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Andhra High Court · body

2005 DIGILAW 599 (AP)

Abid Ali Mirza v. Mir Syed Ali Khan

2005-07-06

P.S.NARAYANA

body2005
ORDER : 1. The revision petitioner is the tenant. The landlord was successful in getting an order of eviction in R.C. No. 2249/86 on the file of II Additional Rent Controller, Hyderabad and in R.A. No. 264/93 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad. But however in C.R.P. No. 3119/95 on the ground that the trial Court recorded a finding that the signatures appear to be different on each of the documents it was observed that it would be desirable that in the event of slightest doubt the matter to be left to the wisdom of experts. Accordingly the said civil revision petition was allowed and the matter was remanded to the trial Court for disposal in accordance with law. After the order of remand was made, the handwriting expert was examined and Exs. C-1 to C-7 were marked. The learned Rent Controller recorded a finding that already there is a finding relating to the jural relationship of landlord and tenant and in the light of the order of remand and taking into consideration the denial of signatures by tenant on Exs. P-2 and P-11 and certain other documents and on appreciation of the evidence of expert PW-4 and Exs. C-1 to C-7, ultimately came to the conclusion that the jural relationship of landlord and tenant had been established and the tenant also committed default in payment of rent from September 1984 to August 1986 wilfully and ordered eviction. Aggrieved by the order of the learned Rent Controller again the matter was carried by way of Appeal R.A. No. 54/2000 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad and the learned appellate Court dismissed the appeal confirming the order of the learned Rent Controller. Aggrieved by the same, the tenant had preferred the present civil revision petition. 2. Sri Srinivas, the learned Counsel representing the revision petitioner/tenant would contend that the order of remand was made since the comparison of signatures would be very essential and this would have some bearing on the question of landlord and tenant relationship also. Aggrieved by the same, the tenant had preferred the present civil revision petition. 2. Sri Srinivas, the learned Counsel representing the revision petitioner/tenant would contend that the order of remand was made since the comparison of signatures would be very essential and this would have some bearing on the question of landlord and tenant relationship also. The learned Counsel also had taken this Court through the findings recorded by both the Courts below, the direction issued while making the order of remand in the prior Civil Revision Petition and also the evidence of PW-4 and would comment that in the cross-examination this witness admitted that he is not conversant with the language of the questioned documents which are in Urdu and hence the purpose for which the order of remand had been made had not been complied with in its true letter and spirit. The learned Counsel also made elaborate submissions on the aspect of who an expert is and further placed reliance on certain decisions that even when concurrent findings are recorded in a Rent Control Proceeding, the Revisional Court within certain permissible limits can definitely interfere. Per contra Sri Rangappa, the learned Counsel representing the respondent/landlord had taken this Court through the findings recorded in the prior proceedings and also the limited order of remand made by a learned Judge of this Court and how the further findings had been recorded on the strength of additional evidence taken by the learned Rent Controller. The learned Counsel would submit that PW-4 is a handwriting expert and the purpose is comparison of the disputed signatures. For this purpose it cannot be said that the knowledge in the language would be essential for the expert to give opinion whether the signatures on comparison are of a particular person or not. The learned Counsel also would submit that even otherwise even during the pendency of the litigation default had been committed and an application for extension of time even to deposit the amount had been prayed for and these subsequent events also which are on record can be taken into consideration to the effect that the tenant had committed wilful default. The learned Counsel also would submit that even otherwise even during the pendency of the litigation default had been committed and an application for extension of time even to deposit the amount had been prayed for and these subsequent events also which are on record can be taken into consideration to the effect that the tenant had committed wilful default. The Counsel also placed reliance on certain decisions to substantiate his stand that when concurrent findings had been recorded ultimately the Revisional Court in a rent control proceeding not to interfere with such findings unless there is non-appreciation of evidence or the findings are perverse or the like ground. 3. Heard the Counsel. 4. The parties hereinafter would be referred to as “landlord” and “tenant” for the purpose of convenience. 5. It is needless to say that the unsuccessful tenant is the revision petitioner and the landlord is the respondent. The landlord, the petitioner in R.C. No. 2249/86 on the file of II Additional Rent Controller, Hyderabad pleaded as hereunder: 6. The petitioner is the owner and the respondent is the tenant of the schedule premises on a monthly rent of Rs. 60/- and the respondent executed a rental agreement dated 13-6-1979 in favour of the petitioner by agreeing to pay rent at Rs. 60/- per month but failed to pay rent from September 1984 to the end of August 1986 for 22 months amounting to Rs. 1,320/- and has committed wilful default in payment of rent and liable for eviction. 7. The tenant as respondent in the R.C. filed a counter denying the relationship of landlord and tenant and also denying the execution of the rental agreement by him in favour of the landlord on 13-6-1979. The tenant also denied the title of the landlord. It was pleaded that one Mir Vizarath Ali Khan, s/o. Mir Dilawar Ali Khan was the owner of the suit property bearing No. 17-3-190 admeasuring 95 sq. yards and he has sold the same to the wife of the respondent by name Mazhar Fatima for a consideration of Rs. 5,000/- and after having received the sale consideration he executed a document dated 10-2-1981 and his wife is in possession of the suit property as absolute owner. yards and he has sold the same to the wife of the respondent by name Mazhar Fatima for a consideration of Rs. 5,000/- and after having received the sale consideration he executed a document dated 10-2-1981 and his wife is in possession of the suit property as absolute owner. It was further pleaded that as there is no relationship of landlord and tenant between the petitioner and the respondent the question of payment of rent to the petitioner does not arise. The respondent denied that he is in arrears of rent and prayed to dismiss the petition with costs. 8. Initially the evidence of PW-1 to PW-3 had been recorded and Exs. P-1 to P-21 were marked. Likewise, RW-1 to RW-4 had been recorded and Exs. R-1 to R-4 were marked. Before the Rent Controller after the remand was made as aforesaid, PW-4 was examined and Exs. C-1 to C-7 were marked. The learned Rent Controller framed the following Points for consideration: 1. Whether there is landlord and tenant relationship between the petitioner and the respondent? 2. Whether the respondent committed wilful default in payment of rents from September 1984 to the end of August 1986 at the rate of Rs. 60/- p.m. amounting to Rs. 1320/-? and ordered eviction. Aggrieved by the same, R.A. No. 54/2000 was filed on the file of appellate Court as aforesaid and the appellate Court framed the following Points for consideration: 1. Whether the denial of the title of the landlord is mala fide? 2. Whether there is landlord and tenant relationship between the petitioner and the respondent? 3. Whether the respondent committed wilful default in payment of rents from September 1984 to the end of August 1986 at the rate of Rs. 60/- per month amounting to Rs. 1320/-? 9. On appreciation of the evidence, the grounds of denial of title and denial the jural relationship of landlord and tenant had been held to be mala fide and hence the tenant is held liable for eviction. Further on the ground of wilful default also the findings were confirmed and the Appeal was dismissed. As against the said judgment of the appellate Court the present Civil Revision Petition is preferred. 10. Further on the ground of wilful default also the findings were confirmed and the Appeal was dismissed. As against the said judgment of the appellate Court the present Civil Revision Petition is preferred. 10. The relevant portion of the order of remand made in C.R.P. No. 3119/95 reads as hereunder: “In view of the finding of the trial Court that the signatures appeared different on each of the documents, in my view, this is a case where the trial Court ought to have referred the signatures for the opinion to the handwriting expert as the Supreme Court observed that “in the event of the slightest doubt, leave the matter to the wisdom of experts”. 11. In view of the same, on remand, the learned Rent Controller recorded the evidence of the expert. PW-4 deposed that he is working as Assistant Director, State Forensic Science Laboratory since 5-8-1986. Prior to that he was working as handwriting expert in the same department. He further deposed that he received requisition from the Court bearing Letter No. 461/98 dated 3-8-1998 and along with requisition he also received disputed standard documents containing signatures. The disputed documents are Ex. P-2 and P-11. The signatures in Ex. P-2 were marked as Q-1 to Q-3 and in Ex. P-11 the signature was marked as Q-4. The standard signatures were marked as S-1 to S-5. S-1 and S-2 were in vakalath and S-3 to S-5 were on counter dated 3-5-1988. PW-4 gave opinion that the person wrote signature marked S-1 to S-5 also wrote the signatures marked Q-1 to Q-4 and gave opinion on 12-2-1999 and had enclosed reasons for his opinion. Ex. C-1 is his opinion. Ex. C-2 is the reasons for his opinion. He submitted Ex. C-3 photocharge i.e., Q-1 to Q-4 and S-1 to S-5. Ex. C-4 is the letter of requisition. Ex. C-5 is the vakalath. Ex. C-6 is another vakalath. Ex. C-7 is the counter. PW-4 deposed that his opinion is correct. This witness was cross-examined at length. Several suggestions were put to him and they were denied. He was also cross-examined about his experience. No doubt he admitted that he is not conversant with the language of the questioned documents and the standard documents which are in Urdu. He deposed that previously also he examined documents in Urdu and other languages. This witness was cross-examined at length. Several suggestions were put to him and they were denied. He was also cross-examined about his experience. No doubt he admitted that he is not conversant with the language of the questioned documents and the standard documents which are in Urdu. He deposed that previously also he examined documents in Urdu and other languages. He also deposed that he does not know how many reports submitted by him were accepted by Courts. Several reasons given for the opinion had been well explained. 