Full Judgment Text
:1:
2005:BHC-AS:9088
#
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 615 OF 2004 SECOND APPEAL NO. 615 OF 2004
SECOND APPEAL NO. 615 OF 2004
M/s. Hindustan Petroleum ]
Corporation Limited ]
a body corporate constituted ]
under the Companies Act,1956 ]
having its registered office ]
at 17, Jamshedji Tata Road, ] ..Appellants
Mumbai 400 020 ](Ori. Deft. no.1)
versus
1. Dilip Prabhakar Dingorkar ]
age 45 years, Occ : Business ]
Residing at 907, Matruchhaya ]
Sadan Tapal Naka, M.G. Road, ]
Panvel, Taluka Panvel ]
District Raigad ]
2. M/s. Ideal Automobiles ]
a partnership firm having its ]
principal office of business ]
and office at Opp: Bombay ]..Respondents
Mercantile Bank, Post Panvel ](No.1 Ori.Plff.
Tal: Panvel, District Raigad ] No.2 Ori.Deft.2)
::: Downloaded on - 31/03/2026 19:53:52 :::
:2:
AND
AND AND
SECOND APPEAL NO. 1281 OF 2004 SECOND APPEAL NO. 1281 OF 2004 SECOND APPEAL NO. 1281 OF 2004
M/s. Ideal Automobiles ]
a partnership firm, having its]
principal place of business ]
and office at Opp:Bombay ]
Mercantile Bank, Post Panvel, ]
Taluka Panvel, District Raigad]
through its partner ]..Appellant
Shri Prakash Harkisandas ] (Ori. Deft.
Gehani ] No.2)
versus
1. Dilip Prabhakar Dingorkar ]
age 45 years, Occ : Business ]
Residing at 907, Matruchhaya ]
Sadan, Tapal Naka, M.G. Road, ]
Post & Taluka Panvel ]
District Raigad ]
2. M/s. Hindustan Petroleum ]
Corporation Limited, a Body ]
Corporate, constituted under ]
the Companies Act, 1956, ]
having its registered office ]..Respondents
at 17, Jamshedji Tata Road, ](No.1 Ori.Plff.
Mumbai 400 020 ]No.2 Ori.Deft.1)
::: Downloaded on - 31/03/2026 19:53:52 :::
:3:
Mr. M. D. Siodia and Ms. D. S. Retiwala i/b.
Rustomji & Ginwalla Co. for the Appellants in First
Appeal No. 615 of 2004 and for Respondent No.2 in
Second Appeal No. 1281 of 2004.
Mr. Shrihari Anne (Senior Advocate) with R. S.
Datar for the Respondent No.1 in both the Appeals.
Mr. V. Y. Sanglikar i/b. D. R. Singh for the
Appellant in Second Appeal No. 1281 of 2004 and
for Respondent No.2 in Appeal No. 615 of 2004.
CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J.
DATE : 6TH MAY, 2005. DATE : 6TH MAY, 2005. DATE : 6TH MAY, 2005.
ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT :
1. Heard Mr. Sanglikar for the Appellants in Second
Appeal No. 1281 of 2004 and for Respondent No.2 in
Second Appeal No. 615 of 2004. Mr. Anne for the
Respondent No.1 - Owner in both the Appeals. Mr.
Siodia for the Appellants in First Appeal No. 615 of
2004 and for Respondent No.2 in Second Appeal No. 1281
of 2004.
2. I will be referring to the parties by their original
nomenclature in the suit as plaintiff and defendants.
Following substantial questions of law were formulated
by Justice Kakade on 28.4.2004 :
::: Downloaded on - 31/03/2026 19:53:52 :::
:4:
(1) Was it right and proper for the Courts below to
consider the material fact that the earlier suit
being R.C.S. No. 120 of 1990 was barred by
limitation and therefore, under Section 27 of the
Limitation Act, the respondent - plaintiff’s right
to institute a suit for possession of the property
had extinguished?
(2) Was it right and proper for the Courts below to
hold that the present suit is not barred by
limitation when the reliefs in earlier suit i.e.
R.C.S. No. 120 of 1990 and the present suit i.e.
R.C.S. No. 181 of 2000 are same and cause of
action is same and reliefs claimed with respect to
the suit property are same and when the earlier
suit i.e. R.C.S. No. 120 of 1990 stands
dismissed as being barred by the law of limitation.
(3) Whether the plaintiff could at the same time
adopt two remedies for possession of the premises
i.e. a writ petition challenging the orders passed
in a suit filed for possession which came to be
dismissed and during the pendency of the writ
petition he could file a second suit on the same
grounds the same cause of action?
(4) Whether the provisions of Section 3(1)(b) of
::: Downloaded on - 31/03/2026 19:53:52 :::
:5:
the Maharashtra Rent Control Act is
unconstitutional and or ultra vires Articles 14 of
the Constitution of India?
(5) The appellants submit that Civil Appeal No.
8017 of 1992 filed by Crompton Greaves Limited
challenging Section 3(1)(b) of the Maharashtra Rent
Control Act is pending before the Hon’ble Supreme
Court of India and has not been decided as of date?
3. So far as Second Appeal No. 1281 of 2004 is
concerned, it was not even admitted and Mr. Anne for
the landlord - plaintiff raised a preliminary objection
to the maintainability of the Second Appeal. He
contended that from the original decree that was passed
by the trial court M/s. Ideal Automobiles did not
prefer First Appeal and did not challenge that order
and therefore now they cannot be permitted to file
Second Appeal. According to him therefore the Second
Appeal is not maintainable. Mr. Sanglikar for M/s.
Ideal Automobiles could not show any provision of law
under which he could file Second Appeal when he not
filed First Appeal at all. Therefore, objection of Mr.
Anne is required to be upheld and this Second Appeal
No. 1281 of 2004 is required to be dismissed before
admission and accordingly it is dismissed. It is quite
difficult that M/s. Ideal Automobiles can be heard as
respondent in the Appeal No. 615 of 2004 supporting
::: Downloaded on - 31/03/2026 19:53:52 :::
:6:
the claimants contention of the appellant in that
appeal.
4. The original plaintiff is the owner of the suit
property i.e. his grand father was the original owner
and Final Plot No. 211, Sub Plot No.7, Panvel, was let
out on monthly rent of Rs.100/- for a period of 10
years. The lessee at that time M/s. Standard Vacuum
Oil Company in course of time Hindustan Petroleum
Corporation Limited (HPCL) came to be recognised as
lessee and there is no dispute about that between the
parties.
5. In 1990 owners of the property i.e. Respondent
No.1 Dilip Dingorkar and his grand father filed a Civil
Suit No. 120 of 1990 for possession of the suit
property after terminating the tenancy of the
defendants in that suit i.e. present appellant.
(present appellants means HPCL because appeal No. 615
of 2004 only is being taken for hearing and other
appeal i.e Second Appeal No. 1281 of 2004 being
dismissed as not maintainable. The said suit for
possession came to be dismissed by the Civil Judge,
J.D. Panvel, on 10.11.1995.
6. The owners filed Civil Appeal. It was Civil Appeal
No. 280 of 1995. It was dismissed on 9.11.11998 by
Additional District Judge, Raigad, Alibag. Then the
::: Downloaded on - 31/03/2026 19:53:52 :::
:7:
owners filed Writ Petition No. 604 of 1999, which is
still pending in this court.
