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Gangadhar S/O Ramnath Deshmukh Vs. Nirmalaben (Smt.) W/O Ratilal Panchmatiya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 57 of 1982
Judge
Reported in1982(2)BomCR391
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949
AppellantGangadhar S/O Ramnath Deshmukh
RespondentNirmalaben (Smt.) W/O Ratilal Panchmatiya and ors.
Appellant AdvocateP.N. Mahajan, Adv.
Respondent AdvocateG.A. Paunikar, Adv.
DispositionApplication dismissed
Excerpt:
- - apart from the fact that the said decision is binding on me, it seems to me that the view taken is perfectly correct and logical......was void being in violation of clause 22 of the rent control order. as a consequence to the plea raised in the written-statement, the plaintiff sought to amend the plaint raising an alternate contention that in the event of discovery of tenancy to be void the decree should be passed on the basis of title. relevant contentions were raised and the valuation of the suit was enhanced from rs. 1800/- to rs. 50,000/-. the said amendment was opposed on behalf of the defendant but it came to be allowed and the plaint was returned for presentation tot he proper court, namely, court of civil judge, (senior division), which has the pecuniary jurisdiction to try the suit of the value of rs. 50,000/- or more. the present revision is directed against the said order.2. shri mahajan, the learned.....
Judgment:

V.A. Mohta, J.

1. Originally the suit was by a landlord against a tenant for possession and other consequential relief. The defendant raised a contention that the tenancy was void being in violation of Clause 22 of the Rent Control Order. As a consequence to the plea raised in the written-statement, the plaintiff sought to amend the plaint raising an alternate contention that in the event of discovery of tenancy to be void the decree should be passed on the basis of title. Relevant contentions were raised and the valuation of the suit was enhanced from Rs. 1800/- to Rs. 50,000/-. The said amendment was opposed on behalf of the defendant but it came to be allowed and the plaint was returned for presentation tot he proper Court, namely, Court of Civil Judge, (Senior Division), which has the pecuniary jurisdiction to try the suit of the value of Rs. 50,000/- or more. The present revision is directed against the said order.

2. Shri Mahajan, the learned Counsel for the applicant original defendant No. 1 inviting my attention to the case of Lalji v. Narottam, reported in A.I.R. 1953 Nag 273 contended that the proper course for the lower Court would have been to send the amendment application along with the plaint for decision to the Court having jurisdiction to try the suit on the basis of new proposed valuation. It was also contended that as amendment raised a contradictory plea, it should not have been allowed on merits. I have heard Shri Mahajan at considerable length but I do not find any merit in either of the contentions.

3. Shri Paunikar, the learned Counsel for the non-application original plaintiff has invited my attention to the decision of this Court in M/s. R. Jaikrishna v. A.I. Co-operative Housing Society, reported in : AIR1971Bom382 and series of other decision on the point such as M/s. Patel Construction v. S.R. Amulakh, : AIR1973Guj283 and Sreedharan v. P.S. Job, : AIR1969Ker75 . It seems to me that the Single Bench of this Court has taken a view disagreeing with the view taken in the Nagpur decision that proper course is to consider the application itself and if amendment is allowed, to return the suit only thereafter. Apart from the fact that the said decision is binding on me, it seems to me that the view taken is perfectly correct and logical. If such a course is not followed, it will lead uncertainty for in the event of amendment being rejected the plaint has once again to come back to the original Court.

4. On the second point my attention was invited to the decision in Sukhad Raj v. Ram Harsh, : AIR1977SC681 and the decision given in Sawansingh v. Radha Kisan, A.I.R. 1980 Hp 7. I have gone through the decisions. There is nothing in them laying down a ratio helping the applicant in the present matter. If because of the view taken by the Court on non-compliance of Clause 22 of the Rent Control Order, an alternative case has been put up by way of abundant precaution it cannot be said that contradictory plea, one destructive, of the other has been taken. I am informed that the plaintiff has paid the Court-fee and the defendant has received summons of the suit from the Court of Civil Judge (Senior Division).

5. Another objection was raised before me that by this order plaint has been returned for presentation to the proper Court, the impugned order was appealable under Order 49 and therefore, revision does not lie. I do not find any substance in that contention inasmuch as principal question to be decided is whether the amendment was rightly or wrongly rejected and order passed. Order of return of the suit to the proper Court was merely consequential.

6. In the result, the revision is dismissed but under the circumstances without any order as to costs.


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