Cra No. 44 of 2006 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 31/07/2008 ORAL JUDGMENT

1.0 This application is directed against the judgment and CRA/44/2006 JUDGMENT order dated 16.11.2005 passed by the appellate Bench of the Small Causes Court – II, Ahmedabad in Civil Appeal No. 50 of 2003 whereby, the said Appeal was dismissed and the judgment and decree dated 28.01.2003 passed by the learned Judge of the Small Causes Court, Ahmedabad in H.R.P. Civil Suit No. 743 of 1986 was confirmed.

2.0 The facts in brief leading rise to the filing of the present application are as under;

2.1 In 1986, the appellant, original plaintiff, filed a suit being H.R.P. Civil Suit No. 743 of 1986 before the Small Causes Court, Ahmedabad, under the provisions of the Bombay Rents, Hotel and Lodging House Rates Controls Act, 1947 [for short, “the Act”], to recover the rent and possession of the premises situated upon Final Plot No. 126 of Town Planning Scheme No.3-A of Ahmedabad in respect of Ward Dariyapur – Kazipur. The suit property is a portion of the premise situated in the basement of a building, which is a Hotel, popularly known as “Cama Hotel”. CRA/44/2006 JUDGMENT

2.2 In the said suit, the respondent, original defendant, filed his Written Statement vide Exhibit - 10. The respondent also moved an application vide Exhibit – 297 seeking a mandatory injunction against the appellant to the effect that the appellant be directed to remove the wall constructed by the appellant in front of the three ventilators of the suit property.

2.3 The trial Court, after hearing the parties and after considering the evidence on record, allowed the application Exhibit – 297 preferred by the appellant and dismissed the suit in question by the impugned judgment and decree.

2.4 Being aggrieved by the aforesaid judgment and decree, the appellant preferred an Appeal before the appellate Bench of the Small Causes Court, Ahmedabad. The appellate Bench, after appreciating the entire evidence on record, dismissed the Appeal by way of passing the impugned judgment and order. Hence, this revision application.

3.0 Heard learned counsel for the respective parties and CRA/44/2006 JUDGMENT perused the documents on record. Learned Sr. Advocate for the appellant has fairly conceded that he would not be able to assail the impugned orders passed by the Courts below on merits. He has, however, submitted that liberty may be reserved for the appellant to raise a fresh cause of action since the impugned orders have been passed on the basis of the evidence available in the year 1986, i.e. when the suit was instituted and in view of the subsequent development and growth of the appellant – Hotel.

4.0 Having heard the learned Sr. Advocate for the appellant, I find the request made by him to be reasonable. Even otherwise, it is always open to the party concerned to raise a fresh cause of action on the basis of any subsequent development / event. Needless to say that in this case also, the appellant – Hotel shall have a fresh cause of action in view of any subsequent development.