JUDGMENT - P.S. PATANKAR, J.:---The main question involved is whether the L.P.A. is maintainable in the present case.

2. The respondent was allowed to construct two rooms by the appellant by an agreement dated 25th September, 1982 and the same was let out to the respondent. The rent was Rs. 50/-.

3. The respondent filed Civil Suit No. 2441 of 1987 claiming perpetual injunction against the appellant as he was trying to disturb the possession. However, according to the respondent, he came to be dispossessed during 17th December, 1989 to 19th December, 1989 when he was out of station. Hence, he amended the plaint and prayed for possession.

The learned Civil Judge, Junior Division Pune, by order dated 25th September, 1992, held that the appellant was in possession of the premises on the date of the suit, but was dispossessed during the pendency of the suit. But the relief of possession cannot be granted as he had no jurisdiction in view of section 28 of the Bombay Rents, Hotel Loding House Rates (Control) Act, 1947 (hereafter referred to as "the Bombay Rent Act") and the contention of the appellant in that respect was accepted. Hence, the suit came to be dismissed.

4. The respondent then filed the suit under section 28 of the Bombay Rent Act for declaration of his tenancy in respect of those premises and possession thereof on 16-12-92. It was contended on behalf of the respondent that an agreement was entered into between the parties on 25th August, 1985 and pursuant thereto, on 1-11-85, the respondent voluntarily handed over the possession and hence he cannot claim the declaration of his tenancy rights. There was no forcible dispossession and the relationship between them has come to an end. Therefore, the said Court was having no jurisdiction. However, the defence was not accepted and the contention came to be negatived by the trial Court. The suit for declaration and possession was decreed on 30-1-96. The appellant preferred appeal. Only two contentions were canvassed before the Appellate Court i.e. the respondent has failed to prove that he was illegally dispossessed and it was an error to hold that the appellant has failed to prove that the respondent has voluntarily handed over possession to him on 1-11-85. Both these points came to be held by the Appellate Court in favour of the respondent. The Appeal came to be dismissed.

5. The appellant then filed Writ Petition No. 780 of 1999. It is clear from the order passed by the learned Single Judge dated 12th February, 1999 that only two contentions came to be pressed by the appellant. It was contended that the trial Court had no jurisdiction to decide the suit and the suit was barred by limitation. The learned Single Judge analysed the pleadings, etc. and held that the Small Cause Court was having jurisdiction to deal with the suit in view of section 28 of the Bombay Rent Act. It was also held that the point regarding suit being barred by limitation was raised for the first time before this Court. No issue was raised in that respect in the trial Court. No such point was pressed before the appellate Court. The learned Single Judge held that it is a mixed question of law and fact and declined to entertain it. This is challenged here.

6. We may note that the title of the writ petition shows that it was filed under Article 226 of the Constitution. A prayer was made for getting a Writ of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution for setting aside the orders passed by the two courts below. In this background, the question arises is whether this Court exercised jurisdiction under Article 227 or under Article 226 of the Constitution of India. It is contended that the appellant had filed writ petition under Article 226 of the Constitution of India. It was the choice of the appellant and it cannot be treated as filed under Article 227 of the Constitution of India and shut out the appellant from filing L.P.A.

7. It is not possible

Click Here to Read the rest of this document