SCA/246720/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2467 of 2006 With CIVIL APPLICATION No. 15040 of 2006 In SPECIAL CIVIL APPLICATION No. 2467 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KHATIJA @ CHHOTIBAI IBRAHIM PATEL & 1 - Petitioner(s) Versus MUSA ISMAIL PATEL & 3 - Respondent(s) ========================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 4. MR DHIRENDRA MEHTA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 30/09/2008 ORAL JUDGMENT SCA/246720/2006 2/8 JUDGMENT 1. The petitioners are the original defendants in Special Civil Suit No. 179/2001 filed by respondent No.1 original plaintiff. In the present petition they have challenged an order dated 16.1.2006 passed by the learned Additional Senior Civil Judge, Surat, below application exh.73 in Special Civil Suit No. 179/2001. By the impugned order, the learned Judge was pleased to reject the application of the petitioners herein requesting for framing of additional issues. 2. The suit is filed by respondent No.1 herein seeking eviction of the premises occupied by the petitioners herein. 3. The petitioners have filed a written statement and contended inter-alia that they are tenants of the suit property and that therefore, the present suit is not maintainable. 4. By order dated 31.8.2005 below exh.67, trial Court raised several issues. One of the issues was whether the suit property was given to the defendants by way of license. The issues did not contain any reference to the stand of the petitioners herein that the property was occupied by them as tenants, that therefore, the present suit was not maintainable and that Court had no jurisdiction to try the same. The petitioners therefore, gave their application SCA/246720/2006 3/8 JUDGMENT exh. 73 and requested the trial Court that in addition to the issues framed under exh.67, the Court may also include the issue regarding the relationship of the plaintiff and defendants being that of landlord and tenants and consequently, regarding the jurisdiction of the Court to entertain the suit. It was this application which came to be turned down by the impugned order. 5. Appearing for the petitioners, learned advocate Shri Amit Thakkar submitted that the Court committed a serious error in refusing to frame an important issue of tenancy and consequential issue of jurisdiction of the Court to entertain the suit. He submitted that simply because objection to the jurisdiction was raised by the defendants in the written statement, the Court cannot refuse to raise such an issue. He drew my attention to the provisions contained in Order 14 Rule 3 in this regard. 5.1 Reliance was placed on the decision of Learned Single Judge of this Court in case of Jasuben Madhusudan Pandya v. Manharlal Narandas Bhatt reported in 1990(1) GLH 199, wherein referring to Order 14 Rule 3 of Civil Procedure Code the Learned Single Judge of this Court observed that issues can be framed on the basis of allegations made by parties, allegations made in the pleadings or in answers to SCA/246720/2006 4/8 JUDGMENT interrogatories and contents of the documents. Learned Judge in fact observed that if the pleadings are silent but if the contents of the documents produced by the parties clearly reveal a point on which the parties join issue, the Court is bound to raise issue on basis of the contents of the documents. 5.2 Reliance was also placed on the decision of Learned Single Judge of this Court in case of Chaudhari Joitaji Chhaganji v. Bai Gajariben Wd/o. Thakarda Khodaji Mohanji & ors. reported in 20(2) GLR 234 wherein once again the above view in case of Jasuben Madhusudan Pandya (supra) was reiterated, so also in case of Bhil Seva Mandal v. Naik Shana Daboda & ors. reported in 1980 GLR 784. Reliance was also placed on decision in the case of Harjibhai Chhanabhai Rank v. Ravjibhai Khimabhai Savalia reported in 1997(2) GLH 742, wherein learned Judge observed that when the parties are at variance on any issue of fact and when dispute is raised as regards any facts material to the decision of the suit, issue is required to be framed. Learned Judge further observed that when despite plea of limitation in written statement no issue of limitation is framed by the Court, the plaintiff is not required to lead any evidence to prove that suit is within time. It was observed that when the Court allows the application of the defendant for raising SCA/246720/2006 5/8 JUDGMENT additional issue at the end of trial, the Court should permit not only the defendant but also the plaintiff to lead evidence on such issue. 6. On the other hand, learned advocate Shri P.V. Hathi appearing for Shri Dhirendra Mehta for respondent No.1 opposed the petition and contended that learned Judge rightly did not entertain the request of the petitioners for raising of additional issues. He contended that for the purpose of jurisdiction of the Court the allegations in the plaint alone are relevant. He also contended that trial has substantially been conducted. Evidence of the plaintiff is over. The defendants have also partly tendered their evidence. At this stage, it would therefore, not be appropriate to raise additional issue which would delay the disposal of the pending suit. 6.1 Learned advocate Shri Hathi placed reliance on the following decisions : 1) Abdulla Bin Ali and ors. v. Galappa and ors. reported in AIR 1985 Supreme Court 577. 2) Suryaprasad Dinbandhu Vyas v. Ahmedabad Dhobi Panch Trust reported in 2003(4)GLR 3496. 3) Raizada Topandas and another v. M/s. Gorakhram Gokalchand reported in AIR 1964 SCA/246720/2006 6/8 JUDGMENT Supreme Court 1348. 4) M/s. Nanikram Sobhraj Mills(Pvt.) Ltd. v. Kirtidev Chinubhai reported in 1979 GLR 469. 7. Having thus heard learned advocates appearing for the parties, I find that the trial Court committed an error in not raising the additional issues as requested by the petitioners. From the very beginning their stand has been that they are not occupying the property as licensee but on rent. There is a relationship of landlord and tenant between the plaintiff and defendants and that therefore, Civil Court has jurisdiction to entertain the Special Civil Suit. When there was thus variance between the parties on material aspects of the matter, the learned Judge below ought to have in terms of provisions contained in Order 14 Rule 3 of Civil Procedure Code raised issue in this regard so as to put the parties to notice and permit them to lead their rival contentions around such issues. 8. In absence of such issues, it would not be even possible for the defendants to take up such a contention at the time of oral submissions before the Civil Court. The plaintiff could legitimately contend that in absence of any such issue he was not required to lead any evidence in this regard nor could the Court non suit him on that basis. SCA/246720/2006 7/8 JUDGMENT 9. In case of Abdulla Bin Ali and ors. v. Galappa and ors.(supra), the Apex Court observed that in facts of the case that plaintiffs had been running from pillar to post to get relief on account of the unreasonable attitude taken by the defendants. It was in this context observed that the allegations made in the plaint decide the forum and jurisdiction does not depend upon the defence taken by the defendants in the written statement. 10.In the result, impugned order dated 16.1.2006 is set aside. The trial Court shall frame following additional issues as issues No. 9 and 10 : “9. Whether the defendants prove that there is relationship of landlord and tenant between the plaintiff and defendants ? 10. If answer to issue No.9 is in the affirmative, whether the Court has jurisdiction to entertain the present suit ?” 11.Both sides shall have right to lead further evidence including request for recalling of witnesses already examined. Both sides are directed to cooperate for early disposal of the suit. Considering that the suit is an old one, the trial Court may endeavour to dispose of the SCA/246720/2006 8/8 JUDGMENT same as expeditiously as possible and preferably within six months from the date of receipt of a copy of this order. 12.With these directions, the petition is disposed of. Rule made absolute accordingly. 13.In view of order passed in Special Civil Application, Civil Application does not survive. Same is disposed of accordingly. (raghu) (Akil Kureshi,J.)