1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2788 OF 1998 1. Shri Padmakar Dadu Raut, ) Prop. Om Printing Press, Saphale, ) Adult, Occ. Business, r/a Edwan, ) Post Edwan, Taluka Palghar, ) District Thane. ) 2. Shri Chandrakant Padmakar Raut, ) C/o. Om Printing Press, Saphale, ) Adult, Occ. Business, residing at ) Saphale, Tal. Palghar, District- Thane. ).. Petitioners Vs Shri Hareshwar Mahadeo Dixit, ) since deceased, through his L.Rs.: ) 1-a. Shri Suhas hareshwar Dixit (Son), ) Adult, Occ. Agreculturist. ) 1-b. Shri Sudhir Hareshwar Dixit (Son) ) Adult, Occ: Agriculturist, ) Both R/o. Saphala Post Umerpada, ) Tal. Palghar. ) 1-c. Smt. Aparna Arvind Karnik, ) Adult, r/o. Ashish, Jaiprakash Nagar, ) Road No.5, Nandadeep Society, ) Goregaon (East), Mumbai – 400 063. ).. Respondents -- Shri Pankaj Das i/by Shri T.G. Varhale for the Petitioners. Shri S.M. Joshi for Respondent Nos.1-b. Respondent Nos.1-a and 1-c are served. -- CORAM : A.S.OKA, J. DATE : 18TH FEBRUARY, 2010 2 ORAL JUDGMENT : . The Petitioners are the Defendants in a suit filed by the original Respondent. The suit relates to the house property more particularly described in Paragraph 1 of the Plaint. It is contended in the suit that the 1st Petitioner was inducted in the suit premises as a tenant for running a printing press. The 2nd Petitioner is the son of the 1st Petitioner. It is alleged in the Plaint that the 2nd Petitioner acting in collusion with the 1st Petitioner has carried out construction of a permanent nature. It is alleged that the 2nd Petitioner has been residing in the suit premises in breach of the terms and conditions of the tenancy. It is the case made out in the Plaint that a notice of termination of tenancy was issued on 8th June, 1992 by which a demand was also made for arrears of rent. 2. The suit was contested by the Petitioners. Various averments made in the suit were denied by the Petitioners. The issues were framed by the trial Court, which read thus:- ISSUES FINDINGS 1. Does the Plaintiff prove that the agreed rent is of Rs.55/- p.m. ? No. 2. Does he prove that the suit property is in dilapidated condition ? No. 3. Does he prove that defts. have done the construction of permanent nature ? No. 3 4. Does he prove that Deft. No.2 has changed the use of property illegally ? No. 5. Does he prove that Deft. No.1 is in balance of rent from January 1991 ? No. 6. Does he prove that he is entitled for possession of suit block ? No. 7. Does he prove that he is entitled for rent of Rs.935/- ? No. 8. What relief and costs ? As per final order. 3. The Trial Court dismissed the suit. An appeal was preferred by the Respondents. The Appeal has been allowed and a decree for possession has been passed. The learned District Judge held that the provisions of the Bombay Rents, Hotel and Lodging, House Rates Control Act, 1947 ( hereinafter referred to as “the said Act” ) are not applicable to the suit premises. The District Court held that the tenancy has been properly terminated by issuing notice under Section 106 of the Transfer of Property Act, 1882 ( hereinafter referred to as “the said Act of 1882” ). 4. The learned counsel appearing for the Petitioners submitted that the trial Court has proceeded to deal with the suit as if the same was filed under the provisions of the said Act and that the issue whether the provisions of the said Act are applicable to the suit premises did not arise before the trial Court. He pointed out that in fact the trial Court has referred to the decisions of this Court under Section 12(2) of the said Act. He submitted that though the suit was filed under the said Act, for the first 4 time, in the appeal, a finding has been recorded that the provisions of the said Act are not applicable to the suit premises. He submitted that the suit was filed in a special Court having jurisdiction under Section 28 of the said Act and, therefore, when the finding of the Appellate Court was that the said Act was not applicable, the suit ought to have dismissed. He submitted that in any event the original Plaintiff himself admitted in the cross-examination that the provisions of the said Act are applicable to the village in which the suit premises are situated. He, therefore, submitted that the decree passed by the Appellate Court is illegal. 5. The learned counsel appearing for the Respondents submitted that the suit is not under the provisions of the said Act. He submitted that the suit premises is situated in a village to which the provisions of the said Act were made applicable only to the premises let out for the residential purposes and admittedly, the suit premises was let out for running a printing press therein. He submitted that there is no dispute regarding the validity of the notice of termination of tenancy. He, therefore, submitted that there is no reason to interfere with the impugned judgment and decree passed by the Appellate Court. 6. I have given careful consideration to the submissions. Perusal of the judgment of the trial Court shows that the issue whether the provisions of the said Act were applicable to the suit premises was not neither framed nor considered. Not only that the issue was not framed on 5 this aspect, but this aspect has not been dealt with in the judgment of the trial Court. If the judgment of the trial Court is perused, one gets an impression that the trial Court proceeded on the footing that the suit was the one under the said Act inasmuch as in Paragraph 16 of the judgment, there is a reference to the decision of this Court dealing with Section 12(2) of the said Act. 7. Perusal of the Memorandum of Appeal filed by the Respondents before the District Court shows that a specific contention was raised that the provisions of the said Act were not applicable to the suit premises and there was no protection available to the Respondents under the provisions of the said Act. The submission before the Appellate Court made by the Respondents appears to be that the suit was not the one under the said Act and the suit is based only on the notice of termination of the tenancy under the provisions of Section 106 of the said Act of 1882. The Appellate Court has gone into the question as to whether the provisions of the said Act were applicable to the suit premises and has recorded the finding that the provisions are not applicable. 8. For the first time in the appeal, the District Court could not have done this exercise of deciding the issue of applicability of the provisions of the said Act to the suit premises. The Petitioners have suffered prejudice. Whether the provisions of the said Act were applicable at the relevant time to the suit premises is a mixed question of law and fact 6 as the relevant notification issued by the State Government will have to be produced and considered before the issue is decided. One important aspect which is not considered by the Appellate Court is that whether the suit was filed under Section 28 of the said Act. All these questions have not been considered by the Trial Court. 9. In the circumstances, this is a case where both the judgments and decrees are required to be quashed and set aside and the suit will have to be remitted back to the trial Court with a direction to frame additional issues on the nature and the frame of the suit and on the applicability of the provisions of the said Act to the suit premises. It is obvious that even the issue of maintainability of the suit will have to be gone into by the trial Court. The parties will have to be permitted to lead additional evidence on the said issues. 10. Hence, the Petition is disposed of by passing following order. (a) The judgments and decrees passed by the Courts below are quashed and set aside. (b) The Civil Suit No.90 of 1992 is restored to file of the trial Court. (c) The parties are directed to appear before the trial 7 Court on 5th April, 2010 at 11.00 a.m. (d) The trial Court will frame additional issues as indicated in this judgment. (e) After considering the additional evidence and the evidence which is already on record, the Trial Court will decide the suit afresh. (f) Hearing of the suit shall be concluded on or before 31st October, 2010. (g) All contentions of the parties on merits of the suit are expressly kept open. (h) Rule is partly made absolute with no order as to costs. (i) The writ to be sent down immediately. If the record and proceeding is received by this Court, the same shall be forwarded to the concerned Court immediately. (A.S.OKA, J)