SURROTTAMBHAI PURSHOTTAMBHAI HATHISING Vs. RAVICHAND UMEDCHAND

JUDGEMENT

(1.) This application is directed against the judgment and order of the District Judge of Ahmedabad who in revision application No. 7 of 1957 before him against the order of the Small Cause Court Judge fixing the standard rent of the premises in question held that the decision of the Small Cause Court Judge based as it was on affidavits was not in accordance with law and therefore remanded the matter to the trial Court for disposal according to law. It is an admitted fact that both the parties produced affidavits and did not produce any oral evidence. They also produced documents. The trial Court fixed the standard rent after considering the affidavits and the documents produced by both the sides. The learned District Judge observed as follows:

(2.) The learned District Judge then proceeded to observe that after considering the affidavits regarding the value of the land the trial Judge came to an arbitrary decision as the Judge could not have seen the demeanour of the persons who had given the affidavits. The learned Judge has observed that if the matter is decided on mere affidavits the other party gets no opportunity to cross-examine the persons filing the affidavits and therefore the Judge thought that the decision of the trial Judge based as it was on affidavits was not in accordance with law. In revision this order of the District Judge is challenged and it is contended that the learned Judge lost sight of the provisions of order 19 rule I and order 19 rule 2 Civil Procedure Code. These two provisions read as follows:

(3.) A perusal of the rojnama shows that written-statement was filed on 8 and the matter was then adjourned to 7-12-1955 for affidavits. On that day both sides gave applications stating that their affidavits were not ready and asking for time to produce their affidavits. On 3-2-1956 the applicant applied for witness summons and on 24-2-1956 one witness of the applicant came to the Court produced certain documents and gave his affidavit. A similar thing happened on 16-3-1956. These entries in the rojnama clearly show that the Court had decided to decide the matter on affidavits alone and had decided to order that all the facts should be proved by affidavits. Under order 19 rule 1 not merely one fact but several facts could be ordered to be proved by affidavit. It is also clear from the applications given by both the sides that they had asked for time to produce evidence in the form of affidavits. The case would also fall under order 19 rule 2. In fact it was not the contention before the learned District Judge that the Small Cause Court Judge had not passed an order that evidence should be led in the form of affidavits. The main ground on which the learned District Judge felt that the order of the Small Cause Court Judge was not in accordance with law was that the trial Court Judge had not good grounds for preferring one set of affidavits to another set of affidavits as the Judge could not see the demeanour of the witnesses. His observation that the parties had no opportunity to cross-examine the witnesses is not correct because under order 19 rule 2 Civil Procedure Code the Court may at the instance of either party order the attendance for cross-examination of the deponent. No such request was made by either party. In fact it is not the ground of the learned District Judge for holding that the order was not in accordance with law that the Small Cause Court Judge followed the wrong procedure in allowing facts to be proved by affidavits. His ground for holding that the order was not in accordance with law was that when there was no evidence except affidavits and documents it was not possible to prefer the evidence adduced by one party to the evidence adduced by another party. Under section 29 of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 a revision lies against the decision of the Small Cause Court Judge fixing the standard rent provided the decision was not in accordance with law. When the Civil Procedure Code allows facts to be proved by affidavits and when in accordance with the provisions contained in order 19 facts have been proved by affidavits it was not correct on the part of the learned District Judge to say that the decision of the learned trial Judge was not in accordance with law merely on the ground that the evidence was in the form of affidavits. It was open to him to hold that the decision was not in accord- ance with law in any of the manners contemplated under sec. 29 of the Rent Act. The learned District Judge has therefore exercised his juris- diction illegally in holding that the decision was not in accordance with law. He has not given any other reason for holding that the decision of the Small Cause Court Judge was not in accordance with law.