Urmila Devi v. IInd Addl. District Judge Meerut — 1998 DIGILAW 314 (ALL)

Judgment J.C. Gupta, J. 1. This is tenant's writ petition for quashing the orders dated 8-5-90 (Annexure-2) and dated 29-10-93 (An- nexure-1) passed by Judge, Small Causes Court Meerut (Respondent No. 2) and IInd Additional District Judge, Meerut (Respondent No. 1) respectively. 2. Because coming to the controversy involved in this writ petition, it is necessary to mention a few facts. Deen Dayal Sharma, the predecessor in interest of the petitioners was undisputedly tenant in the disputed house since before the house was purchased by Kamla Devi. She filed Suit No. 562/66 for the eviction of the tenant on the ground of default in payment of rent. The said suit was dismissed. Thereafter the landlady filed another Suit No. 930/68 for an injunction restraining the tenant from raising constructions. This suit was not dismissed as withdrawn. Then the landlady filed the present suit bearing No. 283/69 for the eviction of the tenant on the ground of material alteration. According to the landlady the defendant started raising construction in the disputed house in the year 1968 and so she filed the aforesaid suit for injunction. Despite an interim injunction, the defendant completed the constructions, therefore, she withdrew the suit. Ac cording to her, the tenant has built new rooms and has reduced the area of court yard, he has opened a door in the northern wall and closed the two openings in the verandah and converted it into a room. All these alterations have been made without the consent of the landlord. 3. The tenant contested the suit. Regarding the material alteration defendant's case was that at the time of allotment the house was single storied and it was not habitable. With the permission of the earstwhile landlord, the tenant made necessary additions and alterations to make house habitable and the upper story was also raised at his own expenses according to his needs. It was also con tended that the then landlord had also agreed that at the time of eviction, the defendant would be entitled to remove the 'malaba' of the constructions. In short the defence was that the disputed constructions and alterations in the disputed house were made with the permission of the previous landlord much before the house in question was purchased by the landlady. 4. In short the defence was that the disputed constructions and alterations in the disputed house were made with the permission of the previous landlord much before the house in question was purchased by the landlady. 4. The suit filed by the landlady-plain tiff was decreed by the Small Cause Court and the revision filed against the said judgment was also dismissed. The tenant petitioner approached this Court in Civil Revision No. 292/94 and the same was allowed by the judgment of this Court dated 20-2-76. The case was sent back to the trial court with the direction to dispose of the case according to law after giving opportunity to the parties to adduce such evidence as they might desire. After the remand the Judge, Small Cause Court, Meerut by the judgment dated 23-3-78 dismissed landlady's suit holding that the constructions raised by the tenant did not amount to material alteration within the meaning of Section 3(1)(c) of the Old Rent Control Act i.e. U.P. Act No. 3 of 1947. The trial Court, however, rejected the defendant's contention that the constructions in question had been raised as early as in the year 1961 and held that the constructions in question were raised much after the plaintiff had become owner and landlord of the disputed accommodation. The landlady filed SCC Revision No. 152678, and the same was allowed by the order dated 18-8-80 and the case was again sent back to the trial Court for a fresh decision in accordance with the observations made in the body of the judgment and after the remand the trial Court decreed the plaintiff's suit, which decree has been affirmed by the lower revisional court by the impugned order. Sri. R.R Goel, learned Counsel appearing for the petitioners, contended that the finding of the courts below that the constructions have been raised after the house in question had been purchased by the present landlady is perverse in as much as both the courts below have not considered material pisce of evidence consisting in the form of an admission of Mool Chand, the husband of the landlady which was made by him during the course of his statement recorded in Suit No. 562/66, wherein he appeared as an agent of the plaintiff-landlady. He submitted that in the aforesaid statement Mool Chand had clearly admitted that when he purchased the house, it was in the existing from the exact words were, "mujhe to aisa hi kharidane par mila." Sri Goel argued that this vital admission made by the husband of the present landlady as her agent was conclusive under Section 18 of the Evidence Act and unless the same was explained by the landlady, it was binding upon the plain tiff and in view of this admission the finding of the courts below that the constrictions in question had been raised after the house in question was purchased by the present landlady is not sustainable. 