KHATUMABEN ISMAILBHAI Vs. SODHA MOHAMMADBHAI KASAMBHAI

JUDGEMENT

(1.) PRESENT Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and order dated 10.09.1997 passed by the learned 2nd Joint District Judge, Junagadh in Regular Civil Appeal No.74 of 1997 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein original defendant and has quashed and set aside the judgment and decree dated 09.05.1997 passed by the learned Joint Civil Judge (Junior Division), Junagadh passed in Regular Civil Suit No.827 of 1993 on the ground that the learned trial Court had no jurisdiction to entertain the said suit.

(2.) THE facts leading to the present Second Appeal in nut -shell are as under:

(3.) SHRI Rajesh Chauhan, learned advocate appearing on behalf of the appellant herein original plaintiff has vehemently submitted that the learned Appellate Court materially erred in holding that the ordinary Civil Court has no jurisdiction to entertain the suit and that the learned trial Court had no jurisdiction. It is submitted that it was the specific case on behalf of the plaintiff that the defendant is a trespasser and therefore, the ordinary Civil Court would have jurisdiction. It is submitted that the learned Appellate Court has materially erred in considering the case on behalf of the defendant so pleaded in the written statement that he was the tenant of the suit premises. It is submitted that what is required to be considered is the necessary averments by the plaintiff in the plaint/suit and not the case on behalf of the defendant so pleaded in the written statement. Therefore, it is submitted that when it was the specific case on behalf of the plaintiff that defendant was trespasser and the suit was filed for recovery of possession as trespasser, only the ordinary Civil Court would have jurisdiction and not the Rent Court. In support of his above submission, Shri Chauhan, learned advocate appearing on behalf of the appellant has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Laxmidas Morarji (Dead) by L.Rs. vs. Miss Behrose Darab Madan, 2010 1 GLR 825. By making above submissions and relying upon the above decision, it is requested to allow the present Second Appeal.