Whether Competent authority under the Maharashtra rent control Act can entertain proceeding in respect of premises exempt under S 3(1) (b) of said Act?

 The first is the submission of Mr. Vachasundar that the non-obstante clause of Section 24 takes precedence over the exempting clause contained in Section 3(1) (b) of the Act. Sections 3(1)(b) and 24 are quoted below:

"3. Exemption.

(1) This Act shall not apply ----

(b) to any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid up share capital of more than rupee one crore or more.

"24. Landlord entitled to recover possession of premises given on license on expiry.

(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on license for residence shall deliver possession of such premises to the landlord on expiry of the period of license; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of license, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of license has expired, shall pass an order for eviction of a licensee.

(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of license and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the license fee or charge of the premises fixed under the agreement of license.

(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of license.

Explanation - For the purposes of this section,-

(a) the expression "landlord" includes a successor-in-interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on license;

(b) an agreement of license in writing shall be conclusive evidence of the fact stated therein."

As is obvious, Section 3(1)(b), which exempts premises, as opposed to relationships, from the provisions of the Act where a government company or a public sector undertaking is a tenant, is a fundamental provision of the Act, which operates vis-a-vis each and every provision of the Act and there is no reason why it should not operate even as regards Section 24 of the Act. If any premises are exempt from the application of the Act, there is no reason why such exemption shall not extend to Section 24. A non-obstante clause, usually appended to a provision of law as an opening, is designed to give the enacting part of the provision, in case of a conflict with either other provisions of the same enactment or other enactments, an overriding effect over these latter provisions. It is, by its very nature, premised on a conflict; if there is no conflict between the other provisions contained within the ambit of the non-obstante clause and the enacting part of the clause, there is no question of overriding these other provisions or, in other words, giving effect to the non-obstante clause. Once it is clear that each and every premises, covered by Section 3(1)(b), are excluded from the operation of the Act, there is no possibility of any conflict as between the application of Section 24 and any other provision of the Act to such premises. The provisions of the Act (including Section 24) are uniformly inapplicable to such premises. The non-obstante clause within Section 24 merely implies that as for premises to which the Act applies, whenever there is any conflict between the other provisions of the Act and section 24, it is the latter that would prevail. There is, thus, no question of Section 24 taking precedence over Section 3(1)(b).

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7931 of 2019

Decided On: 19.05.2020

 EEPC India  Vs.  Additional Commissioner, Konkan Division and Ors.

Print Page

Supreme Court: Provision of Maharashtra rent control Act is not applicable to Insurance Company

 From the aforesaid it is graphically clear that an Insurance

Company is not protected under the 1999 Act. Once it is held

that defendant No. 1, the New India Assurance Company, the

original tenant, is not protected, the question would be whether a

subtenant can be protected under the Act. In the case of Bhatia

Co-operative Housing Society Ltd. (supra), it has been clearly

laid down that Section 4(1) of the 1947 Act applies to premises

and not to parties or their relationship. Section 3 uses the term

‘premises’. The provision commences with the non-obstante

clause that the Act does not apply to any premises belonging to

the Government or a local authority. Sub-section 3(1)(b) makes

it clear that the Act does not apply to any bank, public sector

undertaking or certain other categories of tenants. The

Insurance Company is covered under Section 3(1)(b). Thus, as a

logical corollary, the Act does not apply to the premises held by

the Insurance Company who is a tenant.

23. The learned Single Judge has allowed protection to the

Government Department on the foundation that it has become a

tenant. We are disposed to think that the analysis is

fundamentally erroneous. When the Act does not cover the

tenant, namely, the Insurance Company as basically the

exemption applies only to premises and not to any relationship,

the subtenant who becomes a deemed tenant cannot enjoy a

better protection or privilege by ostracizing the concept of

premises which is the spine of the provision.

N THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos . 3356-3357/2012

Kesri Commissariat  Vs  Ministry of Food and Civil Supplies,

Dipak Misra , J

Dated:April 03, 2012.
Citation: AIR 2012 SC 1271:2012(5) MHLJ 212 SC

Print Page

Whether multinational company having paid up share capital of less than one crore is entitled to get protection of rent law?

In these circumstances, it is not possible to agree with Mr. Dani that only such multinational companies having a paid up share capital of Rs. 1 Crore or more are excluded from the purview of the Act. The Act is inapplicable to foreign missions, international agencies and multinational companies and they are grouped together only because of the foreign or international element in them. There presence being at global or international level, their presence in more than one country being undisputed, it is but natural to hold that they have the financial capacity and capability to procure and purchase or afford the rates of immovable property prevailing in the market. They are not required to be protected from rack renting, exploitation and the alleged greed of landlords as urged by Mr. Dani. They cannot complain of economic exploitation because of their financial and other resources. In such circumstances, the Legislature deemed it fit that such entities together with banks, public sector undertakings or statutory Corporations and others are not required to be brought within the purview of rent control legislation. They can stand out and compete and equally they can on their own buy properties at prevailing market rates. The presumption that the protection of beneficial and social legislation meant to protect tenants who cannot afford to pay market price, holds good and there is no question of any discrimination much less classification having no nexus with the object sought to be achieved. If the object sought to be achieved is to exclude such entities, who are financially sound and cash rich because they were misusing the protection of rent control act, then, that cannot be said to be vitiated by any arbitrariness or unreasonableness. In such circumstances and when the vires of the provision has also been upheld by the Supreme Court in Pansare's case (supra), then, all the more, this is not a fit case for holding that the applicant continues to enjoy the protection of the rent control legislation and it is not excluded from its purview.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 184 of 2010

Decided On: 13.03.2013

Paramount Films of India Limited  Vs.  S.F. Chemicals Industries Pvt. Ltd.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

Citation: 2013(3) MHLJ 239,2013(3) AllMR 660

Print Page

Whether plea of exemption from rent law is to be specifically pleaded and proved?

 Lastly, it may be pointed out that in the present case, the suit was filed in 1980. Section 2(7)(bb)(iii) was amended in 1994. Under the said Amendment, the expression "under the management of the State Government" stood deleted. Therefore, it was argued on behalf of the appellant that the Karnataka Rent Control Act 1961 has no application. As held by the High Court this plea was not taken by the appellant in the Courts below. Further, Section 2(7)(bb)(iii) states that the Act will not apply to any premises belonging to a religious or charitable institution. However, there is no material placed on record by way of pleadings to show whether the appellant is a religious or charitable institution. The plaint was never amended. The appellant seeks exemption. Exemption needs to be alleged and proved. Opportunity is required to be given to the respondent to meet the plea of exemption. In the circumstances, we are in agreement with the view expressed by the High Court that the said plea was not open to the appellant at the stage of second appeal, particularly in the absence of any material available to substantiate such plea.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4122 of 1999

Decided On: 22.07.2004

Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust

Vs. S.K. Viswanatha Setty

Hon'ble Judges/Coram:

Ashok Bhan and S.H. Kapadia, JJ.

Citation: (2004) 8 SCC 717,AIR 2004 SC 3929

Print Page

Whether provisions of Maharashtra rent control Act are applicable to company if its paid up capital was more than one crore on the date of filing of suit?

JURISDICTIONAL FACT

20. The learned Counsel for the appellant- Company submitted that the fact as to 'paid up share capital' of Rs. one crore or more of a Company is a 'jurisdictional fact' and in absence of such fact, the Court has no jurisdiction to proceed on the basis that the Rent Act is not applicable. The learned Counsel is right. The fact as to 'paid up share capital' of a Company can be said to be a 'preliminary' or 'jurisdictional fact' and said fact would confer jurisdiction on the Court to consider the question whether the provisions of the Rent Act were applicable. The question, however, is whether in the present case, the learned Counsel for the appellant tenant is right in submitting that the 'jurisdictional fact' did not exist and the Rent Act was, therefore, applicable.

21. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not posses.

22. In Halsbury's Laws of England, (4th Edn.), Vol.1, para 55, p.61; Reissue, Vol.1(1), para 68, pp.114- 15, it has been stated:

Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive.

23. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a Court or Tribunal.

JURISDICTIONAL FACT AND ADJUDICATORY FACT

24. But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be overlooked.

31. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue.

32. As already seen earlier, in the case on hand, the appellant Company was having 'paid up share capital' of more than Rs. one crore, not only when the notice was issued and tenancy was determined but also when the suit for possession was instituted. What was stated was that a resolution was passed by the Board of Directors to reduce 'paid up share capital' from Rs.8.20 crores to Rs. 41 lakhs (less than Rs. 1 crore). But it was not approved by BIFR. The Small Cause Court considered this aspect and stated;

The reasons are that the above suit is filed on 4.4.2001. Whereas undisputed document Ex.B. annual report of the Defendant Company shows that on 30.9.1999 the paid up shares capital of the Defendant Company was more than Rs. 1 crore. If the Defendants have moved BIFR by reference of 1997, by that time the Defendant ought to have received favourable orders reducing the paid-up capital of the Defendants to less than Rs. one crore. But no such evidence is produced by the Defendants to rebut the annual report Ex.B of the Defendants showing paid up capital of more than Rs. 8 crores as on 30.9.1999. There is nothing before the court to show that the paid up share capital of the Defendants is brought down to Rs. 41 lacs as per para 1.3(1) of the revised rehabilitation proposal in BIFR case No. 74/1999 (Ex.4). The advocate for Defendants has not pointed out any order to show that the said proposal is accepted.

In the absence of such order of the appropriate court or authority accepting the proposal Ex.1 to reduce share capital to less than 1 crore rupees, I am unable to accept the case of the Defendants that the said share capital of the Defendant Company is reduced to less than Rs. 1 crore.

(emphasis supplied)

33. The High Court also dealt with this aspect and concluded;

It is not in dispute between the parties that the tenancy of the petitioners was terminated with effect from 31.3.2001 and on that day the paid up share capital of the petitioners/Company was more than Rupees one crore, no fault can be found with trial Court taking cognizance of the eviction proceedings initiated against the petitioners, as the trial Court definitely had jurisdiction to entertain such proceedings, considering the provisions of law comprised under Section 3(1)(b) of the said Act, as rightly submitted by the learned advocate for the respondents. The clause (b) of Section 3(1) of the said Act clearly provides that "the said Act shall not apply to any premises let or sub-let to banks, or any Public Sector Undertaking or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more". Undisputedly, the petitioner/Company is a Public Limited Company having share capital of more than Rupees one crore.

(emphasis supplied)

34. All the Courts were, therefore, in our considered opinion, right in holding that the provisions of the Rent Act were not applicable to the present case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2805 of 2005

Decided On: 05.10.2007

Carona Ltd.Vs. Parvathy Swaminathan and Sons

Hon'ble Judges/Coram:

C.K. Thakker and P. Sathasivam, JJ.

Citation: AIR 2008 SC 187

Print Page

Important provisions of Maharashtra Rent control Act (Part 1)

S.2 Application:

This Act shall apply to premises let for the purposes of residence, education, business, trade or storage.

S 3 Exemption:

1) This Act shall not apply:

a) to any premises belonging to government or local authority.

b) to any premises let out to banks, any public sector undertakings or any corporation, foreign missions, international agencies, multi-national companies and private limited companies and public limited companies having paid up capital of Rupees one crore or more.

S 7,(9) Definition of premises-Open space is excluded from maharashtra rent control Act.

S 7(15) Tenant means any person by whom or on whose account rent is payable for any premises.