5. On the other hand learned Counsel for the respondents-landlady argued that while remanding the case to the trial Court the revisional court in its judgment dated 18-8-80 affirmed the trial Courts finding that the ground floor constructions were not made with the permission of the then landlord and that the principle of estoppel and acquiescence did not apply to the case. This finding because final as the same was never challenged by the petitioner before any superior court and once the said finding attained finality it would not thereafter be disputed in subsequent proceedings including this writ petition. He further argued that in any view of the matter the so-called admission was not conclusive being vague, incomplete and not clear and the finding of fact about the period of construction cannot be vitiated on the argument raised by the petitioners Counsel. 6. In order to appreciate the above submissions of the learned Counsel for the parties, it may be pertinent to refer in short the various orders made from time to time in the present proceedings. While setting aside the decree of eviction passed by the courts below, this Court in Civil Revision No. 292/74 observed as follows: "as will be apparent from the material portion of the judgment reproduced above, the learned trial Court neither referred to Oral evidence adduced by the parties nor to the Commissioner's reports and decided the case merely on the basis of the report given by the Commissioner in the previous suit. As already stated, this report was inadmissible in evidence as the Commissioner was not examined. As already stated, this report was inadmissible in evidence as the Commissioner was not examined. The result of all this discussion is that the trial Court decided the case on the basis of inadmissible evidence and completely ignored from its consideration the admissible evidence on the record, viz., the oral evidence of the parties and Commissioner's reports given in this case. 7. The learned revisional court also full into the same error in as much as he endorsed the findings given by the trial Court without referring to any evidence. While examining the revision under Section 25 of the Small Cause Courts Act it was the duty of the learned revisional court to consider legality propriety and correct ness of the judgment. By ignoring the evidence it failed to do so. As held in the case of Firm Dorilal Chhotey Lal v. Jagannath Rameshwar Prasad, 1967 AWR 233, the jurisdiction of the revisional court is no doubt limited by the provisions of Section 115, Cr PC but it can interfere under clause (c) in case there is breach of the provisions of law or admissible evidence had been disregarded by the courts below. 8. Both the lower courts appear to have been very much influenced by this fact that the constructions in dispute amount to material alterations and as no written permission was obtained for raising them, it was wholly immaterial as to when they were raised. It reluctant to subscribe to this approach of the case because if these constructions were raised in 1961 in the time of the previous landlord and he did not take any objection, the question would naturally arise as to what it its effect and can the vandee take advantage of it. I would not like to express any opinion on this aspect as the case is being remanded to the trial Court for re-trial. After the remand, the trial Court by the judgment dated 23-3-78 dismissed plaintiff's suit. However, perusal of the said judgment would indicate that the trial Court disbelieved the defendant's contention that the constructions in question had been raised as early as in the year 1961 during the regime of the previons landlord. The learned Judge recorded a clear finding of fact that the said constructions were raised much after the plaintiff become owner and landlord of the disputed accommodation. The learned Judge recorded a clear finding of fact that the said constructions were raised much after the plaintiff become owner and landlord of the disputed accommodation. The suit was, how ever, dismissed on the ground that constructions made by the tenant had not the effect of giving new face to the form the structure of the leased premises and accordingly they were not covered by the provisions of Section 3(1)(c) of the U.P. Act No. 3 of 1947 so as to make the tenant liable for ejectment. 9. The revision filed by the plaintiff-landlady against the aforesaid judgment dated 23-3-78 was allowed by the revisional court by the judgment dated 18-8-80 and the case was again remanded to the trial Court for a fresh decision. The revisional court was of the opinion that the trial Court committed an error of law as all the constructions raised by the tenant were not taken into consideration for deciding the question of material alteration. The revisional court observed, "by ignoring the upper storey constructions, learned trial Court has committed jurisdictional error and the finding arrived at by the trial Court on the point of material alterations cannot be complete in the eye of law." 10. The revisional court further held: "here it may be pointed out that concerning the ground floor constructions, the reamed trial Court has recorded clear finding of fact that they were not raised in 1961 nor with the permission of the then landlord as set up by the defendant-respondent. This finding of fact does not seem to be in any way perverse or illegal. It is based on evidence available on the record. This finding that the ground floor constructions are not made with the permission of the then landlord of that the principle of estoppel and acquiescence does not apply to their case con firmed." Before this Court petitioners' Counsel did not challenge the finding of the courts below that the constructions raised on the ground floor and the first floor amounted to 'material alteration' within the meaning of Section 3(1)(c) of the U.P. Act No. 3 of 1947. However his contention is that the said constructions had been raised in the year 1961 much before the house in question was purchased by the present landlady and the finding of fact recorded by the courts below to the contrary is vitiated on account of non-consideration of the admission made by the plaintiff's husband in the earlier suit as the said admission was binding on the plaintiff. 