7. Thereafter Respondent No.1 - Plaintiff again served
the defendants with notice of termination dated
19.9.2000 calling upon them to vacate the property and
deliver possession thereof. This notice was replied to
by the present appellant on 23.10.2000 and then Regular
Civil Suit No. 181 of 2000 came to be filed before
Civil Judge, Senior Division, Panvel, for possession
and mesne profits. That suit was opposed by the
present appellant and also original defendant No. 2
Ideal Automobiles but that suit was decreed by the
court on 13.12.2002. The appellant preferred an appeal
before the District Court, Raigad, vide Civil Appeal
No. 6 of 2003 but by judgment and decree dated
4.2.2004 that appeal came to be dismissed, hence this
Second appeal.
8. At the time of admission, as stated above, the
aforesaid questions of law were framed and formulated
by the court. I extensively heard Mr. Sanglikar, Mr.
Anne and Mr. Siodia for HPCL. I will deal with their
respective submissions while considering each of the
above questions of law.
9. The first and second substantial questions of law
are as under:
::: Downloaded on - 31/03/2026 19:53:52 :::
:8:
(1) Was it right and proper for the Courts below to
consider the material fact that the earlier suit
being R.C.S. No. 120 of 1990 was barred by
limitation and therefore, under Section 27 of the
Limitation Act, the respondent - plaintiff’s right
to institute a suit for possession of the property
had extinguished?
(2) Was it right and proper for the Courts below to
hold that the present suit is not barred by
limitation when the reliefs in earlier suit i.e.
R.C.S. No. 120 of 1990 and the present suit i.e.
R.C.S. No. 181 of 2000 are same and cause of
action is same and reliefs claimed with respect to
the suit property are same and when the earlier
suit i.e. R.C.S. No. 120 of 1990 stands
dismissed as being barred by the law of limitation?
. In this regard it was mainly contended by Advocate
for HPCL and Mr. Sanglikar supporting HPCL that when
first suit was barred by limitation whether the
plaintiff had a right to institute a fresh suit for
possession or whether that right is extinguished. It
was argued by counsel for the appellants. A perusal of
plaint in earlier first suit No. 120 of 1990,
hereinafter referred to as "the first suit" will show
that it was based on notice of termination dated
5.4.1978 given by the plaintiff and calling upon the
::: Downloaded on - 31/03/2026 19:53:53 :::
:9:
defendant to vacate the suit premises at the end of
31.7.1978 and handing over possession after restoration
of the land to its original condition. This notice was
given by the plaintiff under the Transfer of Property
Act and the suit came to be filed on the basis of that
cause of action given in paragraph 18 of the plaint in
the first suit and it was instituted on 21.12.1990.
Admittedly, that suit was dismissed. The appeal of the
plaintiff was also dismissed and then writ petition
which is filed, is still pending.
10. In this background, Advocate for the Appellant and
Sanglikar contended that if the first suit was barred
by limitation then whether the plaintiff was entitled
to file second suit and whether his right to recover
the possession is extinguished. As against this
submission, Mr. Anne contended that though the first
suit was filed after giving notice under Section 106 of
Transfer of Property Act, there was no legal bar
against the plaintiff in instituting the second suit by
another notice of termination. He contended e.g. if
the earlier notice of termination was not in conformity
with the requirements of Section 106 of the Suit on
that count fails. The landlord owner is not prevented
by any provision of law from giving second notice and
instituting the second suit. Therefore, according to
Mr. Anne there is no legal bar in institution of the
second suit.
::: Downloaded on - 31/03/2026 19:53:53 :::
:10:
11. As against this, so far as extinguishing of right
of the plaintiff in the property is concerned, counsel
for the appellant relied upon Section 27 of the
Limitation Act 1963, it reads as under :
" 27. Extinguishment of right to property.- 27. Extinguishment of right to property.- 27. Extinguishment of right to property.- At the
determination of the period hereby limited to any
person for instituting a suit for possession of any
property, his right to such property shall be
extinguished."
12. Advocate for the appellant therefore contended that
the notice of termination of tenancy for the first suit
was given in 1978 then after 12 years the suit was
filed and then that suit and the appeal came to be
dismissed. The plaintiff gave another notice on
19.9.2000 and therefore since the period of 12 years
for recovering possession has elapsed, right of the
plaintiff to recover property stood extinguished under
Section 27.
13. It is difficult to accept this contention, firstly,
it is pertinent to note that none of the defendants in
the second suit raised a plea of resjudicata. If the
facts in the first suit and the second suit were
identical and the cause of action was also identical,
as argued by the appellant, then the appellants -
::: Downloaded on - 31/03/2026 19:53:53 :::
:11:
defendants could have raised plea of resjudicata but
they have not raised that plea and obviously because
the cause of action for both the suits is different.
There is no bar under the provisions of Transfer of
Property Act which can prevent or prohibit the landlord
from filing successive suits on the basis of
termination of notice because if the earlier notice is
not legal and valid and has does not legally terminated
the tenancy as required by Section 106 of the Transfer
of Property Act, then the right of the landlord is not
lost for ever and he will give fresh notice and
terminate the tenancy and file a suit. Nothing
contrary to this was shown to me by any of the lawyers
for the original defendants excepting Section 27 of the
Limitation Act, 1963, as stated and reproduced above.
14. Even Section 27 cannot come in the way of the
plaintiff in instituting the second suit. It has to be
noted that Section 27 is included in Part IV and the
title of the Part IV is " Acquisition of Ownership by
possession". There are in all three sections in this
Part IV i.e. Sections 25, 26 and 27. I am reproducing
both the Sections i.e. Sections 25 and 26 as below:
"25. Acquisition of easement by prescription.- 25. Acquisition of easement by prescription.- 25. Acquisition of easement by prescription.- (1)
Where the access and use of light or air to and for
any building have been peaceably enjoyed therewith
as an easement, and as of right, without
::: Downloaded on - 31/03/2026 19:53:53 :::
:12:
interruption, and for twenty years, and where any
way or watercourse or the use of any water or any
other easement (whether affirmative or negative)
has been peaceably and openly enjoyed by any person
claiming title thereto as an easement and as of
right without interruption and for twenty years,
the right to such access and use of lighter air,
way, watercourse, use of water, or other easement
shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall
be taken to be a period ending within two years
next before the institution of the suit wherein the
claim to which such period relates is contested.
(3) Where the property over which a right is
claimed under sub-section (1) belongs to the
Government that sub-section shall be read as if for
the words "twenty years" the words "thirty years"
were substituted.
26. Exclusion in favour of reversioner of servient 26. Exclusion in favour of reversioner of servient 26. Exclusion in favour of reversioner of servient
tenement.- tenement.- tenement.- Where any land or water upon, over or
from, which any easement has been enjoyed or
derived has ben held under or by virtue of any
interest for life in terms of years exceeding three
years from the granting thereof the time of the
enjoyment of such easement during the continuance
::: Downloaded on - 31/03/2026 19:53:53 :::
:13:
of such interest or term shall be excluded in the
computation of the period of twenty years in case
the claim is, within three years next after the
determination of such interests or term resisted by
the person entitled on such determination to the
said land or water."
15. It has to be noted that first sentence in Section
27 refers to the following words:
"At the determination of the period hereby
limited...."
The words hereby refer to the two kinds of suits
referred in Sections 25 and 26 only and not to any
other suit which owner can file against the trespasser
or a tenant. If the legislature wanted that all the
rights of the owners of the property should stood
extinguished if the suits are not instituted within 12
years then such a provision would have been made
separately in the Act and the words " At the
determination of the period hereby limited" would not
have been used. Those words clearly show that they are
with reference to the rights enumerated in Sections 25
and 26. Therefore the objections raised by the
appellant to both the decrees of the lower court in
this regard, are required to be rejected. It has to be
held that the right of the plaintiff to institute the
second suit was nowhere and at any time extinguished
but under Section 27 of the Limitation Act.
