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Madras High Court · body

2000 DIGILAW 157 (MAD)

C. Murugan v. N. Saghadevan

2000-02-07

S.S.SUBRAMANI

body2000
Judgment : Landlord in R.C.O.P.No.1393 of 1990 on the file of the XVI Small Causes Court at Madras, is the revision petitioner. 2. According to the landlord, the respondent herein is occupying the house and ground floor bearing old door No.8, new No.7, Lalgunta First Lane, Old Washermenpet, Madras, on a monthly rent of Rs.425. The property originally belonged to petitioners aunt Samundeeswariammal, who died on 211. 1988 and on the basis of Will executed by her, he became the owner and landlord of the premises. After death of his aunt, petitioner approached the respondent herein in December, 1988 and demanded the rent from November, 1988 at the rate of Rs.425, which was then the prevailing rent. The respondent wanted the Will alleged to have been executed by aunt to be verified. 3. The landlord thereafter issued a lawyers notice on 24. 1990, enclosing a copy of probated Will and wanted to pay rent. By that time, an amount of Rs.7,225 have become due upto April, 1990. The respondent did not comply with the demand and consequently, the petitioner filed eviction petition on the allegation that the respondent had committed default in payment of rent and the default is wilful. 4. In the counter-statement filed by the respondent, he admitted the rental arrangement but denying the quantum of rent. According to him, the rate of rent is only Rs.140. It is further averred that at the time when he took the building on rent, the rent was only Rs.80 and enhanced from time to time and at the time when aunt died, the rate of rent is only Rs.140 and not Rs.425. He further said that on the death of Samundeeswari Ammal, he immediately recognised the petitioner as his landlord and he never wanted the Will to be proved and it is also averred that till March, 1990, the petitioner himself has collected rent at the rate of Rs.140. When the petitioner issued a demand notice, claiming rent at the rate of Rs.425 and that too from November, 1988, the respondent issued a reply, denying the averments, Thereafter, he sent the rent for the month of April, 1990 which was refused to be accepted. After the eviction petition was filed, on the first hearing date, he tendered the rent, which has then become due i.e., sum of Rs.560. After the eviction petition was filed, on the first hearing date, he tendered the rent, which has then become due i.e., sum of Rs.560. Since no one as available to receive the rent, the same was recorded by the Rent Controller. Later the tenant also called upon the landlord to name the Bank, enabling him to deposit the rent. The same was also not replied. Therefore, the tenant filed R.C.O.P.No.2158 of 1990 under Sec.8(5) of the Rent Control Act, to deposit the rent into court. He prayed for the dismissal of the rent control petition. 5. On the above pleadings both the parties went on trial. On the side of the landlord, Exs.P-1 to P-12 were marked and on the side of the tenant Exs.R-1 to R-4 were marked. Oral evidence consists of P.W.1 on the side of the landlord and D.W.1, the respondent and an independent witness as D.W.2 After evaluating the entire evidence, the Rent Controller held that the landlord has miserably failed to prove the rate of Rent is Rs.425. The Rent Control Court held that the rate of Rent is only Rs.140 as admitted by the tenant. The Rent Controller, further held that even though other evidence have been produced to show that in the neighbouring shops, the rate of rent is higher, that by itself may not sufficient to hold that in regard to schedule building, the rate of rent is Rs.425. In regard to payment of rent from November, 1988 to April, 1990, the Rent Controller relied on Ex.R-4, a diary maintained by the tenant. It held that there are entries from 1978 till date to show that the tenant has paid rents and in the absence of any receipt, the said evidence can be relied on to prove that the tenant has discharged his burden of payment of rent. Relying on Ex.R-4, the Rent Controller held that there is no default in payment of rent. The Rent Control Application was dismissed. 6. Against the order, landlord filed R.C.A.No.576 of 1993 on the file of the VIII Small Causes Court at Madras. The lower appellate court also confirmed the findings of the Rent Controller by dismissing the appeal. 7. The concurrent findings of the Authorities below are assailed in this revision under Sec.25 of the Tamil Nadu Rent Control Act. 8. Heard both sides. 9. The lower appellate court also confirmed the findings of the Rent Controller by dismissing the appeal. 7. The concurrent findings of the Authorities below are assailed in this revision under Sec.25 of the Tamil Nadu Rent Control Act. 8. Heard both sides. 