11. Learned Counsel for the respondents on the other hand argued that when the case was remanded by the revisional court to the trial Court, it up held the finding of fact recorded by the trial Court with regard to the time of constructions raised by the defendant. Both the courts at that time recorded clear findings that the constructions in question were not raised in the year 1961 as alleged by the defendant and were raised much after the house in question had been purchased by the present landlady and without her consent. 12. Learned Counsel for the landlady respondent argued that since the petitioner never challenged the said remand order as such the finding of fact affirmed by the revisional court became final. The case was remanded merely for giving a clear finding of fact with regard to the nature of constructions raised on the first floor. Therefore, the trial Court had a limited scope of enquiry before it and it could not bye- pass the directions of the revisional court. With regard to the binding effect of remand orders, learned Counsel for the respondent-landlady made a reference to a few decisions. Reliance was placed on the case of Nain Singh v. Koon-warjee and others, AIR 1970 Supreme Court 997. In this case it was held that: "the High Court, in our opinion erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rule 23, Order XLI, Civil Procedure Code. That order was appealable under Order XLIII of that Code. As the same was not appeared against, its correctness was no more open to examination in view of Section 105(2) of the Code which lays down that where any party aggrieved by an order for remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correct ness. The High Court has misconceived the scope of its inherent power. The High Court has misconceived the scope of its inherent power. Under the inherent power of Courts recognised by Section 151, CPC a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power." The next case relied upon by learned Counsel for the respondents is Sita Ram God v. Sukhandi Dayal and another, AIR 1972 SC 1612 . In this case also it was held that the respondents had a right of appeal against the order of remand but no appeal was filed against that order, as such correctness of the order of remand cannot be challenged in appeal for the final decree. Similar view was expressed in the case of Krishnaswamy v. Muthu Reddiar, AIR 1979 Mad 173 . 13. Learned Counsel also cited before this Court a Division Bench decision of Andhra Pradesh High Court in the case of C.S. Rangaswamy v. P. Bidda and others, AIR 1972 A.P. 266 . In this case also it was held that where the order of remand became final on account of not appealing the same in appeal, it was not open for the High Court to ignore that order or review it in a regular appeal which came to the court in persuance of the judgment given by the trial Court after the remand "order was made. Similarly in the case of V. Iyer v. M.S. Devastanam, AIR 1972 Madras 167 it was held that if an order which is appealable is not appealed against and allowed to become final it cannot be challenged by the aggrieved party at any subsequent stage of the same proceeding. 14. Similarly in the case of V. Iyer v. M.S. Devastanam, AIR 1972 Madras 167 it was held that if an order which is appealable is not appealed against and allowed to become final it cannot be challenged by the aggrieved party at any subsequent stage of the same proceeding. 14. All the aforesaid decisions refereed to by the respondents' Counsel would indicate that the finding recorded in the order of remand cannot be challenged subsequently in the same proceedings or in appeals filed against the judgment passed in pursuance of the order of remand but the dictum of these decisions is that the order of remand must be an appealable order. Section 105(2), CPC reads as under "notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." From the side of the respondent landlady, however it could not be shown that the order of remand made in revision filed under Section 25 of the Small Cause Court Act was an appealable order. Even no revision lies against such a decision and once the case was remanded to the trial Court it was to be decided in accordance with Jaw. In any view of the matter the said observations contained in the remand order of the revisional court, in the absence of its being an appealable order, could not have any binding force for all time to come. The rinding could at best be said to be binding on a court of concurrent jurisdiction but not on a superior court. 