1. The present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the applicant herein – original plaintiff to quash and set aside the impugned judgement and order dated 22/10/2001 passed by learned Assistant Judge, Panchmahals, Godhra in Regular Civil Appeal No.15 of 2000, by which, learned Appellate Court has allowed the said appeal preferred by the respondent herein – original defendant and has quashed and set aside the judgement and decree passed by learned Trial Court decreeing the suit and passing eviction decree against the respondent herein – original defendant.
2. That the applicant herein – original plaintiff- landlord instituted Regular Civil Suit No.432 of 1987 against the respondent herein – original defendant – tenant in the court of learned Joint Civil Judge (J.D.), Halol for recovery of possession/ eviction decree on number of grounds inclusive of on the ground that original defendant is in arrears of rent for more than six months; that the plaintiff required suit property for his personal and bonafide requirement; that the defendant- tenant had put up permanent construction without prior permission of the landlord and also on the ground of non-user of the suit premises by the original defendant for more than six months preceding the date of filing of the suit.
3. That the suit was resisted by the original defendant by filing written statement denying all the averments made in the suit and denying non-payment of arrears of rent for more than six months and not using the suit property for more than six months and suit property is required bonafidely by the landlord, etc. The suit was also resisted by submitting that the suit property belongs to Trikamlal Mandir Trust and as the original plaintiff i.e. Ramanlal Chunilal Pathak was Administrator of the said Trust, the suit filed by the original plaintiff at his instance, is not maintainable. The suit was also resisted on the ground that the suit has been filed without the prior permission of Charity Commissioner and therefore the same is not maintainable.
Learned Trial Court framed the issues at Exh-16. Both the sides led evidence and on appreciation of evidence, learned Trial Court held all the issues in favour of the original plaintiff and against original defendant and consequently learned Trial Court passed the eviction decree against the original defendant vide judgement and decree dated 13/01/2000.
4. Being aggrieved by and dissatisfied with the judgement and decree dated 13/01/2000 passed by learned Joint Civil Judge (J.D.), Halol in Regular Civil Suit No.432 of 1987 in passing eviction decree against the respondent herein – original defendant, the respondent herein – original defendant preferred Regular Civil Appeal before learned District Court, Panchmahal at Godhara and learned Appellate Court by impugned judgement and order dated 22/10/2001 has allowed the said appeal by quashing and setting aside the judgement and decree passed by learned Trial Court mainly and solely on the ground that as one Jaivadan Pathak is owner of the suit property as reflected in the property card produced at Exh.91 and the suit has been filed by Ramanlal Pathak, who is not the owner of the suit property and, therefore, notice was issued by the plaintiff to the defendant under section 12(2) of the Bombay Rent Act was illegal as well as on the ground that the suit filed by Ramanlal was not maintainable at his instance by observing that the suit has been filed by a person, who is not the owner of the suit property. It appears that some observations are made by learned Trial Court on the ground of arrears of rent by holding that tenancy is yearly tenancy and not monthly tenancy.
5. Being aggrieved by and dissatisfied with the impugned judgement and order passed by learned Appellate Court in allowing the appeal preferred by the original defendant and quashing and setting aside the judgement and decree passed by learned Trial Court decreeing the suit and passing eviction decree, the applicant herein – original plaintiff has preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act. It appears that during the pendency of the present proceedings, the applicant herein - original plaintiff has expired and, therefore, his heirs are brought on record.
6. Mr.Shalin Mehta, learned senior counsel appearing on behalf of the applicant herein – original plaintiff – landlord has vehemently submitted that learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by learned Trial Court solely and mainly on the ground that original plaintiff i.e. Ramanlal Chunilal Pathak is not the owner of the suit property and one Jaivadan Pathak is the owner of the suit property. It is submitted that as such learned Appellate Court has materially erred in holding that Jaivadan Pathak is the owner of the suit property and consequently allowing the appeal. It is further submitted that except the on aforesaid ground, learned Appellate Court has not considered any other issues on merits and any other grounds on which learned Trial Court passed eviction decree.
6.1 It is further submitted by Mr.Shalin Mehta, learned senior counsel appearing on behalf of the applicant herein that even learned Appellate Court has not framed proper points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure. Therefore, it is requested to allow the present Civil Revision Application and remand the matter to the learned Appellate Court to decide and dispose of the said appeal in accordance with law and on merits and on all issues after framing proper points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure.
