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1998 DIGILAW 1379 (MAD)

Aventis v. S. A. Mohammed Ibrahim

1998-10-16

S.S.SIDICKK

body1998
Judgment 1. The revision petitioners are the appellants and the respondent herein is the respondent in M.P.No.375 of 1997 in R.C.A.No.346 of 1994 on the file of VII Judge, Court of Small Causes, Madras. 2. This civil revision petition is directed as against the fair and decretal order passed by the learned VII Judge, Court of Small Causes, Madras, dated 22.7.1998 in M.P.No.375 of 1997 in R.C.A.No.546 of 1994. 3. The application in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 was filed by the revision petitioners, who are the tenants in the disputed buildings, under Rule 16(2) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1972 to permit the revision petitioner/tenants, who are the appellants in R.C.A.No.546 of 1994 to let in additional evidence is the above appeal on the following grounds: To verify the purchase bills produced by the respondent/landlord herein and to show that he was not running his business, the matter was entrusted by the revision petitioners to an Investigator Mr.Ananthakrishnan of M/s.Gulprom Agency for verification about the existence of such persons and businesses, who are purported to have issued the purchase bills to the landlord. It was found that none of the shops mentioned by the landlord existed and many of the addressee given by them were of residential houses. The revision petitioners had also sent letters by Registered post to all the shops, which had issued the purchase bills to the landlord, but all the covers were returned without being served. It has turned out that the purchase bills are not genuine and are cooked up for the purpose of the case. This is a vital aspect of the case since the R.C.O.P. being for owners occupation, lack of bona fides would disentitle the respondent/landlord from obtaining an eviction order. The materials now available to the revision petitioners are in the from of report of the Investigator and the returned covers etc., and they would clearly disclose that the Respondent/landlord has produced false documents in support of his claim that he is doing business, and on this sole ground the R.C.O.P. is liable to be dismissed. These materials are therefore very much relevant for the purpose of deciding the case. These materials are therefore very much relevant for the purpose of deciding the case. The abovesaid materials and information were not available with the revision petitioners earlier during trial of the R.C.O.P. The revision petitioners had no occasion to suspect the purchase bills of landlord or verify the authenticity of the same. Hence, the petition. 4. The respondent/landlord filed a counter-statement in M.P.No.375 of 1997 in R.C.A.No.346 of 1994 raising the following contentions: The above rent control appeal is still pending disposal due to vexatious attempts made by the revision petitioners to protract and prolong the matter as the same is pending for the last 5 years. It is absolutely false to state that the respondent/landlord will go to any extent to manipulate the proceedings and capable of concocting evidence, that the purchase bills were entrusted to an Investigator for verification, that it was found that none of the shops existed, that these materials are relevant for deciding the case that they were not available earlier, that the revision petitioners had no occasion to suspect the documents or verify the authenticity and that it is only after the development in the appeal they had occasion and reason for verifying the same and in the interest of justice it is necessary to permit the revision petitioners to let in additional evidence. The purchase bills filed by the respondent/landlord before the lower court are for the period from 1987 to 1997. The bills relate to the period more than 9 to 10 years age and the bills were marked during evidence several years age before the lower court, and at that time the revision petitioner/tenants herein should have verified the authenticity of the same but they failed to do so and never disputed the same before the lower court during evidence. But now after a lapse of 9 to 10 years they filed the above petition by making false allegations and they cannot be allowed to do so. Further the Spencers Cool Drinks, Rejoice, Sprint, Duke etc. are no more in the market, and the company itself has been closed, and the productis are not in existence, and new companies have come up, and these are very well known facts. The agents and dealers have closed down their agency in respect of the said products and most of the agents operated to do commission agency in their residence address itself. The agents and dealers have closed down their agency in respect of the said products and most of the agents operated to do commission agency in their residence address itself. Since it is not necessary to be a stockist and commission agent operated by giving their residential address and getting stocks from the company and mostly sending directly to the retailer by getting commission. Further the agencies in respect of cool drinks are given by the companies for a limited period of 3 to 4 years. Similarly if a particular agent or dealer is not able to do proper business, the company cancels the agency and the agent closes down the business. Therefore having failed to investigate the authenticity of the genuineness of the purchase bills for several years, when the bills were filed before the lower court, the revision petitioners herein cannot after 10 years state fraudulently that the agents, who issued the purchase bills, are not available and not found in existence. Hence, the petition may be dismissed with costs. 