USHA SALES LIMITED Vs. MALCOLM GOMES

JUDGEMENT

(1.) This petition under Article 227 of the Constitution seeks, to challenge an order passed by the Appellate Bench of the Court of Small Causes on 17th December, 1981, in R.A. Revision Application No. 232 of 1981. The facts leading to the present petition must be mentioned before appreciating a somewhat neat point of law which has been canvassed before me by Mr. S.T. Tijoriwalla, the learned Advocate appearing in support of this petition.

(2.) The petitioner is a public limited Company and is a licensee in a flat situated in Apsara Apartments at Pall Hill in Bandra, a suburb of Bombay. The first respondent, hereinafter referred to as the respondent", is the owner of the flat or at any rate he is the person who has leased the flat to the petitioner. The respondent filed a suit being R.A.E. Suit No. 574/2408 of 1980, for possession of the flat, hereinafter referred to as "the suit premises", on the ground that he requires the same reasonably and bona fide for his own use and occupation. The written statement was originally filed by the petitioner. Subsequently the written statement was amended and on the amended written statement the trial Court framed 3 additional issues which were numbered as issues Nos. 4-A, 5-A and 5-B.

(3.) Thereafter an application was made on behalf of the petitioner to the trial Judge to treat the additional issues framed as preliminary issues and try and decide the same first before proceeding to the trial of the entire suit. The learned trial Judge by his judgment and order dated 18th September 1981, rejected this application. While so doing he noticed that there was no obligation on the Court to try any issue as a preliminary issue. He also stated that in the present case all other issues have already been framed and the trial had already begun and, therefore, it would not be just and proper to postpone that trial for the purpose of deciding certain issues as preliminary issues.