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1991 DIGILAW 147 (KER)

Luiz v. Sadanandan

1991-03-27

G.VISWANATHA.IYER, PARIPOORNAN

body1991
Judgment :- Viswanatha Iyer, J. The tenant of building No.36/1581 M.G.Road, Ernakulam is the petitioner in this revision petition filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act 1965 (the Act, for short). Respondents are the landlords. The building had been leased out to the petitioner in the year 1982 on a monthly rent of Rs.8,150/- for the purpose of carrying on a hotel business. The landlords filed petition for eviction before the Rent Control Court, alleging that the petitioner had paid the rent upto and inclusive of March 1984, and that he had defaulted in making payment of the rent thereafter. After issuing notice demanding payment of the arrears of rent, the landlords applied for eviction inter alia on the ground of default in payment of rent, under S.11(2)(b) of the Act. Petitioner contested with the plea that he had been making payment of the rent regularly and that he had paid the rent upto and inclusive of July 1985. He further pleaded that an aggregate amount of Rs.1,46,000/- had been paid as advance to the landlords on various occasions - a token advance of Rs.1,000/- at the time the parties agreed on the lease transaction in January 1982 another amount of Rs.25,000/- on 11-3-1982, Rs.10,000/- subsequently, Rs.1,00,000/- on 23-6-1982 and a further sum of Rs. 10,000/- on the date of execution of the lease deed. Petitioner's case therefore, was that there was no rent in arrear furnishing a cause of action for eviction. 2. In support of their case that rent was in arrear from April 1984, apart from examining the second respondent, the landlords also produced their rent receipt book, which showed that rent had been paid only for the period upto 31-3-1984. One. month's rent more had been paid after the issue of the lawyer's notice which accounted for the month of April 1984. The petitioner did not lead any valid evidence to prove that he had paid the rent upto and inclusive of July 1985 as alleged by him. One. month's rent more had been paid after the issue of the lawyer's notice which accounted for the month of April 1984. The petitioner did not lead any valid evidence to prove that he had paid the rent upto and inclusive of July 1985 as alleged by him. On a consideration of the evidence in the case, the Rent Control Court came to the conclusion that rent was in arrear from May 1984 onwards, and that therefore, the landlords were entitled to an order of eviction on the ground of default in payment of rent subject of course to the payments made pending the Rent Control Proceedings as per the statement of the landlords dated 21-12-1988. Eviction was ordered accordingly. 3. Petitioner challenged this order in appeal. The contention mainly urged was based on the amounts alleged to have been advanced to the landlords namely Rs.1,46,000/-. The dispute between the parties centered tin an amount of Rs.1,10,000/- out" of this, inasmuch as the landlords had not disputed the initial receipt of Rs.1,000/- or Rs.25,000/- on 11-3-1982 (the receipt of which was evidenced by Ext.Bl) or the further amount of Rs.10,000/- paid on the date of execution of the lease deed. The dispute was regarding the balance of Rs.1,10,000/-, the receipt of which, according to the petitioner-tenant, stood acknowledged by the second respondent by an endorsement on the back of Ext.Bl. This endorsement was marked as Ext.B2. 4. The Rent Control Court had disbelieved the veracity of Ext.B2 and refused to accept the case of payment of Rs.1,10,000/- as per Ext.B2. The appellate authority dealt with the matter elaborately and affirmed the decision of the rent control court on this point, disbelieving Ext.82. In this view of the matter, the decision of the Rent Control Court was affirmed by the appellate authority and the order of eviction was confirmed. 5. Before us Sri. K-Divakaran Nair, counsel for the petitioner vehemently pressed for acceptance of the genuineness of Ext.B2, and the payment covered by the said endorsement. The plea raised before the Rent Control Court of discharge of the rent upto July 1985 by regular payment was not however urged before us. 6. Having heard counsel, we do not find any reason to accept the petitioner's contention regarding Ext.B2 or the amount covered thereby. 7. The finding is concurrent that Ext.82 is not genuine. The plea raised before the Rent Control Court of discharge of the rent upto July 1985 by regular payment was not however urged before us. 6. Having heard counsel, we do not find any reason to accept the petitioner's contention regarding Ext.B2 or the amount covered thereby. 7. The finding is concurrent that Ext.82 is not genuine. The landlords had sent notice dated 6-8-1985 alleging arrears of rent from April 1984. If really there had been a payment of Rs.1,10,000/- as advance, and that amount was available with the landlords for adjustment, as contended, a plea to that effect would definitely have found a place in the reply Ext.A2 which the petitioner sent to the landlords' notice. What the petitioner did however was only to dispute the default in making payment of rent with a claim that he has been making payment of the rent regularly. He has not made any plea based on the advance payment of Rs.1,10,000/- which would have been the first and basic plea to take if really the payment had been true. This itself is a telling circumstance against the petitioner's plea of alleged payment of advance to the tune of Rs.1,10,000/-. Ext.B2is the document relied on in support of this alleged payment. The Rent Control Court has noted that this receipt was not produced along with the written statement of the petitioner, but only subsequently. The