[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein - original plaintiff to quash and set aside the impugned judgment and order dated 10.09.1997 passed by the learned 2nd Joint District Judge, Junagadh in Regular Civil Appeal No.74 of 1997 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein - original defendant and has quashed and set aside the judgment and decree dated 09.05.1997 passed by the learned Joint Civil Judge (Junior Division), Junagadh passed in Regular Civil Suit No.827 of 1993 on the ground that the learned trial Court had no jurisdiction to entertain the said suit.
[2.0] The facts leading to the present Second Appeal in nut-shell are as under:
[2.1] Appellant herein - original plaintiff instituted Special Civil Suit No.81 of 1991 which came to be subsequently renumbered as Regular Civil Suit No.827 of 1993 against the respondent herein - original defendant in the Court of learned Civil Judge (Junior Division), Junagadh for recovery of the possession of the suit premises contending inter-alia that the respondent herein - original defendant has encroached upon and/or trespassed the suit premises. The said suit was resisted by the respondent herein - original defendant submitting that he is not the trespasser but he is in occupation and possession of the suit property as a tenant. That the learned trial Court framed necessary issues at Exh.12. On appreciation of evidence, the learned Joint Civil Judge (Junior Division), Junagadh by judgment and decree dated 09.05.1997 decreed the said suit partly and directed the defendant to hand over the peaceful and vacant possession of the suit property to the plaintiff.
[2.2] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 09.05.1997 passed in Regular Civil Suit No.827 of 1993 decreeing the suit, the respondent herein - original defendant preferred Regular Civil Appeal No.74 of 1997 before the learned District Court, Junagadh and the learned 2nd Joint District Judge, Junagadh by impugned judgment and order dated 10.09.1997 has allowed the said appeal and quashed and set aside the judgment and decree passed by the learned trial Court solely on the ground that the ordinary Civil Court has no jurisdiction to try the issue arising out of the provisions of the Bombay Rent Act and therefore, the learned Appellate Court dismissed the suit.
[2.3] Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Appellate Court, the appellant herein - original plaintiff has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri Rajesh Chauhan, learned advocate appearing on behalf of the appellant herein - original plaintiff has vehemently submitted that the learned Appellate Court materially erred in holding that the ordinary Civil Court has no jurisdiction to entertain the suit and that the learned trial Court had no jurisdiction. It is submitted that it was the specific case on behalf of the plaintiff that the defendant is a trespasser and therefore, the ordinary Civil Court would have jurisdiction. It is submitted that the learned Appellate Court has materially erred in considering the case on behalf of the defendant so pleaded in the written statement that he was the tenant of the suit premises. It is submitted that what is required to be considered is the necessary averments by the plaintiff in the plaint/suit and not the case on behalf of the defendant so pleaded in the written statement. Therefore, it is submitted that when it was the specific case on behalf of the plaintiff that defendant was trespasser and the suit was filed for recovery of possession as trespasser, only the ordinary Civil Court would have jurisdiction and not the Rent Court. In support of his above submission, Shri Chauhan, learned advocate appearing on behalf of the appellant has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Laxmidas Morarji (Dead) by L.Rs. vs. Miss Behrose Darab Madan reported in 2010 (1) GLR 825.
By making above submissions and relying upon the above decision, it is requested to allow the present Second Appeal.
[4.0] Present Second Appeal is opposed by Ms. Mandaviya, learned advocate appearing on behalf of the respondent herein - original defendant. It is submitted that when it was the specific case on behalf of the defendant that he was the tenant of the suit premises, in that case, ordinary Civil Court would not have jurisdiction with respect to tenancy and therefore, the learned Appellate Court has not committed any error and/or illegality in holding so and consequently in dismissing the suit. Ms. Mandaviya, learned advocate appearing on behalf of the respondent - original defendant has relied upon the decision of the learned Single Judge in the case of S. Hantukkumar Laxmikant Sharma vs. Shah Kumudchandra Valchandbhai reported in 1986 (1) GLR
232. Making above submissions and relying upon above decision, it is requested to dismiss the present Second Appeal.
[4.1] In the alternative it is submitted that if this Court is inclined to allow the present Second Appeal holding that the learned Appellate Court has materially erred in holding that the ordinary Civil Court would not have jurisdiction, in that case, it is requested to remand the matter to the learned Appellate Court to consider the said Appeal on merits as the learned Appellate Court has not considered the said Appeal on merits and has allowed the Appeal solely on the ground that ordinary Civil Court would not have any jurisdiction.
