NANUBHAI PARAGJI Vs. CHHAGANLAL RANCHHODJI DESAI

JUDGEMENT

(1.) . The judgment and the decree passed by the learned Civil Judge (S.D.) at Valsad on 31/07/1978 in Special Civil Suit No. 111 of 1978 are under challenge in this Civil Appeal preferred by the original plaintiff under Sec. 96 of the Code of Civil Procedure, 1908 ("the Code" for brief). It is needless to say that the suit came to be dismissed by the Court below.

(2.) . The facts giving rise to this Appeal are not many and not much in dispute. The appellant claimed to be the tenant of the premises comprising of the first "Gala" from the western side of the house known as "Ratan Bhavan" bearing City Survey No. 4871-B and situated at Tithal Road, Valsad ("the Suit Premises" for convenience). According to him, defendant No. 2 was his nephew, and was residing with the former from his age of 3 years. It is the case of the appellant herein that in or around 1956 he was transferred from Valsad to Malegaon and thereafter his brothers and other members of his family were residing in the suit premises and defendant No. 2 also resided therein as his dependant. It may be mentioned at this stage that the appellant herein claims to have taken the suit premises on lease in his name for his joint family. It appears that respondent No. 1 herein was serving in Bombay and he came down to Valsad after release from his service and resided with his son, that is, respondent No. 2 herein. The case of the appellant herein is that respondent No. 1 herein was permitted to reside in the suit premises by and at the instance of the present appellant. It appears that respondent No. 2 claimed tenancy rights in respect of the suit premises on the basis that it was sublet or assigned to him by the appellant herein. The appellant herein thereupon filed a suit in the Court of the Civil Judge (J. D.) at Valsad for a declaration that he was the tenant in respect of the suit premises and respondents Nos. 1 and 2 herein were not tenants thereof and prayed for a decree for possession thereof. It came to be registered as Regular Civil Suit No. 82 of 1968. Respondents Nos. 3 to 6 herein were joined in the suit as party-defendants as the heirs and legal representatives of the original landlord from whom the appellant herein claims to have taken the suit premises on lease. Respondents Nos. 1 and 2 as defendants Nos. 1 and 2 filed their written statement at Exh. 26 on the record of the trial Court and resisted the present appellant's suit on various grounds. They inter alia contended that the suit premises was sublet or assigned to respondent No. 2 by the appellant herein on the letter's transfer from Valsad to Malegaon sometime in or around 1956. They therefore, prayed for dismissal of the suit. Respondents Nos. 3 and 5 filed their written statement at Exh. 27 On the record of the trial Court and contended that the suit raised controversies between the appellant and respondents Nos. 1 and 2 herein with which respondents Nos. 3 and 5 had no concern. Respondents Nos. 3 and 5 have averred in their written statement at Exh. 27 on the record of the trial Court that the rent in respect of the suit premises was continued to be paid by respondent No. 2 herein from 12 years before the date of the written statement. Respondents Nos. 4 and 6 remained ex-parte. It appears that on the aforesaid pleadings of the parties the learned trial Judge framed the necessary issues. The learned trial Judge also recorded evidence of the parties. At the time of hearing, the learned trial Judge however thought that he did not have any pecuniary jurisdiction to try the matter in view of the valuation of the suit claim determined by him. The learned trial Judge thereupon ordered return of the plaint to the appellant herein for its presentation to the proper Court after revising the valuation of the suit claim with a direction to pay the deceit Court-fees in view of the revised valuation of the suit claim. That order of the learned trial Judge came to be affirmed both in appeal before the District Court and in revision before this Court being Civil Revision Application No. 1497 of 1972 decided on 30/03/1977. Thereupon the plaint was returned to the plaintiff for its presentation to the proper Court. It appears to have been presented to the Court of the Civil Judge (S.D.) at Navsari. On establishment of the Court of the Civil Judge (SD.) at Valsad it came to be transferred thereto and it came to be registered as Special Civil Suit No. Ill of 1978. It appears that the parties agreed to rely on the evidence led by them in trial in Regular Civil Suit No. 82 of 1968 without leading any fresh or further evidence in the matter. They did not seek any amendment in the issues framed in Regular Civil Suit No. 82 of 1968. After hearing the parties, by his judgment and decree passed on 3 1/07/1978 in Special Civil Suit No. Ill of 1978, the learned Civil Judge (S.D.) at Valsad dismissed the suit. That aggrieved the present appellant and he has therefore invoked the appellate jurisdiction of this Court by means of this Civil Appeal.

(3.) . Shri D. D. Vyas appearing for the main contesting respondent, that is, respondent No. 2 herein has submitted that the Court below had no jurisdiction to try the suit in view of Sec. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('-the Act" for brief). In that view of the matter, runs his further submission, the Civil Appeal before this Court would not be competent. As against this, Shri Oza for the appellant has submitted that respondent No. 2 cannot be permitted to canvass this point before this Court as such plea was neither taken in his pleading nor canvassed before the lower Court at the time of hearing. Besides, runs the submission of Shri Oza for the appellant herein. the suit filed before the lower Court was for a declaration with a consequential relief for possession and the claim made in the suit was de hors the Act, and as such Sec. 28 thereof will not be applicable in the instant case.