::: Downloaded on - 31/03/2026 19:53:53 :::
:14:
16. So far as second issue is concerned, it is also a
part of issue No.1. When there is no bar or
prohibition against the landlord in instituting the
second suit, then merely because the first suit was
dismissed, the second suit cannot be said to be barred
by limitation. Cause of action for both the suits is
altogether different and not identical and even if
therefore purposes of the first suit and the second
suit are common and the reliefs claimed are identical
what makes a difference is the cause of action and the
cause of action in the second suit was fresh notice
given on 19.9.2000.
17. It was also contended by the appellants and
supported by Mr. Sanglikar that if by the first notice
relationship of landlord and tenant is terminated then
nothing remains to be prevented by the subsequent
notice and therefore the second notice is illegal. So
also the subsequent suit. In fact there is no issue
framed by the court while admitting the appeal in this
regard as a substantial question of law which were
framed after hearing the parties. However, since I
have heard arguments on this point, this objection can
be decided and disposed of.
18. As against this objection of the appellants, Mr.
Anne contended that as between the issuance of the
::: Downloaded on - 31/03/2026 19:53:53 :::
:15:
first notice and the second notice, Bombay Rent Act
came to be amended and substituted by Maharashtra Rent
Control Act, which gave fresh cause of action to the
plaintiff because he can institute a suit against HPCL
for eviction as the protection given to them was
withdrawn and taken away because their share capital
exceeded Rs.1 crore.
19. Mr. Sanglikar streneously and repeatedly urged
that there is no issue framed as to whether the
protection granted to HPCL under the Bombay Rent Act
stood withdrawn by the Amending Act, and, therefore
according to him, in the absence of any issue, court
could not have passed decree. He cited number of
decisions in this regard as to the right of the court
to frame issues. I do not think it necessary to go to
these questions because parties to the second suit and
all those parties to the first appeal and particularly
appellant HPCL never raised that question that
protection available to them under the Bombay Rent Act
stood withdrawn by virtue of the Maharasthra Rent
Control Act. The appellants HPCL cannot contend that
their share capital is less than Rs.1 crore. They have
not raised such a plea and therefore this objection and
submission cannot be entertained at all. It is
required to be rejected.
20. So far as substantial question No. (2) is
::: Downloaded on - 31/03/2026 19:53:53 :::
:16:
concerned, when the cause of action for filing second
suit is totally different then the court below were
perfectly justified in holding that the second suit was
not barred by limitation at all.
21. The third substantial question of law is as
under:
Whether the plaintiff could at the same time adopt
two remedies for possession of the premises i.e. a
writ petition challenging the orders passed in a
suit filed for possession which came to be
dismissed and during the pendency of the writ
petition he could file a second suit on the same
grounds the same cause of action?
. In this regard it was contended by Advocate for
HPCL and Mr. Sanglikar that the writ petition against
the order in appeal arising out of dismissal of the
first suit is still pending and therefore it was not
open to the plaintiff to terminate the tenancy again
and to file second suit. I have already held that
cause of action for the second suit is altogether and
totally different and there is no bar in landlord
instituting the second suit on fresh and different
cause of action. It was the choice of the landlord to
wait till the decision of the writ petition and then
::: Downloaded on - 31/03/2026 19:53:53 :::
:17:
institute the suit but he has opted to terminate the
tenancy again and filed second suit and there is no
legal bar in doing so nor any prohibition of law in
that regard against the landlord, therefore the third
question is to be answered in the negative.
22. Question Nos. 4 and 5 are as under:
Whether the provisions of Section 3(1)(b) of the
Maharashtra Rent Control Act is unconstitutional
and or ultra vires Articles 14 of the Constitution
of India?
The appellants submit that Civil Appeal No. 8017
of 1992 filed by Crompton Greaves Limited
challenging Section 3(1)(b) of the Maharashtra Rent
Control Act is pending before the Hon’ble Supreme
Court of India and has not been decided as of date?
. Neither the Advocate for the appellants nor Mr.
Sanglikar made any submissions referring question Nos.
4 and 5. Mr. Anne had also no occasion to give any
reply. Therefore, I hold that even those questions are
framed, they are not required to be answered because no
submissions whatsoever were made by Advocate for the
appellant, Mr. Sanglikar or by Mr. Anne. However,
Mr. Sanglikar repeatedly urged that Ideal Automobiles
was in actual physical possession of the property and
::: Downloaded on - 31/03/2026 19:53:53 :::
:18:
they are protected tenants by virtue of Section 15
(1)(A) of the Bombay Rent Act. All these arguments of
Mr. Sanglikar regarding right of his client M/s.
Ideal Automobiles, are required to be rejected for two
reasons. Firstly, as to what was actual relationship
was between M/s. Ideal Automoticles and HPCL was a
matter of agreement between them and Mr. Anne pointed
out that the plaintiff had given notice to Ideal
Automobiles to produce documents in that regard, but
not a single document came to be produced by M/s.
Ideal Automobiles showing the nature of relationship
between them and HPCL. Therefore, Mr. Anne, rightly
argued that adverse inference should be drawn against
Ideal Automobiles and merely because they were on the
property they cannot get any right.
23. Counsel for the plaintiff produced before me a
certified copy of Exhibit 40D which was application by
the plaintiff to the court to order the defendant No.2
to produce (1) the dealership agreement of 1971-72
(20.11.1972), (2) dealership agreement of 1974-75
between defendant No.1 and defendant No.2 in the suit,
or dealership agreement which governs the relationship
of the defendant Nos. 1 and 2 qua the suit land. The
plaintiff was required to give this notice inspite of
earlier notice to produce dated 5.4.2002, defendant
No.1 did not produce document or defendant No.1 also
did not produce these documents.
::: Downloaded on - 31/03/2026 19:53:53 :::
:19:
24. Non-production of documents by defendant Nos. 1
and 2 regarding the agreement between Defendant No.1
and 2 is a strong circumstance that goes against both
the defendants and particularly, against Defendant
No.2. Admittedly defendant No.1 was a lessee and when
it gave a petrol pump for running to defendant no.2, it
could not have conferred more rights to the defendant
No.2 then which the defendant No.1 enjoyed. Defendant
No.2 could not be in a position to claim anything
claimed against defendant No.1. In case defendant No.1
wanted to oust him, therefore, when vital documents are
not produced, it has to be inferred that, firstly, the
documents were adverse to the claim and contention
raised by defendant Nos. 1 and 2. Secondly, the
document could not have clothed defendant No.2 with any
legal right in the property much less the right of
deemed tenant.
25. Apart from this, another thing that was brought to
my notice was the say given by the defendant No.1 to
this notice to produce Exhibit "40D". In that case the
defendant No.1 has stated "..the Plaintiff in his suit
had categorically mentioned that defendant no.2 has not
independent right and he has been added as a party to
avoid objection / obstruction to the execution
proceedings". These submissions are not controverted
by this defendant. Mr. Anne therefore pointed out
::: Downloaded on - 31/03/2026 19:53:53 :::
:20:
that the allegation of the plaintiff that defendant
No.1 had no independent right were not controverted and
if none of the defendants produce the vital documents
then the claim and contention of the defendant No.2, in
particular, about his right in the property required to
be rejected. I do not see any reason to disagree with
this submission of Mr. Anne.
