Moti Jhari Devi v. Fertilizer Corporation Of India Ltd.
2004-11-23
N.N.TIWARI
body2004
DigiLaw.ai
ORDER Narendra Nath Tiwari, J. 1. This appeal is by the defendants-appellants- appellants against the judgment and decree of affirmance passed by the Additional District Judge VIII, Dhanbad, dismissing the appellants appeal. 2. The respondent-plaintiff filed the suit praying reliefs for eviction and realization of arrears of rent and damages on the ground that defendant is the lessee and he has violated the terms of the lease making himself liable for forfeiture of the tenancy. The defendant contested the suit stating that the lease was created by terms of the compromise decree passed in Title Suit No. 237 of 1953 comprising express conditions. The defendant has not disputed the terms of the lease and relationship of lessor and lessee. According to the defendant, he had been regularly paying rent to the plaintiff but the same were not accepted by the plaintiff. The defendant thus contended that he has not defaulted in payment of rent, rather the officers of the plaintiff-company went on refusing to accept the rent. Other grounds were also taken by the defendant. 3. The suit was mainly based on the point of violation of the terms of the tenancy and consequent determination of the tenancy by forfeiture. Both the parties led their evidences. Learned trial Court on consideration of the evidences both oral and documentary, came to the findings that the defendants defaulted in payment of rent and violated the terms of the lease agreement and made themselves liable for forfeiture of the tenancy. Learned trial Court thus decreed the suit. 4. Defendant preferred regular appeal being Title Appeal No. 2 of 1976 which after hearing the parties was dismissed on merit. Then he preferred second appeal, registered as Second Appeal No. 2 of 1980(R). The second appeal was allowed and the case was remanded to the lower appellate Court, for hearing and consideration of all directing to consider the exhibited documents including the exhibits not earlier, considered by the lower appellate Court in its judgment. On remand the title appeal was heard afresh and decided by the impugned judgment and decree. While the title appeal was pending in the lower appellate Court the plaintiff-respondent filed an application praying for taking into considering the subsequent event of the expiry of the lease period. The plaintiff was allowed to incorporate the said ground by way of amendment in the plaint. 5.
While the title appeal was pending in the lower appellate Court the plaintiff-respondent filed an application praying for taking into considering the subsequent event of the expiry of the lease period. The plaintiff was allowed to incorporate the said ground by way of amendment in the plaint. 5. The lower appellate Court this time thoroughly appraised and considered the evidences, both oral and documentary, and arrived at his findings concurring with the findings of the trial Court and holding that defendant defaulted in payment of rent and made himself liable for the forfeiture of the tenancy. However, considering the subsequent event, the lower appellate Court held that the period of lease being 25 years, from 1.1.1955 to 31.12.1979, expired and that fact has not been controverted by the defendant by filing any additional written statement. 6. Mr, L.K. Lal, learned counsel appearing for the appellants has assailed the judgment mainly on two grounds. According to learned counsel, the lease in question was on the basis of compromise decree which was not registered and as such the same should not have been looked into by the Courts below while considering the ground of forfeiture taken by the plaintiff. According to Mr. Lal even if the lease and its terms were accepted on the basis of compromise decree, the same being not registered, can not be looked into for deciding the rights/ liabilities of the parties. Mr. Lal relied on a decision, Jagdish Chandra Deo Dhabal Deb v. Biseswar Lal Agarwalla and Ors., reported in AIR 1941 Patna 536. Secondly, the learned counsel submitted that the lower appellate Court while passing the impugned judgment and decree has also considered the subsequent event and has relied on the statement made in the amended plaint observing that the defendant has not filed any additional written statement against the amended plaint according to Mr. Lal the said observation of the learned Court below is an error of record and, as a matter of fact, additional written statement was filed contesting the amended paragraph 25(a) of the plaint. 7. After hearing the learned counsel and perusing the records, I find that the Court below has also taken note of the subsequent event of expiry of the lease during the pendency of the appeal but the judgment and decree of the learned Court below does not rest only on the said finding.
7. After hearing the learned counsel and perusing the records, I find that the Court below has also taken note of the subsequent event of expiry of the lease during the pendency of the appeal but the judgment and decree of the learned Court below does not rest only on the said finding. Learned Court of appeal below has discussed the cases of the parties, appraised the materials and evidences on record and has also come to the conclusion that the defendant- appellant defaulted in payment of rent and also rendered himself guilty of the breach of the terms of the lease and consequent forfeiture of the tenancy. The lower appellate Court thereby has concurred with findings of the said facts arrived at by the learned trial Court. 8. So far the validity of the lease and the terms thereof is concerned, the defendant has not contested the same by making any statement in his pleading rather all along admitted the lease and the terms thereof and, at this stage, for the first time, this objection has been raised. So far as the legal aspect of the said submission is concerned, since the lease and its terms has been admitted by the parties and the defendant fought relying on the same and having lost the suit and appeal on the said basis is now estopped from assailing the validity of the lease and its terms. Viewed otherwise, even an unregistered lease can be looked into for collateral purposes such as the nature of rights of the parties and its stipulations. The decision cited by the learned counsel in case of Jagdish Chandra Deo, supra, has no relevance in the facts and circumstances of this case and is of no help to the appellant. 9. I, therefore, do not find any error in the impugned judgment and decree giving rise to any substantial question of law to be decided in this appeal. 10. This appeal is accordingly dismissed.