D N J DADY Vs. LAXMAN GIGE

JUDGEMENT

(1.) THIS petition under Article 227 of Constitution of India arises in the following facts.

(2.) THE learned Judge of the Small Causes Court held that the respondent has failed to prove that he was the tenant of the room and paying Rs.30/- per month as rent. It was held that he has failed to prove that his salary was fixed at Rs.150/- per month and petitioners were deducting Rs.30/- towards the rent. The learned Judge accepted the case of the petitioners that the respondent was paid Rs.120/- per month as salary and he was given the said room as a servant gratuitously. Hence, the learned Judge directed possession of the said room be given to the petitioners. This was challenged by the respondent by filing an appeal. The Bench of the Small Causes Court, Bombay, reversed the decree passed by the trial Court by order dated 17th August, 1985. This is challenged in this petition.

(3.) PRIMA facie, I find that there was no reason for the appellate Court to presume the existence of certain documents in possession of the petitioners showing that salary was paid to the respondent. In addition, the appellate Court has failed to consider the effect of the petitioners moving twice earlier from one place to the other and the respondent accompanying them and serving with them. All throughout respondent was occupying room. However, instead of re-appreciating the evidence in this petition, I would prefer to remand the matter to the appellate Court to decide the appeal afresh after reappreciating the evidence on record and on merits.