26. Further it was pointed out to me by Mr. Anne that
even though in the second appeal Ideal Automobiles is
supporting the appellant and is making hue and cry
about their right in the property, no oral evidence
whatsoever was adduced in the second suit by Ideal
Automobiles. Nobody on their behalf entered the
witness box and now only on the basis of defences
raised in the written statement they are trying to make
a mountain of a mole hill i.e. no evidence or document
to support their rights and contentions coming forth
before the court. Mr. Sanglikar could not give any
satisfactory reply as to why inspite of notice to
produce documents, those documents which were vital and
could have thrown light upon the nature of relationship
between Ideal Automobiles and HPCL, were not produced
before the court. Secondly, there is no satisfactory
explanation at all as to why nobody led any evidence on
behalf of Ideal Automobiles regarding their rights
vis-a-vis HPCL vis-a-vis the Plaintiff. Therefore,
when Ideal Automobiles had an opportunity to
::: Downloaded on - 31/03/2026 19:53:53 :::
:21:
substantiate their different contentions by producing
documents and adducing evidence and when they have
chosen not to produce the vital and important documents
before the court and not to lead evidence then all the
oral submissions raised, now are required to be
rejected.
27. A perusal of the judgment of the trial court in the
second suit No. 120 of 1990 shows that the plaintiffs
examined Plaintiff No.1 whereas defendants did not
examine any of the defendants or any witness in their
behalf to prove their defence. In fact the trial court
had framed as many as 21 issues on the basis of the
pleadings of the parties. Though the burden of proving
all those issues were on the plaintiff, Issue Nos. 6,
7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 were all
pertaining to Defendant No.2 M/s. Ideal Automobiles.
Apart from this, Ideal Automobiles are now raising
contention that they are protected tenants. But the
basic question is as to what was their right vis-a-vis
the plaintiff and what was the nature of agreement
executed between them and the appellant HPCL. Those
documents, it has to be said has been suppressed from
the court deliberately and intentionally because they
could have frustrated all the defences raised by M/s.
Ideal Automobiles.
28. This being an appeal any submissions can be made by
::: Downloaded on - 31/03/2026 19:53:53 :::
:22:
anybody with reference to his right but acceptance of
those submissions, particularly, submissions claiming
legal rights, rights arising out of certain facts
require evidence and since there is absolutely no
evidence, all the contentions of Mr. Sanglikar are
required to be rejected.
29. Regarding maintainability of the second suit, my
attention was drawn by Mr. Anne to an unreported
judgment of Justice Karnik in Criminal Revision Justice Karnik in Criminal Revision Justice Karnik in Criminal Revision
Application No. 58 of 2004 Godrej & Boyce Mfg. Co. Application No. 58 of 2004 Godrej & Boyce Mfg. Co. Application No. 58 of 2004 Godrej & Boyce Mfg. Co.
Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004. Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004. Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004.
The question involved in that case was whether during
the pendency of a suit filed by the landlord for
eviction of tenant under the provisions of The Bombay
Rents Hotel and Lodging House Rates Control Act, 1947
i.e. Bombay Rent Act, the landlord can file a second
suit for eviction under the general law i.e. under the
Transfer of Property Act against the tenant who is
ceased to have protection of The Maharashtra Rent
Control Act, 1999, Justice Karnik held that cause of
action for both the said suits was different and
therefore there was no bar in filing the second suit.
It was tried to be urged by the Advocate for the
appellants and Mr. Sanglikar that this judgment of
Justice Karnik was firstly in Revision and second it
had taken into consideration judgment of Justice
Chandrachud dated 18.1.2002 in Dilip Prabhakar
::: Downloaded on - 31/03/2026 19:53:53 :::
:23:
Dingorkar vs. Hindustan Petroleum Corporation ltd.
(C.R.A. No. 1191 of 2001) and it was against the
order of stay. Therefore, judgment of Justice
Chandrachud was on an interlocutory stage and those
findings are not binding. I do not find any merit in
this contention. Both Justice Chandrachud and Justice
Karnik has taken the same view that second suit on
separate and different cause of action is maintainable
and that same view has to be followed. I also hold
that the second suit is on the different cause of
action.
30. It is pertinent to note that though both Mr.
Siodia and Mr. Sanglikar repeatedly urged that after
service of the first notice by the landlord,
relationship of landlord and tenant came to an end,
nowhere defendant No. 1 or defendant No.2 has claimed
adverse possession and not at all claiming title on the
basis of the adverse possession. Therefore, there is
no denial of title by any of these persons. I am
pointing out only as a circumstance borne out by the
record.
31. Mr. Siodia contended that any action for
ejectment, the plaintiff can recover possession only on
the strength of his title and not by weakness of the
case of the defendant. This contention is made on the
basis of AIR (29)1942 Privy Council 64 Lala Hem Chand AIR (29)1942 Privy Council 64 Lala Hem Chand AIR (29)1942 Privy Council 64 Lala Hem Chand
::: Downloaded on - 31/03/2026 19:53:53 :::
:24:
vs. Lala Pearsy Lal and others. In that case the
vs. Lala Pearsy Lal and others. vs. Lala Pearsy Lal and others.
trustee had claimed adverse possession and then the
owner had brought his suit and further in the instant
case the plaintiff has succeeded on the strength of his
own case. Both the courts have held in his favour.
Therefore no question of taking advantage of the
weakness of the defendant’s case.
32. For all the reasons, the appeal is required to
be dismissed. In the result, I pass the following
order:
ORDER ORDER ORDER
. Second Appeal No. 1281 of 2004 is dismissed with
costs as not maintainable.
. Second Appeal No. 615 of 2004 is dismissed with
costs proportionately.
. After this order was pronounced, counsels for the
appellant in both the appeals, prayed for staying the
operation of this order or for continuation of the stay
earlier granted for a period of three months because
the Supreme Court is going to open on 17.7.2005.
. Looking to the facts and circumstances, the
operation of the order is stayed upto 25.7.2005 on
::: Downloaded on - 31/03/2026 19:53:53 :::
:25:
condition that both the appellants either jointly or
individually pay to the respective owners Rs.5,000/-
per month towards compensation from the date of filing
of the Appeal i.e. Appeal No. 615 of 2004 till
25.7.2005. All the arrears shall be paid within one
month from today, otherwise the stay will stand vacated
automatically.
6.5.2005 (D.G. DESHPANDE,J.)
::: Downloaded on - 31/03/2026 19:53:53 :::
:26:
::: Downloaded on - 31/03/2026 19:53:53 :::
:27:
::: Downloaded on - 31/03/2026 19:53:53 :::
:28:
l
::: Downloaded on - 31/03/2026 19:53:53 :::
:29:
::: Downloaded on - 31/03/2026 19:53:53 :::
:30:
::: Downloaded on - 31/03/2026 19:53:53 :::
:31:
::: Downloaded on - 31/03/2026 19:53:53 :::
:32:
::: Downloaded on - 31/03/2026 19:53:53 :::
:33:
::: Downloaded on - 31/03/2026 19:53:53 :::
:34:
::: Downloaded on - 31/03/2026 19:53:53 :::
:35:
::: Downloaded on - 31/03/2026 19:53:53 :::
:36:
::: Downloaded on - 31/03/2026 19:53:53 :::
:37:
::: Downloaded on - 31/03/2026 19:53:53 :::
:38:
::: Downloaded on - 31/03/2026 19:53:53 :::
:39:
::: Downloaded on - 31/03/2026 19:53:53 :::
:40:
::: Downloaded on - 31/03/2026 19:53:53 :::
:41:
::: Downloaded on - 31/03/2026 19:53:53 :::
:42:
::: Downloaded on - 31/03/2026 19:53:53 :::
:43:
::: Downloaded on - 31/03/2026 19:53:53 :::
:44:
::: Downloaded on - 31/03/2026 19:53:53 :::
:45:
::: Downloaded on - 31/03/2026 19:53:53 :::
:46:
::: Downloaded on - 31/03/2026 19:53:53 :::
:47:
::: Downloaded on - 31/03/2026 19:53:53 :::
:48:
::: Downloaded on - 31/03/2026 19:53:53 :::
2005:BHC-AS:9088
#
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 615 OF 2004 SECOND APPEAL NO. 615 OF 2004
SECOND APPEAL NO. 615 OF 2004
M/s. Hindustan Petroleum ]
Corporation Limited ]
a body corporate constituted ]
under the Companies Act,1956 ]
having its registered office ]
at 17, Jamshedji Tata Road, ] ..Appellants
Mumbai 400 020 ](Ori. Deft. no.1)
versus
1. Dilip Prabhakar Dingorkar ]
age 45 years, Occ : Business ]
Residing at 907, Matruchhaya ]
Sadan Tapal Naka, M.G. Road, ]
Panvel, Taluka Panvel ]
District Raigad ]
2. M/s. Ideal Automobiles ]
a partnership firm having its ]
principal office of business ]
and office at Opp: Bombay ]..Respondents
Mercantile Bank, Post Panvel ](No.1 Ori.Plff.
