Allowed

Jetpur Jimkhana Thro Secretary v. Kanu Bhaktiram Bavaji

Gujarat HC12 Jun 2018SCA/13970/2011

Case brief

AI extract

What is this about?

This Special Civil Application challenged a trial court order framing an additional issue regarding ownership title in an eviction suit where title was undisputed. The High Court held title is not germane in eviction suits and quashed the order, directing the trial court to proceed without it.

What did the court decide?

The order dated 30.08.2011 framing an additional issue on title was quashed and the interim stay on further proceedings was vacated.

Jetpur Jimkhana Thro Secretary Vs Kanu Bhaktiram Bavaji — Landlord and Tenant | Gujarat HC (2018)

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C/SCA/13970/2011 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 13970 of 2011

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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========================================================== JETPUR JIMKHANA THRO SECRETARY Versus

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KANU BHAKTIRAM BAVAJI

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==========================================================

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Appearance:

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MR. UMESH TRIVEDI, ADVOCATE FOR MR BHAVESH P TRIVEDI(2731) for the PETITIONER(s) No. 1

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MR RR TRIVEDI(941) for the PETITIONER(s) No. 1 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 12/06/2018

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ORAL JUDGMENT

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1Though served, nobody appears for the sole

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respondent. Mr. Umesh Trivedi, learned Counsel

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Page 1 of 8

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C/SCA/13970/2011 JUDGMENT

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appears for Mr. Bhavesh Trivedi, learned advocate for
the petitioner.

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2Under challenge in this petition is an order

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dated 30.08.2011 passed below Exh.1 by the Principal
Civil Judge, Jetpur. Perusal of the order indicates
that the Suit was heard and was kept for judgment. At
that stage, it appears that the learned judge thought
of framing an additional issue regarding the title of
the landlord / plaintiff (present respondent).
According to the learned judge, it was necessary to
frame this additional issue regarding the title of
the landlord and give the parties to the suit an
additional chance.

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3 The facts preceding this order are as under:

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3.1The petitioner had filed a regular Civil Suit

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No. 122 of 1998 before the learned Civil Judge,
(J.D), Jetpur, for obtaining a decree of eviction
against the respondent who is the original defendant.
It was the case of the petitioner that one of the
garages was given on rent to the respondent. Since
the respondentdefendanttenant was in arrears of

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Page 2 of 8

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C/SCA/13970/2011 JUDGMENT

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rent, a legal notice was given, and therefore, a suit
for eviction namely Regular Civil Suit No. 122 of
1998 was filed by the petitioner under Section 12(3)
(a) of the Bombay Rent Act, 1947. The defendant

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respondent herein, on such suit being filed, appeared
and filed a written statement at Exh.8. Perusal of
the written statement shows that he has admitted that
there is a relationship of landlord and tenant
between the petitioner and the respondent herein.

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3.2Upon receipt of pleadings, learned Civil Judge
framed issues at Exh.9. Both, the petitioner and the
respondent led evidences, oral as well as

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documentary, exchanged written submissions and the
suit was posted for pronouncement of final judgment.

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4It is the case of the petitioner that before

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pronouncing the judgment, the learned Principal Civil
Judge, Jetpur, expressed an intention to frame the
issue that, “whether the plaintiff proves that he is
the owner of the suit land”? By the order impugned in
this petition, such an additional issue was framed.

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Page 3 of 8

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C/SCA/13970/2011 JUDGMENT

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5Aggrieved by this, the plaintiff is before this
Court. Mr. Umesh Trivedi, learned counsel appearing
for the petitioner has contended that it was not open
for the learned judge to have framed such an

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additional issue, particularly when the suit of the
petitionerplaintiff was for eviction and not for any
declaration regarding ownership.

