Abdul Hamid v. Mosst. Halima Khatoon — 1997 DIGILAW 397 (CAL)

JUDGMENT Bhaskar Bhattacharya, J. This second appeal was taken up for hearing under Order 41, Rule 11 of the Code of Civil Procedure on July 22, 1997, when Mr. Ghosh appearing on behalf of the appellants took the solitary point that the learned first appellate court erred in law in rejecting his clients application under Order 41, Rule 27 of the Code of Civil Procedure. As the xerox copies of the rent receipts sought to be admitted as additional evidence were not with Mr. Ghosh, we called for the lower court records for the purpose of looking into those documents. Accordingly, lower court records were called for and ultimately on September 29, 1997, when the matter again came up for hearing, Mr. Banerjee appearing for the caveators submitted before us to dispose of the appeal itself, and as such, we heard both Mr. Ghosh and Mr. Banerjee appearing for the parties in support of their respective contentions. 2. This second appeal is at the instance of the defendants in a suit for eviction of an alleged licensee. The respondents filed the suit, being Title Suit No. 83 of 1995 in the 2nd Court of Munsif at Howrah for eviction of the present appellants on the allegation that they were servant and maidservant respectively. The appellants having approached the respondent No. 1 for temporary accommodation, the respondent No. 1 permitted them to stay in the suit property as pure licensees. Subsequently, the licence was revoked but inspite of revocation of such licence, the appellants failed to vacate the suit property. Hence the suit. 3. The appellants contested the aforesaid suit filing written statement thereby denying the material allegations made in the plaint. The defence of the appellants was that they were neither domestic servants nor licensee as alleged by the respondents. On the other hand, their claim was that their predecessor was inducted as a tenant in respect of the suit property by the predecessor of the present respondents. At this point, it will be relevant to quote the relevant paragraphs, viz., paragraphs 10 and 11 of the written statement filed by the appellants : "10. That the statements made in paragraph 4 of the plaint are absolutely false, misconceived, mala fide and have been created for the purpose of this suit and therefore denied by the defendants emphatically and categorically. That the statements made in paragraph 4 of the plaint are absolutely false, misconceived, mala fide and have been created for the purpose of this suit and therefore denied by the defendants emphatically and categorically. It is a blatant lie to say that the defendants are the servant and maid-servant under the plaintiffs. Whereas these defendant are monthly premises tenant at present under the plaintiffs. The defendant No. 1 paid rent at the rate of Rs. 30/- per month and the defendant No. 2 at the rate of Rs. 15/- per month. At present these defendants are paying rent before the Learned Rent Controller, Howrah, as the plaintiff No. 1 refused to accept rent amicably from the defendants. It was the system, since the time of the predecessor-in-interest of the present plaintiffs and the defendants of not granting rent receipts against payment of rent. 11. That the statements as made out in paragraph 5 of the plaint are all fictitious, misconceived and have been created for the purpose of this suit and therefore denied by these defendants. Though it is a repetition of the earlier paragraph in a larger and modifying way, even these defendants denied that they are licensee under the plaintiffs, but they are the monthly premises tenant under the plaintiff No. 1. In fact, one Md. Hanif Maharram, the predecessor-in-interest of the defendant Nos. 1 and 2, had been inducted as a monthly premises tenant by the Siddique Ahmed Ansari, the predecessor-in-interest of the present plaintiffs. The said Md. Hanif Maharram had a business of selling milk of goat and cow and there was khatal. The plaintiffs used to take milk from the said Md. Hanif Maharram and the price of the milk had been adjusted with the monthly rent. At that time the rate of rent was Rs. 10/- per month. After the demise of said Md. Hanif Maharram, the present defendants have been accepted as a monthly premises tenant under the plaintiff No. 1 and the previous system of payment of rent was also continuing. Afterwards at the request of the plaintiff No. 1, the defendants increased the rate of rent from Rs. 10/- to Rs. 30/- and Rs. 10/- to Rs. 15/- respectively. Hanif Maharram, the present defendants have been accepted as a monthly premises tenant under the plaintiff No. 1 and the previous system of payment of rent was also continuing. Afterwards at the request of the plaintiff No. 1, the defendants increased the rate of rent from Rs. 10/- to Rs. 30/- and Rs. 10/- to Rs. 15/- respectively. It is a blatant lie to allege that the plaintiff No. 1 agreed to accommodate the defendants to reside there as a licensee for a temporary period, whereas these defendants are residing there since the time of Siddique Ahmed Ansari as monthly premises tenants. It is true that there is a big room, but it is absolutely false to allege that the room has been separated by a wall. The alleged separation was there from the very beginning and the plaintiff No. 1 or her predecessor-in-interest had the knowledge of the same and the alleged separation was made by the plaintiff No. 1 to split up the tenancy in favour of the defendants. Rest of the statements are stereotyped in nature and the plaintiffs, having no earth to stand upon, has taken the plea of licensee against the defendants, who, are lawful tenants. That apart, the plaintiffs are put to the strictest proof of the allegations". 