Tal: Panvel, District Raigad ] No.2 Ori.Deft.2)
::: Downloaded on - 31/03/2026 19:53:52 :::
:2:
AND
AND AND
SECOND APPEAL NO. 1281 OF 2004 SECOND APPEAL NO. 1281 OF 2004 SECOND APPEAL NO. 1281 OF 2004
M/s. Ideal Automobiles ]
a partnership firm, having its]
principal place of business ]
and office at Opp:Bombay ]
Mercantile Bank, Post Panvel, ]
Taluka Panvel, District Raigad]
through its partner ]..Appellant
Shri Prakash Harkisandas ] (Ori. Deft.
Gehani ] No.2)
versus
1. Dilip Prabhakar Dingorkar ]
age 45 years, Occ : Business ]
Residing at 907, Matruchhaya ]
Sadan, Tapal Naka, M.G. Road, ]
Post & Taluka Panvel ]
District Raigad ]
2. M/s. Hindustan Petroleum ]
Corporation Limited, a Body ]
Corporate, constituted under ]
the Companies Act, 1956, ]
having its registered office ]..Respondents
at 17, Jamshedji Tata Road, ](No.1 Ori.Plff.
Mumbai 400 020 ]No.2 Ori.Deft.1)
::: Downloaded on - 31/03/2026 19:53:52 :::
:3:
Mr. M. D. Siodia and Ms. D. S. Retiwala i/b.
Rustomji & Ginwalla Co. for the Appellants in First
Appeal No. 615 of 2004 and for Respondent No.2 in
Second Appeal No. 1281 of 2004.
Mr. Shrihari Anne (Senior Advocate) with R. S.
Datar for the Respondent No.1 in both the Appeals.
Mr. V. Y. Sanglikar i/b. D. R. Singh for the
Appellant in Second Appeal No. 1281 of 2004 and
for Respondent No.2 in Appeal No. 615 of 2004.
CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J.
DATE : 6TH MAY, 2005. DATE : 6TH MAY, 2005. DATE : 6TH MAY, 2005.
ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT :
1. Heard Mr. Sanglikar for the Appellants in Second
Appeal No. 1281 of 2004 and for Respondent No.2 in
Second Appeal No. 615 of 2004. Mr. Anne for the
Respondent No.1 - Owner in both the Appeals. Mr.
Siodia for the Appellants in First Appeal No. 615 of
2004 and for Respondent No.2 in Second Appeal No. 1281
of 2004.
2. I will be referring to the parties by their original
nomenclature in the suit as plaintiff and defendants.
Following substantial questions of law were formulated
by Justice Kakade on 28.4.2004 :
::: Downloaded on - 31/03/2026 19:53:52 :::
:4:
(1) Was it right and proper for the Courts below to
consider the material fact that the earlier suit
being R.C.S. No. 120 of 1990 was barred by
limitation and therefore, under Section 27 of the
Limitation Act, the respondent - plaintiff’s right
to institute a suit for possession of the property
had extinguished?
(2) Was it right and proper for the Courts below to
hold that the present suit is not barred by
limitation when the reliefs in earlier suit i.e.
R.C.S. No. 120 of 1990 and the present suit i.e.
R.C.S. No. 181 of 2000 are same and cause of
action is same and reliefs claimed with respect to
the suit property are same and when the earlier
suit i.e. R.C.S. No. 120 of 1990 stands
dismissed as being barred by the law of limitation.
(3) Whether the plaintiff could at the same time
adopt two remedies for possession of the premises
i.e. a writ petition challenging the orders passed
in a suit filed for possession which came to be
dismissed and during the pendency of the writ
petition he could file a second suit on the same
grounds the same cause of action?
(4) Whether the provisions of Section 3(1)(b) of
::: Downloaded on - 31/03/2026 19:53:52 :::
:5:
the Maharashtra Rent Control Act is
unconstitutional and or ultra vires Articles 14 of
the Constitution of India?
(5) The appellants submit that Civil Appeal No.
8017 of 1992 filed by Crompton Greaves Limited
challenging Section 3(1)(b) of the Maharashtra Rent
Control Act is pending before the Hon’ble Supreme
Court of India and has not been decided as of date?
3. So far as Second Appeal No. 1281 of 2004 is
concerned, it was not even admitted and Mr. Anne for
the landlord - plaintiff raised a preliminary objection
to the maintainability of the Second Appeal. He
contended that from the original decree that was passed
by the trial court M/s. Ideal Automobiles did not
prefer First Appeal and did not challenge that order
and therefore now they cannot be permitted to file
Second Appeal. According to him therefore the Second
Appeal is not maintainable. Mr. Sanglikar for M/s.
Ideal Automobiles could not show any provision of law
under which he could file Second Appeal when he not
filed First Appeal at all. Therefore, objection of Mr.
Anne is required to be upheld and this Second Appeal
No. 1281 of 2004 is required to be dismissed before
admission and accordingly it is dismissed. It is quite
difficult that M/s. Ideal Automobiles can be heard as
respondent in the Appeal No. 615 of 2004 supporting
::: Downloaded on - 31/03/2026 19:53:52 :::
:6:
the claimants contention of the appellant in that
appeal.
4. The original plaintiff is the owner of the suit
property i.e. his grand father was the original owner
and Final Plot No. 211, Sub Plot No.7, Panvel, was let
out on monthly rent of Rs.100/- for a period of 10
years. The lessee at that time M/s. Standard Vacuum
Oil Company in course of time Hindustan Petroleum
Corporation Limited (HPCL) came to be recognised as
lessee and there is no dispute about that between the
parties.
5. In 1990 owners of the property i.e. Respondent
No.1 Dilip Dingorkar and his grand father filed a Civil
Suit No. 120 of 1990 for possession of the suit
property after terminating the tenancy of the
defendants in that suit i.e. present appellant.
(present appellants means HPCL because appeal No. 615
of 2004 only is being taken for hearing and other
appeal i.e Second Appeal No. 1281 of 2004 being
dismissed as not maintainable. The said suit for
possession came to be dismissed by the Civil Judge,
J.D. Panvel, on 10.11.1995.
6. The owners filed Civil Appeal. It was Civil Appeal
No. 280 of 1995. It was dismissed on 9.11.11998 by
Additional District Judge, Raigad, Alibag. Then the
::: Downloaded on - 31/03/2026 19:53:52 :::
:7:
owners filed Writ Petition No. 604 of 1999, which is
still pending in this court.
7. Thereafter Respondent No.1 - Plaintiff again served
the defendants with notice of termination dated
19.9.2000 calling upon them to vacate the property and
deliver possession thereof. This notice was replied to
by the present appellant on 23.10.2000 and then Regular
Civil Suit No. 181 of 2000 came to be filed before
Civil Judge, Senior Division, Panvel, for possession
and mesne profits. That suit was opposed by the
present appellant and also original defendant No. 2
Ideal Automobiles but that suit was decreed by the
court on 13.12.2002. The appellant preferred an appeal
before the District Court, Raigad, vide Civil Appeal
No. 6 of 2003 but by judgment and decree dated
4.2.2004 that appeal came to be dismissed, hence this
Second appeal.
