GOKULDAS PITAMBAR Vs. ODHAVJI GIGABHAI

JUDGEMENT

(1.) This is a suit by the plaintiff, the tenant, to set aside a decree obtained by the defendant, his landlord, on the ground of fraud. The decree was passed on December 15, 1922, requiring the plaintiff to vacate the premises on or before May 31 of this year. The defendant's requisition in that suit, which was Suit No. 3745 of 1922, was for his own occupation and the bona fides and the reasonableness for that requisition was the principal matter in issue. In the course of the hearing of that suit the defendant said in answer to cross-examination "I am the rent farmer and hold the premises under a lease. The lease has net expired : it will last two years more. -The plaintiff says that that was false evidence, that the defendant was not a lessee, and that if he had a lease it did not last two years more and that the only document under which the defendant was in possession was the document Exh. C according to which the defendant was not a lessee at all but a rent farming agent the period of whose agency expired in October 1923.

(2.) Now the agreement Exh. C has been admitted, and under that agreement it does appear that the defendant was no more than as an agent to collect the rent. The defendant's explanation in his affidavit, which by consent of the parties has been treated as evidence in this case, is that the owner of the promises had at first agreed to give him a lease for five years but that agreement was not carried out. The owner then desired to vary the term for one year and tock a writing from him to that effect, and subsequently just before the owner went to South Africa the owner promised to let him remain in possession for two years. It is clear, therefore, even on defendant's admission, that the statements made in answer to cross-examination in the suit were not true, that the defendant was not a lessee, and that he had not a lease of the premises for two years.

(3.) The question then remains whether this false evidence is sufficient to justify the Court in holding that the decree made in that suit is vitiated by fraud. Now there are several decisions on the point as to whether false evidence is such fraud as to vitiate the decree passed in the suit in which it was given. The most satisfactory of the statement of the law is that in Mahomed Golab V/s. Mahomed Sulliman (1894) I.L.R. 21 Cal. 21 where the High Court of Calcutta held that false evidence in a suit would not be fraud vitiating a decree unless the effect of that false evidence was to prevent the other party from putting his casa before the Court. Indeed that must be so, for if every decree which was the result of the suit in which false evidence was given could be vitiated on that ground then, as has been said in Flower V/s. Lloyd (1877) 6 Ch. D. 297 a large number of judgments supposed to be final would only be the commencement of a new series of actions. What I have to decide is whether by this false evidence the plaintiff in this suit is prevented from establishing his defence in the ejectment suit. Now the plaintiff's defence in that ejectment suit was really a defence denying the reasonableness and bona fides of the defendant's requisition of the premises for his own use and occupation. The plaintiff in that suit did not raise any question as to the defendant's title. If he had done so, he would have been debarred from raising the issue under the Rent Act as to the reasonableness and bona fides of the defendant's requisition. It seems to me clear that this was not a defence which the plaintiff intended to make and that he was not prevented by the evidence of which he complains from making that defence. Again, even supposing he had intended in the previous suit to question the defendant's title, it is not apparent how the false answers of the defendant to the questions put to him in the cross-examination prevented the plaintiff from investigating the defendant's title. It won t do to say that the plaintiff believed the defendant and therefore was induced not to make an investigation of title. Because it is very seldom that one party accepts as true any evidence that is given in a suit by the other party. It was quite surely just as easy for him to ascertain the true facts as to defendant's title during the course of that litigation as it has been for him to do so as soon as the litigation was over. The conditions are the same for the owner of the property is still in South Africa. I hold, therefore, that although the evidence given by the defendant in answer to the particular questions asked in cross-examination was not true yet it did not avoid the decree.