Order No.  3  dt.  07/02/2019

            The complainant has filed the petition challenging the maintainability of the case.  The petitioner has categorically stated in the petition that the case filed by the complainant is not maintainable since nowhere in the petition of complaint it can be found that there was any agreement for sale between the parties, on the contrary, the complainant filed a document which is a tenancy agreement which took place between the landlord and the tenant. As per the said agreement it cannot be found that the tenant will be shifted from the premises and after completion of the building in question the tenancy will be restored and the status of the complainant will be that of a tenant not the flat owner. In respect of the said contention ld. lawyer for the petition drew out attention in respect of the agreement held between the parties and in paragraph 17 of the said agreement it was categorically stated that the tenant also covenants not to sublet transfer assign encumber alternate or part with the possession of the said tenanted portion to be rendered at the new building in any manner whatsoever without the consent of 1^st and 2^nd party. On the basis of said condition of the said agreement it was emphasized by ld. lawyer for the petitioner that the agreement itself was a tenancy agreement and there was no mentioning of the fact that the tenant will become the owner of the flat in question in respect of the building to be promoted by the developer. On the basis of the said fact ld. lawyer for the petitioner prayed for allowing the said MA case by holding that the case filed by the complainant is not maintainable.

            Ld. lawyer for the o.p. i.e. the complainant in response to the argument advanced by ld. lawyer for the petitioner emphasized that in the agreement itself it was stated that the landlord and the developer would take steps for ownership of the room and get the room registered in his name. Ld. lawyer for the o.p. also pointed out owners shall execute necessary deed of transfer in favour of the tenants of flat appertaining to owners’ allocation, but the owners shall not realize consideration for the same and all such documents the owners shall sign as vendor. On the basis of the said fact ld. lawyer for the o.p. prayed for dismissal of the petition filed by the complainant and the said MA case be dismissed.

            Having regard to the submissions of the respective parties it is an admitted fact that the complainant possessed his tenanted portion in the building whereby the new building is being constructed and for that purpose an agreement was entered into between the developer, landlord and the tenant and in the agreement it was categorically stated that the tenant would be provided with a room, by allotting the same and the tenant will become the owner and the land owner will execute the deed of conveyance in favour of the complainant showing that the tenant will become the owner of the room in question. It was further stated that there will be no consideration for the same. Since the possession of the complainant was handed over and the construction of the building is being made, therefore at this stage time is not ripe for adjudication of such dispute without going into the merits of the case which will be considered after considering the evidence by both the parties and after hearing. Accordingly, we hold that the MA case filed by the o.p. is not maintainable and the same be dismissed.

            Let a copy of this order be annexed with the Case No. CC/109/2018.

            Fix 14/03 /2019  for filing questionnaire by the complainant.