12. On the strength of the evidence available findings had been recorded that the stand taken by the tenant denying the relationship of landlord and tenant is a mala fide denial and on that ground also the tenant is liable for eviction. The other evidence on record also had been taken into consideration. Reliance was placed on Parbati v. Manasi Devi, AIR 1977 Ori. 139 , wherein it was held that expert need not be acquainted with the language of the script and such person is not incompetent and his opinion is admissible and should be given due weight if confirmed by direct evidence of persons who had actually seen signing of document. Reliance also was placed on S.C. Batra v. State of U.P., 1974 Crl. LJ 590, wherein, no doubt in a different context, it was held: “Another question before us is whether the Excise Inspector, whose evidence was under consideration, had sufficient knowledge to be deemed to be an expert within the meaning of Section 45 of the Evidence Act so that the tests adopted by him, together with all the attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. We think that these are also essentially questions of fact. If there is sufficient evidence led by the prosecution to establish its case it becomes the duty of the defence to rebut that evidence. In the case before us, the appellant's Counsel cross-examined Shri C.D. Mishra, PW-1, Excise Inspector at considerable length but the whole of this cross-examination was directed at showing that the recoveries were not made from the possession of the appellant. In the case before us, the appellant's Counsel cross-examined Shri C.D. Mishra, PW-1, Excise Inspector at considerable length but the whole of this cross-examination was directed at showing that the recoveries were not made from the possession of the appellant. No question was put to him in cross-examination to suggest that the appellant questioned the composition or strength of the liquid recovered as alcohol of prohibited strength or the competence of the Excise Inspector to give his conclusion on the strength of tests adopted by him. Again, no defence evidence was led to indicate that the liquid could be anything else. These considerations would be sufficient to dispose of the points raised on behalf of the appellants in the case before us. We may, however, observe that we agree with the High Court that the proposition contained in Boosenna's case (1967) 3 SCR 871 : AIR 1967 S.C. 1550 : 1967 Crl. L.J. 1398 must be confined to its own facts. We find that the Excise Inspector who had deposed, at the very outset of his evidence, that he had put in 21 years service as Excise Inspector and had tested lakhs of samples of liquor and illicit liquor. As already pointed out, the competence of C.D. Misra to test the composition and strength of the liquid under consideration was not questioned at all. We, therefore, think that this particular Excise Inspector could be treated as an expert within the meaning of Section 45 of the Evidence Act. The Excise Inspector had, in addition to employing the smelling test, used all the other tests he could reasonably adopt. If his competence to give his opinion or the sufficiency of the tests adopted by him had been questioned in the trial Court, the prosecution would have been in a position to lead more evidence on these questions. We also find that the objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession. On the facts and circumstances of this case, neither Boosenna's case (1967) 3 SCR 871 : AIR 1967 SC 1550 : 1967 Crl. L.J. 1398, nor any other case would, we think, help the appellant.” 13. On the facts and circumstances of this case, neither Boosenna's case (1967) 3 SCR 871 : AIR 1967 SC 1550 : 1967 Crl. L.J. 1398, nor any other case would, we think, help the appellant.” 13. Strong reliance was placed by the Counsel representing the tenant on a decision of the Apex Court in State of Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280 : AIR 1999 SC 3318 , wherein the Apex Court observed: “An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation, and he must have a special knowledge of the subject. Shri P.C. Panwar in his evidence has stated that he passed B.Sc. (Agriculture) Hons, from University of Delhi in 1959; thereafter he did his M.Sc. (Hort.) in 1967 from Punjab University. He joined the Agriculture Department in the year 1969 as a Research Assistant; he was promoted as Horticulture Development Officer in the year 1973 and at the time of the assessment he was working as District Horticulture Officer, Shimla. He has also stated that in the year 1986 he attended a 3 months training course on apple technology in the University of Tasmania, Australia. The assessment in the Orchards in question were made on different dates in November, 1984. He has fairly accepted the suggestion that he had not received any training with respect to his job. The witness could not state the number of scab cases in which he had been called upon to make assessment. He has specifically stated in the case against Jai Lal and others that was his first and last assignment till date as a Commission for assessing productivity of an apple orchard Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the date and materials furnished which form the basis of his conclusions.” 