Print Page

When sub tenant can not claim right in tenanted property?

 Learned counsel for the respondent, Kishore Bafna, placed reliance on a case reported as 2012 (5) Mh.L.J 212 (Kersi Commissariat v. Ministry of Food & Civil Supplies). The facts of the reported case were similar to the facts of the present matter. Insurance Company was lessee and it had inducted one sub tenant in the year 1959 (allegedly without consent of the landlord of the Insurance Company). It was held by the Supreme Court that in view of the provisions of section 3(1)(b) of the Maharashtra Rent Control Act, 1999 the provisions of the Bombay Rent Act are not applicable. It was further held that once the Insurance Company, lessee was not the tenant for the purpose of the Rent Control Act, the sub tenant cannot enjoy the better protection or privilege.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 142 of 2015 and Civil Application No. 4015 of 2015

Decided On: 18.03.2016

The Dhulia Motors Owners Cooperative Consumers Stores Limited

Vs.

Kishor Mohanlal Bafna and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: AIR 2007 Bom 80

Print Page

Whether maharashtra rent control Act is applicable to lease given by municipal corporation?

 It appears that in the aforesaid suit, application
is also filed for relief of temporary injunction to prevent
the Corporation from taking possession. This application
also shows that the plaintiff, present respondent wants to
give go by to the procedure established by law. That
cannot be allowed. It is clear that the Civil Court has
committed error in making aforesaid order. Further the
learned counsel for the petitioner drew attention of this
Court to the provision of section 3 of the Maharashtra
Rent Control Act 1999 which has made clear that the
Maharashtra Rent Control Act shall not apply to the
property belonging to the local body. In view of this
provision of law also the Civil Court cannot give the reliefs

claimed in the suit and so the jurisdiction is barred.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No. 249 of 2015

Municipal Corporation of City of Jalgaon Vs  Arjundas Khushiram Bajaj

 CORAM: T.V. NALAWADE, J.

 DATE : 11th DECEMBER 2015
Citation:2016(4) ALLMR 70,2016 BomRC 205

Print Page

Bombay HC: Amendment to Section 106 of the Transfer of Property Act shall have retrospective effect

The background in which an amendment to Section 106 came to be enacted find elaboration in the One Hundred and Eighty-First Report of the Law Commission. The requirement of furnishing a notice expiring with the month of tenancy gave rise to a considerable degree of uncertainty in the law. The object of Section 106 was that before a lessor sues for possession, there must be a cessation of the relationship of lessor and lessee. The period of notice was intended to give to the lessee a reasonable period before being called upon to vacate the premises. However, the interpretation of Section 106 was not free from complexity and the line of precedent gave rise to rigidities in the application of law that were perhaps unforeseen by the framers of the legislation in 1882. The date on which the notice was served was required to be excluded as a result of the judicial interpretation of Section 106 though not the day on which the tenancy was sought to be terminated. There were disputes in regard to the exact date of the commencement of tenancy which concomitantly gave rise to a dispute in regard to the expiration of the tenancy. Though in the generality of cases suits came to be instituted much after the stipulated period had expired, yet issues were required to be framed and were framed by trial courts across the country on the validity of notices of termination. Apart from breeding delay, there was a multiplicity of litigation since it was always open to the landlord to institute a fresh suit for eviction upon a due and valid termination of tenancy. This was the state of affairs which Parliament sought to obviate in enacting an amendment to Section 106 of the Transfer of Property Act, 1882. The object of the amendment was to render the law certain and to provide consistency in its application. Certainty and consistency are the ideals - however elusive they may be in practice - for a system governed by the rule of law. The legislature has thus stepped in to correct an obvious deficiency in the law. No litigant can claim to have a vested right in benefiting from the complexities of law or in the confusion that may be generated by ingenious arguments designed to defeat the genuine claim of a plaintiff who sues to recover possession upon the termination of a lease which does not find protection of rent control legislation. Thus the element of public interest must militate against the acceptance of the argument that the amendment is arbitrary or unconstitutional as being in violation of Article 14. Plainly it is not.