8. At the time of admission, as stated above, the
aforesaid questions of law were framed and formulated
by the court. I extensively heard Mr. Sanglikar, Mr.
Anne and Mr. Siodia for HPCL. I will deal with their
respective submissions while considering each of the
above questions of law.
9. The first and second substantial questions of law
are as under:
::: Downloaded on - 31/03/2026 19:53:52 :::
:8:
(1) Was it right and proper for the Courts below to
consider the material fact that the earlier suit
being R.C.S. No. 120 of 1990 was barred by
limitation and therefore, under Section 27 of the
Limitation Act, the respondent - plaintiff’s right
to institute a suit for possession of the property
had extinguished?
(2) Was it right and proper for the Courts below to
hold that the present suit is not barred by
limitation when the reliefs in earlier suit i.e.
R.C.S. No. 120 of 1990 and the present suit i.e.
R.C.S. No. 181 of 2000 are same and cause of
action is same and reliefs claimed with respect to
the suit property are same and when the earlier
suit i.e. R.C.S. No. 120 of 1990 stands
dismissed as being barred by the law of limitation?
. In this regard it was mainly contended by Advocate
for HPCL and Mr. Sanglikar supporting HPCL that when
first suit was barred by limitation whether the
plaintiff had a right to institute a fresh suit for
possession or whether that right is extinguished. It
was argued by counsel for the appellants. A perusal of
plaint in earlier first suit No. 120 of 1990,
hereinafter referred to as "the first suit" will show
that it was based on notice of termination dated
5.4.1978 given by the plaintiff and calling upon the
::: Downloaded on - 31/03/2026 19:53:53 :::
:9:
defendant to vacate the suit premises at the end of
31.7.1978 and handing over possession after restoration
of the land to its original condition. This notice was
given by the plaintiff under the Transfer of Property
Act and the suit came to be filed on the basis of that
cause of action given in paragraph 18 of the plaint in
the first suit and it was instituted on 21.12.1990.
Admittedly, that suit was dismissed. The appeal of the
plaintiff was also dismissed and then writ petition
which is filed, is still pending.
10. In this background, Advocate for the Appellant and
Sanglikar contended that if the first suit was barred
by limitation then whether the plaintiff was entitled
to file second suit and whether his right to recover
the possession is extinguished. As against this
submission, Mr. Anne contended that though the first
suit was filed after giving notice under Section 106 of
Transfer of Property Act, there was no legal bar
against the plaintiff in instituting the second suit by
another notice of termination. He contended e.g. if
the earlier notice of termination was not in conformity
with the requirements of Section 106 of the Suit on
that count fails. The landlord owner is not prevented
by any provision of law from giving second notice and
instituting the second suit. Therefore, according to
Mr. Anne there is no legal bar in institution of the
second suit.
::: Downloaded on - 31/03/2026 19:53:53 :::
:10:
11. As against this, so far as extinguishing of right
of the plaintiff in the property is concerned, counsel
for the appellant relied upon Section 27 of the
Limitation Act 1963, it reads as under :
" 27. Extinguishment of right to property.- 27. Extinguishment of right to property.- 27. Extinguishment of right to property.- At the
determination of the period hereby limited to any
person for instituting a suit for possession of any
property, his right to such property shall be
extinguished."
12. Advocate for the appellant therefore contended that
the notice of termination of tenancy for the first suit
was given in 1978 then after 12 years the suit was
filed and then that suit and the appeal came to be
dismissed. The plaintiff gave another notice on
19.9.2000 and therefore since the period of 12 years
for recovering possession has elapsed, right of the
plaintiff to recover property stood extinguished under
Section 27.
13. It is difficult to accept this contention, firstly,
it is pertinent to note that none of the defendants in
the second suit raised a plea of resjudicata. If the
facts in the first suit and the second suit were
identical and the cause of action was also identical,
as argued by the appellant, then the appellants -
::: Downloaded on - 31/03/2026 19:53:53 :::
:11:
defendants could have raised plea of resjudicata but
they have not raised that plea and obviously because
the cause of action for both the suits is different.
There is no bar under the provisions of Transfer of
Property Act which can prevent or prohibit the landlord
from filing successive suits on the basis of
termination of notice because if the earlier notice is
not legal and valid and has does not legally terminated
the tenancy as required by Section 106 of the Transfer
of Property Act, then the right of the landlord is not
lost for ever and he will give fresh notice and
terminate the tenancy and file a suit. Nothing
contrary to this was shown to me by any of the lawyers
for the original defendants excepting Section 27 of the
Limitation Act, 1963, as stated and reproduced above.
14. Even Section 27 cannot come in the way of the
plaintiff in instituting the second suit. It has to be
noted that Section 27 is included in Part IV and the
title of the Part IV is " Acquisition of Ownership by
possession". There are in all three sections in this
Part IV i.e. Sections 25, 26 and 27. I am reproducing
both the Sections i.e. Sections 25 and 26 as below:
"25. Acquisition of easement by prescription.- 25. Acquisition of easement by prescription.- 25. Acquisition of easement by prescription.- (1)
Where the access and use of light or air to and for
any building have been peaceably enjoyed therewith
as an easement, and as of right, without
::: Downloaded on - 31/03/2026 19:53:53 :::
:12:
interruption, and for twenty years, and where any
way or watercourse or the use of any water or any
other easement (whether affirmative or negative)
has been peaceably and openly enjoyed by any person
claiming title thereto as an easement and as of
right without interruption and for twenty years,
the right to such access and use of lighter air,
way, watercourse, use of water, or other easement
shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall
be taken to be a period ending within two years
next before the institution of the suit wherein the
claim to which such period relates is contested.
(3) Where the property over which a right is
claimed under sub-section (1) belongs to the
Government that sub-section shall be read as if for
the words "twenty years" the words "thirty years"
were substituted.
26. Exclusion in favour of reversioner of servient 26. Exclusion in favour of reversioner of servient 26. Exclusion in favour of reversioner of servient
tenement.- tenement.- tenement.- Where any land or water upon, over or
from, which any easement has been enjoyed or
derived has ben held under or by virtue of any
interest for life in terms of years exceeding three
years from the granting thereof the time of the
enjoyment of such easement during the continuance
::: Downloaded on - 31/03/2026 19:53:53 :::
:13:
of such interest or term shall be excluded in the
computation of the period of twenty years in case
the claim is, within three years next after the
determination of such interests or term resisted by
the person entitled on such determination to the
said land or water."
15. It has to be noted that first sentence in Section
27 refers to the following words:
"At the determination of the period hereby
limited...."
The words hereby refer to the two kinds of suits
referred in Sections 25 and 26 only and not to any
other suit which owner can file against the trespasser
or a tenant. If the legislature wanted that all the
rights of the owners of the property should stood
extinguished if the suits are not instituted within 12
years then such a provision would have been made
separately in the Act and the words " At the
determination of the period hereby limited" would not
have been used. Those words clearly show that they are
with reference to the rights enumerated in Sections 25
and 26. Therefore the objections raised by the
appellant to both the decrees of the lower court in
this regard, are required to be rejected. It has to be
held that the right of the plaintiff to institute the
second suit was nowhere and at any time extinguished
but under Section 27 of the Limitation Act.