4. Learned Munsif, on consideration of the materials on record, by his judgement and decree dated September 25, 1996 was pleased to decree the aforesaid suit with a finding that the appellants failed to prove that they were tenants in respect of the suit property. Learned Munsif further observed that there was no iota of evidence, oral or documentary to corroborate the testimony of the sole witness for the defendants in support of their alleged tenancy right. 5. Being dissatisfied with the aforesaid judgement and decree passed by the learned Munsif, the present appellants preferred an appeal, being Title Appeal No. 149 of 1996 which was ultimately heard by the learned Additional District Judge, 2nd Court, Howrah. Before the first appellate Court, the appellants came up with an application under Order 41, Rule 27 of the Code of Civil Procedure thereby praying for acceptance of 5 rent receipts, 4 of which were granted by the predecessor of the present respondents and the other granted by the respondent no. Before the first appellate Court, the appellants came up with an application under Order 41, Rule 27 of the Code of Civil Procedure thereby praying for acceptance of 5 rent receipts, 4 of which were granted by the predecessor of the present respondents and the other granted by the respondent no. 4 on the ground that after strenuous efforts the appellants during the pendency of the aforesaid first appeal found out the aforesaid rent receipts. 6. The respondents filed written objection to the aforesaid application for taking additional evidence by opposing the prayer of the, appellants. According to the respondents, the appellants, in paragraph 10 of the written statement having specifically asserted that there was no system of granting any rent receipt between the parties, they were not entitled to take such a plea and in support of such plea, they were not entitled to get those documents exhibited as additional evidence. 7. Learned first appellate court, at the time of hearing of the aforesaid first appeal, rejected the said application under Order 41, Rule 27 of the Code of Civil Procedure on the ground that as no evidence can be allowed to be led which is contrary to the statements made in the pleading, application filed by the appellants should be dismissed. The learned first appellate court further observed that if the appellants were allowed to adduce such evidence those will be inadmissible in evidence, as there is no averment in the written statement that such rent receipts were issued by the predecessor-in-interest of the plaintiffs in favour of the predecessor-in-interest of the defendants. Thereafter, the learned first appellate court by the judgement and decree impugned in the instant second appeal, dismissed the first appeal preferred by the appellants. 8. Mr. Ghosh appearing in support of the second appeal has contended before us that in rejecting the application under Order 41, Rule 27 of the Code of Civil Procedure, the learned first appellate court did not follow the well accepted principles which are required to be followed in disposing of such application. Mr. Ghosh has contended that in view of insertion of clause (aa) in Order 41, Rule 27 of the Code of Civil Procedure, his clients were entitled to pray for admission of those documents as additional evidence. Mr. Mr. Ghosh has contended that in view of insertion of clause (aa) in Order 41, Rule 27 of the Code of Civil Procedure, his clients were entitled to pray for admission of those documents as additional evidence. Mr. Ghosh has further contended that in the written statement, specific defence of tenancy having been taken, learned first appellate court erred in law in holding that if the aforesaid documents are exhibited, those will be inadmissible in evidence. 9. Mr. Banerji appearing on behalf of the caveators, however, has resisted the said submission of Mr. Ghosh on the ground that in view of specific admission made by the appellants in paragraph 10 of the written statement, learned court of appeal below rightly rejected such application. Mr. Banerji has further contended that even in the absence of those documents, first appellate court was competent to deliver judgement, and as such, Order 41 Rule 27 of the Code of Civil Procedure has got no application to the fact of the instant case. In support of such contention, Mr. Banerji has relied upon the following decisions : (a) K. Venkataramaiah vs. Sitaram Reddy ( AIR 1963 SC 1526 ), (b) Municipal Corporation of Greater Bombay vs. Lala Pancham & Ors. ( AIR 1965 SC 1008 ), (c) Associated Hotels of India Ltd. vs. S.B. Sardar Ranjit Singh ( AIR 1968 SC 933 ) and (d) Natha Singh & Ors. vs. Financial Commissioner ( AIR 1976 SC 1053 ). 