5. On the above pleadings and after hearing the learned counsel for both the parties, the point that arises for determination in this revision petition is as to whether the appellate authority in R.C.A.No.346 of 1994 should make further enquiry and whether he may take additional evidence or require such evidence to be taken by the Rent Controller. 6. Point:The learned counsel for the revision petitioners contended that the lower court failed to note the scope and the relevancy of additional documents filed by the revision petitioners, and the lower court ought to have considered the petition filed by the revision petitioners and the lower court ought to have considered the petition filed by the revision petitioner tenants to let in additional evidence along with the main appeal. In support of the above contention the learned counsel for the revision petitioners relied on the decision of His Lordships Mr.Justice S.Jagadeesan, reported in Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar , (1998)1 MLJ. 626 : (1998)1 C.T.C. 483 wherein it was held that the application seeking permission to adduce additional evidence has to be considered along with the main appeal and not separately. 626 : (1998)1 C.T.C. 483 wherein it was held that the application seeking permission to adduce additional evidence has to be considered along with the main appeal and not separately. Therefore according to the learned counsel for the revision petitioners, the appellate authority should not have disposed of the application in W.P.No.375 of 1997 separately and the same should have been considered along with the appeal in R.C.A.No.546 of 1994. 7. The learned counsel for the respondent/landlord contented that only at the request of the revision petitioners to take up the application in W.P.No.375 of 1997 before the appellate authority, it was taken up for disposal of the separately and only the revision petitioners/tenants invited the appellate authority to give a disposal to M.P.No.375 of 1997, and having invited the appellate authority to give a finding with regard to the prayer in the petition in M.P.No.375 of 1997, the revision petitioners/tenants cannot turn round and say in this revisional court that the application seeking permission to adduce additional evidence must be considered along with the main appeal and not separately. 8. The Appellate Authority has not stated anything about the request made by the revision petitioners/tenants to consider the petition in M.P.No.375 of 1997 separately apart from the disposal of the main appeal in R.C.A.No.546 of 1994, and such a request made by the learned counsel for the revision petitioners/tenants is not on record. Therefore at this stage without any date I am not inclined to accept the above objection of the learned counsel for the respondent/landlord that the revision petitioners/tenants cannot turn round and say that the application in M.P.No.375 of 1997 should be heard along with the main appeal in R.C.A.No.546 of 1994, in view of the decision of His Lordship Mr.Justice S.Jagadeesan, J. reported in Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar , (1998)1 MLJ. 626 : (1998)1 C.T.C. 483 . 9. 626 : (1998)1 C.T.C. 483 . 9. Another contention that was urged on behalf of the Respondent/landlord is that the application in M.P.No.375 of 1997 was filed under Rule 16(2) of Tamil Nadu Rules of 1972, and it states that if the appellate authority decided to make further enquiry, he may take additional evidence or require such evidence to be taken by Rent Controller, and it is relevant to note that O.41, Rule 27 of C.P.C., gives discretionary power to the appellate court to refuse or admit additional evidence and it is not arbitrary, but it is a judicial one circumscribed by illustrations specified in O.41, Rule 27 of C.P.C. viz., (1) the appellate court may permit additional evidence, if the lower court refused to admit such evidence, (2) where the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge, and (3) the appellate court requires any additional evidence or document for any substantial cause or to enable it to pronounce a judgment, and none of these three ingredients as mentioned in O.41, Rule 27 of C.P.C. are conspicuously absent in this case, and so, the Appellate Authority was right in dismissing the petition in M.P.No.375 of 1997 filed by the revision petitioners/tenants. He further elaborated his arguments by stating that it is not a subsequent event but it was within his knowledge earlier, and