Act. It is only if the landlord approaches the Competent Authority under section 22(2) of the said Act that the Second proviso to section 22 would come into operation. It is thus clear that for the purposes of seeking eviction under section 16(1)(f) of the said Act, it is not necessary as contemplated by the Second proviso to section 22 to await the final adjudication on the validity of the order of termination. On these counts, it is held that the trial Court committed an error in allowing the application below Exhibit 15.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 70 of 2018

Decided On: 11.09.2018

 Shraddhanand Anathalaya  Vs.  Kusum

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) RCR(Rent) 407

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