18. Parliament was completely within the realm of its plenary powers in determining that the amended provision should have limited retrospectivity. The retrospectivity that has been conferred is to the extent that the amended provision shall apply to all notices in pursuance of which a suit or proceeding is pending at the commencement of the Amending Act. Similarly, the amending provision applies to notices which have been issued before the commencement of the Act but where no suit or proceeding has been filed before such commencement. The legislature has, therefore, considered it appropriate in its wisdom to extend the application of the amended provision to situations where adjudication has not been concluded on the validity of a notice of termination under Section 106. There is nothing arbitrary or ultra vires therein.

Bombay High Court

Allahabad Bank vs Prakash Shankar Wagh on 3 April, 2006

Equivalent citations: AIR 2006 Bom 321, 2006 (3) BomCR 4, 2006 (4) MhLj 154

Bench: F Rebello, D Chandrachud

Print Page

When eviction of tenant is permissible under public premises Act?

He pointed out that the N.R.C. Ltd. has been a tenant of
this property since about 1946. Subsequently, the building
wherein its premises are situated, was taken over by the
Life Insurance Corporation, and thereafter by the Central
Bank of India. In view of this judgment, the relationship
between the Central Bank of India and the N.R.C. Ltd. as
landlord and tenant will continue to be governed under the
Bombay Rent Act and now under The Maharashtra Rent Control
Act, 1999.
In paragraph 49 of Dr. Pophale’s case, this Court discussed
the inter relation between Article 254(1) and 254 (2) of
the Constitution, and specifically pointed out that the
Government and the statutory corporations were taken out of
the protective umbrella when the Maharashtra Rent Control
Act was passed, and so they would be covered under the
Public Premises Act, but of course from the date when the
Act comes into force or from the date when the premises
belong to the concerned Government corporation. What
applies to the landlord, equally applies to the tenants.
7. As far as the present action initiated by the
Central Bank of India is concerned, the notice to evict was

issued on 26th June, 2007, much after the Maharashtra Rent
Control Act came into force on 31.3.2000. This Act clearly
lays down that it shall not apply to Public Ltd. Companies
having a paid up share capital of Rs. One Crore or more.
Section 3 (1) (b) of the Act reads as follows:-
3 Exemption
(1) This act shall not apply
(a) ........
(b) To any premises let or sub-let to banks, or any
Public Sector Undertakings or any Corporation
established by or under any Central or State Act, or
foreign missions, international agencies
multinational companies, and private limited
companies and public limited companies having a paid
up share capital of rupees one crore or more."
There is no dispute that the respondent N.R.C.
Ltd. is a company having a paid up share capital of more
than rupees one crore. That being so, the protective
umbrella of the State Rent Control Act which was available
to the N.R.C. Ltd. would not be available to it beyond
31.3.2000. That being so, the provisions of Public
Premises Act would clearly apply to these premise on or
after 31.3.2000 for the purposes of eviction of
unauthorised occupants and therefore, the action initiated
by the Central Bank of India could not be faulted with.
8. Mr. Andhiyarujina, learned senior counsel,
appearing for the N.R.C. Ltd. has drawn our attention to
the fact that the company’s affairs are before the BIFR,
and it also had correspondence with the trade union

representing the employees, but the employees union was not
ready to help in any manner. Those are different aspects,
and as pointed out by Mr. Raju Ramachandran, learned senior
counsel, the financial difficulties of N.R.C. Ltd. were
brought to the notice of this Court by filing the I.A.No.2
of 2014 which was not pressed, and that being so, the issue
cannot be allowed to be re-agitated. A tenant or an
occupant cannot be permitted to be on the premises of the
landlord without paying the rent, or the occupation
charges, which is what N.R.C. Ltd. is attempting to do.
9. This being the position, in our view, the Central
Bank will be entitled to take back the possession of the
concerned premises with respect to which the order of
eviction has been passed, and we permit it to resume the

same by taking the help of police if required.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION NO. 147 OF 2014
IN
SPECIAL LEAVE PETITION(C) No.24874/2013