in the lower court itself viz., the Rent Control Court the revision petitioners/tenants have attacked these purchase bills marked as Exs.P-6, P-7, P-20, P-21 and P-22, and during the cross-examination of witnesses examined on the side of the respondent/landlord these purchase bills, which are supposed to be under the investigation of a private investigator, were vehemently and strongly attacked, and this application in M.P.No.375 of 1997 was filed only to prolong the appeal in R.C.A.No.546 of 1994. The learned counsel for the respondent/landlord further stated that the purchase bills marked on the side of the landlord were produced to show that he was running business at the time when these bills were issued and according to the tenants, these bills are fake bills, and none of the shops which issued the purchase bills existed, when the private investigator visited these shops and due to passage of time these shops, which issued the bills are not in existence as they were only agencies and any rate the revision petitioner/tenants have not objected to the marking of these bills before the Rent Control Court, and so it is not open to the tenants to dispute the genuineness of these purchase bills. 10. I do not propose to go into all these questions and contentions raised by the learned counsel for the respondent/landlord at this stage, and these questions and contentions ought to have been considered by the learned Appellate Authority in his order in M.P.No.375 of 1997 or at any in future date when such consideration arises before the Appellate Authority in M.P.No.375 of 1997 in R.C.A.No.546 of 1994. 11. Yet another contention raised on behalf of the respondent/landlord is that the report of the private Investigator is not admissible in evidence, inasmuch it is only hearsay evidence, These objections merit consideration by the appellate court in M.P.No.375 of 1997 in R.C.A.No.546 of 1994. Once again I do not propose to go into and consider the question as to whether the report of the private Investigator is not admissible in evidence as it is not a valuation report, but it is an investigation report submitted by a private individual on the basis of hearsay evidence by enquiry from the neighbours and the owners of the premises. However I am of the view that in light of the decision of His Lordship Mr.Justice S.Jagadeesan, J reported in Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar Shanmughasundaram v. N.T.P.Subbaraya Chettiar , (1998)1 MLJ. 626 : (1998)1 C.T.C. 483 that the application seeking permission to adduce additional evidence has to be considered along with the main appeal but not separately, I am inclined to remit the matter for fresh disposal of the application in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 in accordance with law and in the light of the objections and contentions raised by the learned counsel for the respondent/landlord. Hence, I hold that this revision petition has to be allowed, and the fair and decretal order dated 22.7.1998 in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 are to be set aside, and the application in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 has to be remitted back to the Appellate Authority for fresh disposal in accordance with law and in view of the objections and contentions and questions raised by the learned counsel for the respondent/ landlord, and the Appellate Authority has to be directed to dispose of the application in M.P.No.375 of 1997 afresh along with the main appeal in R.C.A.No.546 of 1994, and I answer this point accordingly. 12. In the result the civil revision petition is allowed without costs. The fair and decretal order dated 22.7.1998 in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 are set aside. The application in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 is remitted back to the Appellate Authority for fresh disposal in accordance with law. The Appellate Authority viz., VII Judge, Court of Small Causes, Madras is directed to restore the application in M.P.No.375 of 1997 in R.C.A.No.546 of 1994 for fresh disposal in accordance with law and in view of the objections and contentions raised by the learned counsel for the respondent/landlord. The Appellate Authority viz., VII Judge, Court of Small Causes, Madras is directed to hear the main appeal in R.C.A.No.546 of 1994 along with M.P.No.375 of 1997 and to dispose of the same in accordance with law as expeditiously as possible within two months from the date of receipt of copy of this order either from the High Court or on production of the certified copy of the same by the parties whichever is earlier. The Appellate Authority viz., VII Judge, Court of Small Causes, Madras is directed to send a report to this Court about the disposal of the both M.P.No.375 of 1997 and R.C.A.No.546 of 1994 as the Rent Control Appeal is of the year 1994 and the same is pending for the last 5 years. 13. Consequently, the injunction petition in C.M.P.No.13140 of 1998 is dismissed as unnecessary. 14. In view of the disposal of main civil revision petition, the Caveat Petition No.2498 of 1998 is closed.