- (1.) THE question involved in this appeal is whether the Appellate Court was right in holding that the Appeal was not maintainable and hence liable to be dismissed.
(2.) THE Appellants filed a suit for recovering possession of the suit premises viz. Grampanchayat House No.478, Camp, Dapoli. It was the contention of the Appellants that the respondent was unauthorisedly in possession and was a trespasser. Alternatively it was pleaded that if he is held to be a tenant then he is liable to be evicted as he has become defaulter under the provisions of the Bombay Rents Hotel Lodging House Rates Control Act 1947 (hereinafter referred to as Bombay Rent Act) and the Appellants required the same bonafide and reasonably for their own use and occupation. The trial Court rejected the contention raised on behalf of the Respondent that he was a tenant. It was also held that he was unauthorisedly in possession and hence decree for possession came to be passed. The Respondent filed the appeal and the Appellate Court allowed it on the ground that as alternate pleading was raised by the Appellants that if the Respondent is held to be a tenant then he is liable to be evicted under the provisions of the Bombay Rent Act or a trespasser the pleadings are mutually destructive and hence the suit was not maintainable. In my opinion, the learned Judge was not right in dismissing the said suit on the ground that the alternative pleadings were raised by the Appellants that even if the Respondent is held to be a tenant he should be evicted under the provisions of the Rent Act was mutually destructive. In my opinion the learned Judge ought to have considered the merits of the matter.
(3.) THE learned trial Court was having the jurisdiction to deal with the plea not only raised on behalf of the Appellants that the Respondent was a trespasser or unauthorisedly in possession, but also whether he is liable to be evicted under the provisions of the Bombay Rent Act. I find that the learned Appellate Judge has not considered the matter on merits at all. In view of this I pass the following order. The impugned judgment and order dated 4-1-1986 passed by the District Judge, Ratnagiri in Civil Appeal No.108 of 1982 is set aside. The matter is remanded to the District Court, Ratnagiri to deal the appeal on merits. The learned Appellate Judge is directed to decide and dispose of the said appeal preferably before the end of April 1999. Appeal allowed accordingly. No order as to costs. Appeal allowed.;