MANSUKHLAL KAPURCHAND SANGHVI Vs. SHUSHILABEN DURLABHJI VIRANI

JUDGEMENT

(1.) These Letters Patent Appeals involve an interesting question of law relating to the scope of an appeal preferred under Clause 15 of the Letters Patent against a decision given by a Single Judge of the High Court in Second Appeal. The question is whether an appellant in such a Letters Patent Appeal is entitled to raise a new contention which has not been taken by him before the learned Judge hearing the Second Appeal or he is limited only to the contentions advanced by his at the hearing of the Second Appeal. The question is of some importance and it is necessary to examine it closely because there are conflicting decisions of this Court and the conflict has to be resolved. The facts giving rise to these Letters Patent Appeals are similar in material particulars and it would therefore be sufficient if we state the facts of only one of them namely Letters Patent Appeal No. 58 of 1968.

(2.) The plaintiff in Letters Patent Appeal No. 58 of 1968 filed a suit against the defendent to recover possession of certain premises let to the defendant. The premises were situate in an area which formed part of the former State of Saurashtra. The case of the plaintiff was that the premises were new premises erected and let for the first time after 1st January 1951 and by reason of sec. 4(2) of the Saurashtra Rent Control Act 1951 (hereinafter referred to as the Saurashtra Rent Act) the premises were exempt from the applicability of the Saurashtra Rent Act and the plaintiff was therefore entitled to recover possession of the premises from the defendant under the ordinary law of landlord and tenant. The defendant in his written statement conceded that the premises were new premises erected for the first time after 1st January 1951 but according to him he was not the first tenant of the premises and the premises could not therefore be said to be let for the first time on or after 1st January 1951 and the exemption granted under sec. 4(2) was accordingly not available and the premises were governed by the Saurashtra Rent Act. The defendant thus pleaded the protection of the Saurashtra Rent Act and contended that the suit was liable to fail as no ground was made out by the plaintiff which would entitle him to recover possession of the premises from the defendant under the Saurashtra Rent Act. The trial Court took the view that the premises were new premises erected for the first time after 1st January 1951 but as the letting of the premises to the defendant was not the first letting after 1st January 1951 the exemption under sec. 4(2) could not be invoked by the plaintiff and the premises were governed by the Saurashtra Rent Act and since no ground under sec. 12 or 13 of the Saurashtra Rent Act was made out by the plaintiff he was not entitled to recover possession of the premises from the defendant. On this view the learned trial Judge negatived the claim for recovery of possession and dismissed the suit. The plaintiff being aggrieved by the decision of the learned trial Judge preferred an appeal against it but the learned District Judge who heard the appeal agreed with the view taken by the learned trial Judge and dismissed the appeal. The plaintiff thereupon preferred a Second Appeal to this Court. The Second Appeal came up for hearing before Mr. Justice Sompura. The main contention urged on behalf of the plaintiff before Mr. Justice Sompura was that the premises were exempt from the applicability of the Saurashtra Rent Act by reason of sec. 4(2) and the plaintiff was therefore entitled to recover possession of the premises from the defendant according to the ordinary law of landlord and tenant. This contention found favour with Mr. Justice Sompura. The learned Judge took the view that in order to attract the applicability of sec. 4(2) of the Saurashtra Rent Act two conditions were required to be satisfied:- (1) the premises should be new premises erected for the first time on or after 1st January 1951 and (2) they should be let for the first time on or after 1st January 1951. The first condition was admittedly fulfilled in the present case and so far as .the second condition was concerned that was also according to the learned Judge satisfied because the premises had not been let at any time before 1 January 1951 but they were let for the first time on or after that date. The learned Judge observed that what the second condition required was that the premises should not have been let at any time before 1st January 1951 but should be let for the first time on or after that date and not that the letting in question should be the first letting so that the second condition would not be satisfied if the premises were let a second or third or subsequent time. It was entirely immaterial to the applicability of sec. 4(2) said the learned Judge whether the letting in relation to which the question of protection of Saurashtra Rent Act arose was the first letting of the premises or a second or third or subsequent letting so long as the premises had not been let out at any time before 1st January 1951 and the first time that they were let was on or after that date. The learned Judge held that since in the present case the premises were new premises which had not been let at any time prior to 1st January 1951 but were let for the first time after that date the exemption under sec. 4(2) was applicable notwithstanding the fact that the defendant was not the first tenant of the premises and the premises were not governed by the Saurashtra Rent Act. The learned Judge in this view of the matter concluded that that plaintiff was entitled to recover possession of the premises from the defendant under the ordinary law of landlord and tenant and passed a decree for eviction against the defendant. The defendant being aggrieved by the decree for eviction passed against him applied for a certificate of fitness under clause 15 of the Letters Patent and on such certificate being granted by Mr. Justice Sompura brought Letters Patent Appeal No. 58 of 1969 in this Court. Letters Patent Appeal No. 8 of 1970 is also brought before this Court in identical circumstances and the judgment of Mr. Justice Sompura challenged in that Letters Patent Appeal is based on the same ground as the judgment impugned in Letters Patent Appeal No. 58 of 1968. In fact in disposing of the Second Appeal giving rise to Letters Patent Appeal No. 1970 Mr. Justice Sompura has followed his earlier judgment challenged in Letters Patent Appeal No. 58 of 1968.

(3.) When these Letters Patent Appeals reached hearing before us the learned counsel appearing on behalf of the defendants assailed the judgment of Mr. Justice Sompura on the ground that the learned Judge had fallen into an error in construing sec. 4(2) of the Saurashtra Rent Act. They contended that on a proper construction the second condition of sec. 4(2) limited the applicability of that section only to first letting of the premises and if there was a second or third or subsequent letting sec. 4(2) had no application and the premises were governed by the Saurashtra Act. This contention raised an interesting question of construction of sec. 4(2) of the Saurashtra Rent Act but for reasons which we shall presently state it is not necessary for us to decide this question as we find that there is another point on which it is possible to effectively dispose of these Letters Patent Appeals. That point arises in the following manner.