RATILAL SAKARLAL Vs. GANDABHAI MULJIBHAI

JUDGEMENT

(1.) This is a civil revision application against an order passed by the learned Assistant Judge Surat by which the learned Assistant Judge reversed the decree of the trial Court and sent the case back for re-trial.

(2.) The matter arises this way :

(3.) It may be stated that during the course of the trial at the stage when one of the plaintiffs examination-in-chief was proceeding the defendant had applied for an amendment of his written statement taking a defence that the defendant was a permanent tenant. The trial Court rejected this application for amendment. The defendant went to the High Court in revision against the trial Courts order rejecting his application for amendment. The High Court also rejected the revision application. Thereafter the suit proceeded resulting in the passing of a decree in favour of the plaintiffs as stated above. Against the decree of the trial Court the defendant filed an application in the Court of the District Judge at Surat. The learned Assistant Judge Surat on the issue of jurisdiction held that the defendant-appellant was not entitled to the benefit of the Act and further held that the Civil Court had jurisdiction but before deciding the rest of the issues before the first appellate Court the learned Assistant Judge allowed the defendants application for amendment to the effect that he was a permanent tenant holding that in substance the defendant had pleaded this defence in his written statement. Having come to this conclusion that the defendants application for amendment should be allowed the learned Assistant Judge instead of framing the additional relevant issue and sending it back to the trial Court passed an order allowing the appeal and reversing the decree of the trial Court making an observation that the defendant was not entitled to the benefit of the Act. The learned Assistant Judge also ordered that the case be remanded issue regarding the alleged permanent tenancy of the defendant and such evidence in respect of such issues. The effect of this order was that the whole case went back to the trial Court for a de novo trial except on the issue in regard to the jurisdiction question raised under the Act. The reason given by the learned Judge for taking this course was that the alternative course of framing an issue regarding the permanent tenancy and sending it to the trial Court to record evidence on it and certify a have been disadvantageous to the parties. The learned Assistant Judge further observed that the grounds on which the plaintiffs would be entitled to possession against a permanent tenant for the plaintiff would have to make our and prove such grounds as would entitle them to cause the defendants eviction as a permanent tenant and the question of enhancement of rent under sec. 83 of the Land Revenue Code would also arise involving questions regarding the circumstances agreement usage or custom. The learned Assistant Judge further observed that in view of the trial Courts finding that the plaintiffs were entitled to enhance the rent to the extent of Rs. 325.00 on the basis of annual tenancy it would also be necessary to re-examine this finding if the plea of permanent tenancy is sustained.