9. The only question that requires consideration is, whether the findings of the courts below are in accordance with law and whether any ground is made out for interference under Sec.25 of the Tamil Nadu Rent Control Act. 10. Both the courts below have held that the rate of rent is Rs.140 and the tenant has proved payment of rent through Ex.R-4. 11. Regarding rate of rent, I find the landlord has miserably failed to prove the same. Except the interested testimony of P.W.1 there is no other evidence to show that the rate of rent is Rs.425. It is true that the landlord has relied on various exhibits, but the same has no connected so far the respondent is concerned. Various litigations are also pending regarding the adjoining shop rooms, where the rate of rent is much higher. On the basis of those exhibits, an argument is taken by the landlord that in the case of schedule building also, his claim is that the rate of rent Rs.425 is probable, 12. I do not think the submission of the counsel could be accepted. In this case, the tenant specifically denied the rate and has pleaded that originally when he took the building, the rent was only Rs.80 and the same was enhanced from time to time and the present rent is Rs.140. Both the Rent Controller as well as the Appellate Authority after discussing evidence, have come to the conclusion that the rate of rent is only Rs.140. The evidence of the landlord was not accepted. While exercising the supervisory jurisdiction, I do not think that I will be justified in interfering with those findings of fact. I confirm the view taken by the authorities below that the rate of rent is only Rs.140. 13. The further question that arises for consideration is, whether the tenant has paid the admitted rent of Rs.140 from November, 1988 till April, 1990. According to the landlord, the tenant has not paid any amount and after death of his aunt, the tenant wanted to peruse the Will. 13. The further question that arises for consideration is, whether the tenant has paid the admitted rent of Rs.140 from November, 1988 till April, 1990. According to the landlord, the tenant has not paid any amount and after death of his aunt, the tenant wanted to peruse the Will. After getting probate of the Will, a registered notice was issued with the copy of the Will and even thereafter, the tenant did not pay any amount. It is true that in that notice Ex.P-1, landlord claimed rent at the rate of Rs.425. A reply was sent under Ex.P-2, denying the default in payment of rent. After eviction petition was filed, the contention taken in Ex.P-2 is reiterated in the counter-statement also. 14. The law is well settled that when the tenant pleads discharge of rent, he has to prove the same. The contention that the landlord was not in the habit of issuing receipt will not exonerate him from discharging that burden nor a presumption could be drawn that he has paid rent, only relying on his testimony. 15. Both the courts below have relied on Ex.R-4, a diary alleged to have been maintained by the tenant. 16. How far Ex.R-4 could be relied on is the main question that has to be considered in this case. 17. Neither in the reply notice nor in the counter statement, the tenant has said anything about the diary or that he has maintained any account, wherein the payment is also entered. Only when he gave evidence, he brought forward Ex.R-4. 18. Sec.34 of the Indian Evidence Act, says that, “Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” 119. In a recent decision of the Hon’ble Supreme Court, the scope of Sec.34 came up for consideration i.e., in the decision reported in Central Bureau of Investigation v. V.C.Shukla Central Bureau of Investigation v. V.C.Shukla Central Bureau of Investigation v. V.C.Shukla (1998)3 S.C.C. 410 commonly known as ‘Jain Hawala case’. In a recent decision of the Hon’ble Supreme Court, the scope of Sec.34 came up for consideration i.e., in the decision reported in Central Bureau of Investigation v. V.C.Shukla Central Bureau of Investigation v. V.C.Shukla Central Bureau of Investigation v. V.C.Shukla (1998)3 S.C.C. 410 commonly known as ‘Jain Hawala case’. In para.35, their Lordships relied on earlier decision reported in Chadradhar Goswami v. Gauharti Bank Ltd. Chadradhar Goswami v. Gauharti Bank Ltd. Chadradhar Goswami v. Gauharti Bank Ltd. A.I.R. 1967 S.C. 1058 wherein it was held that: “Where the entries were not admitted it was the duty of the Bank, if it relied on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence.” Then, their Lordships also considered various other decisions. 