7. Mr.Sunil Joshi, learned advocate has appeared on behalf of the respondent herein – original defendant and has tried to support the judgement and order passed by learned Appellate Court. However, he is not a position to dispute that Jaivadan Pathak was not the owner of the suit property at the time of institution of the suit as observed and held by learned Appellate Court and, therefore, he is not in a position to dispute that learned Appellate Court has materially erred in holding that Jaivadan Pathak was owner of the suit property and consequently holding that the suit filed by the original plaintiff has been filed by the person, who was not the owner of the suit property. He is also not in a position to dispute that learned Appellate Court has not considered all other issues and has not framed proper points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure. Therefore, it is requested to pass appropriate order of remanding the matter to the learned Appellate Court.
8. Heard learned advocates appearing on behalf of the respective parties at length and considered judgement and orders passed by both the Courts below as well as documentary evidence on record, which are produced on record.
9. At the outset, it is required to be noted that learned Trial Court passed eviction decree against the respondent herein – original defendant – tenant on all grounds inclusive that the tenant is in arrears of rent for more than six months; non-user of the suit premises by tenant for more than six months preceding the date of filing of the suit; on the ground that tenant has put up the permanent construction on the suit premises without prior written consent of the landlord. However, the learned Appellate Court has reversed the judgement and decree passed by learned Trial Court solely on the ground that the person, who instituted the suit i.e. Ramanlal Pathak was not the owner of the suit property, as in the property card produced at Exh.91 one Jaivadan is shown as owner and, therefore, said Jaivadan is the owner of the suit property and, therefore, the suit has been instituted by the plaintiff, who is not the owner of the suit property and consequently learned Appellate Court has quashed and set aside the judgement and decree passed by learned Trial Court, without deciding all other issues/ grounds on which learned Trial Court passed the eviction decree. It is not in dispute and even it is not the case of respondent herein – original defendant that Jaivadan Ramanlal was owner of the suit property. Even considering the document produced at Exh.91, Jaivadan is shown to be Vahivat Karta of Ramanlal Chunilal Pathak, that too on the basis of the entry made with respect to the another property. As stated hereinabove, Mr.Joshi, learned advocate appearing on behalf of the respondent herein is also not disputing that as such said Jaivadan Ramanlal Pathak is not the owner of the suit property. Under the circumstances, learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by learned Trial Court solely on the ground that considering the document produced at Exh.91 Jaivadan Ramanlal Pathak is owner and, therefore, suit instituted by original plaintiff was not maintainable as the suit has been filed by the person, who was not the owner of the suit property, cannot be sustained. Even otherwise, considering the impugned judgment and order passed by learned Appellate Court, it appears that as such learned Appellate Court has not framed point for determination properly as required under Order 41 Rule 31 of the Code of Civil Procedure. While deciding and disposing of the said appeal, learned Appellate Court has framed the following points for determination only :
“1. Whether the defendant proves that the judgement and decree passed by learned Jt.Civil Judge (J.D.), Halol in Reg.Civil Suit No.432/87 dated 31/1/2000 is illegal, perverse and against the provisions of law as prayed for?
2. Whether this appellate court having sufficient reasons and ground to interfere with the judgement and decree passed by the Jt.Civil Judge (J.D.), Halol?
3. What order and decree?”
The aforesaid points cannot be said to be proper points for determination while deciding and disposing of the said appeal. As stated hereinabove, as such learned Appellate Court has not decided and disposed of other issues on merits and the appeal has been allowed on the aforesaid ground only. Under the circumstances, on the aforesaid ground alone, the impugned judgement and order passed by learned Appellate Court deserves to be quashed and set aside and the matter is required to be remanded to the learned Appellate Court to decide and dispose of the said appeal in accordance with law and on merits on all issues/grounds, on which learned Trial Court passed eviction decree after giving an opportunity to all concerned after framing proper points for determination.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds in part. The impugned judgement and order dated 22/10/2001 passed by learned Assistant Judge, Panchmahals, Godhara in Regular Civil Appeal No.15 of 2000 is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the said appeal in accordance with law and on merits on all issues/grounds on which learned Trial Court passed eviction decree, after framing proper points for determination and after giving an opportunity to all concerned. The aforesaid exercise shall be completed by learned Appellate Court at the earliest but not later than 30th June,2013. All concerned are directed to co-operate learned Appellate Court to decide and dispose of the said appeal within stipulated time as stated hereinabove. It goes without saying that during the pendency of the said appeal, both the parties are directed to maintain status quo. However, it is made clear that this Court has not expressed anything on merits in favour of either of the parties. Rule is made absolute to the aforesaid extent. No costs.
*dipti [M.R.SHAH,J]