::: Downloaded on - 31/03/2026 19:53:53 :::
:14:
16. So far as second issue is concerned, it is also a
part of issue No.1. When there is no bar or
prohibition against the landlord in instituting the
second suit, then merely because the first suit was
dismissed, the second suit cannot be said to be barred
by limitation. Cause of action for both the suits is
altogether different and not identical and even if
therefore purposes of the first suit and the second
suit are common and the reliefs claimed are identical
what makes a difference is the cause of action and the
cause of action in the second suit was fresh notice
given on 19.9.2000.
17. It was also contended by the appellants and
supported by Mr. Sanglikar that if by the first notice
relationship of landlord and tenant is terminated then
nothing remains to be prevented by the subsequent
notice and therefore the second notice is illegal. So
also the subsequent suit. In fact there is no issue
framed by the court while admitting the appeal in this
regard as a substantial question of law which were
framed after hearing the parties. However, since I
have heard arguments on this point, this objection can
be decided and disposed of.
18. As against this objection of the appellants, Mr.
Anne contended that as between the issuance of the
::: Downloaded on - 31/03/2026 19:53:53 :::
:15:
first notice and the second notice, Bombay Rent Act
came to be amended and substituted by Maharashtra Rent
Control Act, which gave fresh cause of action to the
plaintiff because he can institute a suit against HPCL
for eviction as the protection given to them was
withdrawn and taken away because their share capital
exceeded Rs.1 crore.
19. Mr. Sanglikar streneously and repeatedly urged
that there is no issue framed as to whether the
protection granted to HPCL under the Bombay Rent Act
stood withdrawn by the Amending Act, and, therefore
according to him, in the absence of any issue, court
could not have passed decree. He cited number of
decisions in this regard as to the right of the court
to frame issues. I do not think it necessary to go to
these questions because parties to the second suit and
all those parties to the first appeal and particularly
appellant HPCL never raised that question that
protection available to them under the Bombay Rent Act
stood withdrawn by virtue of the Maharasthra Rent
Control Act. The appellants HPCL cannot contend that
their share capital is less than Rs.1 crore. They have
not raised such a plea and therefore this objection and
submission cannot be entertained at all. It is
required to be rejected.
20. So far as substantial question No. (2) is
::: Downloaded on - 31/03/2026 19:53:53 :::
:16:
concerned, when the cause of action for filing second
suit is totally different then the court below were
perfectly justified in holding that the second suit was
not barred by limitation at all.
21. The third substantial question of law is as
under:
Whether the plaintiff could at the same time adopt
two remedies for possession of the premises i.e. a
writ petition challenging the orders passed in a
suit filed for possession which came to be
dismissed and during the pendency of the writ
petition he could file a second suit on the same
grounds the same cause of action?
. In this regard it was contended by Advocate for
HPCL and Mr. Sanglikar that the writ petition against
the order in appeal arising out of dismissal of the
first suit is still pending and therefore it was not
open to the plaintiff to terminate the tenancy again
and to file second suit. I have already held that
cause of action for the second suit is altogether and
totally different and there is no bar in landlord
instituting the second suit on fresh and different
cause of action. It was the choice of the landlord to
wait till the decision of the writ petition and then
::: Downloaded on - 31/03/2026 19:53:53 :::
:17:
institute the suit but he has opted to terminate the
tenancy again and filed second suit and there is no
legal bar in doing so nor any prohibition of law in
that regard against the landlord, therefore the third
question is to be answered in the negative.
22. Question Nos. 4 and 5 are as under:
Whether the provisions of Section 3(1)(b) of the
Maharashtra Rent Control Act is unconstitutional
and or ultra vires Articles 14 of the Constitution
of India?
The appellants submit that Civil Appeal No. 8017
of 1992 filed by Crompton Greaves Limited
challenging Section 3(1)(b) of the Maharashtra Rent
Control Act is pending before the Hon’ble Supreme
Court of India and has not been decided as of date?
. Neither the Advocate for the appellants nor Mr.
Sanglikar made any submissions referring question Nos.
4 and 5. Mr. Anne had also no occasion to give any
reply. Therefore, I hold that even those questions are
framed, they are not required to be answered because no
submissions whatsoever were made by Advocate for the
appellant, Mr. Sanglikar or by Mr. Anne. However,
Mr. Sanglikar repeatedly urged that Ideal Automobiles
was in actual physical possession of the property and
::: Downloaded on - 31/03/2026 19:53:53 :::
:18:
they are protected tenants by virtue of Section 15
(1)(A) of the Bombay Rent Act. All these arguments of
Mr. Sanglikar regarding right of his client M/s.
Ideal Automobiles, are required to be rejected for two
reasons. Firstly, as to what was actual relationship
was between M/s. Ideal Automoticles and HPCL was a
matter of agreement between them and Mr. Anne pointed
out that the plaintiff had given notice to Ideal
Automobiles to produce documents in that regard, but
not a single document came to be produced by M/s.
Ideal Automobiles showing the nature of relationship
between them and HPCL. Therefore, Mr. Anne, rightly
argued that adverse inference should be drawn against
Ideal Automobiles and merely because they were on the
property they cannot get any right.
23. Counsel for the plaintiff produced before me a
certified copy of Exhibit 40D which was application by
the plaintiff to the court to order the defendant No.2
to produce (1) the dealership agreement of 1971-72
(20.11.1972), (2) dealership agreement of 1974-75
between defendant No.1 and defendant No.2 in the suit,
or dealership agreement which governs the relationship
of the defendant Nos. 1 and 2 qua the suit land. The
plaintiff was required to give this notice inspite of
earlier notice to produce dated 5.4.2002, defendant
No.1 did not produce document or defendant No.1 also
did not produce these documents.
::: Downloaded on - 31/03/2026 19:53:53 :::
:19:
24. Non-production of documents by defendant Nos. 1
and 2 regarding the agreement between Defendant No.1
and 2 is a strong circumstance that goes against both
the defendants and particularly, against Defendant
No.2. Admittedly defendant No.1 was a lessee and when
it gave a petrol pump for running to defendant no.2, it
could not have conferred more rights to the defendant
No.2 then which the defendant No.1 enjoyed. Defendant
No.2 could not be in a position to claim anything
claimed against defendant No.1. In case defendant No.1
wanted to oust him, therefore, when vital documents are
not produced, it has to be inferred that, firstly, the
documents were adverse to the claim and contention
raised by defendant Nos. 1 and 2. Secondly, the
document could not have clothed defendant No.2 with any
legal right in the property much less the right of
deemed tenant.
25. Apart from this, another thing that was brought to
my notice was the say given by the defendant No.1 to
this notice to produce Exhibit "40D". In that case the
defendant No.1 has stated "..the Plaintiff in his suit
had categorically mentioned that defendant no.2 has not
independent right and he has been added as a party to
avoid objection / obstruction to the execution
proceedings". These submissions are not controverted
by this defendant. Mr. Anne therefore pointed out
::: Downloaded on - 31/03/2026 19:53:53 :::
:20:
that the allegation of the plaintiff that defendant
No.1 had no independent right were not controverted and
if none of the defendants produce the vital documents
then the claim and contention of the defendant No.2, in
particular, about his right in the property required to
be rejected. I do not see any reason to disagree with
this submission of Mr. Anne.
