1. Rule. Mr.D.M.Devnani, learned advocate waives service of notice of Rule on behalf of the respondent herein - original plaintiff.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
3. The present Civil Revision Application u/s.29(2) of the Bombay Rent Act has been preferred by the petitioners herein - original defendants to quash and set aside the impugned judgement and decree dated 17/07/2006 passed by learned 3rd Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.636 of 1985 as well as impugned judgment and order dated 24/02/2012 passed by learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No.47 of 2006, by which, learned Appellate Court has dismissed the said appeal preferred by the petitioners herein by confirming the judgment and decree passed by learned Trial Court. However, on the ground other than the ground on which the Trial Court passed the decree.
4. That the respondent herein - original plaintiff instituted Regular Civil Suit No.636 of 1985 against the petitioners herein - original defendants in the court of learned 3rd Additional Senior Civil Judge, Bhavnagar for recovery of possession/ eviction decree on the ground of non-user of the suit premises and on other grounds. Learned Trial Court by impugned judgement and decree dated 17/07/2006 allowed the said suit and passed eviction decree directing the petitioners herein – original defendants to hand over peaceful and vacant possession of the suit premises to the original plaintiff on the ground of non-user of the suit premises for more than six months as well as on the ground that on the death of the original tenant, the petitioners herein cannot be said to be tenants u/s.5(11)(c) of the Bombay Rent Act. It is the case on behalf of the petitioners herein that there is joint tenancy of the suit premises with Talakchand Ratilal and its brother and/or their joint Hindu family.
5. Being aggrieved by and dissatisfied with the judgement and decree dated 17/07/2006 passed by learned Trial Court in Regular Civil Suit No.636 of 1985, the petitioners herein – original defendants preferred Regular Civil Appeal No.47 of 2006 before learned Appellate Court and learned 5th Additional District Judge, Bhavnagar vide order dated 24/02/2012 has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court of passing eviction decree on the ground that the petitioners herein cannot be said to be tenants after death of the original tenant under section 5(11)(c) of the Bombay Rent Act. It is to be noted that so far as non-user of the suit premises is concerned, learned Appellate Court reversed the said finding given by learned Trial Court and held that suit premises in question was being used even at the time of filing of the suit and it cannot be said that there was non-user of the suit premises for more than six months before filing of the suit. Learned Appellate Court on appreciation of evidence found that the suit premises was being used from year 1981 to 1985 i.e. even at the time of filing of the suit. Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below in passing eviction decree, the petitioners herein – original defendants have preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
6. Mr.Ashish Dagli, learned advocate appearing on behalf of the petitioners herein – original defendants has vehemently submitted that as such issue with respect to tenancy rights of the petitioners herein u/s.5(11)(c) of the Bombay Rent Act on the death of the original tenant Talakchand Ratilal was not raised in the suit and not even before learned Appellate Court and even neither learned Trial Court nor learned Appellate Court framed issue as to whether the petitioners herein can be said to be tenants of the suit premises u/s.5(11)(c) of the Bombay Rent Act or not?, both the Courts' below ought not to have given any findings on that issue and learned Appellate Court has materially erred in passing eviction decree solely on that ground.
7. Mr.Devnani, learned advocate appearing on behalf of the respondent herein - original plaintiff is not in a position to point out either from the plaint or even from the judgement and order passed by learned Trial Court that the eviction decree was sought on the ground that on the death of the original tenant, the petitioners herein cannot be said to be tenants under section 5(11)(c) of the Bombay Rent Act and, therefore, to pass eviction decree and to recover the possession. He is not in a position to dispute that neither learned Trial Court nor learned Appellate Court framed any specific issue as to whether the petitioners herein can be said to be tenants of the suit premises under section 5(11)(c) of the Bombay Rent Act or not?
8. In view of the above, there is broad consensus between the learned advocates appearing on behalf of the respective parties that the impugned judgement and orders passed by both the Courts below be quashed and set aside and the matter be remanded to the learned Trial Court to decide the issue with respect to tenancy rights of the petitioners herein under section 5(11)(c) of the Bombay Rent Act on the death of the original tenant, by permitting the original plaintiff to amend the plaint and learned Trial Court to frame additional issue on the same and to decide and dispose of the said issue after permitting respective parties to lead additional evidence. It is agreed between learned advocates appearing on behalf of the respective parties that learned Trial Court is not required to decide the issue with respect to non-user of the suit premises. Learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while remanding the matter to the learned Trial Court.
9. In view of the above and for the reasons stated hereinabove, the impugned judgement and decree dated 17/07/2006 passed by learned 3rd Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.636 of 1985 as well as impugned judgment and order dated 24/02/2012 passed by learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No.47 of 2006 in passing eviction decree are hereby quashed and set aside, however finding given by learned Appellate Court on non-user of the suit premises is hereby confirmed and the matter is hereby remanded to the learned Trial Court to decide the issue with respect to alleged tenancy rights of the petitioners herein under section 5(11)(c) of the Bombay Rent Act on the death of the original tenant – Talakchand Ratilal. As agreed between learned advocates appearing on behalf of the respective parties that it will be open for the original plaintiff to amend the plaint and pray for decree on the ground that the petitioners cannot be said to be tenants under section 5(11)(c) of the Bombay Tenancy Act and on that learned Trial Court to frame additional issue and thereafter to decide and dispose of the said issue after permitting the respective parties to lead additional evidence on the same. In view of the above, original plaintiff to amend the plaint as stated hereinabove within a period of four weeks from today. Learned Trial Court to frame issue within a period of four weeks thereafter and to decide and dispose of the aforesaid issue/suit after permitting the respective parties to lead additional evidence at the earliest but not later than 12 months from the date of framing additional issue. Rule is made absolute to the aforesaid extent. No costs.
10. In view of the dismissal of the main Civil Revision Application, Mr.Ashish Dagli, learned advocate appearing on behalf of the petitioners herein does not press Civil Application No.6973 of 2012 and the same is dismissed as not pressed. No costs.
[M.R.SHAH,J] *dipti