ASHOK TATYASAHEB KALLANAWAR Vs. SHRENIK BANSILAL KOTECHA

JUDGEMENT

(1.) THE submissions of the Advocates appearing for the parties were heard on 27th April 2007 and 30th April 2007. The Writ Petition was kept on 3rd May 2007 for Judgment. On 3rd May 2007, further submissions were permitted to be advanced and the Writ Petition was kept on 4th May 2007. On that day by way of indulgence, the Advocate for the Petitioner sought permission to advance further arguments. The said request was acceded to. As 4th May 2007 was the last working day before the summer vacation, the judgment could not be dictated and therefore, the same was reserved.

(2.) THE Petitioners are the original Plaintiffs. The Petitioners filed a suit in the Court of Civil Judge Senior Division, Kolhapur for mandatory injunction directing the Respondent to deliver the possession of the suit property. The Petitioners also prayed for a money decree in the sum of Rs.2,48,535.00 towards arrears of premium and interest thereon. A prayer was also made for a decree as regards payment of electricity and water charges.

(3.) THE Respondent made an Application for invoking Rule 11 of Order VII of the Code of Civil Procedure, 1908 contending that the suit was not maintainable in the Civil Court and in fact an Application ought to have been filed before the competent Authority established under the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947 (hereinafter referred to as the said Act of 1947). In the alternative, it was contended that the suit will be governed by the said Act of 1947 and therefore, the same ought to have been filed in the Court of Civil Judge, Junior Division. The said Application was decided by the learned Trial Judge by order dated 18th June 2002. The learned Judge held that the suit will be governed by section 28 of the said Act of 1947 and therefore, the suit ought to have been filed in the Court of Civil Judge, Junior Division. By the said order, the learned Trial Judge rejected the plaint under Order VII Rule 11 of the said Code. An application for review was made by the Petitioners which has been rejected by order dated 12th August 2003 which is impugned in this Petition under Article 227 of Constitution of India.