1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants- original plaintiffs to quash and set aside the impugned judgment and order/decree passed by the learned appellate Court-learned Principal District Judge, Surat dated 01/01/2009 in Regular Civil Appeal No. 30/1995 by which the learned appellate Court has allowed the appeal preferred by the respondents-original defendants by quashing and setting aside the judgment and decree passed by the learned Small Cause Court, Surat dated 04/05/1995 in Rent Small Suit No. 195/1983.
2. It appears that the original plaintiff preferred Rent Small Suit No. 195/1983 before the learned Small Cause Court at Surat for declaration and permanent injunction with respect to the demised premises, inclusive of 'vada' land relating to the suit premises, being 20 x 11 ft. It appears that by the judgment and decree dated 04/05/1995 the learned Small Cause Court at Surat decreed the suit and passed the following order;
“As stated reasons above, the suit of the plaintiff is hereby allowed and decreed. It is hereby ordered and decreed that the defendant-landlord shall be mandated and directed to remove the fence and sheet compound touching to western border after putting eight feet open land in causing obstruction and interference of the suit wada land in quite and peaceful enjoyment of the plaintiff of the demised premises and shall be restored to its original condition before putting up such fence and sheet compound within one month and atleast up to 12/06/1995 and failing which the plaintiff is entitled to removal of such obstruction and restoration of its original condition under this order and decree.
It is hereby ordered and decreed that the wada land relating to the suit premises in size of 20 x 11 feet is a courtyard of the demised premises and the plaintiff is a tenant of the suit premises inclusive of such wada land and that the plaintiff is entitled to enjoy such wada land as open wada land as a prudent man and reasonable user thereto and the defendant shall not make any interference, obstruction and harassment in the quite and peaceful enjoyment of the plaintiff as to the demised premises.
It is hereby ordered and decreed that the defendant shall be restrained to make and cause interference and obstruction directly or indirectly in possession of the demised suit premises inclusive of wada land and in the quite and peaceful enjoyment thereto and further shall not dispossess the plaintiff in such suit premises without taking due process and course of law.
It is hereby ordered and declared that the plaintiff as the tenant is entitled to enjoy a common latrine with the defendant landlord and that the defendant shall cut or withhold no such essential service or supply of the plaintiff and the members of the plaintiff's family and shall not make any obstruction, interference and harassment in such enjoyment of the common latrine passing through wada land situated just behind four gala property and in failing of providing such essential service or supply of the passage and use of the latrine to the plaintiff and the members of the plaintiff's family, the plaintiff is entitled to removal of any direct or indirect obstruction in such enjoyments under this order and decree through Court with cost and expenses of the defendant landlord.
It is hereby ordered and declared that the plaintiff is now not entitled to use the water tap situated at extreme border of the western wall of the wada land what the plaintiff has got his own independent water line and connection in the suit premises and that the claim of the plaintiff is with regarding such right rejected and no relief is hereby granted.
It is hereby further declared that the defendant landlord has no bar if he has to prepare the new structure over such wada land. He has right to move the permission for the improvement and additional structure and construction under the provisions of Section 13(A) of the Bombay Rent Act, even if the injunction being granted in favour of the plaintiff as prayed for in this suit.
The defendant shall bear his own cost and shall pay cost of the plaintiff.
Decree will be drawn accordingly in favour of the plaintiff.”
2.1. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Surat dated 04/05/1995 in Rent Small Suit No. 195/1983 original defendant preferred Regular Civil Appeal No. 30/1995 before the learned District Court, Surat. It appears that before the learned appellate Court it was submitted that so far as the premises admeasuring 20 x 11 ft. is concerned it has already gone in possession of Surat Municipal Corporation for widening of road and in fact the original plaintiff was given alternative accommodation in lieu thereof. Considering the above, the learned appellate Court held that there remains no cause of action so far as the demised suit premises is concerned and, therefore, the suit itself has become infructuous. In view of the subsequent development that took place in the year 1995- 2000 i.e. dismantling of the demised premises consequently the learned appellate Court allowed the appeal by quashing and setting aside the judgment and decree passed by the learned trial Court.
3. Having heard the learned advocates appearing on behalf of the respective parties, it appears that there is a serious dispute whether the entire demised premises, inclusive of the 'vada' land had gone for widening of the road or not and there is also a serious dispute whether the 'vada' land admeasuring 20 x 11 ft. can be said to be tenanted demised premises or not and, therefore, it appears to the Court that the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court solely on the ground that in view of the subsequent development, the suit has become infructuous. The dispute with respect to the remaining premises, if any, ('vada' land), which has not gone for widening of the road was still required to be considered by the learned appellate Court.
4. Under the circumstances, the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. Considering the fact that the 'vada' land admeasuring 20 x 11 ft. was considered to be part of the demises premises and the original plaintiff was the tenant of the suit premises, inclusive of 'vada' land and the entire premises, inclusive of the 'vada' land, has not gone for road widening, the learned appellate Court was required to decide the appeal with respect to the remaining portion of the premises, which had not gone for road widening.
5. Under the circumstances, the impugned judgment and order passed by the learned appellate Court allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court is required to be quashed and set aside and without further entering into the merits of the case, the matter is to be remanded to the learned appellate Court to decide the same afresh in accordance with law and on its own merits with respect to the remaining premises, which has not gone under road widening.
6. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned judgment and order passed by the learned Principal District Judge, Surat dated 01/01/2009 in Regular Civil Appeal No. 30/1995 is hereby quashed and set aside and the matter is remanded to the learned appellate Court to decide the said appeal afresh in accordance with law and on its own merits with respect to the remaining premises, which has not gone under road widening and whether the cause of action still survives or not. The aforesaid exercise shall be completed within a period of nine months from the date of receipt of the present order. Rule is made absolute accordingly. No costs.
7. It goes without saying that the interim relief granted by this Court shall be continued during pendency of the appeal by the learned appellate Court. However, the same shall be without prejudice to the rights and contentions of the respective parties.
(M.R. SHAH, J.) siji