SAMTA VIKAS MANDAL Vs. SHAIKH SIRAJUDDIN

JUDGEMENT

(1.) The appellants are the original defendants and respondents are the original plaintiffs. The respondent No. 1/ original plaintiff purchased the suit property sometime in the year 1988. Prior to the respondent No. 1 purchasing the said property, one Sayyad Noor Sayyed Hussain and Mrs. Fatamabi Sayyed Noor Sayyed Hussain were the owner of House No. 175-1, situated at Juna Bazar Kirkee, Pune. The erstwhile owner of the premises had let out two rooms on the ground floor of the house to the petitioner No. 1. Petitioner No. 1 is an unregistered Society, and the other petitioners are members of the said Society. Erstwhile owner initially filed the suit against one R. B. Kamble who was described as proprietor of Samta Vikas Mandal and against petitioner No. 3 Smt. Vimal Pandu Shinde for eviction from the said two rooms on the ground that the said two rooms were sublet to petitioner No. 3 herein and other grounds under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act'). The trial Court partly decreed the suit and decree for possession was passed in respect of one of the said two rooms. An appeal was preferred by petitioner No. 1 herein challenging the judgment and decree dated 15th September, 1975 passed by the trial Court. The District Court Pune allowed the Civil Appeal and dismissed the suit on the ground that all the members of petitioner No. 1 which was an unregistered Society were not impleaded. This order dated 20th September, 1976 was challenged by filing the Special Civil Application Nos. 267 and 268 of 1977 in this Court. However, said Civil Applications were dismissed by the judgment and order dated 26th October, 1980. Thereafter another suit was filed by the erstwhile owner Sayyed Noor Sayyed Hussein against petitioner No. 1, N. K. Shinde and R. B. Kamble, as well as petitioner No. 3. That suit was also filed under the provisions of the Bombay Rent Act on various grounds. The said suit was dismissed by the trial Court. The appeal filed against the said judgment was lateron withdrawn on 4-11-1987. Thereafter present respondent No. 1 purchased the suit property and he filed a suit against respondent Nos. 2 to 11 for eviction from the suit premises. The notice of termination was received on 27-7-1985. Reply was given by the petitioner No. 1, and thereafter the suit was filed. The decree for possession passed by the trial Court was confirmed by the Additional District Judge, Pune. Being aggrieved by the said judgment and order, the petitioners have preferred the present writ petition under Art. 227 of the Constitution of India.

(2.) The learned counsel appearing on behalf of the petitioner, firstly, submitted that both the Courts ought to have held that respondent No. 1 was estopped from contending that provisions of the Bombay Rent Act were not applicable to the suit premises since in the earlier proceedings, the predecessor-in-title had accepted and acknowledged that provisions of the Bombay Rent Act were applicable to the tenancy of the petitioners. It was submitted that no issue was framed by the trial Court regarding applicability of the provisions of the Bombay Rent Act. It was submitted that both the lower Courts had erred in holding that the suit premises were not given for the purpose of offering prayers and therefore, it did not fall within the meaning of section 1 of the Bombay Rent Act. It is submitted that the word 'education' was not properly interpreted by both the Courts below. It was then submitted that the trial Court had erred in holding that the issue of res-judicata does not arise. It was submitted that the lower appellate Court also did not consider this aspect. It is submitted that reliance was wrongly placed on the judgment of the learned Single Judge of this Court in the case of - Friends Union Club and ors. vs. Nanibai Moreshwar Choudhari and ors.,1989 BRC 221. Compilation of documents was also filed on behalf of the petitioners and the learned counsel for the petitioners has strenuously urged on the submission, after taking me through the plaint, written-statement of defendant Nos. 1 and 2, notes of evidence, documents produced by the plaintiff, documents produced by the defendants. The learned counsel appearing for the petitioners has also taken me through the judgment and order passed in appeal in the earlier suit in support of her submission.

(3.) The learned counsel appearing for the respondent, however, very briefly submitted that since concurrent finding has been recorded by both the Courts below, this Court should not interfere with concurrent finding of fact while exercising jurisdiction of this Court under Art. 227 of the Constitution of India. He submitted that earlier suit was filed by the erstwhile owners of the suit property and not by the petitioners, since they had purchased the property in 1988. They had filed the suit, specifically on the ground of breach of terms of lease and the notice was issued under section 106 of the Transfer of Property Act. He submitted that since earlier suit was filed under the assumption that provisions of the Bombay Rent Act apply to the erstwhile owner and the present suit was filed by respondent No. 1 herein against new owner of the premises for breach of the terms of lease under the Transfer of Property Act section 11 of the Civil Procedure Code was not applicable in the present case, since cause of action in the present suit was entirely different. It was further submitted that question of applicability of provisions of the Bombay Rent Act were never argued before the lower appellate Court and for the first time the said submissions were being advanced in the High Court.