10. It will not be out of place to mention here that all those decisions of the Supreme Court were delivered prior to passing of The Code of Civil Procedure (Amendment) Act, 1976. By the aforesaid Amendment Act, a new clause, viz., clause (aa) was inserted in Order 41, Rule 27 of the Code. The said clause runs as follows : "(aa) a party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed." 11. The said clause runs as follows : "(aa) a party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed." 11. Thus, after coming into operation of the aforesaid Amending Act, if a party in an appeal proves to the satisfaction of the court that notwithstanding the exercise of due diligence any evidence oral or documentary was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed against was passed, the appellate court may allow such evidence or document to be produced or witness to be examined. 12. In the instant case, in the application under Order 41, Rule 27 of the Code of Civil Procedure, the appellants have specifically asserted that during the pendency of the aforesaid first appeal, after strenuous search they could find those 5 old rent receipts. In objection to the aforesaid application, the respondents have, however, submitted that those are manufactured. It may be mentioned here that the respondent no. 4, who affirmed affidavit in support of the objection to the aforesaid application under Order 41, Rule 27 of the Code of Civil Procedure, did not specifically dispute his signature in one of the rent receipts sought to be admitted as additional evidence. By making a general statement that those are manufactured, the said application was opposed. 13. So far as the decision of the Supreme Court in K. Venkataramaiah vs. Sitaram Reddy, reported in AIR 1963 SC 1526 is concerned, the Supreme Court in that case held that an appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgement, but also for any other substantial causes. According to the Apex Court, there may well be cases where even though the court finds that it is able to pronounce judgement on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgement, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgement in a more satisfactory manner. Such a case will be one of such instances where a court will exercise its power under Order 41, Rule 27(1)(b) of the Code. 14. In this connection reference may be made to the observation of Privy Council in the case of Partotim Thakur vs. Lal Mohar Thakur, reported in AIR 1931 PC 143, where it was held that it may well be that the defect may be pointed out by a party or that a party, may move the court to supply the defect, but the requirement must be the requirement of court upon its appreciation of the evidence as it stands. 15. In Municipal Corporation of Greater Bombay vs. Lala Pancham & Ors. reported in AIR 1965 SC 1008 , the Apex Court reiterated the aforesaid principle as laid down in the earlier decision reported in AIR 1963 SC 1526 . There, the Apex Court further observed that it is only for removing a lacuna in evidence that the appellate court is empowered to admit additional evidence. 16. So far as the decision in Associated Hotels of India vs. S.B. Sardar Ranjit Singh ( AIR 1968 SC 933 ) is concerned, whereupon Mr. Banerji has placed strong reliance, some documents were filed in the trial court. The respondents disputed the genuineness of those documents. Stamp Reporter noted that there was no sufficient stamp on those documents and penalty was levied on such documents. In spite of such report, the appellant neither paid the penalty or deficit stamp nor did it care to prove the documents according to law at the time of trial. When the matter came up before the Apex Court, at that point of time the appellant filed an application under Order 41, Rule 27 of the Code of Civil Procedure for receiving those documents as additional evidence. Under the aforesaid circumstances, the Apex Court rejected such application observing that as the genuineness of the documents was disputed by the respondents and the appellant did not care to prove those documents in the trial stage it was not a fit case where an appellate court should exercise power under Order 41, Rule 27 of the Code of Civil Procedure. 17. Turning to the instant case, we find that the appellants specifically pleaded in their written statement that they were tenants from the time of the predecessor-in-interest of the respondents. 