appellate authority has also noted on a comparison of the writing and the initials in Ext.B2 that they do not appear to be similar to that in Ext.Bl. When the petitioner is alleging payment of Rs.1,10,000/-, the burden is on him to prove such payment with cogent evidence, when the factum of payment and the genuineness of Ext.B2 are disputed. The petitioner did not choose to have Ext. B2 sent to an expert for comparison of the hand-writing and the initials. On the other hand, he rest contended with his own testimony in the witness box apart from other circumstantial evidence, which according to him supported his case and which, as noted by the authorities below, did not really advance his case. A belated attempt was made in the appellate court to send the document to an expert, with an application filed for the purpose. It was rightly rejected by the appellate authority as no grounds had been made out for reception of such additional evidence in appeal. A belated attempt was made in the appellate court to send the document to an expert, with an application filed for the purpose. It was rightly rejected by the appellate authority as no grounds had been made out for reception of such additional evidence in appeal. It is therefore, clear that the petitioner has not discharged the burden that lay on him to prove the payment. Both the authorities below have examined the matter in detail and come to the conclusion that Ext.B2 was not a genuine document. The question whether such payment had been made, and whether Ext.B2 is genuine, is one of fact on which the authorities have rendered concurrent findings. The findings are based on evidence and material on record. We do not find any infirmity in the findings so rendered by the authorities below, liable to be interfered with in exercise of the power of revision under S.20ofthe Act. The decision of the authorities ordering eviction under S.11(2) (b) of the Act is therefore liable to be confirmed. We do not find any reason to issue notice to the respondents or to call for the records. 8. Counsel for the petitioner however made a bid to have the case admitted to file placing reliance on the decision of the Single Judge of this court in Sivakumar v. Agarwal (1987 (1) KLT 868), wherein the learned judge had held that 0.41 R11 (1) CPC is not applicable to proceedings under S.20 of the Act and therefore, the revision petition cannot be dismissed in limine. 9. S.20 confers only a revisional jurisdiction on this court to examine the records relating to any order passed or proceedings taken, under the Act by the appellate authority for the purpose of satisfying itself about the legality, regularity or propriety of the said order or proceeding. Though the power is wider than the power under S.115 CPC, still it is only a power of revision to be exercised for the limited purpose of examining the legality, regularity or propriety of the order or proceedings of the appellate authority. It is not an unlimited jurisdiction. When such limited power is conferred, it is always open to the revisional court to examine prima facie whether the order of the appellate authority is vitiated by any such circumstances warranting interference by this Court. It is not an unlimited jurisdiction. When such limited power is conferred, it is always open to the revisional court to examine prima facie whether the order of the appellate authority is vitiated by any such circumstances warranting interference by this Court. It is not as if this court should issue notice or call for the records in all cases before declining to interfere with the order of the appellate authority. When the power of interference is limited, this court has to be satisfied that there is a prima facie case warranting interference, in which case alone this court is bound to issue notice or to call for the records. This power to weed out frivolous matters is inherent and can be exercised even without an express provision as under Order 41 Rule 11. It is always open to this court or even to an appellate court decline to issue notice or to call for the records when the facts and circumstances of the case warrant such a procedure. It is not necessary to trace the power to a provision like Order 41 Rule 11 when the power is otherwise inherent in this court. 10. A Division Bench of this court has in New India Assurance Co. Ltd. v. Pathumma, (1986 KLT 553) recognised the power of this court to scrutinise appeals arising under S. HOD of the Motor Vehicles Act, 1939 at the admission stage and to decide whether to entertain it or not. This court said that the absence of a provision like 0.41 R.11 does not preclude this court from prescribing its own rules of procedure and to scrutinise the appeal to ascertain whether there is a prima facie case, and to dismiss the appeal in limine if no such prima facie case is made out. 11. We must also state that ever since the revisional jurisdiction under S.20 became vested in this court in 1989, the practice has been to hear such cases for admission without calling for the records, and to reject them in limine when no case for interference is made out at the preliminary hearing. 12. In these circumstances, it is not necessary to issue notice or to call for the records before dismissing the revision petition in limine. 12. In these circumstances, it is not necessary to issue notice or to call for the records before dismissing the revision petition in limine. We would also like to point out that the respondents have already entered appearance in this case through their caveat O.P. No. 53 of 1991, though we have not found it, necessary to call upon to argue in support of the decision of the authorities below. No other points are raised in this civil revision petition. It is dismissed in limine.