Sitabai Khemchand Jangla, owner of Jangla Nivas, had moved the bench of Justice D K Deshmukh seeking to quash a Small Causes Court order that refused to stay a civil suit filed against her by the tenant. The tenant, Padma Nangia, had filed a suit since the landlord had refused to repair the residential premises rented out. On their part, the landlords claimed that the BMC had already initiated criminal prosecution for similar reasons of default, and prayed that it would not be possible for them to fight fire on two fronts.

Justice D K Deshmukh while rejecting the petition on July 21 held that the end result of the prosecution and the civil suit filed by the tenant aretotally different. ``It can be seen that the reliefs claimed regarding repairs by the tenants (in the suit) is just one of the reliefs claimed by the tenants against the landlords,'' reads the order, ``It cannot be forgotten that though the corporation has pointed out that essential repairs are necessary for the premises, the landlords are refusing to carry out repairs''.

The BMC had issued notices to Jangla, dated September 3, 1997 and September 5, 1997 under section 354 of the BMC Act directing the landlords to carry out certain repairs to the building. The notice was not complied with. The BMC then approached the Criminal Court and launched a prosecution against the landlords under section 471 of the BMC Act. The proceedings are pending in the Metropolitan Magistrate's court.

In 1998, Nangia filed a civil suit no 612 claiming several reliefs against the landlords. One of which included directing the landlord to carry out repairs to the premises as per the architects' report dated August 23, 1997. Thelandlords then moved for a stay on the suit which was subsequently rejected.

Before the bench of Justice Deshmukh, advocate for the petitioners, D J Lulia cited a Supreme Court case, M S Sheriff v/s State of Madras and claimed that since the direction sought in the civil suit is similar to that of the criminal prosecution, according to this SC case, the civil suit had to be stayed. If the proceedings of the suit were allowed to go on, the advocate argued, the petitioners would have to disclose their defence and it might be embarassing to them.

However, senior counsel V A Thorat of the law firm, Ms Zohair & Co, defended the tenant claiming that firstly, the SC case does not lay down any hard or fast rule on such matters. Also, as far as embarassment is concerned, the petitioners had already filed an affidavit when they sought the stay where they have replied to all the accusations in the suit. Thorat also pointed out that the criminal prosecution had been launched by the corporation and not the tenant andhence the tenant had no role to play in the criminal prosecution. The tenant, therefore is not likely to get any reliefs in these proceedings.

Agreeing with the respondents' arguments, Justice Deshmukh noted that even if the corporation had initiated action at the instance of the tenants, it is still a prosecution launched and controlled by the corporation. Besides, even if convicted in the criminal case, he is required to pay a fine per day till the requisition is complied with. ``The tenant is not sure of getting relief which he is claiming in the suit'', the order reads.

The difference between the two actions, the court noted, was that while the purpose of the criminal prosecution is to punish the petitioners for not complying with the notices, that of the tenants is to compel the landlord to carry out repairs.