From the facts noted herein above, it is crystal clear that the suit
was filed by the respondent prior to expiry of ninety days from the service of
the demand notice. The presentation of the suit itself being void and going
to the court's jurisdiction, the aforesaid plea would have to be permitted to
be raised though it was not raised earlier. The aforesaid defect being
incurable as the landlord could not have cured the said defect after filing the
suit is without any doubt. Even if such plea was raised in the written
statement, the defect in question was incurable. On the other hand if it is
found that the Court has entertained the suit on the basis of presentation of
the plaint which was patently void and affecting the jurisdiction of the Court,
said legal plea would have to be permitted to be raised. This plea does not
call for any factual adjudication as the date of service of the notice on the
tenant and the date of presentation of the plaint are not in dispute.
Moreover, the decree for eviction has been passed only on the ground of
arrears of rent. The observations of learned Single Judge in paragraph 6 of
the decision in Digambar Hari Sonpatki (supra) can be relied upon.
8. In view of aforesaid, the only conclusion that can be drawn from
the aforesaid facts is that the suit for eviction was filed in a manner contrary
to provisions of Section 15(2) of the said Act. The trial Court had no
jurisdiction to entertain such a prematurely instituted suit. The Appellate
Court by dismissing the appeal also exercised jurisdiction thereby confirming
the decree passed in the suit of which the trial Court could not have taken
cognizance. The only inevitable result is that the decree passed by the trial
Court as maintained by the Appellate Court is without jurisdiction.
9. In view of aforesaid, the judgment of the Appellate Court dated
27/01/2015 in R.C.A. No.41/2011 as well the judgment of the trial Court
dated 15/01/2011 in R.C.S. No.16/08 are quashed and set aside. It is held
that the suit is liable to be dismissed as having been filed prior to the
statutory period prescribed under Section 15(2) of the said Act. This
adjudication however, shall not preclude the respondent from initiating fresh
proceedings for eviction of the petitioner in case any fresh cause of action
arises.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3788 OF 2015
Jitendra s/o Vasantrao Nagarkar
vs
Mohanlal s/o Maluramji Agrawal,
CORAM : A.S.CHANDURKAR, J.
DATE : July 07, 2016
Citation: 2016(6) MHLJ797
Print Page
was filed by the respondent prior to expiry of ninety days from the service of
the demand notice. The presentation of the suit itself being void and going
to the court's jurisdiction, the aforesaid plea would have to be permitted to
be raised though it was not raised earlier. The aforesaid defect being
incurable as the landlord could not have cured the said defect after filing the
suit is without any doubt. Even if such plea was raised in the written
statement, the defect in question was incurable. On the other hand if it is
found that the Court has entertained the suit on the basis of presentation of
the plaint which was patently void and affecting the jurisdiction of the Court,
said legal plea would have to be permitted to be raised. This plea does not
call for any factual adjudication as the date of service of the notice on the
tenant and the date of presentation of the plaint are not in dispute.
Moreover, the decree for eviction has been passed only on the ground of
arrears of rent. The observations of learned Single Judge in paragraph 6 of
the decision in Digambar Hari Sonpatki (supra) can be relied upon.
8. In view of aforesaid, the only conclusion that can be drawn from
the aforesaid facts is that the suit for eviction was filed in a manner contrary
to provisions of Section 15(2) of the said Act. The trial Court had no
jurisdiction to entertain such a prematurely instituted suit. The Appellate
Court by dismissing the appeal also exercised jurisdiction thereby confirming
the decree passed in the suit of which the trial Court could not have taken
cognizance. The only inevitable result is that the decree passed by the trial
Court as maintained by the Appellate Court is without jurisdiction.
9. In view of aforesaid, the judgment of the Appellate Court dated
27/01/2015 in R.C.A. No.41/2011 as well the judgment of the trial Court
dated 15/01/2011 in R.C.S. No.16/08 are quashed and set aside. It is held
that the suit is liable to be dismissed as having been filed prior to the
statutory period prescribed under Section 15(2) of the said Act. This
adjudication however, shall not preclude the respondent from initiating fresh
proceedings for eviction of the petitioner in case any fresh cause of action
arises.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3788 OF 2015
Jitendra s/o Vasantrao Nagarkar
vs
Mohanlal s/o Maluramji Agrawal,
CORAM : A.S.CHANDURKAR, J.
DATE : July 07, 2016
Citation: 2016(6) MHLJ797
