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Judgment
Heard Shri A.S. Jaiswal, learned Senior Counsel with Mrs.
R. Bajaj, learned Counsel for petitioners - tenant and Shri R. Joshi,
learned Counsel for respondent no.1 - landlord.
Civil Suit No. 97/1999 filed by landlord before the Small
Causes Court at Nagpur under Section 106 of Transfer of Property
Act came to be decreed by 2nd Additional Small Causes Court,
Nagpur on 22.04.2008. Against that adjudication, petitioners filed
an appeal under Section 26A of the Provincial Small Causes Court
Act, 1887 in the Court of District Judge-15, Nagpur. That Court
dismissed the appeal on 19.07.2011.
Thereafter present Writ Petition came to be filed. It
appears that on 09.07.2012, effort was made to mediate and after
receipt of failure report, matter remained pending till 23.09.2014,
when it was Admitted for final hearing. There are no interim orders
granted by this Court.
Shri Jaiswal, learned Senior Counsel submits that the
tenanted premises form part of agricultural land and hence,
provisions of Bombay Tenancy and Agricultural Land (Vidarbha
Region) Act, 1958 apply. Tenancy therefore, ought to have been
determined by taking recourse to the provisions contained in that
Act, and by approaching the Tahsildar under Section 36 of said
enactment. In view of the provisions of Sections 124 and 125 of that
Act, the Small Causes Court does not possess jurisdiction.
Without prejudice, it is added that if provisions of
Tenancy Act are not attracted, the provisions of Maharashtra Rent
Control Act, 1999 shall squarely apply. Tenancy therefore, could
have been determined in circumstances stipulated in Section 15 of
Section 16 thereof and as those grounds do not exist, the decree as
passed is without jurisdiction.
It is further submitted that in any case the tenancy is for a
motor repairs workshop i.e. manufacturing purpose and hence, the
tenancy could not have been determined except by giving 6 months
notice expiring with the period of tenancy. Here the notice is only
of 15 days duration and hence, bad in law.
Lastly, it is pointed out that the respondent / plaintiff
himself has accepted defendant no.2 as a tenant on one occasion
and Courts below have not adjudicated upon that controversy at all.
That without deciding who is the real tenant, the suit could not have
been decreed.
Shri Joshi, learned counsel appearing for respondent
tenant has submitted that the tenancy admittedly is not for
agricultural purpose, and therefore, Bombay Tenancy and
Agricultural Land Act, has no application. The tenancy is also
monthly and as such there is no question of issuing a notice of 6
months duration. The defendant no.2 has claimed to be a tenant
through its partner and said person is defendant no.1. Partnership
Firm, though registered is not a legal entity and under Civil
Procedure Code can be sued through its partner. Accordingly the
tenant/defendant no.1 and Firm formed by him through him as its
partner were defendants and no objection to the form of suit was
taken by the trial Court. Inviting attention to Section 2 [2] of the
Maharashtra Rent Control Act, read with its Schedule-I, he submits
that the provisions of Maharashtra Rent Control Act, 1999 are not
applicable to Wadi area, which is outside the limits of Nagpur
Municipal Corporation. According to him, therefore, tenancy is
regulated only by the provisions of Transfer of Property Act . He
therefore, prays for dismissal of the writ petition.
After hearing the respective Counsel and perusal of
records with their assistance, it is seen that the tenancy is not for
agricultural purposes and it was motor repairs workshop. It is not
the case of defendants that the basic tenancy was for agricultural
purposes and they have changed the user and started workshop. In
this situation, when basic tenancy is for non-agricultural purposes,
contention that provisions of Tenancy Act apply is, erroneous and
rightly found to be so by both the Courts below.
In so far as the application of Maharashtra Rent Control
Act, 1999 is concerned, admittedly the premises are situated outside
the Municipal limits of Nagpur Municipal Corporation and therefore,
said Act does not apply to it. The tenancy therefore is governed by
Section 106 of the Transfer of Property Act.
Defendants never objected to form of suit or to joinder of
defendant no.2, as party defendant. Defendant no.1 is a partner of
defendant no.2, which is a registered Firm. Defendant no.2 has also
been sued through defendant no.1.
It is a settled position that a partnership firm though
registered does not constitute a legal person. In these facts, both
the Courts below have rightly rejected the contention of present
petitioners. Petitioners cannot be permitted to take advantage of
their own act and attempt to cause prejudice to landlord. The
contention that the Courts below have not determined real tenant
therefore, is, erroneous and misconceived.
Section 106 of the Transfer of Property Act operates
when there is any contract to the contrary. Presumption of tenancy
on year to year basis in case of manufacturing activity is subject to
contract to the contrary. Here, rent receipts are monthly and the
contract of tenancy is also monthly. The contention that therefore,
the petitioners were entitled to 6 months notice before termination
of their tenancy is not supported by any material on record. On the
contrary, the plaintiff has given a valid notice under Section 106 of
the Transfer of Property Act and brought an end to the tenancy.
Consequently, I do not find any error in appreciation of evidence
and law by the Courts below. The concurrent findings reached by
them are therefore, maintained. In the result, Writ Petition fails
and is accordingly dismissed. Rule discharged. No costs.