Mr. K.A. PUJ

1. The petitioners - original plaintiffs have filed this Civil Revision Application under Section 29 (2) of the Bombay Rent Act challenging the judgment and order dated 06.01.1994 passed, by the learned Assistant Judge, Bhavnagar in Regular Civil Appeal No. 129 of 1986 setting aside the judgment and decree passed by the learned Joint Civil Judge (J.D.), Botad on 30.09.1986 in Regular Civil Suit No.73 of 1981.

2. This Civil Revision Application was admitted and rule was issued on 23.02.2005.

Mr. Dipak M. Thakkar, learned Advocate appearing for the petitioners has submitted that the petitioner No. 1 - Trust and its Trustees have filed Regular Civil Suit No.73 of 1981 before the learned Civil Judge (J.D.), Gadhda against the respondents for obtaining the decree of eviction on the ground of acquisition of alternative suitable accommodation and non-user of the said suit premises. The said suit was filed by the then Trustees of the Trust. He has further submitted that the respondent appeared in the said suit and filed his written statement. After filing of the suit, the election of the Trust took place on 15.04.1984 and the new Trustees were elected therein. As a result of the said change in the new Trustees, the present petitioners were brought on record of the suit vide application dated 21/6/1984. After hearing the parties and considering the evidence on record, the learned Trial Judge has passed the decree and judgment on 30/9/1986 on the ground of acquisition of alternative suitable accommodation by the respondent under Section 13 (1) (d) of the Act.

3. Being aggrieved by the said judgment and decree passed by the learned Trial Judge, the respondent preferred Regular Civil Appeal No.129 of 1986 before the learned District Judge, Bhavnagar. The learned District Judge vide his judgment and order dated 06.01.1994 allowed the said appeal and quashed and set aside the eviction decree on the sole and single ground that the plaintiffs whose names are appearing in the plaint as Trustees have not signed the plaint nor they have given any Power of Attorney nor the plaintiff Nos.2 to 7 have signed the plaint nor they have given any Power of Attorney to one Shri Purani Devnandan Das Guru Ghanswarupdasji and since the said person is not the Trustee of the Trust on the date of the suit, the same is not maintainable.

4. It is this order of the learned District Judge of 06.01.1994 in Regular Civil Appeal No.129 of 1986 which is under challenge in the present Civil Revision Application.

Mr. Thakkar further submitted that the learned District Judge has acted with material irregularity and has committed an illegality in passing the impugned judgment and order and, therefore, the same is required to be quashed and set aside. He has further submitted that the learned District Judge has exercised the jurisdiction not vested in him and he has thus: committed serious jurisdictional error and on this ground also, the impugned judgment and order is required to be quashed and set aside. He has further submitted that the learned District Judge has materially erred in not deciding all the issues in controversy and has thus committed a serious jurisdictional error in quashing and setting aside the eviction decree by allowing the appeal only on single ground. He has further submitted that the learned District Judge has grossly erred in allowing the appeal and thereby setting aside the decree of eviction on the ground that the same is not maintainable for the reasons mentioned in the judgment. The learned District Judge has failed to appreciate that there is no specific pleading to the said effect in the written statement filed by the respondent, nor any issue has been raised to the said effect. Despite the same being the fact, the learned District Judge has grossly erred in allowing the appeal beyond the issues in controversy. The approach adopted by the learned District Judge is not at all legal and valid and, therefore, the impugned judg