The interse obligations and the rights in a lease agreement are governed by the Transfer of Property Act, and the court's decision cannot be faulted with in a review petition.

JUDGMENT :

1. This application for review of judgment and order dated 25.10.2019 passed in Second Appeal No. 383 of 2019 with Civil Application No. 1 of 2019 passed by the late Justice G. R. Udhwani arises from the fact that a lease agreement in respect of the suit property, entered Into between the opponent original plaintiff (for short “landlord”) and the appellant (for short “the tenant”) on 04.04.1979 for a period of 25 years expired on 03.04.2004. According to the learned counsel for the tenant, lease of immovable property was for manufacturing purpose. On the date of the execution of the agreement it was governed by the provisions of the Bombay Rent Act. However, the learned Judge has held that the interse obligations and the rights would be governed by Transfer of Property Act not Rent Act.

2. Justice Udhwani having expired, this review application is placed before me. The appellant challenged judgment and decree dated 30.07.2019 rendered by learned Second Additional District Judge, Chhota-Udepur in Regular Civil Appeal No.37 of 2017 confirming the judgment and decree of eviction rendered by the learned Principal Civil Judge, Chhota-Udepur on 31.12.2012 in Regular Civil Suit No. 36 of 2004 is sought to be assailed in this appeal under Section 100 of the Code of Civil Procedure (for short “CPC”).

3. Heard Mr. Percy C. Kavina, learned Senior Advocate appearing with Mr. Lalji R. Mokaria, learned advocate for the applicants and Mr. Mehul S. Shah, learned Senior Advocate appearing with Mr. A. R. Kadri, learned advocate for the respondents.

4. Mr. Percy C. Kavina, learned Senior Advocate has pointed out the provisions of the Rent Act and has also submitted that the learned Trial Court has firstly accepted the lease agreement and then it was converted into leave and licence agreement. The appellants referred and relied upon the judgment rendered by this Court in the case of Dipak Rasbiharilal Goyel v. Naliniben H Raval, reported in 2012 [2] G.L.H. 44, wherein it is held that the intention of the parties has to be gathered from agreement in question. It is submitted that in the cited decision, the agreement had started in 2007 and notice was issued on 4.10.2008 i.e. after 30.10.2001 being the date of suspension of the Rent Act. But both the Courts below have erred in interpretation of the said judgment. He has submitted that this Court has dealt with the provisions of the Rent Act in para 4.2 of the impugned order. It is submitted that there is no any mention of renewal of the contract in the said paragraph. It is submitted that the property in question was not let out after the date of the commencement of the amending Act.

5. The learned Judge having considered the lease agreement and the issues arising there from, decided the appeal and held that the Court was required to examine the matter not on the basis of the Rent Act. The learned Judge also noted the judgment cited in Dipak Rasbiharilal Goyel vs. Naliniben H. Raval reported in 2012(2) GLH 44. The learned Judge after having examined the matter, ultimately held in paragraph 11 that “In above view of the matter, this court does not find any substantial question of law. The appeal must fail and is dismissed.”

6. The contention of Mr. Kavina is that the learned Judge did not decide the issue of lack of jurisdiction in view of arbitration clause in contract dated 04.04.1979, more particularly reliance is placed on Condition (12) of the contract. This submission has not been raised before the learned Judge and appears to have been given up by the advocate appearing for the appellants. In Ex.21 application applicant has prayed as under:

“As the suit of the plaintiffs is barred by the jurisdiction of the Court and as the said fact is against the Condition No.12 of the registered agreement dated 9.4.1979, kindly determine the issue of jurisdiction as preliminary issue under Order 14 Rule 2(A) of CPC and pass the order accordingly.”

7. In support of above submissions Mr. Kavina relied on