SHANKERLAL BHAGVANJI OSWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the order passed by the Judge, Small Cause Court No.2, Ahmedabad dtd. 27/9/2016 whereby the HRP Suit No.2537 of 2005 filed by the petitioner came to be dismissed, which was also confirmed by the appellate Court, the Division Bench of the Small Cause Court vide order dtd. 15/12/2017 in Civil Appeal No.125 of 2016.

(2.) Looking at the order passed by the Small Cause Court No.2, Ahmedabad, it appears that after recording the evidence on an issue whether the Small Cause Court has jurisdiction to try and decide the suit came to be answered holding that the said Court has no jurisdiction to try and decide the suit as filed by the petitioner. The said finding in Appeal preferred by the petitioner is dealt with in detail by the appellate Bench of the Small Cause Court and held that it is a pure question of law, which could be determined by the trial Court under Order VII Rule 11(d) of the Code of Civil Procedure, 1908. The trial Court has recorded the evidence and determined the suit after appreciating the law as also the facts adduced on record of the case. The appellate Court held that since on appreciation of evidence on law and facts, when the trial Court has held that, that Court has no jurisdiction to entertain the suit despite no other issues answered by the trial Court is also not of any help to the petitioner as it was required to be determined only based on law. By elaborate discussion of law, the appellate Court has confirmed the findings recorded by the trial Court considering the provisions made in the Gujarat Rents, Hotel and Lodging House Rate Control Act, 1947 alongwith the provisions of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment), 2001 in absence of any material brought on record that the petitioner - tenant possess the demised premises on the date of enforcement of the amendment Act and it is held that the petitioner is a stress-passer in the demised premises on the evidence of the petitioner - tenant himself, and therefore, the appellate Court has confirmed the finding recorded by the trial Court that it had no jurisdiction to entertain the suit filed by the petitioner - tenant, and therefore, while exercising jurisdiction under Article 227 of the Constitution of India, in absence of any contention raised with regard to challenge to that aspect where the issue with regard to the jurisdiction of Court is determined, based on the law laid down confirmed by the appellate Court, this petition is required to be rejected. In view thereof, this petition is rejected.