The availability of an alternative efficacious remedy of appeal can render a writ petition not maintainable.

JUDGMENT :

Manish Pitale, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the rival parties.

3. By this writ petition, the petitioner has challenged order dated 24-2-2021, passed by the Court of Small Causes, Nagpur, on an application filed on behalf of the respondent (landlord) for fixation of interim fair/standard rent of the tenanted premises. The said application has been partly allowed and the petitioner (tenant) has been directed to pay interim fair/standard rent of the suit plot at Rs. 15,000/- per month from the date of filing of the application.

4. The respondent filed an application under section 8 of the Maharashtra Rent Control Act, 1999 (in short “Act of 1999”) for fixation of fair/standard rent. During the pendency of the said application, the respondent filed the aforesaid application for fixation of interim fair/standard rent for the tenanted premises. The application stood partly allowed, as noted above.

5. The petitioner being aggrieved by the said order filed the present writ petition, wherein notice was issued for final disposal and effect of the impugned order was stayed, subject to the petitioner making payment of Rs. 7,500/- per month to the respondent with effect from the date of the impugned order.

6. When this writ petition was taken up for final disposal, a preliminary objection regarding maintainability of the writ petition was raised on behalf of the respondent.

7. Shri Narendra Jetha, learned Counsel appearing for the respondent invited attention of this Court to the provisions of the aforesaid Act of 1999, particularly sections 8 and 34 thereof, to claim that an appeal would lie before the District Judge against the impugned order. It was submitted that the aforesaid provisions read with sections 26 and 26-A of the Provincial Small Causes Courts Act, 1887, would show that the appeal would certainly lie before the District Court and in view of the alternative efficacious remedy of appeal available to the petitioner, the present writ petition deserved to be dismissed only on that short ground. Attention of this Court was invited to the judgment of this Court in the case of Pundalik Haribhau Chandekar vs. Jagdish Dadaji Bind, 2010 (1) Bom. C.R. 144.

8. On the other hand, Shri M.R. Joharapurkar, learned Counsel appearing for the petitioner submitted that there was no substance in the preliminary objection raised on behalf of the respondent regarding maintainability of the writ petition. It was submitted that the respondent had initiated proceedings under section 8 of the Act of 1999 and that there was a clear prohibition under sub-section (5) thereof regarding filing of an appeal. It was further submitted that a proper application of section 34 of the aforesaid Act would show that an appeal would not lie in the facts and circumstances of the present case.

9. This Court has perused the impugned order, as also the material placed on record. There can be no dispute about the fact that the respondent in the present case has filed the application for fixation of fair/standard rent under section 8(1) of the Act of 1999. The application at Exhibit 5 sought fixation of interim fair/standard rent and the said application was partly allowed. A perusal of sub-section (5) and section 8 of the Act of 1999, would show that no appeal can lie against an order of the Court under sub-sections (3) and (4) of section 8. In the present case, the application for fixing interim fair/standard rent is not traceable to sub-sections (3) and (4) of section 8 of the Act of 1999 and therefore, sub-section (5) thereof will not applicable.

10. At the same time, a perusal of section 34 of the Act of 1999, shows that in the facts and circumstances of the present case sub-section (1)(b) thereof would apply, which provides for an appeal to the District Court against an order passed by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887.