( 1 ) THIS appeal brings to the fore how fortunes of the parties change with passage of time because of change in the law.

( 2 ) IT is not in dispute that open land was let out to one Bajrangi Vishwakarma. The appellants are the legal representatives of the said Bajrangi. On 28-11-1985, the landlady filed a suit for recovery of possession of this open land. This suit came to be decreed on 24-8-1987. The provisions of C. P. and Berar letting of Premises and Rent Control Order, 1949 (for short, "the Rent Control Order") did not apply to open sites. The defendant preferred an appeal bearing Regular Civil appeal No 404 of 1987 before the District judge, Amravati. On 27-6-1989, the provisions of Rent Control Order, 1949 came to be amended, whereby sub-clause (4-A) defining "premises" was inserted in clause (2) of the Rent Control Order. By this sub-clause, the term "premises" came to encompass even open spaces. On 26-10-1989, clause 13-A was inserted making it necessary to obtain permission from the Rent Controller to file any suit for eviction of a tenant from houses or premises. The validity of these amendments has been upheld by a judgment of this Court dated 21-4-2005 On 31-3-2000, a comprehensive Maharashtra Rent Control Act came into force, whereby the provisions of the rent Control Order cease to have application in Vidarbha area of State of Maharashtra. Clause (9) of Section 7 of Maharashtra Act defined the term "premises" and this definition does not include open sites.

( 3 ) BY a judgment in Dilip Vs. Mohd. Azizul Haq and another, reported in 2000 (2) Mh. L. J. 741: 2000 (2) ALL MR 560 (S. C.), the Apex Court has held that when during the pendency of an appeal arising out of a decree for ejectment of a tenant in respect of an open plot, the amendment to the Rent control Order came into force, the Appellant court would not be justified in dismissing the appeal or passing a decree for eviction, because the tenant would be entitled to protection of the amended provision of the Rent Control order. The Court observed that though the amended provision is prospective in force, it has a retrospective effect

( 4 ) THE learned counsel for the appellants, therefore, submitted that since at the time when the District Judge was considering the appeal, the Rent Control Order was amended making the provision thereof applicable to open plots, the Appellate Court ought to have dismissed the suit allowing the appeal. Therefore, according to the learned counsel for the appellants, the substantial question of law on which the appeal ought to have been admitted is whether the learned district Judge erred is dismissing the appeal overlooking the amended provisions of the rent Control Order.

( 5 ) WHEN the matter had come up for admission before D. G. Karnik, J on 13-2-2005, he had put the parties to notice that the appeal would be heard finally at the stage of admission itself. This is how the appeal is being finally disposed of by this judgment.

( 6 ) THERE can be no doubt that the learned District Judge ought to have considered the amended provisions of the Rent Control order in view of the judgment of the Apex court in the case of Dilip Vs Mohd Azizul haq and another, referred to above. Once it is accepted that the legislative changes would have to be taken into consideration while deciding the appeal, it would have been imperative for the learned Judge of the First appellate Court to apply the provisions of the maharashtra Rent Control Act, 1999, which came into force on 31-3-2000 before the appeal was decided on 29-1-2002. Thus, when the appeal was decided, the enactment in force was the Maharashtra Rent Control Act, 1999 there is no dispute that the definition of the term "premises" in clause (9) of Section 7 of this Act does not include an open site and thus this Act has no application to open site Thus, both, when the suit and appeal were filed and decided, open sites were not within the purview of Rent Law in force.

( 7 ) THE leaned co

Click Here to Read the rest of this document