26. Further it was pointed out to me by Mr. Anne that
even though in the second appeal Ideal Automobiles is
supporting the appellant and is making hue and cry
about their right in the property, no oral evidence
whatsoever was adduced in the second suit by Ideal
Automobiles. Nobody on their behalf entered the
witness box and now only on the basis of defences
raised in the written statement they are trying to make
a mountain of a mole hill i.e. no evidence or document
to support their rights and contentions coming forth
before the court. Mr. Sanglikar could not give any
satisfactory reply as to why inspite of notice to
produce documents, those documents which were vital and
could have thrown light upon the nature of relationship
between Ideal Automobiles and HPCL, were not produced
before the court. Secondly, there is no satisfactory
explanation at all as to why nobody led any evidence on
behalf of Ideal Automobiles regarding their rights
vis-a-vis HPCL vis-a-vis the Plaintiff. Therefore,
when Ideal Automobiles had an opportunity to
::: Downloaded on - 31/03/2026 19:53:53 :::
:21:
substantiate their different contentions by producing
documents and adducing evidence and when they have
chosen not to produce the vital and important documents
before the court and not to lead evidence then all the
oral submissions raised, now are required to be
rejected.
27. A perusal of the judgment of the trial court in the
second suit No. 120 of 1990 shows that the plaintiffs
examined Plaintiff No.1 whereas defendants did not
examine any of the defendants or any witness in their
behalf to prove their defence. In fact the trial court
had framed as many as 21 issues on the basis of the
pleadings of the parties. Though the burden of proving
all those issues were on the plaintiff, Issue Nos. 6,
7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 were all
pertaining to Defendant No.2 M/s. Ideal Automobiles.
Apart from this, Ideal Automobiles are now raising
contention that they are protected tenants. But the
basic question is as to what was their right vis-a-vis
the plaintiff and what was the nature of agreement
executed between them and the appellant HPCL. Those
documents, it has to be said has been suppressed from
the court deliberately and intentionally because they
could have frustrated all the defences raised by M/s.
Ideal Automobiles.
28. This being an appeal any submissions can be made by
::: Downloaded on - 31/03/2026 19:53:53 :::
:22:
anybody with reference to his right but acceptance of
those submissions, particularly, submissions claiming
legal rights, rights arising out of certain facts
require evidence and since there is absolutely no
evidence, all the contentions of Mr. Sanglikar are
required to be rejected.
29. Regarding maintainability of the second suit, my
attention was drawn by Mr. Anne to an unreported
judgment of Justice Karnik in Criminal Revision Justice Karnik in Criminal Revision Justice Karnik in Criminal Revision
Application No. 58 of 2004 Godrej & Boyce Mfg. Co. Application No. 58 of 2004 Godrej & Boyce Mfg. Co. Application No. 58 of 2004 Godrej & Boyce Mfg. Co.
Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004. Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004. Ltd. vs. Sridhar Jagannath Neurkar dated 6.7.2004.
The question involved in that case was whether during
the pendency of a suit filed by the landlord for
eviction of tenant under the provisions of The Bombay
Rents Hotel and Lodging House Rates Control Act, 1947
i.e. Bombay Rent Act, the landlord can file a second
suit for eviction under the general law i.e. under the
Transfer of Property Act against the tenant who is
ceased to have protection of The Maharashtra Rent
Control Act, 1999, Justice Karnik held that cause of
action for both the said suits was different and
therefore there was no bar in filing the second suit.
It was tried to be urged by the Advocate for the
appellants and Mr. Sanglikar that this judgment of
Justice Karnik was firstly in Revision and second it
had taken into consideration judgment of Justice
Chandrachud dated 18.1.2002 in Dilip Prabhakar
::: Downloaded on - 31/03/2026 19:53:53 :::
:23:
Dingorkar vs. Hindustan Petroleum Corporation ltd.
(C.R.A. No. 1191 of 2001) and it was against the
order of stay. Therefore, judgment of Justice
Chandrachud was on an interlocutory stage and those
findings are not binding. I do not find any merit in
this contention. Both Justice Chandrachud and Justice
Karnik has taken the same view that second suit on
separate and different cause of action is maintainable
and that same view has to be followed. I also hold
that the second suit is on the different cause of
action.
30. It is pertinent to note that though both Mr.
Siodia and Mr. Sanglikar repeatedly urged that after
service of the first notice by the landlord,
relationship of landlord and tenant came to an end,
nowhere defendant No. 1 or defendant No.2 has claimed
adverse possession and not at all claiming title on the
basis of the adverse possession. Therefore, there is
no denial of title by any of these persons. I am
pointing out only as a circumstance borne out by the
record.
31. Mr. Siodia contended that any action for
ejectment, the plaintiff can recover possession only on
the strength of his title and not by weakness of the
case of the defendant. This contention is made on the
basis of AIR (29)1942 Privy Council 64 Lala Hem Chand AIR (29)1942 Privy Council 64 Lala Hem Chand AIR (29)1942 Privy Council 64 Lala Hem Chand
::: Downloaded on - 31/03/2026 19:53:53 :::
:24:
vs. Lala Pearsy Lal and others. In that case the
vs. Lala Pearsy Lal and others. vs. Lala Pearsy Lal and others.
trustee had claimed adverse possession and then the
owner had brought his suit and further in the instant
case the plaintiff has succeeded on the strength of his
own case. Both the courts have held in his favour.
Therefore no question of taking advantage of the
weakness of the defendant’s case.
32. For all the reasons, the appeal is required to
be dismissed. In the result, I pass the following
order:
ORDER ORDER ORDER
. Second Appeal No. 1281 of 2004 is dismissed with
costs as not maintainable.
. Second Appeal No. 615 of 2004 is dismissed with
costs proportionately.
. After this order was pronounced, counsels for the
appellant in both the appeals, prayed for staying the
operation of this order or for continuation of the stay
earlier granted for a period of three months because
the Supreme Court is going to open on 17.7.2005.
. Looking to the facts and circumstances, the
operation of the order is stayed upto 25.7.2005 on
::: Downloaded on - 31/03/2026 19:53:53 :::
:25:
condition that both the appellants either jointly or
individually pay to the respective owners Rs.5,000/-
per month towards compensation from the date of filing
of the Appeal i.e. Appeal No. 615 of 2004 till
25.7.2005. All the arrears shall be paid within one
month from today, otherwise the stay will stand vacated
automatically.
6.5.2005 (D.G. DESHPANDE,J.)
::: Downloaded on - 31/03/2026 19:53:53 :::
:26:
::: Downloaded on - 31/03/2026 19:53:53 :::
:27:
::: Downloaded on - 31/03/2026 19:53:53 :::
:28:
l
::: Downloaded on - 31/03/2026 19:53:53 :::
:29:
::: Downloaded on - 31/03/2026 19:53:53 :::
:30:
::: Downloaded on - 31/03/2026 19:53:53 :::
:31:
::: Downloaded on - 31/03/2026 19:53:53 :::
:32:
::: Downloaded on - 31/03/2026 19:53:53 :::
:33:
::: Downloaded on - 31/03/2026 19:53:53 :::
:34:
::: Downloaded on - 31/03/2026 19:53:53 :::
:35:
::: Downloaded on - 31/03/2026 19:53:53 :::
:36:
::: Downloaded on - 31/03/2026 19:53:53 :::
:37:
::: Downloaded on - 31/03/2026 19:53:53 :::
:38:
::: Downloaded on - 31/03/2026 19:53:53 :::
:39:
::: Downloaded on - 31/03/2026 19:53:53 :::
:40:
::: Downloaded on - 31/03/2026 19:53:53 :::
:41:
::: Downloaded on - 31/03/2026 19:53:53 :::
:42:
::: Downloaded on - 31/03/2026 19:53:53 :::
:43:
::: Downloaded on - 31/03/2026 19:53:53 :::
:44:
::: Downloaded on - 31/03/2026 19:53:53 :::
:45:
::: Downloaded on - 31/03/2026 19:53:53 :::
:46:
::: Downloaded on - 31/03/2026 19:53:53 :::
:47:
::: Downloaded on - 31/03/2026 19:53:53 :::
:48:
::: Downloaded on - 31/03/2026 19:53:53 :::