HARKISHANDAS M DUMASIA Vs. MOHANLAL MAKANJI DUMASIA

JUDGEMENT

(1.) This matter has come up before this Bench for the limited purpose of answering the four questions as have been framed by the learned single Judge (Coram : Hon'ble S. D. Shah, J., as he then was) by his order dated 31-7-1997. The questions, which have been referred, are as under :- (1) Whether the order passed by His Lordship C. V. Jani, J., (as His Lordship then was) in C.R.A. No. 871 of 1993 more particularly set out hereinabove was just, proper and maintainable in law in view of the specific averments contained in para 2 of the said Civil Revision Application which, inter alia, included the statement that the cross-objections which were filed in the lower appellate Court were rejected, and therefore, independent Civil Revision Application was preferred in the High Court? (2) Whether rejection of the cross-objections on merits by the learned District Judge, Surat, in Regular Civil Appeal No. 150 of 1985 would bind the landlords and would necessarily confer the right of preferring Civil Revision Application under the law or not? (3) Whether rejection of the cross-objections on merits by the learned District Judge, Surat, in Regular Civil Appeal No. 150 of 1985 would give right to the landlords to prefer independent Civil Revision Application insofar as the cross-objections were already rejected on merits in appeal by the lower appellate Court? (4) Whether in view of the order passed by C. V. Jani, J., in Civil Revision Application No. 871 of 1993, the landlords can be permitted to agitate the grounds in support of the decree of eviction which were already rejected by rejecting their cross-objections by the District Judge, Surat, in Regular Civil Appeal No. 150 of 1985?

(2.) We find it necessary to narrate facts in brief leading to this Reference as under :- The plaintiffs i.e. landlords instituted a Small Causes Suit (Rent Suit) No. 479 of 1979 before the Small Causes Court at Surat against the present petitioner, who was a tenant and defendant No. 1 in the suit. The eviction was sought in the said Suit on the following grounds :- (i) Arrears of rent for a period of more than six months. (ii) Change of user of the suit premises, incurring thereby the liability of eviction under Sec. 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. (iii) Causing damage to the suit property by making permanent alteration under Sec. 13(1)(b) of the Act. (iv) For reasonable and bona fide requirement of the landlord under Sec. 13(1)(g) of the Act. (v) On the ground of acquisition of suitable residential accommodation by the tenant under Sec. 13(1)(1) of the Act. Small Causes Court at Surat decreed the Suit of the plaintiffs for recovery of possession by judgment and decree dated 29-9-1985 only on the ground of change of user of the suit premises under Sec. 13(1)(a) read with Sec. 108(o) of the Transfer of Property Act. The present petitioner-tenant, who was defendant No. 1 in the trial Court, preferred Regular Civil Appeal No. 150 of 1985 in the Court of District Judge at Surat wherein the landlord-plaintiff also filed cross-objections, inter alia, contending that the decree for possession ought to have been passed on rest of the grounds also. The said Regular Civil Appeal No. 150 of 1985 was heard by the District Judge, Surat and he also heard the cross-objections which were filed by the landlord-plaintiff raising a grievance for not passing the decree of eviction on the rest of the grounds on which the decree was prayed for in the plaint. The District Judge at Surat vide its judgment and order dated 1-4-1992 confirmed the decree of eviction passed against the defendant under Sec. 13(1)(a) read with Sec. 108(o) of the Transfer of Property Act and rejected the cross-objections filed by the landlord as the trial Court had not passed the decree of eviction on rest of the grounds.

(3.) Aggrieved from the rejection of the cross-objections, the landlord-plaintiff preferred Civil Revision Application No. 871 of 1993 before this Court and the learned single Judge of this Court (Coram : C. V. Jani, J., as he then was) by his order dated 22-2-1994 rejected the said Civil Revision Application and passed the following order :-