IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. S.B.CIVIL FIRST APPEAL NO. 482/2011 RAJ KUMAR KHEMANI ...DEFENDANT-APPELLANT VS. NAGAR MAL GOYAL ...PLAINTIFF-RESPONDENT DATE OF JUDGMENT:- NOVEMBER 3, 2011 HON'BLE MS.JUSTICE BELA M.TRIVEDI Dr. P.C.Jain, counsel for the appellant, Mr. R.S.Yadav, counsel for the respondent BY THE COURT
The present appeal has been filed by the appellant ( original defendant ) challenging the judgment and decree dated 27th May 2011 passed by the Additional District Judge No.6,Jaipur,(hereinafter referred as ‘the trial court’) in Civil Suit No. 23/2008, whereby the trial court has decreed the suit of the respondent original plaintiff, directing the appellant defendant to pay Rs. 77,500/- to the respondent-plaintiff.
2. The short facts giving rise to the present appeal are that the present respondent-plaintiff filed the suit being No. 23/2008 seeking recovery of Rs. 77,500/- with interest, towards arrears of rent for the period from 15.7.2006 to 30.9.2007 from the appellant-defendant. The said suit came to be decreed by the trial court. Being aggrieved by the same, the appellant defendant has preferred the present appeal.
3. At the out set, the learned counsel
Dr. P.C.Jain for the appellant raising preliminary issue as regards the jurisdiction of the trial court submitted that the suit of the respondent plaintiff being for the recovery of arrears of rent from the appellant, the trial court being Civil Court did not have the jurisdiction to entertain the same and the court competent to decide the suit would be the Rent Tribunal. Learned counsel for the respondent also could not satisfy the Court as to how the trial court had the jurisdiction to entertain the suit, ofcourse he has submitted that the issue of jurisdiction should have been raised by the defendant at the earliest stage of the suit and the same having not been raised even at the time of framing of issue, the appellant could not have agitated the same in the appeal.
4. Having regard to the submissions made by the learned counsel for the parties and without going into the merits of the impugned decree it transpires that the issue of jurisdiction which goes to the root of the case was neither pleaded nor raised by the appellant-defendant in the suit, however, the said issue of jurisdiction being pure question of law could be raised at any stage of the proceedings and even in the appeal. Having regard to the nature of the suit being for recovery of the arrears of rent, this Court is of the opinion that the said issue of jurisdiction which was essential for the right decision of the suit was required to be raised and decided by the trial court before deciding the suit on merits and the same having not been done so, the matter is required to be remanded to the trial court under Order 41 Rule 23(A) of C.P.C.
5. In that view of the matter, the impugned judgment and decree passed by the trial court deserves to be set-aside and the case is required to be remanded to the trial court for deciding the case afresh after raising and deciding the issue of its jurisdiction. Under the circumstances, the judgment and decree dated 27th May 2011 passed by the trial court is set-aside and the matter is remanded to the trial court for deciding afresh in the light of the above observations. Both the parties shall be at liberty to lead additional evidence, only on the issue of jurisdiction and the trial court shall decide the suit afresh without being influenced by the observations made by this court in this Appeal. The Appeal stands allowed accordingly.