THAKORLAL CHUNILAL BARRISTER Vs. ISHWARLAL UTTAMRAM

JUDGEMENT

(1.) Petitioner Thakorlal Chunilal Barrister was the original defendant and opponents were the original plaintiffs. Plaintiffs filed Regular Civil Suit No. 1392 of 1967 in the Court of Third Joint civil Judge (Junior Division) at Surat against the defendant tenant for recovering possession of the suit premises on two grounds namely that the plaintiffs require the same reasonably and bona fide for their own use and occupation and secondly that the defendant tenant is in arrears for more than six months and is not shown to be ready and willing to pay the rent. It was contended on behalf of the plaintiffs that the standard rent in respect of the suit premises has been fixed between the parties in at earlier proceeding and therefore there cannot be any dispute about the standard rent. The defendant contested the suit inter alia contending that there was a dispute about standard rent and that the suit must fail on account of non-joinder of necessary parties. It was also contended that the plaintiffs did not require the suit premises reasonably and bona fide for their own use and occupation. A contention as to the validity of the notice was also taken up. The learned trial Judge held that the plaintiffs have failed to prove that they require the suit premises reasonably and bone fide for their own use and occupation. The learned trial judge also held that the defendant is a tenant in arrears of rent for more than six months on the date of the suit as also on the date of the notice and that it is not open to the defendant to reagitate the question of fixation of standard rent and therefore there was no dispute between the parties about the standard rent of the suit premises because it was already fixed by the Courts order in Regular Civil Appeal No. 171 of 1965 between the same parties. In accordance with these findings the learned trial Judge decreed the plaintiffs suit with costs. Defendant preferred Regular Civil Appeal No. 154 of 1970 in the District Court at Surat. The learned District Judge confirmed the findings of the learned trial Judge and dismissed the appeal. The defendant being aggrieved by this judgment and decree of the learned District judge preferred this Civil Revision Application.

(2.) When the Revision Application came up for admission Mr. S. N. Shelat learned Advocate who appeared for the petitioner-tenant contended that the defendant had taken a contention in his written statement that after the receipt of the notice he had gone in company of witness Maganlal Motilal to one of the landlords namely Venilal and offered to pay rent in arrears but be was told that there was no hurry about the same and that he was thus ready and willing to pay rent and though this contention was examined by the trial Court and negatived the learned District Judge while disposing of the appeal did not examine this contention and record any finding thereon. Mr. Justice J. M. Sheth before whom this Civil Revision Application came up for admission called upon Mr. Shelat to file an affidavit of the learned Advocate for the present petitioner who appeared before the learned District Judge stating therein that he had raised the contention and that the learned District Judge had not examined the same. Mr. Shushilkant K. Kaji learned Advocate who appeared for the petitioner before the learned District Judge filed his affidavit where upon rule was granted.

(3.) When this petition came up for hearing before me Mr. K. K. Chokhawala learned Advocate appeared for the opponents and he filed an affidavit of Mr. J. Z. Halatwala learned Advocate who appeared for the plaintiffs before the learned District Judge inter alia stating therein that Mr. Kazi had not raised the contention at the hearing of the appeal that the tenant was ready and willing to pay the rent. Mr. Halatwala also produced the notes of arguments which he had taken at the hearing of the appeal. Mr. Shelat then contended that the Court will have to decide whether Mr. Kazi is right in what he has stated in his affidavit or Mr. Halatwala is right in what he has stated in his affidavit. The problem was not very difficult. But a finding would certainly reflect upon the credibility of either of the two advocates who had filed absolutely contradictory affidavits one of whom presumably may not be telling the truth For the reasons stated in my order dated 30th November 1972 directed the learned District Judge to decide the contention on merits. The following issue was framed: