Bombay High Court
Namdeo Laxman Nawale vs Chandrasen Khasiram Rajeshirke And ... on 29 June, 2000
Equivalent citations: (2001)3BOMLR410, 2001(2)MHLJ941
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard Mr. Ketkar, the learned Advocate for petitioner. None appears for the respondents, though served. The point for consideration which arises in the present petition is, whether the Court can rely upon the affidavit of the plaintiff for decreeing the suit without there being sufficient reason for permitting the party to lead evidence in the form of affidavit instead of oral evidence?
2. The facts in brief relevant for decision are that, the respondent No. 1 filed his suit for eviction of the petitioner from the suit premises on various grounds including the ground of sub-let ting as well as need of the premises for personal occupation of the respondents. The plaint in that regard was lodged in the Trial Court on 2nd March, 1984 and on service of summons, the parties appeared before the Trial Court on 11th February. 1985 on which date the petitioner filed an application seeking time to file written statement- Similar requests were made by the petitioner on 3rd April, 1985 and 18th April, 1985 and on both the occasions time was granted to file the written statement. Again on 26th April. 1985, the petitioner filed an application seeking further time to file written statement, which was rejected by the Trial Court. Thereafter on 29th July, 1985, the petitioner filed an application seeking leave to file written statement which was allowed by the Trial Court on 17th August, 1985, subject to payment of costs of Rs. 100/- to the respondent No. 1 on or before 23rd August. 1985. The petitioner however, failed to pay the cost as ordered by the Trial Court. Nevertheless, the matter was taken up by the Trial Court on 26th August. 1985, 8th September, 1985, 21st September, 1985 and on 2nd November, 1985 on which date the Trial Court, the petitioner having not paid the costs till then and there being no written statement filed on record, allowed the respondent No. 1 to prove his claim by affidavit. The respondent No. 1 filed his affidavit on the very day and the Trial Court after considering the plaint and the affidavit dismissed the suit on 1st January, 1986 for want of sufficient material in support of the claim of the respondent No. 1. On appeal to the Lower Appellate Court, the same was allowed by judgment dated 6th February, 1988 on the ground that the affidavit filed by the respondent No. 1 was not challenged and there was no evidence on record contrary to the contents of the said affidavit.
4. Referring to Section 30(c) read with Order XIX Rule 1 of the Code of Civil Procedure and placing reliance upon the judgment of the learned Single Judge of this Court, in the matter of S. K. Palaniappah Kandaiswami Gonder and Anr. v. Superintending Engineer, M. S. E. B. Karad and Anr., the learned Advocate for the petitioner submitted that the Lower Appellate Court clearly erred in interfering with the order of the Trial Court and in allowing the application of the respondent No. 1, inasmuch as the Lower Appellate Court failed to take note of the fact that the evidence in the form of affidavit was allowed to be taken on record without any sufficient reason for the same and contrary to the provisions contained in the said Section 30(c) read with Rule 1 of Order XIX of the C. P. C.
5. Perusal of the records clearly disclose that on 2nd November, 1985 the Trial Court did permit the respondent No. 1 to prove his claim by way of affidavit. However, neither the records nor the impugned order of the Lower Appellate Court as well as order of the Trial Court discloses that any application was filed by the respondent No. 1 seeking leave of the Court to place the evidence on record in the form of affidavit. The roznama entry of 2nd November, 1985 itself discloses that the permission to prove the claim by way of affidavit was granted by the Trial Court without there being even a request for the same and in a very casual manner. Indeed as rightly submitted by the learned Advocate for the petitioner, the impugned Judgment nowhere discloses that the Lower Appellate Court has applied its mind as to whether there was permission granted to the respondent No. 1 by the Trial Court, in accordance with the provisions of law, to place the evidence on record in the form of affidavit. The impugned judgment ex facie discloses that the Lower Appellate Court has interfered with the order of the Trial Court solely on the ground that there was neither a written statement nor any challenge to the contents of the affidavits. The question of challenge to the contents of the affidavit could arise only when the evidence in the form of affidavit is found to have been lawfully placed on record, after obtaining necessary leave from the Court in accordance with the provisions of law. Perusal of Rule 1 of Order XIX of the C. P. C. discloses that any Court may at any time for sufficient reason order that any particular fact or facts may be proved by the affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable, provided that where it appears to the Court that either party bona fide desires the production of a witness, for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
5. Undisputedly, the suit was filed for eviction of the petitioner on the ground contemplated under section 13 of the Bombay Rent Act and the same included the ground of need of the premises for bona fide occupation of the respondent No. 1. Section 13(2) clearly provides that no decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) unless the issue of comparative hardship is considered and decided based on the materials on record. Accordingly it is necessary for the Court to satisfy itself that the decree of eviction would not result in greater hardship to the tenant than to the landlord. Even sub-section 1 of Section 13 clearly states that a landlord shall be entitled to recover the possession of any premises if the Court is satisfied about the ground on which the eviction is sought for. In other words. It is necessary for the Court to get Itself satisfied about the case pleaded by the landlord and the ground on which eviction of the tenant is sought for. An order of eviction cannot be passed mechanically and without application of mind and merely because landlord desires eviction of the tenant. The landlord seeking eviction of tenant has necessarily to make out a case sufficient to entitle him to get the order of eviction, and therefore, in that regard it is necessary for the landlord to establish his case with cogent evidence.
6. Considering the provisions contained in Rule 1 of Order XIX of the C. P. C. read with Section 13 of the Bombay Rent Act, apart from the fact that a party cannot be permitted to lead evidence in the form of affidavit as a matter of course, it is necessary for the Court to take every precaution while granting such leave to ascertain whether there are sufficient reasons to grant such leave. The records in the case in hand clearly disclose that neither the Trial Court had found any sufficient reason to permit the respondent No. 1 to lead the evidence in the form of affidavit nor the Lower Appellate Court has applied its mind on this aspect while interfering with the decree of the Trial Court dismissing the suit. Mere failure to file written statement or even failure to contest the proceedings, cannot by itself be a ground to decree the suit. The Court is not obliged to pronounce judgment in each and every such case by exercising powers under Order VIII Rule 10 of the C. P. C. Besides, the judgment to be pronounced under Order VIII Rule 10 of the C. P. C. must satisfy the requirement of the provisions of law contained in Section 2(g) and therefore, the Court has to apply Its mind to the facts pleaded and material in support thereto placed on record. The judgment is not mere countersigning of the pleadings of the plaintiff by the Court.
7. This Court has repeatedly held that order permitting the party to lead evidence in the form of affidavit is not to be passed mechanically and has to be passed after recording sufficient reasons for granting such leave, yet the Lower Appellate Court without application of mind and in arbitrary manner has saddled the petitioner with eviction order merely at whims and fancies of the respondent No. 1 landlord. As rightly submitted by the learned Advocate for the petitioner, the Judgment of the learned Single Judge in the case of S. K. Palaniappah Kandaiswami Gender (supra) clearly takes note of various decision of this Court on the same point right from the case of Kanhaiyalal v. Meghraj, to Shamsunder Rajkumar v. Bharat Oil Mills, and has ruled that. "Before passing an order under Order 19 Rule 1 of the C. P. C., the Court has to record sufficient reasons that any particular fact or facts should be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. Proviso to Rule 1 is also important since where it appears to the Court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. This would, therefore, contemplate an initial Inquiry even as to whether an order under Rule 1 of Order XIX can be passed. "This clearly shows that this Court has already held that permission to lead evidence in the form of affidavit cannot be granted mechanically and unless there are sufficient reasons to grant such leave. Perusal of record shows that there was no reason disclosed by the respondent No. 1 for permitting him to lead evidence in the form of affidavit. Hence, the Lower Appellate Court has clearly erred in placing reliance upon the affidavit produced by respondent No. 1 while interfering with the judgment of the Trial Court.
8. The judgment of the Trial Court clearly discloses that the respondent No. 1 had not been able to justify any of the claim made by him in the plaint and even after filing affidavit, there was absolutely no material in support of the claim of the respondent No. 1 and therefore the suit filed by the respondent No. 1 was dismissed by the Trial Court. There was no justifiable reason for the Lower Appellate Court to interfere with the said judgment passed by the Trial Court.
9. In the result, the petition succeeds. The impugned judgment passed by the Lower Appellate Court is set aside and the one dismissing the suit passed by the Trial Court is hereby confirmed. Rule is made absolute with costs of Rs. 2000/- to be paid by the respondent No. 1 to the petitioner.