Central Bank of India  V N.R.C. Limited 

Citation;2014(3) ALLMR 401 SC
Coram:
H.L.GOKHALE, J.,[KURIAN JOSEPH ]

Print Page

Supreme Court:Importance of pleading in decision of suit

Tenancy - Vacation of Premises - Maintainability of Suit questioned — Exemption sought on the ground that agent cannot be sued where the Principal is known – Held, it is a settled legal proposition that an agent cannot be sued where the principal is known - In the instant case however, the Appellant has not taken plea before either of the Courts below - In view of the provisions of Order VIII, Rule 2 Code of Civil Procedure, the Appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so - Vague plea to the extent that the suit was bad for non-joinder and, held to be as not maintainable - Appellant ought to have taken a plea in the written statement that it was merely an “agent” of the Central Government, thus the suit against it was not maintainable - More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence - Appellant miserably failed to take the required pleadings for the purpose - Thus, in view of the above, Appellant held to be as not entitled for exemption under Section 3(1)(a) or 3(1)(b) of the Maharashtra Rent Control Act, 1999 nor can it claim the status of an “agent” of the Central Government.

Supreme Court of India

National Textile Corp.Ltd. vs Nareshkumar Badrikumar Jagad & ... on 5 September, 2011

Bench: P. Sathasivam, B.S. Chauhan

Citation: AIR2012SC264, 2012(1)BomCR399, (2007)2CALLT567(SC), JT2011(10)SC414, (2012)2MLJ296(SC), 2011(2)RCR(Rent)293, 2011(10)SCALE28, (2011)12SCC695, 2011(5)UJ3334

Print Page

Whether a party can claim exemption U/S 14 of limitation Act if he was defending any proceeding?

I   have   considered   the   submissions   advanced   on   behalf   of   the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008   seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section  3  (1)  (b) of  the Maharashtra Rent Control Act,  1999.   The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein.  In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made  by Defendant No.1  herein  dated    12th  December,    2007.
21) Section 14 of Limitation Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without   jurisdiction.­   (1)    In   computing   the   period   of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be  excluded, where the proceeding
relates to the same matter in issue and  is prosecuted in good
faith in  a  court  which, from  defect  of jurisdiction  or  other
cause of a like nature, is unable to entertain it.”
The   Hon'ble   Supreme   Court   in   the   case   of  Madhavrao   Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“  In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of

action,
             (2) that it had been prosecuted in good faith in that court, and,
(3) that   the   court   was   unable   to   entertain   that   suit   on
account of defect of jurisdiction or other cause of a like nature.”

23)          In  the case of  Somshikharswami Shidlingswami vs. Shivappa Mallappa Hosmani  AIR 1924 Bom 39
this Court inter alia held that in the facts of that case,  Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending  the  suit brought against him.
Furthermore,   this   Court   in  Narayan   Jivaji   Patel   and   Anr.   V   Gurunathgouda
Khandappagouda   Patil   and  Anr.  ILR (1939) Bom 173
following  the   decision  in  Somshikharswami
Shidlingswami   (supra)  held   that   since   the   appellant   in   the   matter   was   a defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit.   The   terms   “plaintiff”   and   “defendant”   have   a   well   known   technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION 
CHAMBER SUMMONS NO. 1234 OF 2012
IN
SUIT NO. 1939 OF 2012  

In the matter between:
Bharat Petroleum Corporation Ltd.   vs.  M/s. Hill Top Consultants Pvt. Ltd. and others   
            
CORAM:  S.J. KATHAWALLA, J.
DATE: MAY 10, 2013

Print Page