1. RULE. Shri Chirag Patel, learned advocate waives service of notice of rule on behalf of respondent no. 1, who is the main contesting party so far as the present Civil Revision Application is concerned.
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 application is taken up for final hearing today.
3. The present Civil Revision Application under Section 29 of the Bombay Rent Act has been preferred by the applicants- original plaintiffs-original opponents nos. 1 and 2 in Regular Civil Appeal No. 56/2001 to quash and set aside the impugned judgment and order passed by the learned Additional District Judge, Navsari dated 12/08/2011 in Regular Civil Appeal No. 56/2001 by which the learned appellate Court has allowed the said appeal preferred by respondent no. 1-original defendant no. 1 and has quashed and set aside the judgment and decree passed by the learned trial Court.
4. The applicants-original plaintiffs instituted Regular Civil Suit No. 100/1998 in the Court of learned Civil Judge (Senior Division), Gandevi against the respondents-original defendant for recovery of possession on the ground of arrears of rent, subletting and non-user of the suit premises. The learned trial Court did not pass the decree on the ground of arrears of rent and subletting and believed the case on behalf of the applicants-original plaintiffs for non-user of the suit premises by the original defendants and consequently allowed the said suit and decreed the suit for possession on the ground of non user of the suit premises for more than one year without any reasonable cause. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 100/1998 respondent no. 1 preferred Regular Civil Appeal No. 56/2001 before the learned District Court, Navsari. It appears that in the said Appeal, the applicants-original plaintiffs-original opponents nos. 1 and 2 in the said Appeal also submitted cross objection under Order 41 Rule 22 of the Code of Civil Procedure in so far as the finding given by the learned trial Court against the applicants-original plaintiffs with respect to arrears of rent and subletting. It appears that though the said cross objections were ordered to be taken on record by the learned District Judge, Navsari, without considering the said cross objections, the learned Additional District Judge, Navsari by impugned judgment and order has allowed Regular Civil Appeal No. 56/2001 and has quashed and set aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 100/1998 by which the learned trial Court has passed a decree against respondent no. 1 on the ground of non-user of the suit premises in question. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional District Judge, Navsari in Regular Civil Appeal No. 56/2001, the applicants-original plaintiffs has preferred the present Civil Revision Application under Section 29 of the Bombay Rent Act.
5. Shri Daxesh Mehta, learned advocate appearing on behalf of the applicants-original plaintiff has vehemently submitted that while deciding Regular Civil Appeal No. 56/2001 the learned appellate Court has not considered the cross objection submitted by the applicants-original plaintiffs-opponents nos. 1 and 2 with respect to the finding given by the learned trial Court on arrears of rent and subletting. It is submitted that the cross objections were produced at Exh. 13 and though it was argued about the cross objections there is no reference to the same by the learned appellate Court while passing the impugned judgment and order. It is submitted that if the cross objections submitted by the applicants-original plaintiffs would have been considered by the learned appellate Court the learned appellate Court might have held the issue with respect to arrears of rent and/or subletting in favour of the applicants- original plaintiffs. However, the learned appellate Court has not considered the cross objections at all and has quashed and set aside the judgment and decree passed by the learned trial Court, which was passed on the ground of non-user only and, therefore, the same has affected the case of the applicants- original plaintiffs so far as the issue with respect to arrears of rent and subletting is concerned, and, therefore, it is requested to remand the matter to the learned appellate Court to consider the cross objections preferred by the applicants- original plaintiffs with respect to the issues on arrears of rent and subletting.
6. Shri Chirag Patel, learned advocate has appeared on behalf of respondent no. 1-original defendant no. 1. However, he is not in a position to point out anything from the impugned judgment and order passed by the learned appellate Court that the learned appellate Court has dealt with and considered the cross objections preferred by the applicants herein. As such he is also not in a position to dispute that as such the applicants- original plaintiffs had filed the cross objections, which is at Annexure - 13 to the aforesaid Appeal. However, he has submitted that as such the learned appellate Court has not committed any error and/or illegality in quashing and setting aside the judgment and decree passed by the learned trial Court, which was passed for non-user of the suit premises by respondent no. 1-original defendant no. 1 and, therefore, it is submitted that if this Court is inclined to remand the matter to the learned appellate Court, the matter may be remanded to the learned appellate Court to consider the cross objections preferred by the applicants only with respect to the issues relating to arrears of rent and subletting.
7. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by the learned appellate Court. It is required to be noted that before the learned trial Court the applicants-original plaintiffs prayed for decree of possession on the ground of arrears of rent, subletting and non-user of the suit premises by original defendants without reasonable cause. The learned trial Court held the issue with respect to arrears of rent and subletting in the negative and passed the decree of possession solely on the ground of non-user of the suit premises. It appears that being aggrieved and dissatisfied with the order passed by the learned trial Court passing the decree of possession on the ground of non-user of the suit premises by the original defendants without reasonable cause, respondent no. 1-original defendant no. 1 preferred Regular Civil Appeal No. 56/2001 before the learned appellate Court. It appears from the record that the applicants-original plaintiffs submitted cross objection at Exh. 13 against the finding given by the learned trial Court with respect to arrears of rent and subletting. It appears that though the said cross objections were submitted, the learned appellate Court has not considered the same and it is the case on behalf of the applicants-original plaintiffs that though the submissions were made before the learned appellate Court on the cross objections nothing has been discussed by the learned appellate Court while deciding and disposing of the said Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. This Court has considered and gone through the entire judgment and order passed by the learned appellate Court and it appears that there is no discussion by the learned appellate Court on the cross objection preferred by the applicants. The learned advocate appearing on behalf of respondent no. 1-original defendant is also not in a position to point out anything from the judgment and order that the learned appellate Court has dealt with and considered the cross objections preferred by the applicants. When the cross objections were submitted by the applicants, the learned appellate Court was required to consider and deal with the same. It is a different thing that after considering the same, the learned appellate Court may dismiss the same on merits, however, the same was required to be dealt with and considered by the learned appellate Court. The learned appellate Court has failed to consider the cross objection preferred by the applicants. Under the circumstances, the matter is to be remanded to the learned appellate Court for considering the cross objections submitted by the applicants with a direction to the learned appellate Court to consider the cross objections preferred by the applicants in accordance with law and on its own merits.
8. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 56/2001 is hereby quashed and set aside and Regular Civil Appeal No.
56/2001 is hereby ordered to be restored to file of the learned District Court, Navsari and the learned appellate Court is hereby directed to consider, decide and dispose of the cross objections submitted by the applicants with respect to the finding given by the learned trial Court on arrears of rent and subletting only. It is made clear and as agreed by the learned advocates appearing on behalf of the respective parties that the findings given by the learned appellate Court on the issue of non-user of the suit premises, which has been held in favour of respondent no. 1-original defendant no. 1 stands confirmed and the same is not required to be re-considered by the learned appellate Court. The matter is remanded to the learned appellate Court only to consider the cross objections preferred by the applicants on the issue of the finding given by the learned trial Court with respect to arrears of rent and subletting only and the learned appellate Court is directed to consider the same in accordance with law and on its own merits. The aforesaid exercise shall be completed by the learned appellate Court within a period of six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent only.
Direct service is permitted.
(M.R. SHAH, J.) siji