[5.0] Heard the learned advocates appearing on behalf of the respective at length. The short question which is posed for consideration of this Court is, whether on facts and in the circumstances of the case, the first Appellate Court was justified in holding that the ordinary Civil Court has no jurisdiction to try the suit? The question which is required to be considered is whether, to consider the jurisdiction the averments in the plaint are required to be considered or the written statement is also required to be considered or the case of the defendant so pleaded in the written statement is required to be considered?
[5.1] It is required to be noted that in the present case, the original plaintiff instituted the suit against the defendant for recovery of the possession on the ground that the defendant is a trespasser. It was never the case on behalf of the plaintiff in the plaint that the defendant is the tenant. The plaintiff has also not claimed the possession treating the defendant as a tenant. It was the defendant who came out with a case in the written statement that he is not the trespasser but he is the tenant. The learned trial Court decreed the suit holding that the defendant was the trespasser. However, the Appellate Court has set aside the decree passed by the learned Appellate Court solely on the ground that as it was the case on the defendant in the written statement that he was the tenant of the suit premises and therefore, the ordinary Civil Court would not have jurisdiction and only the Rent Court would have jurisdiction. The aforesaid seems to be erroneous. Identical question came to be considered by the Hon'ble Supreme Court in the case of Laxmidas Morarji (Dead) by L.Rs. (Supra). The case before the Hon'ble Supreme Court was a converse case where though the landlord/plaintiff did not accept the person in occupation of the premises as their tenant still the plaintiff / landlord instituted Eviction Suit in the Small Causes Court. To that the Hon'ble Supreme Court held that the Small Causes Court would not have any jurisdiction in such a case and the owner would be entitled to institute the suit for ejectment in the Civil Court. Therefore, if the plaintiff does not accept the person in occupation of the premises as his tenant, in that case, he is required to institute the suit for ejectment in the Civil Court and only the ordinary Civil Court would have jurisdiction to consider the same. Even in the case of S. Hantukkumar Laxmikant Sharma (Supra), the decision which has been relied upon by the learned advocate appearing on behalf of the respondent - original defendant, the learned Single Judge has also specifically observed and held that nature of the suit must be decided on the basis of the averments made in the plaint and not upon the contentions raised in the written statement. Therefore, when in the plaint it was the specific case on behalf of the plaintiff that the defendant is the trespasser and the decree for possession is sought, in that case, only the ordinary Civil Court would have jurisdiction to entertain and consider the said suit. Under the circumstances, the learned Appellate Court has materially erred in considering the case of the defendant so pleaded in the written statement while considering the jurisdiction of the trial Court. The learned Appellate Court has materially erred in holding that the learned trial Court had no jurisdiction to entertain the suit and consider the same. Under the circumstances, impugned judgment and order passed by the learned Appellate Court deserves to be quashed and set aside. It appears that the learned Appellate Court has not considered the Appeal on merits and has allowed the said Appeal solely on the ground that ordinary Civil Court would not have any jurisdiction and therefore, the learned trial Court had no jurisdiction and therefore, the matter is to be remanded to the learned Appellate Court to consider the said Appeal in accordance with law and on merits.
[6.0] In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned judgment and order dated 10.09.1997 passed by the learned 2nd Joint District Judge, Junagadh in Regular Civil Appeal No.74 of 1997 is hereby quashed and set aside by holding that the learned trial Court had jurisdiction to consider the controversy raised in the said suit and the matter is remanded to the learned Appellate Court to decide the said Appeal in accordance with law and on merits after giving opportunity to all concerned. The aforesaid exercise shall be completed on or before 31st March 2013.
(M.R.
Shah, J.) menon Top