SHANTUKKUMAR LAXMIKANT SHARMA Vs. SHAH KUMUDCHANDRA VALCHANDBHAI

JUDGEMENT

(1.) The facts leading to the filing of this appeal may be briefly stated as follows : The suit property consists of a room bearing municipal census No. 1635/2 on the first floor of the house situated in Tankshals pole at Ahmedabad. The suit property belongs to a joint Hindu family of Shah Kumudchandra Valchandbhai. The plaintiff is the manager. The suit property was let out to Pandit Joravarlal Ramlal on monthly rent of Rs. 15.00 plus taxes and education cess. The said Joravarlal according to the plaintiff wanted to go away to his native place viz. Agra and transfer the Suit premises to Some one else and Therefore suit No. 2804 of 1973 Was filed against the said Joravarlal in the court of small Causes at Ahmedabad to obtain permanent injunction to restrain him from transferring the suit property to any one else and injunction was accordingly granted in that suit on 14-3-1977. The plaintiff was in need of the suit permises and therefore he gave a notice by registered post on 3.10.1979 to Joravarlal terminating his tenancy and calling upon him to vacate the same which notice was received by one S. K. Sharma who is the defendant in the suit. It was received on 6-10-1979 by him and he gave a reply on 8.10.1979 contending that the said Joravarlal had expired at Agra on 29.12.1978 and that he i.e. S. K. Sharma the defendant was son of daughter of Joravarlal and was residing with Joravalal for the last many years prior to his death in the suit premises and claimed tenancy rights in the suit premises by that rely. The plaintiff then filed the present suit against the defendent S. K. Sharma in the City Civil Court alleging therein that the defendant had never been resided with Joravarlal in the suit premises and that he was coming forward with a false say that he was related to Joravarlal. The plaintiff alleged that the defendant had trespassed into the suit premises recently after the death of Joravarlal and had no legal right to remain in possession of the same being a trespassers these grounds he prayed for possession of the suit premises from the defendant contending that the defendant was a trespasser.

(2.) The defendant filed his written statement at ex. 16 and contended that he was residing in the suit premises with deceased Jorvarlal and therefore he was entitled to claim tenancy rights in the suit premises under the provisions of the rent Act. The defendant thus contended that he cannot be evicted from this suit premises as he was a tenant. He also contended that the City Civil Court had no jurisdiction to entertain the suit as he was a tenant. The learned trial Judge framed issues at ex. 7. The learned trial Judge held that the defendant was a trespasser and therefor the plaintiff was entitled to recover possession of the suit premises from the defendant. He held that the City Civil Court at Ahmedabad had jurisdiction to entertain the suit. The learned trial Judge accordingly passed a decree for possesion and mesne profits against the defendant. Being dissatisfied with the same the original defendant has filed this appeal. The learned trial judge has decided all the issues as stated by me above but it appeared to me that it would be better if the question about jurisdiction was decided first because in that case it may not be necessary to enter into the merits of the case. In view of this. I have heard the arguments only with regard to the question of jurisdiction and as I was inclined to hold that the City Civil Court had no jurisdiction to decide the question viz. whether the defendant was entitled to claim the status of a tenant under section 1 (c) of the Rent Act I did not ask the learned Advocates to put forward their submission on the merits of the case.

(3.) Now. as stated in the beginning the plaintiffs case is that the defendant is a trespasser while the defendant claims to be a tenant in the suit premises on the allegation that he was entitled to claim tenancy rights by virtue of the provisions of sec.5(11)(c) of the Rent Act as he was residing with his maternal grand father who was the tenant in the suit premises at the time of his death. In view of this the City Civil Court had jurisdiction to entertain the present suit because the question of jurisdiction is ordinarily decided on the allegations made in the plaint and not on the contentions raised by the defendant in the written statement. The real question however. which requires consideration is whether the City Civil Court will have jurisdiction to decide the question raised by the defendant viz. that he is entitled to claim the status of a tenant under sec. 5 of the Rent Act and if not. what will be the effect of the some on the suit. ?