A.P.RAVANI - (1.). A short question that arises in this revision application is is it open to the court to pass a decree on a ground which is neither pleaded nor any issue is sought for on it ?
(2.). The respondent-plaintiff filed a suit for eviction of the suit premises which are residential premises situated at Loharchawl in Jamnagar. The ground of eviction was that the defendant-tenant had sublet the premises and there was non-user of the premises without any reasonable cause for a period of six months immediately preceding the filing of the suit. It was the case of the plaintiff that defendant No.1 had sublet the premises to defendant No. 2 and it was also the case of the plaintiff that earlier the premises were sublet to one Dilip Kumar Mathuradas also Who was not joined as a party defendant. The defendants appeared in the suit and resisted the same. The trial court framed the issues as follows:
" (I) Whether the plaintiff proves that the defendant has wrongfully sublet the suit premises or assigned or transferred in any other manner her interest therein ? (2) What is due ? (3) Whether the plaintiff proves that the defendant is liable to be evicted on the ground of non-user ? (4) Whether the suit notice is not legal and valid ? (5) What order & decree ? "
After recording evidence and after hearing the parties the trial court came to the conclusion that there was no subletting as alleged and the ground with regard to the non-user of the premises was also not proved as alleged by the plaintiff. However even thereafter the trial Court persued further and came to the conclusion that defendant No. 1 the widow of original defendant had left the premises and defendant No. 2 the brother of deceased tenant was unauthorisedly occupying the suit premises. The trial Court held that defendant No. 2 was not a member of the family and was not residing with the tenant within three months before the death of deceased tenant and therefore he cannot be said to be tenant within the meaning of sec. 5(11)(c) of the Rent Act and hence he was not entitled to the protection of the Rent Act. On this ground the trial court passed decree of eviction against the defendants and the defendants were ordered to handover the possession of the suit premises.
(3.). It appears that during the pendency of the proceedings before the trial court defendant No. 1. Diwalibai Ramji widow of Ramji Bhanu died and the appeal being Civil Regular Appeal No. 139 of 1975 was preferred by Kakubhai alias Jayantilal Bhanubhai original defendant No. 2 alone in the court of District Judge Jamnagar. The learned assistant Judge who heard the appeal while dismissing the appeal confirmed the findings of the trial court as regards subletting non-user of premises and held that there was no subletting as alleged and the plaintiff had failed to prove that the premises were not used so as to attract the provisions of the rent act and pass decree of eviction on that basis. However the learned Assistant Judge came to the conclusion that the appellant had not proved that he was a member of the family of deceased tenant and that he resided with the deceased tenant within three months before death therefore he was liable to be evicted. On this ground alone he also confirmed the decree of eviction passed by the trial Court.