ISHWARLAL PRANJIVANDAS Vs. LABHSHANKER HARGOVINDDAS BHATT

JUDGEMENT

(1.) This appeal has been referred to this Division Bench because the learned Single Judge V. V. Bedarkar J. by his order dated 13/04/1981 thought that two important questions of law arose in this second appeal brought here by the original defendants of the Regular Civil Suit No. 18 of 1976 decreed against them by the learned Civil Judge (Junior Division) Umrala whose judgment had come to be confirmed by the District Judge Bhavnagar in the Regular Civil Appeal No. 19 of 1979 preferred by these very appellants.

(2.) The appellants are the original defendants against whom a suit for possession of the rented shop was initiated by the respondent-land- lord. The shop is situated at village Dholavishi in Umrala Taluka of Bhavnagar District. The plaintiff had purchased the said property on 2/08/1976 from its earlier owner and after terminating the tenancy he had filed the suit on 7/10/1976 for taking possession. The defendants had inter alia contended that the suit was bad for want of a proper notice to be served on all the heirs of a deceased tenant. As during the trial of the suit the Rent Act was not applicable the learned Judge decreed the suit. During the pendency of the appeal however the Rent Act admittedly came to be made applicable to the area in question in respect of premises used for residence and business. A contention was not raised before the appellate Court that as per sec. 50 of the Bombay Rent Act the suit was required to be dealt with and decided as if it was a suit under the Bombay Rent Act and it was even conceded by the learned Advocate appearing for the respective parties that the suit was to be treated as one filed under the provisions of the Civil Procedure Code read with the Transfer of Property Act 1882 The learned District Judge confirmed the decree of eviction.

(3.) When the matter was before this High Court the original defendants raised the contention that as the Bombay Rent Act had come to be made applicable during the pendency of the appeal the suit required to be dealt with and decided under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act and it was further contended that as the case was not falling under sec. 12 (1) or sec. 13 of the Bombay Rent Act the decree was liable to be set at naught. Secondly it was urged before the learned Single Judge that if the Rent Act was not applicable the tenancy of late Pranjivandas who died somewhere about 1962 or thereabout had devolved on all his heirs including the defendants who were the co-tenants over and above the other heirs and the tenancy being indivisible and not terminated by service of notice on all the co- lessees the suit was bad. The learned Single Judge found that both the points called for a considered opinion of the Division Bench of this Court and he made the reference. Hence the present second appeal before us.