SCA/5135/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5135 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= RAMANBHAI GOVINDBHAI PATEL - Petitioner(s) Versus CHANDRAKANTBHAI NARSINHBHAI PARMAR - Respondent(s) ========================================================= Appearance : MR ZUBIN F BHARDA for Petitioner(s) : 1, MR PF MAKWANA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/08/2008 ORAL JUDGMENT 1.By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant has prayed for appropriate writ, order and/or directions, SCA/5135/2008 2/7 JUDGMENT quashing and setting aside the order dtd.22/2/2008 passed passed by the learned 3rd Additional Senior Civil Judge, Navsari below application Ex.108 in Regular Civil Suit No. 238 of 2005, by which the trial court has rejected the application submitted by the petitioner to recast the issues as per application Ex.108. 2. The respondent - plaintiff has instituted Regular Civil Suit No. 238 of 2005 against the petitioner - defendant in the court of learned Senior Civil Judge, Navsari praying for a decree of possession directing the petitioner – defendant to hand over the vacant and peaceful possession of the suit property described in the plaint, contending inter-alia that the plaintiff and the defendant were friends and because of the friendship, the respondent had given on rent the suit property to the petitioner at the monthly rent of Rs.2000 on certain conditions. As per the plaintiff, it was agreed between them that the petitioner will deposit the monthly rent in the Account of the plaintiff in ICICI Bank. As per the plaintiff, prior to three months of the filing of the suit, the petitioner defendant started depositing the rent in the account by the respondent in ICICI Bank without the consent, knowledge and authority and thereby SCA/5135/2008 3/7 JUDGMENT committed breach of terms and conditions agreed between the them. It was also pleaded that the plaintiff required the premises for his personal use. That the petitioner defendant filed Written Statement denying that he was tenant of the suit premises and he claimed that he is the owner of the suit property. The learned trial court framed the issues considering the averments in the plaint and the Written Statement. That thereafter, the petitioner defendant submitted application Ex.108 for recasting the issues and/or for framing additional issues as per the application Ex.108. It was submitted on behalf of the petitioner - defendant that as per the pleadings of the plaintiff, he has stated that the suit property was handed over to the defendant as tenant and the rent was fixed at Rs.2000 per month and it is alleged that the defendant has not paid the due rent and therefore, the suit was filed for eviction and therefore, as per the plaintiff's pleadings there is relation of landlord and the tenant between the plaintiff and the defendant and therefore, the issues on the points of tenant in arrears, requirement of the plaintiff of the disputed property, hardship and suitable accommodation and that whether the notice under sec.12(1)(2) of the Bombay Rent Act SCA/5135/2008 4/7 JUDGMENT was served by the defendant or not, are required to be framed. The said application Ex.108 came to be rejected by the learned trial court by the impugned order dtd.22/2/2008. Being aggrieved by and dissatisfied with the said order pissed by the trial court below application Ex.108, the petitioner – defendant has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Zubin Bharda, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned trial court has failed to appreciate that the respondent had filed the suit for possession of the rented premises, which according to the plaintiff was given on rent to the petitioner defendant at the monthly rent of Rs.2000 and therefore, the essence of the suit filed by the plaintiff was a rent suit, for which certain issues based on the pleadings of the respondent ought to have been framed i.e. the issues on the points of tenant in arrears, requirement of the plaintiff of the disputed property, hardship and suitable accommodation and that whether the notice under sec.12(1)(2) of the Bombay Rent Act was served by the defendant or not, are required to be framed. It is also further submitted that SCA/5135/2008 5/7 JUDGMENT the learned trial court has got away by the denial made in the Written Statement filed by the petitioner. However, the learned Judge has not considered the fact that the issues are required to be framed on the basis of the pleadings made by the parties. Submitting accordingly, it is requested to allow the present Special Civil Application. 4. The petition is opposed by Mr.P.F. Makwana, learned advocate appearing on behalf of the respondent – original plaintiff. It is submitted that in the facts and circumstances of the case and considering the Written Statement and denial by the petitioner defendant with respect to the tenancy rights and claim that he is the owner of the property, the learned trial court has rightly rejected the application Ex.108 submitted by the petitioner – defendant. 5. Heard the learned advocate appearing on behalf of the respective parties and considered the the averments in the plaint, Written Statement, issues framed and application Ex.108 submitted by the petitioner – defendant to recast issues and/or frame additional issues and the impugned order passed by the trial court. It is required to be noted that in the Written Statement, there SCA/5135/2008 6/7 JUDGMENT is specific denial by the petitioner – defendant that he is the tenant of the suit premises and that he has never gone to pay monthly rent and he is not required to pay the monthly rent and therefore, theres is no question of arrears of rent, as alleged. It is the case on behalf of the defendant that he is the owner of the suit property and there is no relationship of landlord and tenant between the plaintiff and the defendant. Considering the above, when while considering the application submitted by the petitioner – defendant to recast issues and/or frame additional issues, whether the defendant is in arrears of rent and/or there is a bona fide requirement by the plaintiff, the learned trial court has observed that in view of the Written Statement, it is not possible for the petitioner defendant to approbate and reprobate and he cannot now pray for recasting the issues with respect to tenancy rights. The issues are required to be framed considering the averments in the plaint as well as Written Statement also. Under the circumstances and in the facts and circumstances of the case, it cannot be said that the learned trial court has committed an error in rejecting the application Ex.108 submitted by the petitioner defendant for framing additional issues, which SCA/5135/2008 7/7 JUDGMENT calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India. 6. Under the circumstances, present Special Civil Application deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik