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Madhya Pradesh High Court · body

1997 DIGILAW 208 (MP)

Sitaram v. Ramgopal

1997-04-17

A.R.TIWARI

body1997
JUDGMENT 1. The tenants have filed this second appeal under section 100 of the Code of Civil Procedure (for short 'the Code') against the judgment and decree dated 2.11.1993 rendered by Sixth Additional District Judge, Ujjairi, in Civil Regular Appeal No. 207A/88, thereby sustaining the judgment and decree dated 28.2.1984 passed by First Civil Judge; Class-I, Ujjain, in C.O.S. No. 120-A/83. 2. Briefly stated, the facts of the case are that the respondent filed the suit for eviction. The accommodation was let at monthly rent of Rs. 50.00 for non-residential purpose. The suit was decreed under section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). The appeal was filed. In appeal an application under Order VI Rule 17 of the Code was submitted. Similar application was rejected by the trial Court. The first appellate Court had allowed the application and remanded the case to the trial Court on 26.10.1988. The order of remand was, however, set-aside by the High Court in Second Appeal No. 47 of 1989 and Misc. Appeal No. 26/89 on 23.7.1993 with direction to the first appellate Court to consider the application alongwith the merits and then pass appropriate order. This is how the first appeal was heard again. The first appellate Court dismissed the application for amendment and also dismissed the appeal. Thereafter the tenants have filed this second appeal. 3. This second appeal was admitted for final hearing on 3.2.1994 on the following substantial questions of law :- "(1) Whether the defendants have not been afforded adequate opportunity to produce their evidence before the trial Court by refusing to issue summons to the witnesses of the defendants? (2) Whether the lower appellate Court has erred in disallowing the amendment applications filed by the present appellants seeking amendment in the written statement by deciding the merits of the averments made in the amendment application? (3) Whether in view of questions Nos. (1) and (2) the finding recorded by the Courts below about the genuine need of the plaintiff is vitiated?" 4. I have heard Shri G.M. Chaphekar, learned senior counsel with Shri K.S. Sharma, for the appellants and Shri L.P. Bhargava, learned senior counsel with Shri Oza, for the respondent, today. 5. The counsel for the appellants submitted that the opportunity to lead evidence was not properly given. I have heard Shri G.M. Chaphekar, learned senior counsel with Shri K.S. Sharma, for the appellants and Shri L.P. Bhargava, learned senior counsel with Shri Oza, for the respondent, today. 5. The counsel for the appellants submitted that the opportunity to lead evidence was not properly given. He also submitted that the first appellate Court committed an error of law in considering the merits of the application and rejecting the application for amendment. The counsel has placed reliance on AIR 1949 Madras 467 (Dharmalonga Chetti v. Krishnaswami Chetty) and AIR 1984 Madras 19 (T.P. Palaniswami and another v. Deivanaiammal and others). 6. The counsel for the respondent has supported the decree and dubbed the aforesaid contentions as non-meritorious. He submitted that the aforesaid decisions do not apply in the case on hand. 7. The counsel for the respondent submitted that the allegations of agreement of sale were denied on affidavit. He categorically stated that at no time there was any attempt to sell the suit accommodation. He also submitted that no agreements, as alleged, were executed. On being questioned by the Court the counsel submitted that so far there is no suit for specific performance of contract against the respondent. The counsel for the appellants submitted that the absence of suit for specific performance is not decisive of the matter and that at times there may be col1ision between vendor and vendee. The counsel for the respondent, however, submitted when there is no vendor and vendee, the question of collision is totally imaginary. He emphatically denied the allegations of agreements to sell either in 1984 or in 1988. 8. I proceed to consider the worth of rival contentions. 9. First of all I take up the question whether opportunity to lead evidence was properly denied. Order XVIII Rule 2 of the Code provides as under :-, "2. Statement and production of evidence. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any perty to examine any witness at any stage. 10. Order XVI Rule I of the Code, as substituted by Amendment Act, 1976, provides that the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attenchnce in Court. Order XVI Rule 2 of the Code further provides that a party desirous of obtaining any summons shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. Order XVI Rule 1 A of the Code, as inserted by Amendment Act, 1976 provides that any party to the suit may, without applying for summons under Rule I, bring any witness to produce documents or to give evidence. 11. List of witnesses was not admittedly filed in the case. The evidence of plaintiff was closed on 21.9.1983. The case was adjourned to 28.10.1983. The defendants obtained adjournment till 16.12.1983. On this date no witness was present. The defendant examined himself. The process fee was paid and the Court assisted in issuing the summons. The report of summons, however, showed that one witnees had gone out to Gujrat leaving no address and the other witnesses was shown to have left the place. The trial Court thus granted sufficient adjournments and the grievance about denial of reasonable opportunity to lead evidence is not well founded. The report of summons, however, showed that one witnees had gone out to Gujrat leaving no address and the other witnesses was shown to have left the place. The trial Court thus granted sufficient adjournments and the grievance about denial of reasonable opportunity to lead evidence is not well founded. The first appellate Court considered the position and held as under : bl izdkj izfroknh i{k dh vksj ls loZizFke rks lk{k lwph gh vkns"k 16 fu;e 1¼1½ O;-iza-la- ds vuqlkj izLrqr ugha dh xbZ FkhA fQj U;k;ky; ls vkns"k 16 fu;e 1¼2½ ds v/khu lk{k rcy djus ds fy, fuosnu ugha fd;k x;k FkkA izfroknh lhrkjke us fnukad 16-12-1983 dks lk{khx.k dks U;k;ky; esa mifLFkr jgus ds fy, Lo;a us dksbZ iz;kl ugha fd;k FkkA og xokgksa ds ?kj x;k gh ugha FkkA tc mlds U;k;ky; ls lk{khx.k ryc djokus ds fy, ryckuk izLrqr fd;k rd mls U;k;ky; ls igys ryc djokus ds fy, vkns"k izkIr djuk pkfg;s FkkA mlus cxSj vkns"k izkIr fd, gh ryokuk izLrqr dj fn;k FkkA ryokuk izLrqr dj nsus ek= ls og lk{khx.k dks mifLFkr j[kus ds vius nkf;Ro ls eqDr ugha gks ldrk FkkA** 12. The contention that adequate opportunity to produce evidence was not afforded is thus not found to be well founded and deserves to be rejected. 13. Now I take up the second question in regard to the rejection of the applications for amendment. I find that the application was moved in the trial Court on 12.1.1984 stating that there was an agreement to sell with one Hasanali Bhai and the sale-deed was agreed to be documented in July, 1984. This application was opposed by writ reply on 18.1.1984. This application was rejected by the trial Court on 16.2.1984 on conclusion that the prayer was not bona fide. The application was filed just before one day of the date fixed for delivery of judgment. The case was posted on 6.1.1984 for delivery of judgment on 13.1.1984 and the application for amendment. dated 11.1.1984 was filed on 12.1.1984. In first appellate Court the application was filed on 1.2.1988 under Order XLI Rule 24 and Order VI Rule 17 of the Code stating vaguely that the respondent had agreed to sell tenanted accommodation to some one on 26.1.1988. dated 11.1.1984 was filed on 12.1.1984. In first appellate Court the application was filed on 1.2.1988 under Order XLI Rule 24 and Order VI Rule 17 of the Code stating vaguely that the respondent had agreed to sell tenanted accommodation to some one on 26.1.1988. The first appellate Court considered the order of rejection by the trial Court in paras 16 to "19 and found that the order passed by the trial Court was not improper or illegal. As regards the application presented in the first appellate Court, the first appellate Court considered the question in paras 20 and 21 of the impugned judgment. The first appellate Court rejected the application. True it is that at the stage of the consideration of the application for amendment, the Court is not required to go into the merits and demerits of the matter. To that extent the contention of the learned counsel is correct. But I find that the application is not rejected on consideration of the merits. The Court noted that only page No.2 of the alleged agreement was filed. The appellant did not disclose the identity of the person supplying page No.2. In the face of this page, what is meant by "KISI VYAKTI". The application stated as under :- ** ;g fd fjLikUMsUV us oknxzzLr nqdku okyk Hkou fdlh O;fDr dks foØ; djus dk vuqca/k fnukad 26-1-88 dks dj fy;k gSA Li'V gS fd fjLikUMsUV dks oknxzLr nqdku dh u rks vko";drk Fkh vkSj u gSA** 14. Agreement to sell, if genuine, delivers dent on need but the allegation must be prima facie acceptable and dependable to direct "trial" of the same. True it is that merits do not fall for consideration at that stage as held in 1977 MPWN II 450 (Soniram v. Smt. Asharfi Bai) but the application should appear bona fide and should contain material facts in terms of Order VI Rule 2 of the Code to justify acceptance and trial. Amendment cannot be permitted at appellate stage by mere asking as held in 1981 MPWN II 110 (Ramchand v. Chhunilal). The appellants first attempted to introduce similar plea relating to 1984. Then they sought incorporation pertaining to 1988 without explaining as to what happened to plea of 1984 then? This coupled with vagueness and incomplete copy of the document with no affidavit or other material justified the Court below to reject the application. The appellants first attempted to introduce similar plea relating to 1984. Then they sought incorporation pertaining to 1988 without explaining as to what happened to plea of 1984 then? This coupled with vagueness and incomplete copy of the document with no affidavit or other material justified the Court below to reject the application. After demolition of remand order, the first appellate Court heard appeal on merits and found it proper to reject application and dismiss appeal. 15. Rights of tenants, in cases of transfers, are well protected under section 17 (2) of the Act. 16. The order of rejection is thus not improper or illegal. It is not on merits but on circumstances and absence of bonafide. Prima facie falsity stared in the face. Application is silent about verification in terms of Order VI Rule 15 of the Code. 17. No question is framed about application before trial Court. Yet I find that reasons (Paras 16 to 19) are proper. Paras 20 and 21 sustain order of rejection. 18. As Questions No. (1) and (2), as noted above, are being answered against the appellants, Question No. (3), a consequential one in nature, is also unhelpful to the appellants because the finding about genuine need is not vitiated in any manner. 19. It is thus clear that proper opportunity was granted to the appellants and it is also clear that the applications for amendment were meretricious and intended only to delay the conclusion of the case. . 20. The cases under the Rent Control Laws are required to be decided expeditiously. In AIR 1987 SC 2117 (Prabhakaran Nair v. State of Tamil Nadu), it is held that :- "Laws must be simple, rational and clear. Tenants are in all cases not the Weaker Sections. There are those who are weak both among the landlords as well as tenants. .....A fast changing society cannot operate with unchanging law and preconceived judicial attitude. ..... Litigations must come to end quickly." 21. Yet I find that the appellants attempted to delay the matter firstly by non-production of the evidence and then spinning a ground on that basis and secondly by filing applications for amendment stating the agreement of sale first in 1984 and then in 1988. The Courts below did not commit any error of law in rejecting the applications. In fact such attempts should be quelled. 22. The Courts below did not commit any error of law in rejecting the applications. In fact such attempts should be quelled. 22. Rent Control Laws do not require or rest on legal acrobates. Krishna Iyer. J. described the current scene very graphically in the following words :- "Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; some times even stage hostile. If law shoots down justice, the people shoot down law. " 23. Mr. Justice Brennan expressed serious concern over injustices via famous words quoted below :- "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." Justice has to be done. 24. It may, further be stated that the scope of interference in Second Appeal, as held in 1997 SC and Full Bench Rent Cases 171 (Panchu Gopal Verve and another v. Umesh Chandra Goswamy) is quite restricted after drastic amendment by Amendment Act, 1976 and finding based on appraisal of evidence as held in AIR 1990 SC 2212 (KesharSingh v. Yash Pal and others) does not give rise to any question of law. Law and justice are not distant neighbours. 25. Considering the factual matrix and legal position, I am satisfied that this appeal is devoid of merit. Accordingly I dismiss this appeal with costs. Counsel fee for each side is fixed at Rs. 750.00. Let decree be drawn up. Records be returned.