LILARAM JAMIATRAI Vs. MEGHRAJ HARDASMAL KALWANI

JUDGEMENT

(1.) THIS Civil Revision Application arises out of the suit for possession between a landlord and a tenant. The plaintiff-landlord filed in the court of the Civil Judge (Senior Division) at Baroda Regular Civil Suit No.490 of 1963 for recovering possession of the suit premises from the defendants on three grounds. His first ground was that he required the suit premises reasonably and bona fide for his personal occupation. His second ground was that the defendants had unlawfully sub-let the suit premises and his third ground was that the defendants had caused damage to the suit property. The learned Trial Judge negatived the plaintiff's contentions relating to unlawful sub-letting and damage to the suit property but upheld the contention that he required the suit premises reasonably and bona fide for his personal occupation. In that view of the matter he passed against the defendants decree of possession. The defendants appealed to the district Court. The learned Extra Assistant Judge, on consideration of evidence before him, upheld the finding recorded by the learned Trial Judge that the plaintiff required the suit premises reasonably and bona fide for his personal occupation. In that view of the matter confirmed the decree for possession passed by the learned Trial Judge and dismissed the appeal.

(2.) MR. Patel has, however, pressed before me Civil application No.1567 of 1971 which the defendants have made for leading additional evidence. He wants to lead additional evidence of three new and subsequent events. The first event, alleged by the defendants, is that the plaintiff since the passing of the appellate decree has expired. The second alleged event is that Tulsidas, one of the plaintiff's sons has got a bungalow in his possession in Nayana Society in the City of Baroda and it is sufficient for housing the plaintiff and his family. The third alleged even is that the plaintiff's another son--G. M. Kalwani--has got another similar bungalow in Nayana Society in the city of Baroda. According to him, if these events are allowed to be proved in this revision application by additional evidence, the plaintiff's case for reasonable and bona fide requirement of the suit premises for his personal occupation will be completely demolished. He has emphasized the fact that the plaintiff has not filed any affidavit in reply to this Civil Application. It is true that the plaintiff has not filed any affidavit in reply. I also do not find any affidavit in support of this application. For the reasons which follow, I am of the opinion that additional evidence of new and subsequent events cannot be allowed to be led in a revision application. This revision application has been filed under Section 29 of the Bombay Rent Act which confers jurisdiction upon this Court only to satisfy "itself that any such decision in appeal was according to law. The revisional jurisdiction of this Court under Section 29 extends only to correction of errors of law or to removal of legal infirmities in the appellate decrees passed under the Bombay Rent Act. In my opinion, it means that this Court has to accept the facts of the case as they are and find out whether the decision contains any errors of law or legal infirmities which it can correct or remove. If the record does not disclose any such error or infirmity, it has no jurisdiction to interfere with the appellate decision. It cannot add new and subsequent events to the record and say that the appellate decision is not according to law. I, therefore, cannot examine the legality of the decree on facts which were not before the lower Appellate Court and which occurred subsequently. Additional evidence of new and subsequent events also cannot be allowed to be led in a revisional application for very goods and cogent reasons. New events which may be attempted to be brought on record will require investigation and proof. How will High Court investigate into them in a revisional application. One of the ways is to receive affidavits from parties and to decide upon them. If this course is followed, it will firstly disregard the best method of investigation of facts- known to our system of law--under which oral and documentary evidence is received from parties and is subjected to searching scrutiny and rigorous churning in order to discover the grains of truth lying hidden therein. Will the High Court set at naught such an investigation into truth carried out by the Courts below even though they contain no errors and adopt a week and facile method of receiving proof of subsequent events by affidavits? Shall it totally disregard what the Courts below have done and substitute its decision, based on affidavits disclosing subsequent facts, for the decisions of the Courts below? I do not think it can be done. It if cannot be done, shall it hold in a revisional application a fresh trial on new events, summon witnesses, examine and cross-examine them and covert a revisional application into an original action? If this course is followed, every revisional application will have to be converted into an original action to be tried on new events. It also cannot be done. Section 29 of the Bombay Rent Act does not permit it to be done. Shall it then set aside the decisions of the Courts below even though there are no errors of law therein and remand the suit for a fresh trial on new and subsequent events producing in its wake a fresh decree, a fresh appeal and a fresh revisional application? And is there any guarantee that no new events will occur during this fresh trial, fresh appeal and fresh revisional application? If this probability cannot be ruled out, shall we again set aside decrees of courts below and order a fresh trial and fresh investigation into more recent and subsequent events? Shall we produce endless trials and never-ending litigation's between the same parties in respect of the same prayers? The attempt to reopen a case on account of subsequent occurrences, for the aforesaid reasons, appears to me to be fraught with serious consequences and contrary to and inconsistent with the system of law and justice we have in this country. Let us now examine law on the subject. Order 41, Rule 27 deals with the question of producing additional evidence, it has no application to the instant case for more than one reason. It permits additional evidence to be produced. Subject to the satisfaction of the conditions specified therein, only in support of the facts pleaded by the parties and issues arising therefrom and not for bringing new and subsequent events on record so as to dislodge an otherwise valid decision. Even such additional evidence can be produced only if the Appellate Court requires it to be produced for pronouncing its judgment or for any other substantial cause. It cannot permit, at the instance of and for the benefit of a party, production of additional evidence of new and subsequent events. Even where additional evidence is permitted to be produced for "any other substantial cause", it is well settled that it must be in pursuance of requirement of the Court and not because a party desires to produce it for his own benefit. Order 41, Rule 27, therefore, cannot be invoked in a situation of this type and has no application to it. Reliance is also placed upon Order 7. Rule 7 of the Code of Civil Procedure for this purpose. Rule 7 makes no such express provision. Case law has however developed on the subject dealt with by Rule 7. It shown that subsequent changes or alterations in the circumstances can be taken into account by a Court of law for the purpose of shortening litigation or doing complete justice between parties. I am not concerned with its applicability to original actions where a Court of first instance is not bound by fetters by which a court of appeal under Section 100 of the Code of Civil Procedure or a Court of revision under Section 115 of the Code of Civil Procedure or Section 29 of the Bombay Rent Act is bound. Before a Court of first instance, the entire suit and all issues involved therein are at large and if subsequent events can be taken into account for achieving any one or both of the aforesaid purposes, it can do so. By doing so, it is not going to disturb any recorded decision nor is it going to lead to the remand of the suit nor is it necessarily going to produce a fresh trial of the suit all over again. However, without entering into the scope of its applicability to trial actions, I must examine the question of its applicability to appellate or revisional actions. In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1959 SC 577, the Supreme Court has extended the application of this principle to an appellate action if there is a subsequent change in law. It has relied in that behalf upon the decision of the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chadhuri, AIR 1941 FC 5. This is what the Supreme Court has said on the subject.