RUDRAYYA TIPPAYYA SWAMI Vs. KALYANAPPA GURUSHANTAPPA ALAGUNDAGI

JUDGEMENT

(1.) HEARD the learned advocates for the parties. Perused the records.

(2.) THE petitioners challenge the judgment and order dated 16th April, 1984 passed in Regular Civil Suit No. 1196 of 1974 by the IInd Joint Civil Judge, Junior Division, solapur, and the judgment and order dated 10th September, 1990 passed by the additional District Judge, Solapur, in Civil appeal No. 544 of 1984. By the latter judgment and order, while dismissing the appeal, the lower appellate Court has confirmed the decree against the petitioners for eviction from the suit premises.

(3.) THE challenge to the impugned judgment and order is two fold. Firstly that a composite suit, one in relation to the relief for restoration of possession based on title and other in relation to the eviction of the petitioners from the suit premises on the basis of the grounds available under the Bombay Rents, hotel and Lodging House Rates Control Act, 1947, hereinafter called as "the Rent Act," was not maintainable, as such a suit suffers from mis-joinder of causes of action as the cause of action for possession on the basis of title to the property being totally distinct and separate from the cause of action for eviction in favour of the landlords under the Rent Act, and therefore, both could not be combined in the same proceedings and both the Courts below having ignored this aspect have acted illegally while decreeing the suit. Secondly that both the Courts erred in holding that the respondents/original plaintiffs had established the case in relation to the bona fide need of premises as well as default in payment of rent. Reliance is sought to be placed in the decision of the Division Bench of gujarat High Court in the matter of Govindbhai parshottamdas Patel and Ors. Vs. New shorrock Mills, Nadiad, reported in AIR 1984 gujarat 182 and of the learned Single Judge of this Court in the matter of Mohmad Husain chorumiya Shaikh Vs. Taraben Manilal shah, reported in 1992 Bom. R. C. 41. The attention is also drawn to the averments in the plaint while submitting that the same clearly disclose the pleadings which reveal that the suit was filed primararily for restoration of possession from a trespasser and, in the alternative, for eviction on the basis of the grounds available under the Rent Act. The attention was also drawn to the procedure, which is required to be followed in the cases arising under the Rent Act, while contending that the same is different from the one to be followed in regular suits particularly in relation to a right of appeal as also the forum to which such appeal is to be filed, irrespective of the quantum of amount involved in relation to the arrears of rent and the absence of provision for second appeal. On the other hand, while submitting that the claim of the plaintiffs to be understood by reading the entire plaint as a whole, and there being no grievance made at any time by the petitioners in understanding the exact nature of the claim of the plaintiffs, it is submitted by the learned advocate for the respondents that both the parties had clearly understood that the dispute was between the landlord and the tenant and the pleadings in relation to the grounds pertaining to denial of title was in respect of one of the grounds available for the landlord to seek eviction of a tenant under the Rent Act. Further it was sought to be contended that even in the proceedings for eviction filed against a tenant by the landlord under the Rent Act, if a dispute pertaining to the title of the premises arises for determination thereof, the Court dealing with the matters under the Rent Act is not debarred from dealing with the said issue. On proper reading of the pleadings in the plaint, it cannot be said that the suit was of the nature other than that between the landlord and the tenant. Reliance is sought to be placed in the decisions of the Apex Court in the matter of Messrs importers and Manufactures Ltd. Vs. Pheroze Framroze Taraporewala, reported in air 1953 SC 73, of the Division Bench of this Court in Smt. Savitribai and Anr. Vs. Vithal Hari Petakar, reported in AIR 1981 bombay 430 and of the learned Single Judge of this Court in Shri. Kamruddin Shabuddin tamboli Vs. Shri. Allauddin Fattemohamed malik and Ors. , reported in 1985 (1)Bom. C. R. 101 and of the Apex Court in babulal Bhuramal and Anr. Vs. Nandram shivram and Ors. , reported in AIR 1958 SC 677.