UNION OF INDIA Vs. RANI FOTEDAR

JUDGEMENT

(1.) THIS application under Section 115 of the Civil Procedure Code seeks the revision of an order of the learned City Judge, Jammu, dated 26 -5 -1973 passed by him in a suit for ejectment filed by the respondents against the petitioners in that court. It appears that Bungalow No. 31/A situate at Gandhi Nagar Jammu, was taken on lease on 1st July, 1967, at a monthly rent of Rs. 300/ - by the Union of India through petitioner No. 3 for a period of three years from the owners of the bungalow. Subsequently the respondents namely, Shrimati Rani Fotedar and Shrimati Dhanwanti purchased the said bungalow and instituted a suit for ejectment against the petitioners in the court of the City Judge, Jammu. In the plaint it was clearly stated that the Jammu and Kashmir Houses and Shops Rent Control Act, hereinafter called "the Act", was not applicable to the tenancy. In the written statement filed by the defendants it was pleaded that the plaintiffs were not entitled to a decree for recovery of possession of the house as the Act governed the tenancy in question. In view of these pleadings although it was necessary to frame preliminary issue whether the Act applies to the tenancy yet the trial court did not frame any issue. The interim order of the trial court dated 20 -3 -1973 reveals that the counsel for the parties wanted to address arguments on the question whether the Act applies to the tenancy. Arguments were ultimately heard on 26 -5 -1973 and the trial court by its order of the same date held that the Act was not applicable to the tenancy in question This revision application is directed against the order of the learned City Judge, Jammu, dated 26 -5 -1973 disposing of the question regarding the applicability of the Act.

(2.) THE counsel for the parties has not made any grievance in this court, regarding the absence of a formal issue. In my opinion also the absence of a formal issue which the trial court would have been well advised to frame, does not vitiate the order, as in fact and substance, the court as also the counsel for the parties were aware of the scope of the dispute on which the arguments were heard by the trial court and which has been disposed of by the order of the trial court impugned in this application.

(3.) MR . R. N. Bhalgotra appearing in support of the application submitted that the Act was applicable to the House in question and therefore the plaintiffs were not entitled to a decree for recovery of possession except on the grounds mentioned in Section 11 of the Act. The argument of Mr. Bhalgotra is based on the provisions of Section 1 sub -section 3 clauses (i) and (iii) of the Act. For a correct appreciation of the argument of Mr. Bhalgotra sub -section 3 of Section 1 of the Act is reproduced hereunder: -