20. In para.34, of the judgment, their Lordships, held that rationale behind admissibility of parties’ books of account, wherein it was held thus: “34. The rationale behind admissibility of parties’ books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection given them in a sufficient degree a probability of trustworthiness (Wigmore On Evidence, 1546), Since, however, an element of self-interest and partitionship of the entrant to make a person - behind whose back and without whose knowledge the entry is made - liable cannot be ruled out the additional safeguard of insistence upon other independent evidence to fasten him with such liability, has been provided for in Sec.34 by incorporating the words “such statements shall not alone be sufficient to charge any person with liability”. and from paragraphs 36 to 39, their Lordships considered how the books of account will have to be proved if a liability have to be fixed on the person on the basis of record, which read thus: “36. The same question came up for consideration before different High Courts on a number of occasions but to eschew prolixity we would confine our attention to some of the judgments on which Mr.Sibal relied. In M.S.Yesuvadiyan v. P.S.A.Subba Naicker M.S.Yesuvadiyan v. P.S.A.Subba Naicker M.S.Yesuvadiyan v. P.S.A.Subba Naicker A.I.R. 1919 Mad. The same question came up for consideration before different High Courts on a number of occasions but to eschew prolixity we would confine our attention to some of the judgments on which Mr.Sibal relied. In M.S.Yesuvadiyan v. P.S.A.Subba Naicker M.S.Yesuvadiyan v. P.S.A.Subba Naicker M.S.Yesuvadiyan v. P.S.A.Subba Naicker A.I.R. 1919 Mad. 132:52 I.C. 704 one or the learned judges constituting the Bench had this to say: “Sec.34, Evidence Act, lays down that the entries in books of account, regularly kept in the course of business are relevant, but such a statement will not alone be sufficient to charge any person with liability. That merely means that the plaintiff cannot obtain a decree by merely proving the existence of certain entries in his books of account even though those books are shown to be kept in the regular course of business. He will have to show further by some independent evidence that the entries represent real and honest transactions and that the moneys were paid in accordance with those entries. The legislature however does not require any particular form or kind of evidence in addition to entries in books of account, and I take it that any relevant facts which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroboration of the evidence furnished by entries in books of account if true.” While concurring with the above observations the other learned Judge stated as under: “If no other evidence besides the accounts were given, however, strongly those accounts may be supported by the probabilities, and however strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to Sec.34, Evidence Act, be the basis of a decree “ [Italics supplied] 37. In Beni v. Bisan Dayal A.I.R. 1925 Nag. 445 it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha Hira Lal v. Ram Rakha Hira Lal v. Ram Rakha A.I.R. 1953 Pepsu 113 the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in Sec.34 of the Act that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts. 38. The evidentiary value of entries relevant under Sec.34 was also considered in Hiralal Mahabir Pershad, I.L.R. (1967)1 P. & H. 435. I.D.Dua, J. (as he then was) speaking for the court observed that such entries though relevant were only corroborative evidence and it is to be shown further by some independent evidence that the entries represent honest and real transactions and that monies were paid in accordance with those entries. 39. A conspectus of the above decisions make it evident that even correct and authentic entries in books of account cannot without independent evidence of their trust worthiness, fix a liability upon a person. 39. A conspectus of the above decisions make it evident that even correct and authentic entries in books of account cannot without independent evidence of their trust worthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in M.R.71 of 1991 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence underSec.34) are admissible underSec.9of the Act to support an inference about the formers correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr.Altaf Ahmed in this regard. Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in M.R.71 of 1991, can at best be proof of reliability of the entries so far as they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence underSec.34as against the above two respondents. So far as Shri Advani is concerned Sec.34 would not come in aid of the prosecution of another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet No.8) and not in M.R.71 of 1991. Resulantly, in view of our earlier discussion, Sec.34cannot at all be pressed into service against him. “ [Italics supplied] 21. On going by the judgments of the courts below, I do not think that they have taken into consideration the above legal position. The Hon’ble Supreme Court has only declared the law under Sec.34. It has further declared that mere production of a