Damodar Boghabhai Prajapati vs Lalsa Amar and Another

A.S. Qureshi, J.—This revision application is filed by the petitioner against the order dated 5th July, 1982 passed by the Appellate Bench of

the Small Causes Court at Ahmedabad rejecting the application filed by the present petitioner requesting the Court to raise an additional issue

regarding illegal licence contrary to the provisions of Section 13(1)(ee) of the Bombay Rent Act.

Mr. S.V. Raju, learned advocate for the petitioner has submitted that in the plaint the petitioner-landlord had made averment to the effect that

respondent No. 1 had inducted respondent No. 2 and both were residing in the suit premises. From this averment Mr. Raju argues that it is open

to the Court to raise an issue not only on sub-tenant u/s 13(1)(e) but also regarding illegal licence contrary to Section 13(1)(ee) of the Bombay

Rent Act and, therefore, the trial Court ought to have raised both these issues as alternative ones. Mr. Raju has argued that there were sufficient

averments before the trial Court to raise these two issues alternatively without any further averments specifically alleging illegal licence contrary to

Section 13(1)(ee). Mr. B.J. Shelat, the learned advocate for the respondents has urged that the averments made in the plaint are quite specific as

regards the alleged sub-letting and, therefore, the trial Court was justified in raising the issue of illegal sub-tenancy contrary to Section 13(l)(e).

According to Mr. Shelat there are no clear-cut averments in the plaint to justify raising issue of licence contrary to Section 13(1)(ee) of the

Bombay Rent Act.

Looking at the averments made in the plaint it seems that the plaintiff-landlord had clearly in mind sub-letting contrary to Section 13(1)(e) for he

has virtually adopted the language of Section 13(e) by referring to the words ''assigning or transferring his interest in the suit premises''. It seems

that at their stage the plaintiff did not have in mind that the case could also come u/s 13(1)(ee) and, therefore, not only that he did not make specific

allegation with regard to illegal licence but also he did not raise any contention at any stage before the trial Court with regard to the issue u/s 13(1)

(ee) not having been raised. The Petitioner does not seem to have raised this question even in his appeal memo before the Appellate Bench. It

seems to be as a result of subsequent thought that he realised that on the averments made and the evidence laid the case could not come u/s 13(1)

(e) but can only come u/s 13(1)(ee) and, therefore, the petitioner is as it were trying to switch over to a new issue.

Mr. Raju has referred to Order 41 Rules 24 and 25 and pointed out that even at appellate stage the Court can raise a new issue and, if

necessary, remand the matter back to the trial Court for the purpose of leading further evidence. It is quite correct that the appellate Court has

power to raise fresh issues even at the appellate stage provided there are clear-cut averments in the pleadings and raising of a new issue could be

based on such averments.

In the present case it seems that the averments made in the plaint are nor quite clear-cut and therefore, it would not be proper for the Appellate

Bench to raise a fresh issue on the question of illegal licence contrary to Section 13(1)(ee) of the Bombay Rent Act. It may be open to the plaintiff

to seek an amendment of the plaint even at appellate stage and bring in the averments which could justify raising new issues. But until there are

clear-cut averments in the pleadings no new issue can be raised. In the result the petition fails. The rule is discharged with no order as to costs.