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1996 DIGILAW 460 (CAL)

SUSHILA SINGH ALIAS SUMILA SINGHA v. ASIMA BOSE

1996-12-13

SUDHENDU NATH MALLICK

body1996
S. N. MALLICK, J. ( 1 ) - The Instant second appeal has been preferred against the Judgment and decree dated 29-9-1983 passed by the learned Additional District Judge, Nadia in title appeal No. 37 of 1983 reversing those dated January 21, 1983 passed by the learned Munsif, Nabadwip in Title Suit No. 65 of 1981. ( 2 ) THE plaintiff/respondent brought the above suit against the present defendant/appellant for eviction under the provisions of the West Bengal Premises Tenancy Act on ground of default and reasonable requirement for building and re-building. ( 3 ) THE specific case on ground of default was that the defendant/ appellant did not pay any rent from the month of Aswin 1384 B. S. to Jaistha 1388 B. S. The trial court dismissed the suit on both the grounds. The trial court's findings on the ground of default are quoted below for future reference. "considering the chalans I find that the defendant has deposited the monthly rent from the month of Aswin, 1384 B. S. to Sraban, 1388 B. S. with the Rent Controller in time according to law and I find those deposits are valid deposits. Considering the evidence on record 1 hold that the defendant is not a defaulter. The issue is decided accordingly against the plaintiff" ( 4 ) THE first appeal court decreed the suit and set aside the judgment and decree of the trial court on ground of default. ( 5 ) THE Lower Court's findings on the point of default are quoted below. "in the present case, the defendant deposited rent for the months of Aswin and Kartick 1384 B. S. on 9. 11. 77 corresponding to 23rd Kartick 1384 B. S. The chalan is Ext. A-39. So, we find that rent for the month of Aswin was deposited within the last day of the month of Kartick as provided in section 22 of West Bengal Premises Tenancy Act. Subsequent rents were deposited in time vide the 'chalan'". ( 6 ) BUT the first appeal court has found that all the deposits with the rent Controller made by the appellant are illegal because there was no legal tender of the rent for the month of Aswin, 1384 B. S. to the landlord on the part of the defendant. Subsequent rents were deposited in time vide the 'chalan'". ( 6 ) BUT the first appeal court has found that all the deposits with the rent Controller made by the appellant are illegal because there was no legal tender of the rent for the month of Aswin, 1384 B. S. to the landlord on the part of the defendant. The lower appeal court has found that in order to be a valid tender under section 4 of the West Bengal Premises Tenancy Act the tender for the first month, that is the month of Aswin, 1384 B. S. must be proved to have been validly made. The first appeal court on its finding that there was no valid tender of rent for the month of Aswin 1384 B. S. to the landlord all deposits to the Rent Controller made by the defendant are invalid, illegal deposits and in that view of the matter the first appeal court has found the appellant to be a defaulter and has decreed the suit reversing Lower Court's Judgment and decree of dismissal. ( 7 ) IN the instant appeal, the only question is whether the first appeal court has committed any legal error in coming to a finding that the defendant/appellant is a defaulter that all the deposits made by her with the Rent Controller since Aswin 1384 B. S. are invalid and illegal deposits for want of valid tender of rent for the month of Aswin, 1384 B. S. It must be borne in mind that in second appeal the questions of fact cannot be re-agitated and there cannot be any re-appreciation of evidence on that score. ( 8 ) MR. Mukherjee, the learned advocate appearing for the respondent has drawn my attention to a decision of the Supreme Court to this regard reported in AIR 1963 SC page 1633 (Madamanchi Ramappa and another, v. Muthaluru Bojappa. It has been held that the admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. ( 9 ) THERE is no question of not following principle laid down by the Supreme Court. In the above case it is settled that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. But at the sometime, we have to be cautions and aware of the provisions of section 103 of the Code of Civil Procedure where in second appeal High Court may look into a question of fact Section 103 of the Code of Civil Procedure (amended) is as follows:"103, In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal (a) which has not been determined by the Lower Appellate Court or both by the court of first instance and the Lower Appellate Court. or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100". ( 10 ) IT is quite clear from the provisions of section 103 (b) of the Code of Civil procedure that in any second appeal the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal which has been wrongly determined by the court of first instance or the Lower Appellate Court by reason of a decision on such question of law as is referred to in section 100. ( 11 ) MR. Banerjee, the learned Advocate appearing for the appellant has submitted that the lower appellate court while reversing the finding of the trial court on the point of default has made out a case that the rent for the month of Aswin 1384 B. S. was not tendered to the plaintiff/landlord without any evidence in this regard on the side of the landlord and illegally disregarding the un-challenged evidence of the appellant on both that before the rent for the month of Aswin1384 B. S. was deposited with the rent controller, it was tendered to the plaintiff/landlord and was refused by her. In the written statement, this specific case of the tenant/ appellant is that the plaintiff has refused to accept the rent from the defendant on creating disturbance since the month of Aswin. In the written statement, this specific case of the tenant/ appellant is that the plaintiff has refused to accept the rent from the defendant on creating disturbance since the month of Aswin. 1384 B. S. and, as such, the defendant has been paying rent before the Rent Controller, Krishannagar, Nadia in R. C. Case No. 366 to 1977. ( 12 ) FROM the Lower Court's record, it appears that the plaintiff who examined hereself on oath only says that the defendant is a defaulter and did not pay any rent to her since Aswin 1384 B. S. Although the written statement of the defendant containing the plea of tender was filed and the rent control challans were also filed in the trial court on 23. 12. 1982 long before the parties adduced evidence before the trial court, The plaintiff being fully aware of the defence did not depose anything in her evidence on oath regarding the plea of tender for the month of Aswin. 1384 B. S. In a suit for eviction on any ground specified under section 13 (1) of the West Bengal Premises Tenancy Act. It is for the plaintiff to prove the grounds. The plaintiff cannot take any benefit in the weakness of defence case or failure of the defendant to prove his own case. In order to get a decree for eviction on ground of default the plaintiff has to prove that the defendant has defaulted in payment of rent under section 13 (1) of the West Bengal Premises Tenancy Act. The plaintiff's simple case is that the defendant did not pay for the rent since Aswin 1384 B. S. The defence is that the rent for the month of Aswin, 1384 was tendered to the plaintiff personally which was refused by her. The plaintiff's simple case is that the defendant did not pay for the rent since Aswin 1384 B. S. The defence is that the rent for the month of Aswin, 1384 was tendered to the plaintiff personally which was refused by her. ( 13 ) BOTH the courts below have found that all the deposits with the Rent Controller are valid as such but the first appeal court is of the view that as the defendant has failed to prove that the rent for the month of Aswin, 1384 B. S. was deposited with the Rent Controller after it was validly tendered to the plaintiff and refused by her, all such deposit are illegal and the defendant is a defaulter within the meaning of section 13 (1) (i) of the West Bengal Premises Tenancy Act and, as such, a decree for eviction was passed by the first appeal court reversing the decree of dismissal passed by the trial court. But the question is that there is no specific case of the plaintiff/respondent that there was no tender of the rent for the month of Aswin, 1384 B. S. to her before it was deposited with the Rent Controller. This vital aspect of the matter has been totally ignored by the first appeal court. if the plaintiff approaches the court for eviction of a tenant on the ground of default it is for him to prove the case in order to enable him to get a decree under the provision of section 13 of the West Bengal Premises Tenancy Act. ( 14 ) ON the materials on record, it does not appear that there was any dispute between the plaintiff and the defendant on the point that the rent for the month of Aswin 1384 B. S. was tendered to the plaintiff I have already noted that there is no evidence on the side of the plaintiff in this regard. ( 15 ) UNDER the circumstances, it was not for the 1st appeal court to see or enquires whether the deposit made with the Rent Controller by the defendant was preceded by valid tender, specially when there was no specific case of the plaintiff on the point of tender. ( 16 ) MR. ( 15 ) UNDER the circumstances, it was not for the 1st appeal court to see or enquires whether the deposit made with the Rent Controller by the defendant was preceded by valid tender, specially when there was no specific case of the plaintiff on the point of tender. ( 16 ) MR. Mukherjee has referred to a Bench decision of this High Court reported in 65 CWN page 1021 (Ballabhdas Agarwal Private Ltd. v. Dalhousie Properties Ltd. wherein it has been held that if the deposits be invalid for purposes of section 13 (1) (i), the tenant looses his statutory protection which might otherwise have been available to him under the main part of the section. There is no reason to differ from the aforesaid decision. But in the present case, the question is otherwise, as I have already noted. If the plaintiff/landlord has not made out any case that the rent was deposited with the Rent Controller without being preceded by valid tender thereof to the plaintiff/landlord, there is no question to see whether those deposited are valid or not for want of tender. If the parties are in dispute on a certain specific point of fact the Court is called upon to adjudicate on the same on the basis of the evidence on record. If there is no dispute, the court cannot suo motu adjudicate on a certain matter which is uncalled for and not supported by iota of evidence on record to give any benefit to a party who has chosen to remain silent. ( 17 ) MR. Mukherjee has also referred to a decision of the Supreme Court in support of the impugned judgment and decree reported in (1988)1 Supreme Court Cases page 389 (Ram Sewak, v. Munna Lal, ). It was a case under the U. P. (Temporary) Control of Rent and Eviction Act, 1947. It has been held there that irrespective of the fact of deposit under section 7-C of the said Act the tenant has to show, when a suit is under section 3 (I) (a), the existence of circumstances Justifying a deposit under section 7-C. But in my option, the aforesaid Supreme Court case is not applicable to the present one in view of the distinguishing facts. ( 18 ) IN the case before the Supreme Court, the trial court and the first appellate court and the High Court have concurrently found that there was no valid tender of rent by the tenant or refusal thereof by the landlord. But in the present case, the point of absence of tender was not agitated before the trial court on the side of the plaintiff. The first appeal court, as I have already found, has not at all applied its judicial mind to the evidence on record on the side of the defendant that the plaintiff having refused to accept the rent for the month of Aswin, 1384 B. S. It was deposited with the local Rent Controller and successive rents were also deposited there. The first appeal court has also not applied its judicial mind to the total lack of evidence on the side of the plaintiff regarding the plea of tender taken by the defendant. ( 19 ) IN view of the aforesaid circumstances and the provisions of law, I must hold that the first appeal court has erred in law to holding that the defendant is a defaulter after coming to a finding that there was no valid tender for the initial deposit of the rent for the month of Aswin, 1384 B. S. The evidence on record does not justify the first appeal court to come to such a finding in favour of the plaintiff/respondent. As such, the appeal succeeds. The impugned judgment and decree passed by the first appeal court be set aside and the judgment and decree passed by the trial court be restored. All interim orders are vacated. Appeal succeeds .