RATANBAI VALLABHDAS BHATIA Vs. THACKER KHETSI MANSANGH

JUDGEMENT

(1.) This is a civil revision application by the original plaintiff who filed (Civil Suit No. 266 of 1957 in the Court of the 1st Subordinate Judge at Anjar (Kutch) against his tenant for possession of the suit premises on the grounds of arrears of rent and bona fide and reasonable requirement of the plaintiff and on the ground that the tenant had committed breach of the terms of tenancy in regard to the payment of rent. The tenancy is in writing and the written lease is a Kabuliyat dated 28-6-55 which provided that the rent should be paid every month which became due and in case of breach of tenancy the right of the tenant would come to an end. The notice to quit was given on 15-7-57 and the suit was filed on 13-8-57. In the written statement the defendant admitted that he had not paid rent that he was in arrears of rent and that he had not paid rent because the landlord had not effected the necessary repairs to the suit premises. The first Court decreed the suit for possession on the first two grounds and it did not go into the third ground.

(2.) In appeal the learned Assistant Judge held that the plaintiff had not proved her bona fide and reasonable requirement of the suit premises. He also held that the suit was premature because the suit was filed before the expiry of 30 days from the date of the notice. The suit had been filed on 13-8-57 whereas the date of the notice was 15-7-57. On these two grounds the learned Judge allowed the appeal and set aside the decree of the first Court. He also did not consider the terms of the tenancy regarding the irregularity in the payment of rent.

(3.) In revision it is contended that this civil revision application should be allowed because the suit need not be filed after the expiry of 30 days from the date of the notice if the suit is filed on the breach of the terms of tenancy and when the suit is not filed on the solitary ground of the non-payment of rent. It is also contended that the learned Assistant Judge discarded the evidence of the plaintiff on the ground that she had been examined after the defendants evidence had been closed and after the plaintiff had examined her power of attorney holder. It is contended that the view taken by the learned Assistant Judge that it was not correct for the Court to take the evidence of the plaintiff herself is erroneous. The learned counsel for the opponent has contended that he has a preliminary objection because the case of the breach of the terms of tenancy was not argued in the trail Court nor was it argued in the appellate Court and it is not even referred to in the revision application. He relies on Haridas Chakubhai v. Ratansey Raghavji 23 Bombay Law Reporter 802 and on Keshardeo v. Radha Kishan A. I. R. 1953 Supreme Court 23