Point of Law: For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.

ORDER :

1. The petitioner, who is the original defendant before the trial Court in Regular Civil Suit No. 4216 of 2015, has requested to quash and set aside the order dated 18th December, 2017 passed below Exh.7.

2. The short facts leading to the present case reads as under:-

2.1 Respondent-plaintiff has filed the suit against the present petitioner-original defendant for recovery of the agreed rent and to get vacant possession of the suit premises before the learned Civil Court, Vadodara. As per the contentions made by plaintiff in the suit, defendant was permissible user since 2006 and agreed rent was fixed as Rs. 3200/- in June, 2006. Thereafter, in June, 2007, agreed rent was increased to Rs.3500/ afresh. In the year 2009-2010, agreed rent was again increased to Rs.4500/- . Rent agreement was executed for the period of 11 months. That, other Municipal Taxes were also to be paid by the defendant in addition to maintenance charges of the society. As agreed rent was not paid regularly by the defendant, it was requested by the plaintiff to pass a decree against the defendant and to pay outstanding agreed rent of Rs. 2,97,000/- and get vacant possession of the suit premises. The defendant appeared before the Court below and filed his written statement. Thereafter, vide application Exh. 7 under Order 7 Rule 11 of Civil Procedure Code an application was submitted by the defendant stating that the defendant was a tenant of the suit premises and agreed rent of Rs.3500/- was already paid by him. It was also agreed that from 2009-2010, rent was increased at Rs.4500/- per month, which was also paid up to 22nd April, 2010. However, defendant was threatened by the plaintiff to vacate the suit premises, and therefore, to protect the rights as tenant, Rent Suit No. 457 of 2010 was filed by him before learned Small Cause Court, Vadodara for permanent injunction and declaration. As per the contention raised in the written statement, defendant was paying the agreed rent regularly. Only rent of 3-4 months, as arrears, for which he was ready and willing to pay to the plaintiff, however, it was not accepted by the plaintiff. It was further contended that under the Gujarat Rent Act, the suit was not maintainable as before filing of the suit under the Rent Act, no mandatory notice as required was issued by the plaintiff and the suit was filed for vacating the suit premises. That, defendant was staying as tenant in the suit premises with his family members and he was paying regular rent to the plaintiff. As false cause of action was arose by the plaintiff in the suit therefore, suit was not maintainable hence, it was requested to dismiss the suit. Learned trial Curt, after hearing of the parties, was pleased to dismiss the application vide order dated 18th March, 2017. Hence, present petition is preferred by the present petitioner under Section 12(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 as well as Article 14, 21, 226 and 227 of the Constitution of India.

3. Heard learned advocate for the respective parties.

4. Learned advocate for the petitioner submits that the order passed below Exh. 7 by the trial Court is contrary to the facts and law. That, trial Court has materially erred in not considering the material provision under Section 12(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 in stricto senso. It was further submitted that mandatory requirements of issuance of notice under Section 12(2) of the Act was not complied with by the plaintiff before filing of the suit under the Act, and therefore, suit itself was not maintainable. It was further submitted that finding arrived by the trial Court in an application below Exh. 7 that factual aspect raised by the defendant in his application could be adjudicated only after taking evidence was not correct and proper. That, the trial Court has committed error in not appreciating the application moved by the defendant vide Exh.7 in its true letter and