RAJABBAI ABDUL REBRNAN MUNSHI Vs. VASUDEV DHANJIBHAI MODY

JUDGEMENT

(1.) For reasons which we will presently set out, special leave to appeal against the judgment of the High Court of Bombay granted by this Court must be vacated because it had been procured by the appellant without disclosing all the material facts.

(2.) Rajabhai Munshi who will hereinafter be referred to as the defendant is since 1935 a tenant of Vasudev Mody - hereinafter called 'the plaintiff' - in respect of a piece of land situate in the town of Ahmedabad. The rent of the land as originally stipulated was Rs. 411/- per annum, and it was by mutual agreement enhanced to Rs. 851/- per annum in 1948. The plaintiff filed suit No. 2014 of 1952 against the defendant in the Court of Small Causes exercising jurisdiction under S. 28 of the Bombay Rents and Lodging House Rates (Control) Act, 1947 (Act 57 of 1947) for an order in ejectment against the defendant on the plea amongst others that the latter had made default in payment of rent due by him. The defendant contended inter alia that the rent stipulated was in excess of the standard rent payable by him. The Trial Court assessed the standard rent payable by the defendant at Rs. 446/- per annum and holding that the defendant had not made default in paying rent, dismissed the plaintiff's suit: Against that decree the plaintiff preferred Appeal No. 450 of 1953 to the District Court at Ahmedabad. On October 1, 1954 the defendant deposited in the District Court Rs. 400/- to the credit of the plaintiff. The appeal instituted by the plaintiff was not prosecuted, and the amount of Rs. 400/- deposited to the credit of the plaintiff remained deposited in Court.

(3.) The plaintiff commenced another action (Suit No. 3481 of 1955) against the defendant on the plea that the defendant had committed fresh defaults in payment of rent. The defendant deposited in Court from time to time between November 22, 1955 and January 16, 1957 Rs. 2,126/8/- towards rent due by him and costs of the suit. The learned Trial Judge by his order dated February 26, 1957 held that taking into account Rs. 400/- lying to the credit of the plaintiff in Appeal No. 450 of 1953 the defendant had deposited in Court Rs. 2,526/8/-, and that amount was sufficient to satisfy the arrears of rent due by the defendant and also the costs of the suit, and therefore no decree in ejectment could, in view of S. 12(3)(b) of Bombay Act 57 of 1947 be granted.