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5.1Drawing my attention to Order 14 of the Code of
Civil Procedure, it was submitted by Shri Umesh

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Trivedi that what needs to be taken into
consideration while framing the issues is the
material proposition of law affirmed by one party and
denied by the other. Taking me through the contents
of the written statement and the oral deposition of

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the defendant, Shri Trivedi contended that the
ownership of the petitioneroriginal plaintiff was

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never in dispute. It was clearly admitted by the

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parties that the plaintiff was the landlord and the
defendant a tenant. Ownership or title was never an

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issue of a dispute inter se. Once this question was

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not in dispute, and when in the examinationinchief

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at Exh.71 even the defendant admitted that the

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Page 4 of 8

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C/SCA/13970/2011 JUDGMENT

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petitioner was the owner, it was not open for the
trial Court to frame an additional issue as suggested
in the impugned judgment. Mr Trivedi has drawn my
attention to a judgment of the Supreme Court in the

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case of Kanaklata Das and others vs. Naba Kumar Das

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and others., reported in AIR (2018) SC 682. Drawing
my attention to paragraphs 14 and 15 of the judgment,
Shri Trivedi contended that in a suit for eviction
what the landlord is required to prove, to enable him
to get a decree of eviction is (i) existence of a
relationship of landlord and tenant and (ii) the
ground on which the eviction under the Rent Act is
sought for.

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6Title of the premises is not an issue germane

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for the decision in an eviction suit. For the sake of
convenience paragraphs 14 and 15 are reproduced
hereunder:

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“14 Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintifflandlord has sought defendant’stenant’s eviction under the Rent Act exists. When these two things are

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Page 5 of 8

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C/SCA/13970/2011 JUDGMENT

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proved, eviction suit succeeds.

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15 Third, the question of the title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.”

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7Having considered the submissions of the learned
advocate and on perusal of the plaintiff’s written
statement and the testimony at Exh.71 of the
defendant, the following facts undisputedly emerge:
(A)That the Regular Civil Suit No.122 of 1998 was
filed by the petitioneroriginal plaintiff for a
decree of eviction on the ground of arrears of rent.

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(B)In the suit so filed, the defendant had filed a
written statement admitting the relationship of
landlord and tenant.

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(C)Exhibit 71 deposition also suggests that the
ownership of the property and the title was not in
dispute and was an admitted fact between the parties.

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8 Taking into consideration the provisions of

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Page 6 of 8

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C/SCA/13970/2011 JUDGMENT

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Order 14 Rule 1 of the Code of Civil Procedure, it is
apparent that the issues arise only when proposition
of fact or law is affirmed by one party and is denied
by the other. In the set of the present facts, the

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question of ownership and title of the

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petitioner/plaintiff was never in dispute. In fact,
the contents of the written statement and the
deposition at Exh.71 unequivocally suggest that the
defendant had admitted that the petitioneroriginal
plaintiff was the owner of the property.

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8.1Once the suit was heard and the evidence was led
and so kept for pronouncing of judgment, it was not
open for the learned trial judge to reframe and re
cast an issue, so suggested by the order impugned in

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the petition i.e. by an order dated 30.08.2011.

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9In view of the aforesaid, the petition is

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allowed. The order dated 30.08.2011 passed below
Exh.1 in Regular Civil Suit No. 122 of 1998 by the
learned Civil Judge, Jetpur, is quashed and set
aside.

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9.1As a consequence of setting aside of such order,

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Page 7 of 8

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C/SCA/13970/2011 JUDGMENT

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the interim order which was granted earlier in terms
of paragraph 13(B) i.e. stay of further proceedings
in regular Civil Suit No.122 of 1998 pending before
the learned Principal Civil Judge, Jetpur, is

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vacated. The learned Principal Civil Judge, Jetpur,
is directed to proceed further and pronounce the
judgment in the suit as is evident from the stand
taken by the petitioner. This will so be done without
taking into consideration the additional issue which
was sought to be framed by the learned judge by the
impugned order dated 30.08.2011, which stands
quashed. This Court has not entered into the merits
of the matter / suit and therefore the trial Court
shall not be influenced by the order of this Court
while deciding the main suit. Rule is made absolute
accordingly.

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(BIREN VAISHNAV, J)

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Bimal

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Page 8 of 8

Jetpur Jimkhana Thro Secretary v. Kanu Bhaktiram Bavaji

Case brief

What is this about?

What did the court decide?

Jetpur Jimkhana Thro Secretary v. Kanu Bhaktiram Bavaji

Case brief

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What did the court decide?

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