1. The present Civil Revision Application u/s.29(2) of the Bombay Rent Act has been preferred by the applicant herein – original defendant to quash and set aside the impugned judgment and decree dated 30/06/1994 passed by learned Civil Judge (J.D.), Dehgam in Regular Civil Suit No.51 of 1982 as well as impugned judgement and order dated 09/12/1997 passed by learned Appellate Court – learned 5th Extra Assistant Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Appeal No.35 of 1994, by which, learned Appellate Court has dismissed the said appeal preferred by the applicant herein – original defendant by confirming the judgement and decree passed by learned Trial Court, by which learned Trial Court has passed eviction decree against the applicant herein – original opponent on the ground of arrear of rent.
2. That the original plaintiff – Dehgam Social Center through its Vahivatkartas instituted Regular Civil Suit No.51 of 1982 in the Court of learned Civil Judge (J.D.), Dehgam against the applicant herein – original defendant for recovery of possession on the ground of arrears of rent.
That the said Suit was resisted by the applicant herein - original defendant by filing written statement at Exh.29 not only disputing that the plaintiffs are not owners of the suit premises, even disputing that there is no relationship of landlord and tenant between the plaintiffs and the defendant. Learned Trial Court framed the issues at Exh.16 and one of the issue i.e. issue No.1-A framed by learned Trial Court was Whether the plaintiff proves that he is owner of the suit premises? Despite specific dispute raised in the written statement that the plaintiffs were never the owners of the suit premises and that the defendant was never the tenant of the suit premises and there is no relationship of landlord and tenant, learned Trial Court did not frame issue Whether there is relationship of landlord and tenant between the plaintiffs and the defendant or not and learned Trial Court by judgement and decree dated 30/06/1994 held that the original defendant is in arrears of rent and passed eviction decree against the original defendant. However, learned Trial Court did not decide Issue No.1-A by observing that as Rent Court, the Court has no jurisdiction to decide the dispute with respect to title and ownership of the suit premises.
3. Being aggrieved by and dissatisfied with the judgement and decree dated 30/06/1994 passed by learned Civil Judge (J.D.), Dehgam in Regular Civil Suit No.51 of 1982, the applicant herein – original defendant has preferred Regular Civil Appeal No.35 of 1994 before learned Appellate Court and though the dispute was raised in the written statement, learned Appellate Court has not framed the said issue and consequently has not decided the issue as to Whether there is any relationship of landlord and tenant between the plaintiffs and defendant or not. Learned Appellate Court treated Issue No.1-A as if by treating the word “owner” as “landlord” and accordingly held that there was relationship of landlord and tenant between the plaintiffs and tenant and consequently confirmed the judgement and decree passed by learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and orders/decree passed by both the Courts below, the applicant herein – original defendant has preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
4. Mr.M.I.Merchant, learned advocate appearing on behalf of the applicant herein – original defendant has vehemently submitted that as such learned Trial Court did not frame the issue Whether there is any relationship of landlord and tenant between the plaintiffs and defendant and learned Trial Court did not decide Issue No.1-A and though even learned Appellate Court has not framed the Issue/ Point for determination as to Whether there is any relationship of landlord and tenant between the plaintiffs and landlord or not, learned Appellate Court ought not to have answered the said issue by holding that there is relationship of landlord and tenant between the plaintiffs and defendant. It is submitted that none of the Courts below have framed the Issue as to Whether there is relationship of landlord and tenant between the plaintiffs and defendant or not, though the same was raised in the written statement. Therefore, it is requested to quash and set aside the impugned judgement and orders/decree passed by both the Courts below and remand the matter to the learned Trial Court by directing the learned Trial Court to reframe/add the issue and thereafter to decide and dispose of the same in accordance with law and on merits.
Mr.M.I.Merchant, learned advocate appearing on behalf of the applicant herein – original opponent has heavily relied upon the decision of this Court in the case of Ahmedabad Municipal Corporation V/s. Pravinbhai H. Patel reported in 2008(2) GLH 603 as well as in the case of Prajapati Ambaram Nagarbhai and another V/s. Prajapati Harjibhai and others reported in 2010(2) GLH 551 in support of his prayer to allow the present Civil Revision Application and to quash and set aside the judgement and orders/decree passed by both the Courts below and remand the matter to the learned Trial Court.
5. Though served, nobody appears on behalf of contesting respondents – original plaintiffs.
6. Heard Mr.M.I.Merchant, learned advocate appearing on behalf of the applicant herein and perused the impugned judgement and decree passed by learned Trial Court as well as confirmed by learned Appellate Court.
7. At the outset, it is required to be noted that in the written statement itself, there was dispute with respect to relationship of landlord and tenant between the plaintiffs and defendant and, therefore, learned Trial Court was required to raise issue as to Whether there is any relationship of landlord and tenant between the plaintiffs and defendant or not. Even the aforesaid was canvassed before learned Appellate Court still learned Appellate Court treated the Issue No.1-A as if by treating the word “owner” as “landlord” and accordingly held that there was relationship of landlord and tenant between the plaintiffs and the defendant and consequently confirmed the judgement and decree passed by learned Trial Court. Under the circumstances, looking to the controversy between the parties, learned Trial Court was required to frame the issue whether there is relationship of landlord and tenant between the plaintiffs and defendant or not and learned Trial Court was required to decide the same issue, which learned Trial Court has failed to do. Learned Trial Court has not considered the aforesaid issue. Under the circumstances, looking to the controversy between the parties and as the aforesaid issue is not raised and decided by learned Trial Court and learned Appellate Court, the impugned judgement and decree passed by learned Trial Court and confirmed by learned Appellate Court is required to be quashed and set aside and the matter is required to be remanded to the learned Trial Court to decide the same in accordance with law and on merits, after framing additional issue as to whether there is relationship of landlord and tenant between the plaintiffs and defendant or not?
8. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds and the impugned judgment and decree dated 30/06/1994 passed by learned Civil Judge (J.D.), Dehgam in Regular Civil Suit No.51 of 1982 as well as impugned judgement and order dated 09/12/1997 passed by learned Appellate Court – learned 5th Extra Assistant Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Appeal No.35 of 1994 are hereby quashed and set aside and the matter is remanded to the learned Trial Court to decide the same in accordance with law and on merit, after framing additional issue whether there is relationship of landlord and tenant between the plaintiffs and defendant or not and after giving an opportunity to all concerned. The aforesaid exercise shall be completed by the learned Trial Court within a period of one year from the date of receipt of the present order. Rule is made absolute accordingly. No costs.
[M.R.SHAH,J] *dipti