Chandrika Prasad Barua v. Lalbabu Tewari — 1992 DIGILAW 138 (GAU)

These two civil revisions (Civil Revision No. 289 of 1986 and 290 of 1986) are directed against the common judgment and decree dated 21.7.86 passed by the Assistant District Judge, Jorhat dismissing the Title Appeal Nos. 37 of 1983 and 38 of 1983 affirming the judgment and decree dated 16.5.83 passed by the First Munsiff, Jorhat in Title Suit Nos. 61 of 1971 and 62 of 1971. Parties in these two revisions are same and the subject matters are also similar. Therefore, I propose to dispose of both the civil revisions by a common judgment. 2. Petitioner as plaintiff instituted a suit (Title Suit No. 61 of 1971) in the Court of Munsiff, Jorhat against the opposite party as defendant praying for a decree for eviction of the defendants from the suit premises (a chali house with CI Sheet roof included in Municipal Holding No.323 (old) corresponding to new Municipal Holding No. 406 of Ward No. 1 of Jorhat Town) and for delivery of khas possession of the house to him. Similarly, he instituted Title Suit No. 62 of 1971 against the opposite party praying for recovery of the suit premises, namely, the front house included in the same Municipal Holding and also for recovery of arrear rent and compensation. The petitioner's case, inter alia, was that the opposite party took the suit premises described in schedule to the plaint of Title Suit No. 62 of 1971 by executing a registered deed of lease dated 29.1.62 as a monthly tenant on an arrangement to pay rent at the rate of Rs. 200/-per month for a.period of 10 years commencing from 1st of May, 1961. In the plaint the petitioner averred that after the expiry of the period of lease, the opposite,-party, had no right to remain in occupation of the suit premises, and the tenancy so created was determined by afflux of time. Tne defendant Was irregular in payment of rent and became a defaulter under the law. Besides, the petitioner required the suit premises for his own use and occupation. Tne defendant Was irregular in payment of rent and became a defaulter under the law. Besides, the petitioner required the suit premises for his own use and occupation. Similarly, in Title Suit No. 61 of 1971 the petitioner claimed that the suit premises described in the schedule to the plaint i. e. the chali house with CI sheet roof was let out to the opposite party and the opposite party occupied the said house as a monthly tenant on an arrangement to pay rent at the rate of Rs. 25/- per month for a period of one year commencing from 1st of September, 1961. This chali house the subject matter of Title Suit No. 61 of 1971 is situated on the back side of the suit premises described in the schedule of plaint of Title Suit No. 62 of 1971. Both the suit premises were let out to the opposite party by separate arrangements. After expiry of the period of one year for which the said chali house was let out, to petitioner asked the opposite party to vacate the house, but he failed to do so. The petitioner also chimed that he required the suit premises (the chali house) along with the main house the subject matter of Title Suit No. 62 of 1971 for his own use and occupation. Accordingly, he verbally asked the opposite party to vacate the house. But the opposite party did not comply with the request. Hence the petitioner filed the above two suits. The opposite party defendant contested the suit by filing written statements. 3. The trial Court dismissed both the suits. Against that the petitioner preferred appeals (Title Appeal Nos. 37 and 38 of 1983) in the Court of the Assistant District Judge, Jorhat. The Assistant District Judge also dismissed the appeals with cost. The petitioner claimed decree for eviction only on the ground of default in the said appeals. The ground of bonafide requirement was not pressed. Hence the present revisions. 4. I have beard both sides. 5. Miss U. Baruah, learned counsel appearing on behalf of the petitioner submits that the first appellate Court acted illegally and with material irregularity in exercise of his jurisdiction by accepting unadmitted payment in respect of which the defendant could neither produce any receipt nor could produce any other evidence. Therefore, the impugned judgment is not sustainable in law. 5. Miss U. Baruah, learned counsel appearing on behalf of the petitioner submits that the first appellate Court acted illegally and with material irregularity in exercise of his jurisdiction by accepting unadmitted payment in respect of which the defendant could neither produce any receipt nor could produce any other evidence. Therefore, the impugned judgment is not sustainable in law. Learned counsel further submits that the first appellate Court failed to exercise its jurisdiction vested in it by dismissing the suit without first coming to conclusion as to what amount actually paid by the defendant (opposite party) on the basis of evidence on record. On the other hand Mr. NM Lahiri, learned counsel for the opposite party supports the impugned judgments. According to him & the Commissioner appointed by the trial Court verified the statement of accounts and after thorough scrutiny gave his report stating that the opposite party (defendant) an amount of Rs. 3,230/- in excess of the rent due. Therefore, he cannot be held to be a defaulter in respect of the suit premises. After submission of the Commissioner's report, the Court invited objection from the petitioner (plaintiff). However, the petitioner did not raise any objection against the Commissioner's report. Therefore, the Court below was justified in dismissing the suits. 