PRABHAKAR YESHWANT RANADE Vs. GAJANAN NARAYAN ADIVAREKAR

JUDGEMENT

(1.) THIS writ petition raises an issue of some importance relating to the interpretation of Order XVIII, Rule 17-A of the Code of Civil Procedure. It is contended by the petitioner herein, that the two orders passed by the Court of Small Causes, the first of them dated 16-2-1983 and the second of them dated 8-4-1983 are liable to be set aside. The facts that are material for the purposes of the determination of this petition are briefly recounted below:

(2.) THE present petitioner is the landlord in respect of a building known as Ranade Prasad Niketan situated at Lady Hardings Road, Mahim, Bombay. It is contended that one Gajanan Narayan Adivarekar was the monthly tenant in respect of Room No. 1 in the building. The present petitioner became the owner of the building in the year 1966. It is alleged the respondent No. 1 (since deceased) was the original tenant in respect of the said room and furthermore, that he was in arrears of rent from 1-8-1970. The further allegation is to the effect that respondent No. 2 was found in illegal possession of the suit premises in 1973. The petitioner, therefore, after the termination of the tenancy of the defendant No. 1 filed RAE and R Suit No. 189/701 of 1974 in the Court of Small Causes at Bombay for possession of the suit premises and for recovery of arrears of rent from 1-8-1970 to 31-112-1973 and for mesne profits. The suit was resisted by the defendants, who filed separate written statements. During the pendency of the suit, original defendant No. 1 died leaving behind defendants Nos. 1-a to 1-g who are the legal representatives and who have been brought on record.

(3.) THE suit came up for trial and issues were framed in the year 1981. The plaintiff entered the witness box and gave evidence after which the second defendant who is respondent No. 2 before me was examined. It is material to point out that the heirs and legal representatives of the original tenant did not participate in the proceedings. According to the petitioner, when the second defendant was being cross-examined, he came across two letters, one dated 13-4-1969, alleged to have been written by the deceased (defendant No. 1) to the plaintiff and the second was a cyclostyled letter, sent by the plaintiff to the defendant No. 1 and other tenants who had signed the receipt thereof by putting signatures on the said copy of the letter on 10-11-1971. The petitioners case is that the two letters were tracted in the file of another tenant of a similar name Gopinath Ganpat Adivarekar and that the same had wrongly been filed there. The petitioner contended that the two documents would disprove the contention of the present defendant that he was in exclusive possession of the suit premises from April 1958 as was his evidence before the Court. The petitioner, therefore, filed an application dated 21-1-1983, before the trial Court containing a prayer that the two documents should be sent to the Government Handwriting expert along with the agreement (Exhibit 3) which bears the date of April 1958 and the signature of original defendant No. 1. It was his case that though he knew and could identify the signature of defendant No. 1 on the two letters, that he found these two documents after his evidence was over, that he could not get the signatures identified by any of the heirs of original defendant No. 1 as they were not appearing consequently, that it was very essential to get the opinion of the hand-writing expert. This application was opposed by respondent No. 2 and the learned Judge by order dated 16-2-1983 rejected the application in question. This is one of the two orders that are impugned through the present petition. I need to point out, that Mr. Rane, learned Counsel appearing on behalf of the petitioner has stated before me that as far as this order is concerned, that he does not desire to press his challenge to the same and, therefore, I do not consider it necessary to deal with the order in question at all.