17. Turning to the instant case, we find that the appellants specifically pleaded in their written statement that they were tenants from the time of the predecessor-in-interest of the respondents. It may be mentioned here that in the plaint, the time of induction was not mentioned. However, in evidence the respondents gave evidence stating that the appellants were inducted as licensees 8 to 10 years prior to the institution of the suit, which was, however, denied by the appellants. We find from the rent receipts filed by the appellants along with the application under Order 41, Rule 27 of the Code of Civil Procedure that those were granted sometime in the year 1961 to 1964. It is true that in paragraph 10 of the written statement, even after taking the defence of tenancy, the appellants stated that there was no system of granting rent receipts from the time of the predecessor-in-interest of the parties, but we are not in agreement with the learned first appellate court in so far as it stated that the aforesaid documents are not borne out by the pleadings of the parties. The defence of tenancy, as already indicated, has already been taken by the appellants and as such, in our opinion, it cannot be said that those documents should be inadmissible in evidence, as the same are not borne out by the pleadings. It is one thing to say that something is not borne out by the pleadings, but it is totally a different thing to say that there is some statements in the pleading which is contrary to the proposed evidence. In the latter case, the court may not believe those evidence unless the said statement is explained by the appellant. In the instant case, as already stated earlier, that the appellants searched out those documents only during the pendency of the first appeal. At the time of filing of written statement, they were not aware of those documents. Therefore, one is entitled to explain the statements made in paragraph 10 of the written statement as regards the system of not granting rent receipts. It is now well settled that a defendant in his written statement is entitled to take inconsistent plea and even entitled to take contradictory stand. (See Basava Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary & Ors., reported in 1995 Suppl. (3) SCC 179 and Akshaya Restaurant vs. P. Anjanappa & Anr. It is now well settled that a defendant in his written statement is entitled to take inconsistent plea and even entitled to take contradictory stand. (See Basava Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary & Ors., reported in 1995 Suppl. (3) SCC 179 and Akshaya Restaurant vs. P. Anjanappa & Anr. reported in 1995 Suppl. (2) SCC 303). In the latter decision, even after taking a definite stand in the written statement that the respondent entered into agreement for sale, the same was sought to be modified by stating that the respondent had entered into agreement for development of the land for mutual benefit. In the said context, the Apex Court held that even admission in the pleading can be explained and inconsistent pleas can be taken by way of amendment. 18. Over and above, in our opinion, at the time of disposal of an application under Order 41, Rule 27 of the Code of Civil Procedure, an appellate court will not consider whether the evidence sought to be adduced as additional evidence will be credible or not. After the admission of those documents, the appellate court is of course entitled to re-assess the evidence on the basis of materials on record. Therefore, at the stage of hearing of an application under Order 41, Rule 27 of the Code of Civil Procedure, in our opinion, the learned first appellate court erred in law in entering into the question of credibility of the evidence sought to be introduced. Thus, in our opinion, the learned first appellate court erred in law in rejecting the application under Order 41, Rule 27 of the Code of Civil Procedure by depriving the appellants to prove those rent receipts. It goes without say that if after those documents are brought on record, and after the respondents have given further evidence controverting those documents the first appellate court believes those rent receipts, in that event, the case of the respondents that the appellants were inducted as licensee 8 to 10 years prior to institution of the suit is bound to fail. 19. Therefore, in our opinion, the application filed under Order 41, Rule 27 of the Code of Civil Procedure by the appellants should be allowed as the case squarely comes within clause (aa) thereof. 20. 19. Therefore, in our opinion, the application filed under Order 41, Rule 27 of the Code of Civil Procedure by the appellants should be allowed as the case squarely comes within clause (aa) thereof. 20. The first appellate court is, therefore, directed to pass necessary order in terms of Order 41, Rule 28 of the Code of Civil Procedure thereby enabling the appellants to prove those rent receipts. The respondents should also be given opportunity to lead evidence contra. 21. Thus, the judgement and decree passed by the learned first appellate court are set aside and the matter is sent back to the learned first appellate court in terms of our order as indicated above. The appellants are also at liberty to file application for amendment of written statement or for filing additional written statement, if they are so advised. If such application is filed, the learned first appellate court will pass appropriate order thereupon. 22. The second appeal is thus allowed. There will, however, be no order as to costs. 23. Satyabrata Sinha, J.: I agree. Appeal allowed.