VIDYADHAR GAJANAN MHATRE Vs. VIKRAMSINGH P SOLANKI

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the City Civil Court in Suit No. 3932 of 1964 returning the plaint for presentation to the proper- Court on the ground that the City Civil Court has no jurisdiction to entertain the suit.

(2.) It is well settled that the jurisdiction of a Court to decide the issue depends on the averments contained in the plaint read as a whole and not on the defence that may be taken up by the defendant. It follows that even if in the plaint the plaintiff has attempted to meet anticipated defence it cannot affect the plaintiff's basic cause of action in the plaint. To appreciate the cause of action in the plaint it is necessary to consider the history leading to the present suit.

(3.) The plaintiffs are the owners of a building known as "Ganpati Nivas" at Cadell Road. One Shanta Gopichand Rin was the monthly tenant in respect of the ground floor of the said building. The plaintiffs filed a suit in the Small Cause Court being R.A.E. Suit No. 15117 of 1958 against Shanta Rin and the present defendant on the ground that Shanta had illegally sublet the premises to the defendant herein. On 26-2-1959 and 9-3-1959 Shanta and the present defendant filed their respective writ en statements denying any subletting. Both of them stated that the defendant had no interest in the said premises. It should be noted that the defendant did not at any time amend his written statement to claim the subtenancy though the suit was ultimately heard and dismissed on 27-4-61 i.e. after the amendment of the Rent Act conferring protection on the sub-tenants, provided the sub-tenancy was granted prior to 21-5-1959. At the final hearing the plaintiffs did not press the ground of subletting, obviously on the basis that both the defendants had denied the subletting in their written statements and because after 21-5-1959 it will not help the plaintiffs to" establish sub-tenancy as such sub-tenancy if established would be protected and would therefore be against the interest of the plaintiffs. As against this, if there really was a sub-tenancy the defendant would have amended the written statement as it would obviously be in his interest to do so. The other ground taken up by the plaintiffs was of bona fide requirement which also appears to have been disallowed by the Small Cause Court. The Plaintiffs thereafter filed, another suit bearing No. 4109 of 1962 against Shanta only on the ground of non-payment of rent The present defendant was not made a party to that suit. It can be presumed that he was not made a party inasmuch as he had already stated on oath that he had no interest in the premises and continued to do so even till 1961. On 1-2-1963 an ex parte decree was passed against Shanta for eviction. In the execution proceedings the defendant obstructed and an Obstructionist Notice No. 344 of 1963 was issued on 29-31963. The defendant contended that he was a subtenant. On 31-3-1964 the notice was discharged holding that the defendant was a lawful subtenant. It is difficult to understand how the learned Judge could have come to the conclusion that subtenancy existed as the burden lay heavily on the defendant to establish the subtenancy inasmuch as he would have to establish subtenancy between 19-3-1959 and 21-5-1959 by some cogent and unimpeachable evidence and as in the written statement he had not claimed subtenancy till 1961. Not only that but he had allowed the plaintiffs to give up their ground of subtenancy based on these written statements assuming there: was any subtenancy.