SHIVLAL NARANBHAI MAHARAJ Vs. CHAROTAR VIDYA MANDAL

JUDGEMENT

(1.) The present Civil Revision Application has been filed by the Appellant - Original Defendant under Section 29(2) read with Section 115 of the Code of Civil Procedure for the prayer that the judgment and decree passed by the learned Civil Judge (JD), Anand in Regular Civil Suit No. 147 of 1980 dated 18.1.1990 and confirmed by the learned 3rd Extra Assistant Judge, Kheda at Nadiad in Regular Civil Appeal No. 13 of 1990 dated 16.7.1996 may be quashed and set aside on the grounds set out in the memo of the present Civil Revision Application.

(2.) It is contended inter alia that both the Courts below have failed to appreciate that the notification issued by the State Government would not be applicable and the Bombay Rent Act is not applicable. It is therefore contended that the decree passed under the Bombay Rent Act is totally bad in law. It is also contended that the Court below had no jurisdiction to decide the suit under the Bombay Rent Act as it was specifically contended that the Respondent is a public trust and the Bombay Rent Act would not be application, which has not been appreciated by the Courts below. It is also contended that both the Courts below have failed to appreciate that the Respondents have accepted the Petitioner as a tenant and accepted rent after the termination of service and therefore the Petitioner cannot be said to be a service tenant. It is therefore contended that both the Courts below have erred in passing the decree and confirming the same under Section 31F of the Bombay Rent Act and therefore the present Civil Revision Application may be allowed.

(3.) Learned Counsel Mr. G.M. Joshi appearing for the Petitioner submitted that Regular Civil Suit No. 147 of 1980 was filed by the Respondent Plaintiff which was allowed vide judgment and decree dated 18.1.1990. The same was carried by way of Regular Civil Appeal No. 13 of 1990 before learned Extra Assistant Judge, Kheda at Nadiad by the Petitioner - Defendant and the said Appeal was dismissed confirming the judgment and order passed by the trial Court vide its judgment and order dated 16.7.1996. He submitted that both the Courts below have failed to appreciate the basic question which goes to the root of the matter whether the Bombay Rent Act would be attracted or not. He submitted that admittedly the Defendant cannot be said to be a service tenant. For that purpose he referred to the written statement filed by the Defendant at page 51 and submitted that he was in service and thereafter the service was terminated in 1978. He submitted that thereafter also he continued to occupy the premises and the rent was accepted. Meaning thereby he was accepted as a tenant dehors his services. Learned Counsel Mr. Joshi referred to the deposition of the Plaintiff at Exh. 20 and submitted that the notification which has been referred to cannot have any application as it cannot apply prospectively as well as it cannot apply what has happened prior. He pointedly referred to the said notification and submitted that it will not have any application. He submitted that though the notification is issued that the Bombay Rent Act would not be applicable, but the Schedule is not produced to show that it applies to the premises in question. He submitted that the premises in possession and occupation of the Petitioner Defendant tenant was not a residential premises, but it was part of the kitchen, Bombay Rent Act will not have any application. In support of his submission, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of P.J. Irani v. State of Madras and Anr., 1961 AIR(SC) 1731. Learned Counsel Mr. Joshi has also referred to and relied upon the judgment in case of Govindbhai Parshottamdas Patel and Ors. v. New Shorrock Mills Nadiad, 25 1 GLR 156. He pointedly referred to these judgments to support his submission with regard to the contention about the jurisdiction also that the Civil Court will not have any jurisdiction and also that the provisions of Bombay Rent Act would not be attracted.