15. Learned Counsel for the petitioners argued that after the remand by the revisional court neither the trial Court nor the revisional court took into consideration the admission made by plaintiff's husband in earlier suit while recording finding with regard to the date of constructions. Therefore the finding that the constructions in question were not raised in 1961 but were raised after the house in question had been purchased by the plaintiff is vitiated due to non-consideration of a vital and material piece of evidence. 16. With regard to the admission made by a party or his agent, the law is well established. Therefore the finding that the constructions in question were not raised in 1961 but were raised after the house in question had been purchased by the plaintiff is vitiated due to non-consideration of a vital and material piece of evidence. 16. With regard to the admission made by a party or his agent, the law is well established. What is admitted by a party to be true must be presumed to be true unless contrary is shown. It is equally well settled that admission made by a party or his agent in a previous suit binds the party in his subsequent suit and can be used against him. However, the question arises as to what type of admissions could have a binding effect. In the case of Nagubai Ammal and others v. R. Shama Rao and others, AIR 1956 SC 593 the Apex Court considered the question as to what value is to be attached to admission made by a party. It was observed," it is no doubt true that what a party himself admits to be true may reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is clear and unambiguous statement by the opponent, such as will be conclusive unless explained. A statement by a party that certain proceedings were fraudulent and not conclusive in character would not be sufficient, without more, to sustain a finding that the proceedings were collusive." It was also held in the said decision that an admission is not conclusive, as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made." In another decision the Supreme Court in the case of C. Koteswara Rao v. C. Subbarao and others, AIR 1971 SC 1542 , held that before right of party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There should be no doubt or ambiguity about the alleged admission. The Allahabad High Court also in the Full Bench decision ofajodhya Prasad v. Phawani Shanker and another, AIR 1957 Allahabad 1 held that an admission, in order to be competent and to have the value and effect should be clear, certain and definite and not ambiguous, vague or confused. 17. The position of law that emerges out from the aforesaid decisions is that an admission made by a party or his agent in earlier judicial proceedings is binding upon the party in subsequent proceedings and can be relied upon for proving the truth incorporated therein and such an admission has the effect of shifting the onus of proving to the contrary on the party against whom it is produced and in the absence of a satisfactory explanation, it is presumed to be true. However, before an admission, could be acted upon and could have the value and effect referred to above should be clear, definite and certain and not ambiguous, vague or confused. 18. In the present case the plaintiff's husband appeared as a witness in Suit No. 562/66 and there he gave statement as pairokar of the landlady. A portion of the said statement is being relied upon by the petitioners' Counsel as an admission binding upon the landlady-respondent. The portion of the said statement has already been quoted above in the earlier part of this judgment and for the sake of repetition the said words are again reproduced here, "mujhe to aisa hi Kharidane parmila." From these words it cannot conclusively be inferred that the husband of the plaintiff-landlady Mool Chand in unequivocal arid clear terms had admitted that the disputed constructions were also existing at the time when the house in question was purchased by the present landlady. The so-called admission was not an admission of fact with regard to the time of raising of disputed constructions. On an appraisal of evidence the courts below have found as a fact that the disputed constructions had not been raised in the year 1961 and were raised much after the house in question was purchased by the present landlady. The so-called admission was not an admission of fact with regard to the time of raising of disputed constructions. On an appraisal of evidence the courts below have found as a fact that the disputed constructions had not been raised in the year 1961 and were raised much after the house in question was purchased by the present landlady. Since the aforesaid words are ambiguous, vague and confused and are not clear and definite with regard to the date of disputed constructions, they would not fall within the category of admission of fact in issue and therefore, they will have no effect on the rights of the plaintiffs and also on the concurrent finding of fact recorded by the courts below with regard to the question of date of disputed constructions. The contention" of the petitioners' Counsel, therefore, has no force, and it must be rejected. For the above reasons and discussions, this Court finds no merits in the present writ petition and the same is liable to be dismissed. 19. The writ petition is dismissed. The stay order is vacated. In the circumstances of the case, no order as to costs is made. Petition dismissed.