PRABHULAL CHHAGANLAL KOTHARI Vs. CHANDRAKANT S DOSHI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution, takes exception to the dismissal of a claim advanced by the petitioner for being allowed to retain possession of the premises in dispute, the decree passed in R.A.E. Suit No. 6146 of 1965 (Court of Small Causes at Bombay), notwithstanding.

(2.) The points that arise for determination in the present writ petition have to be considered in the following background--- The suit tenement is Gala No. 3, belonging to Mohammed Edris Haji Abbas, Church Compound, Opposite Surya Cinema Bombay-14. It was part of the tenement leased out to the respondent who inducted the petitioner on an agreement to pay rent of Rs. 72.82 ps. p.m. On 17-7-65, respondent addressed a notice to the petitioner calling upon him to pay arrears of rent then due, and also calling upon him to vacate the suit tenement by 31-8-65. Petitioner replied to the said notice pointing out that rent inclusive and upto February 1965 had been paid to the superior landlord, that there was a prohibitory order issued by the Sales-Tax Department of the Government of Maharashtra restraining debtors of the respondent from paying any debts to him, and, lastly that the agreed rent was excessive which necessitated determination of the standard rent. The notice not having yielded any result, respondent instituted R.A.E. Suit No. 6146 of 1965 in the Small Causes Court at Bombay. The relief claimed was a decree for vacant possession of the suit tenement together with costs of and incidental to the suit. In para 3 of the plaint, there was a reference to defendant being in arrears for 27 months for the period from 31-6-63 to 31-8-65 amounting to Rs. 1966.14 ps. Further, the unpaid rent was not claimed in the suit. Para 4 recited that the premises were required reasonably and in goods faith by the respondent for doing business. Petitioner filed a written statement wherein exception was taken to the claim for possession. It was denied that the premises required reasonably and in good faith by the respondent for doing business. In any case, the hardship and inconvenience that would be caused to the petitioner in case a decree for rejectment was passed, would be far greater than that which would be suffered by the respondent, where a decree refused. In so far as the allegation of non-payment of rent was concerned, there was the plea that petitioner had paid rent upto February 1965 to the superior landlord, that there was an embargo, against the payment of rent to the petitioner by the Sales-Tax Department and, that the agreed rent not being fair, it was necessary to determine the standard rent. At this stage, let me make it clear that a standard rent application instituted by the petitioner was eventually discharged.

(3.) Upon the pleadings aforesaid, various issues were framed and the recording of evidence began. Respondent testified that his business was increasing, that it averaged a monthly turnover of Rs. 15,000/-, and, that the suit tenant was absolutely essential for his prosperous timber business. He also spoke of the defaults made by the petitioner in the payment of rent. Petitioner, in person, and at later stage, through his Counsel started cross-examining the respondent. At this stage the recess. After the recess, the hearing was resumed. Instead of going ahead with cross-examination of the respondent, parties presented consent terms and sought a decree in terms thereof. There were :---