DAMODAR BOGHABHAI PRAJAPATI Vs. LALSA AMAR

JUDGEMENT

(1.) This revision application is filed by the petitioner against the order dated 5/07/1982 passed by the Appellate Bench of the Small Causes Court at Ahmedabad rejecting the application filed by the present petitioner requesting the Court to raise an additional issue regarding illegal licence contrary to the provisions of section 13 of the Bombay Rent Act.

(2.) Mr. S.V. Raju learned advocate for the petitioner has submitted that in the plaint the petitioner-landlord had made averment to the effect that respondent No. 1 had inducted respondent No. 2 and both were residing in the suit premises. From this averment Mr. Raju argues that it is open to the Court to raise an issue not only on sub-tenant under sec. 13(1)(e) but also regarding illegal licence contrary to sec. 13 of the Bombay Rent Act and therefore the trial Court ought to have raised both these issues as alternative ones. Mr. Raju has argued that there were sufficient averments before the trial Court to raise these two issues alternatively with out any further averments specifically alleging illegal licence contrary to sec. 13(1)(ee). Mr. B.J. Shelat the learned advocate for the respondents has urged that the averments made in the plaint are quite specific as regards the alleged sub-letting and therefore the trial Court was justified in raising the issue of illegal sub-tenancy contrary to sec. 13(1)(e). According to Mr. Shelat there are no clear-cut averments in the plaint to justify raising issue of licence contrary to sec. 13(1)(ee) of the Bombay Rent Act.

(3.) Looking at the averments made in the plaint it seems that the plaintiff-landlord had clearly in mind subletting contrary to sec. 13(1) (e) for he has virtually adopted the language of sec. 13(e) by refering to the words assigning or transfering his interest in the suit premises. It seems that at their stage the plaintiff did not have in mind that the case could also come under sec. 13(1)(ee) and therefore not only that he did not make specific allegation with regard to illegal licence but also he did not raise any contention at any stage before the trial Court with regard to the issue under sec. 13(1)(ee) not having been raised. The Petitioner does not seem to have raised this question even in his appeal memo before the Appellate Bench. It seems to be as a result of subsequent thought that he realised that on the averments made and the evidence laid the case could not come under sec. 13(1)(e) but can only come under sec. 13(1)(ee) and therefore the petitioner is as it were trying to switch over to a new issue.