6. On the rival contentions of the counsel of the parties it is to be seen whether findings arrived at by the first appellate Court regarding payment of rent on the basis of the Commissioner's report is sustainable in law or not. It is a settled law that the report of a Commissioner together with evidence, if any recorded by him is a legal evidence in a suit. But the evidentiary value of the report will depend upon the nature of the report and other circumstances. A report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issues. Where no objection is filed, the Court would be acting rightly in accepting the report, but such acceptance does not preclude the parties from challenging the correctness of the report by cross-examination of the Commissioner or otherwise. In this case, the Commissioner was not examined. But that does not make the Commissioner's report inadmissible in evidence. Where no objection is filed, the Court would be acting rightly in accepting the report, but such acceptance does not preclude the parties from challenging the correctness of the report by cross-examination of the Commissioner or otherwise. In this case, the Commissioner was not examined. But that does not make the Commissioner's report inadmissible in evidence. The parties are, however, entitled to take objection to the Commissioner's report and substantiate the same by pointing out the defects, if any. Submissions of Miss Baruah is that the Commissioner appointed by the Court gave his report in compliance with the writ. However, she points out that while giving the report the Commissioner accepted certain facts which were not properly proved. Therefore, the first appellate Court acted without jurisdiction by holding that the opposite party (defendant) paid rent in excess of the rent due. The first appellate Court in its judgment observed that from the rent receipts Ext. Kha series and the Commissioner's report it was proved that the petitioner (plaintiff) took advance of Rs. 30,550/- by issuing due receipts against the total rent payable for both the premises amounting to Rs. 27,350/-. The appellate Court, however, refused to take into account the balance amount of Rs. 1,845.24 on account of timber supplied to the petitioner and thus the first appellate Court held that a sum of Rs. 3,200/- was collected by 'the petitioner (plaintiff) in excess of the amount due and therefore, the opposite party (defendant) was entitled to adjust the same against the future rent from 1.5.71. 7. I have gone through the impugned judgment and Commissioner's report. The Commissioner's report shows that the opposite party could produce receipts as per item Nos. 1 to 10 and 20 to 54 for total amount of Rs. 25.550/-. For another amount of Rs. 300/- though receipt was not produced, the plaintiff acknowledged the said amount. Thus, the payment of Rs. 25,850/-was admitted and proved leaving a balance of Rs. 1,500/- to be paid for the rent due. The first appellate Court without discussing any other evidence on record and without independently coming to any finding regarding the payment of the said amount simply accepted the Commissioner's report holding that it was proved that petitioner took an advance of total rent by; issuing due receipts to the tune of Rs. 30.550/-. The first appellate Court without discussing any other evidence on record and without independently coming to any finding regarding the payment of the said amount simply accepted the Commissioner's report holding that it was proved that petitioner took an advance of total rent by; issuing due receipts to the tune of Rs. 30.550/-. In fact, the Commissioner's report does not show that opposite party proved payment of more than Rs. 25.850/- as rent. The Commissioner in his report stated thus : ''... the total rent for the two tenancies payable by the defendant to the plaintiff is Rs. 26,850/-. Against the dues, the defendant as per his books has paid a sum of Rs. 31,942.84 paise, out of which Rs. 30,087.80 fife in cash and the balance Rs. 1,845.24 paise for timber supplied on credit. If these figures of payment in cash and for goods are taken to be correct, then a sum of Rs. 4,992.04 paise (i.e. Rs. 31,942.04 paise minus Rs. 26,950/-) has been paid in excess by the defendant to the plaintiff on account of rent." The Commissioner's report does not specifically say that the opposite party (defendant) proved the payment of the entire amount of Rs. 31,942.04. He simply stated that if the payment of the said amount in cash and for goods were taken to be correct then there was an excess payment. The Commissioner was not definite about the payment of the said amount. There was proof of payment of Rs. 25.550/- plus another sum of Rs. 300/-admitted by the petitioner. This part of the report of the Commissioner is not sufficient to come to the conclusion that the opposite party (defendant) paid the total amount of rent due and also paid an excess. The first appellate Court did not make any endeavour to find out whether actually the said amount was paid by the opposite party (defendant). The Court simply relied the Commissioner's report in this regard. But the report of the Commissioner clearly shows that there was no definite proof for payment of the entire amount of Rs, 31,942.04. The, Commissioner just relied the books of accounts kept by the opposite party (defendant). The appellate Court did not sctutinise the books of accounts independently. He did not examine whether the sale books of accounts were actually, kept in regular course of business. The, Commissioner just relied the books of accounts kept by the opposite party (defendant). The appellate Court did not sctutinise the books of accounts independently. He did not examine whether the sale books of accounts were actually, kept in regular course of business. Besides whether s, on the basis of the entries made in the books of accounts it can, be accepted that the amount was so paid. As stated above, the opposite party..(defendant) could prove only the payment of rent to the sum of-Rs. 25,850/- leaving a balance of Rs. 1,500/-, Therefore, the first ,appellate Court was not justified in rushing to the conclusion that the opposite party (defendant) paid the entire rent due and also paid an excess as claimed by him. No other evidence was discussed in this regard. 8. In view of the above, the impugned judgment of the first appellate Court is not sustainable in law. I, therefore, set aside the impugned judgment and remand the. case to the first appellate Court to determine the issue afresh by discussing all the, evidence on record in the light observation hereinbefore made and hearing the parties. The first appellate Court shall dispose of the appeal as expeditiously as possible, at any rate within a period of two months from today. Send down the case record immediately.