NATHUBHAI GULABDAS Vs. BHAKHIBHAI MULJIBHAI

JUDGEMENT

(1.) (27-11-1962) The petitioner's suit for possession from his tenant on the ground that the tenant was in arrears of rent for a period exceeding six months that he had not paid the arrears not with standing a notice, within one month of the date of the notice and that the plaintiff was in bona fide requirement of the suit premises, was decreed by the 2nd Joint Civil Judge, Junior Division, Surat, who accepted both the contentions. But in appeal the learned Extra Assistant Judge, Surat, allowed .the appeal and dismissed the suit of the plaintiff. His finding that the plaintiff was not in bona fide requirement of the suit premises is not challenged in revision. But his finding that the defendant was ready and willing to pay fhe rent and was, therefore, not entitled to be' ejected is challenged in revision, and it is contended that in view of the provisions of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which will hereinafter be referred to as the Act, the learned Appellate Judge was wrong in not confirming the decree for possession.

(2.) The learned counsel for the opponent has raised a preliminary objection. He contends that it is not open to the learned counsel for the petitioner to urge that ground, as he had not urged before the lower appellate Court, that Section 12(3)(a) of the Act overrides the provisions of Section 12(1) of the Act, and if the plaintiff satisfies the requirements of Section 12(3)(a) of (he Act, he is entitled to succeed whatever be the provisions of Section 12(1) of the Act. The learned counsel relies on Karimbhai v. Hariprasad, (1962) 3 Guj LR 529. He also relics on the following observations of Macleod, C. J. in Haridas v. Ratansey, 23 Bom LR 802 : (AIR 1922 Born 149 (2)) which are relied on by the Single Judge of the Gujarat High Court:

(3.) On the question as to whether a contention ' can be taken up in a revision when it has not been taken up before the first appellate Court, the distinction between a ground and argument must be remembered. Order 41, Rule 1(2) of the Code of Civil Procedure provides that every memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and such grounds shall be numbered consecutively. In an appeal, therefore, only the grounds of objection to the decree appealed must be stated and not the arguments on which the grounds are based. If a ground of objection is not stated in the memorandum of appeal or with the permission of the Court not taken in the argument advanced, it cannot be taken up in revision, because the appellate Court cannot be considered to have acted with material irregularity in the exercise of jurisdiction in not considering a ground of objection which was not urged before it. But if a ground of objection is raised before the appellate Court and in support of it, three arguments arc urged, while in the revisional Court fourteen are urged in support of the same ground, all the fourteen arguments must be considered notwithstanding that only three out of them have been urged in the first appellate Court. But the grounds must be based on questions of law, if they are to be entertained by the revising Court. If any of the arguments urged before the revising Court depends on a finding of fact, the revising Court will naturally refuse to entertain those arguments, because they involve a finding of fact on which the Court below has not given any finding, and it is not proper for a revising Court to give a finding of fact for the first time in revision when no such finding is given by the Court below. To give an illustration : If the suit relates to an adoption and it is urged in appeal that the adoption is invalid, and it is also urged at the time of the argument that the adoption is invalid because the adoption is contrary to the provisions of statute A, it is open to the counsel to urge in revision that the adoption is invalid and that it contravenes not only the provisions of Statute A but also the provisions of statute B and Statute C. These are merely arguments to show that the adoption is invalid and the ground that the adoption is invalid has been taken up in the memorandum of appeal. A finding of the trial Court which has been challenged in appeal on some ground of law can be challenged in revision on any other ground of law, but not on any other grounds of law, if they involve determination of fresh issues of facts. To give another illustration : Even if it is not urged in appeal that a certain finding on a certain issue of the trial Court is not correct, because it is contrary to a decision of the Supreme Court, it is open in revision to contend that that finding on that issue is contrary to the decision of the Supreme Court. The distinction between a ground and argument must therefore be kept in mind. If a ground is not taken up in appeal, it cannot be urged in revision, but a new argument in support of a ground can be urged in revision, although that argument has not been urged before the appellate Court. For example, if in the appellate Court a finding on a certain issue is challenged as incorrect on the ground that the finding is contrary to the provisions of Statute A and it is not argued before the appellate Judge that the finding is contrary to the provisions of Statute B, it would be open in revision to contend that the finding on that issue is contrary to the provisions of Statute notwithstanding that that argument has not been urged before the appellate Court. But the learned counsel for the opponent contends that in such a case, if the argument has not been urged before the appellate Court, the appellate Court cannot be said So have acted with material irregularity in the exercise of jurisdiction. But the ready answer to this argument is that the Courts are always supposed to apply the whole law and not a part of law. The omission to apply Statute B is not a fault of the lawyer but of the Judge. It is true that Judges are usually indebted to lawyers for their assistance, but strictly speaking, the Judge must apply the entire law and not a part and if he omits to do so, it would be a material irregularity in the exercise of jurisdiction as it amounts to ignoring certain provisions of law. I am, therefore, of the opinion that if a ground is urged in appeal, a new argument in support of that ground can be urged in revision, provided it does not involve new findings of fact.