LAXMI CO OPERATIVE BANK LTD Vs. MOHAN GOVIND DIWANJI

JUDGEMENT

(1.) THE plaintiff, who is the owner of the suit house, and who wanted to evict the defendant, but did not succeed is the petitioner here. The respondent - defendant is occupying a portion on the ground floor of the Plaintiff's house as a monthly tenant on a payment of Rs. 20/- as rent. The property is in the city of Sholapur. The petitioner bank wanted the premises for the purpose of conducting the business. It therefore required the premises reasonably and bona fide for its own use and occupation. It, therefore, served a notice on the respondent dated 2-7-1964 demanding the possession of the premises as well as areas of the rent till the date of the notice. The respondent denied the claim of the petitioner by a reply to that notice. He, however, sent all the arrears. The suit thereafter for possession and mesne profits followed. The respondent resisted the suit. The trial Court framed a number of issues and found that the respondent has established that it bona fide required the suit premises for its own use and occupation and that greater hardship would be caused to it than the respondent, if the suit is dismissed. The trial Court, however, was of the view that in spite of this the petitioner would not be able to recover possession of the suit premises because Section 25 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter called "rent Act") is a hurdle in the way of the bank. Under Section 25, a landlord shall not use or permit to be used for non - residential purposes any premises, which on the date of the coming into operation of the Rent Act were used for residential purposes. The date when the Rent Act came into operation is 19-1-1948. The trial Court found that the suit premises were used for residential purposes on 19-1-1948 and, therefore it cannot be used for non residential purposes. Accordingly, therefore, the petitioners were not entitled to recover the suit premises from the respondent.

(2.) TO petitioner went in appeal to the District Court and the learned Extra Assistant Judge, who heard the appeal, also found in favour of the petitioner being of the view that the petitioner required the premises reasonably and bona fide for its own use and occupation. But because according to the learned Assistant Judge the suit premises were not let out for non - residential purposes on 19-1-1948, the petitioner would not be entitled to recover possession of the suit premises. Accordingly, therefore, he dismissed the appeal. It is this order of the learned Assistant Judge, Sholapur, that is sought to be corrected by the petitioner here.

(3.) MR rege, the learned advocate for the petitioner, contends here that the findings of fact as regards the nature of occupation on 19-1-1948 is erroneous, because of the wrong approach by the learned Assistant Judge. during the course of the judgment, the learned Assistant Judge considered the evidence of Gangadhar Jabde, who was the first owner of the suit premises, Janardhan Pandit, who had conducted a charitable dispensary in the suit premises from 1945 till 1948 and one Sakharam Chati, who had given the evidence as regards alternative accommodation. It is true that the learned Assistant Judge, while deciding the nature of occupation on 19-1-1948, observed that although these three witnesses had stated that there was a charitable dispensary in the suit premises yet they should not be believed because that they are all interested in the petitioner; there is hardly any evidence to show that they were really interested witnesses. But at the same time while deciding the point regarding the necessity of the premises for personal occupation, the learned Assistant Judge in the same breath believed these very witnesses. It is true, as contended by Mr. Rege, the learned advocate for the petitioner that such an approach for recording a finding a fact is erroneous. The witnesses did state that there was a charitable dispensary in the suit premises between 1945 and 1948. This period would cover 19-1-1948. The learned Assistant Judge believed the witnesses on one point but did not believe for no reason the very witnesses on other connected points. In the absence of any evidence whatsoever to show that on 19-1-1948 the nature of occupation was residential, the learned Judge held that it was residential. Mr. Rege, therefore, argued that the case be remanded back because of this patent error. He gave another ground for this and that is that appellate Court should be slow to disbelieve the oral evidence of witnesses when such evidence was believed by the trial Court. After all, according to him the trial Court has opportunity of seeing the witnesses and also the way they give evidence. Therefore when there is question of believing the oral evidence, the appellate Court should not hastily disbelieve the oral evidence which was believed by the trial Court. He relied for this on The Bombay Cotton Manufacturing Co. Ltd. v. Raja Bahadur Shivlal Motilal, 17 Bom LR 455 and Arthur Wijetilekha v. Don Edmond Ronashinghe, AIR 1931 PC 255. The proposition of law as argued by Mr. Rege is correct. But at the same time the appellate Court has always jurisdiction to reassess all the evidence as well as the circumstances that are on record. If therefore, the appellate Court reassesses the evidence, which it is entitled to do in appeal, it cannot be said to have committed an error in law. In my view, therefore, it would be difficult for me to correct this kind of error of fact, though serious, committed by the learned Assistant Judge.