document as books of account is not sufficient to fix the liability. On the basis of the above decision, some independent evidence is required. As stated earlier, neither in the reply nor in the counter statement there is any reference to R4 or he has that the tenant is maintaining an account, wherein the payment of rent is also entered. Only, when he entered the box, he produced Ex.R-4. Ex.R-4 is a diary. As stated earlier, neither in the reply nor in the counter statement there is any reference to R4 or he has that the tenant is maintaining an account, wherein the payment of rent is also entered. Only, when he entered the box, he produced Ex.R-4. Ex.R-4 is a diary. It is not an account maintained by him in the course of business. The only reason for relying by the courts below is that entries from 1978 are made therein. On going by the evidence of R.W.1, he has not stated that Ex.R-4 is kept in the ordinary course of business and nor he has proved transaction by any independent evidence. We have only the interested testimony of R.W.1 to prove Ex.R-4. If Ex.R-4 by itself with not be sufficient to prove the discharge, there is no other evidence to show that the tenant has paid rent. 22. In this connection, the finding of the Appellate Authority in paragraph 10 of the judgment is of some relevance. In the last portion of paragraph 10 the Appellate Authority has held thus: [Emphasis supplied] So, even according to the Appellate Authority, Ex.R-4 is not kept in the ordinary course of business and is not a relevant document. But, in spite of the same, it was relied on to hold that the tenant has paid rent, relying only on this diary. 23. While considering the rate of rent and non-issuance of receipt, the Appellate Authority, in paragraph 9 has said thus: From this passage, it is clear that the receipt was being issued by the previous owner. The tenants case that receipt was not being issued and consequently, the entries in his diary have to be relied on. When the tenant has not produced the receipts, which are in his possession, an adverse inference will have to be drawn. That is not done in this case. Ex.R-4 diary is also not proved in accordance with law. It is also not a book of account, which are alone relevant under Sec.34 of the Act. The entries therein were also not proved by any independent evidence. 24. If Ex.R-4 is excluded from evidence, there is nothing to show that the tenant has paid the admitted rent of Rs.140 from November, 1988 till April, 1990. 25. It is also not a book of account, which are alone relevant under Sec.34 of the Act. The entries therein were also not proved by any independent evidence. 24. If Ex.R-4 is excluded from evidence, there is nothing to show that the tenant has paid the admitted rent of Rs.140 from November, 1988 till April, 1990. 25. Though, the finding of the Rent Controller as well as the Appellate Authority are concurrent, I am constrained to set aside the same since their conclusion is based on no evidence or on evidence which has not been proved in accordance with law. In Marudachala Udayar v. Dhandapani Marudachala Udayar v. Dhandapani Marudachala Udayar v. Dhandapani (1980)1 MLJ. 169 His Lordship Justice S.Nainar Sundaram (as he then was) held thus: “Wilful default in payment of rents is alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the payment of rents, the court cannot ignore the implications of Sec.8 and assess the controversy without reference to such implication. In the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts.” [Italics supplied] The law is well-settled that even in a concurrent finding, if the decision is passed “not in accordance with law”, this Court is entitled to interfere under Sec.25 of the Rent Control Act. 26. Once, it is found that the case of the tenant that he has not paid rent, the further question arise is, whether he is a wilful defaulter. When there is no proof regarding payment, the only inference that could be drawn is that the tenant has put up a false case to escape from the liability of paying rent. In that event, it has to be presumed that his intention is not to pay rent and wanted to escape from the liability on the basis of false evidence. In such cases, he can only be considered as wilful defaulter, liable to be evicted from the building. 27. In the result, C.R.P. is allowed, the concurrent findings of the authorities below are set aside. In such cases, he can only be considered as wilful defaulter, liable to be evicted from the building. 27. In the result, C.R.P. is allowed, the concurrent findings of the authorities below are set aside. R.C.O.P.No.1393 of 1990 on the file of the XVI Small Causes Court at Madras is allowed and it is declared that the tenant has committed wilful default in payment of rent and he is liable to be evicted from the building. Petitioner also entitled to costs in all the three courts.