14. In the light of the reasons recorded in detail and in the light of the evidence given by PW-4, merely because he is not having knowledge in Urdu it cannot be said that the order of remand had not been complied with. The purpose for which the remand was made is to compare the signatures and to give opinion. PW-4 also deposed clearly that he had given such opinions previously also in relation to several of the Urdu documents. In the light of the same, the ground raised by the Counsel for the tenant which had been argued in elaboration cannot be accepted. The learned Counsel also placed strong reliance on Shaw Wallace & Co. Ltd. v. Govindas Purushothamdas, (2001) 3 SCC 445 and Vallampati Kalavathi v. Haji Ismail, 2001 AIR SCW 1267, to substantiate his submissions when in a rent control proceeding though concurrent findings had been recorded the same can be interfered with. Equally, the Counsel for the landlord also placed reliance on Gurbachan Singh (dead) through L.Rs. v. Saliabi alias Bibijan, 1995 Supp (4) SCC 438, Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201 , K.A. Anthappai v. C. Ahammed, (1992) 3 SCC 277 and V. Anjaneyachari v. Sanka Sridhar, 2001 (5) ALT 461 , in this regard. Equally, the Counsel for the landlord also placed reliance on Gurbachan Singh (dead) through L.Rs. v. Saliabi alias Bibijan, 1995 Supp (4) SCC 438, Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201 , K.A. Anthappai v. C. Ahammed, (1992) 3 SCC 277 and V. Anjaneyachari v. Sanka Sridhar, 2001 (5) ALT 461 , in this regard. Apart from the evidence of expert, the other evidence is available on record and the same had been discussed at length by both the Courts below and it is needless to say that this is the second round of litigation and remand was made earlier by this Court for the limited purpose in the light of the stand taken relating to the disputed signatures. 15. As far as the question of wilful default is concerned, clear concurrent findings had been recorded relating to the period and the non-payment of rents by the tenant has been clearly established. Apart from this aspect, there is mala fide denial of title of the landlord himself and concurrent findings had been recorded even in this regard. In that context only most probably in the prior proceeding the learned Judge thought of remanding the matter. Apart from this aspect of the matter, during the pendency of the proceedings the fact that the tenant had fallen in arrears of rent from 1-7-2002 to 30-11-2004 at Rs. 60/- per month amounting to Rs. 1740/- is not in serious controversy. An order was made in C.M.P. No. 16557/2004 directing the tenant to deposit arrears of rent within one week from the date of the order i.e., 28-12-2004, but the same was not deposited in time. However, C.M.P. No. 732/2005 was moved to extend time till 10-1-2005 to comply with the orders passed in C.M.P. No. 16557/2004 and it is brought to the notice of this Court that inasmuch as time was extended the order had been complied with. The Counsel for the tenant would submit that inasmuch as it is a subsequent event and explanation had been given this cannot be taken as wilful default. But, the fact remains that the tenant already had committed wilful default which was made the ground of eviction and concurrent findings had been recorded by both the Courts below. The Counsel for the tenant would submit that inasmuch as it is a subsequent event and explanation had been given this cannot be taken as wilful default. But, the fact remains that the tenant already had committed wilful default which was made the ground of eviction and concurrent findings had been recorded by both the Courts below. Again, during the pendency of the matter also it is not in serious controversy since the tenant was in arrears of rent an application was moved by the landlord and an order was made and subsequent thereto an application for extension of time also had been prayed for and hence these subsequent events also can be taken into consideration in addition to other evidence available on record. It is pertinent to note that PW-1 to PW-3 also had been examined and the documentary evidence also is available on record and after making order of remand some more evidence had been brought on record. In the light of the findings which had been recorded in the prior proceedings and also in the backdrop of the order of remand made by the Revisional Court in C.R.P. No. 3119/95, the evidence of PW-4 and Exs. C-1 to C-7 would assume some importance and when the opinion evidence is found to be trustworthy, automatically it can be taken that both the grounds, the ground of mala fide denial of title and also the ground of wilful default, had been well established by the landlord. In the light of the concurrent findings recorded by both the Courts below and in view of the limitations imposed on this Court as Revisional Court, this Court is of the considered opinion that the findings cannot be said to be perverse especially in the light of the conduct of the tenant. The other evidence available on record i.e., the evidence of RW-1 to RW-4 and also Exs. R-1 to R-4(b) also had been considered. The other evidence available on record i.e., the evidence of RW-1 to RW-4 and also Exs. R-1 to R-4(b) also had been considered. Taking into consideration the nature of Rent Control Proceedings and also the fact that the tenant has been unreasonable in procrastinating this litigation on some ground or other, this Court is of the considered opinion that the matter need not be remanded once again as requested by the Counsel for the tenant on the ground that since the expert is a person who does not know Urdu, again the matter may have to be sent for the purpose of examination of these documents by a Urdu knowing expert. The opinion of the expert is just opinion evidence and in the light of the nature of evidence of PW-4, this Court is of the considered opinion that an order of further remand need not be made and this Court also is of the considered opinion that the learned Rent Controller had complied with the order of remand and the direction made therein in recording the evidence of PW-4 and marking Exs. C-1 to C-7 and in appreciating the same. Viewed from any angle, the civil revision petition is devoid of merit and accordingly the same shall stand dismissed. The tenant is granted two months' time to vacate the premises.