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2005 DIGILAW 605 (GAU)

Hage Tara v. Hage Appo

2005-08-19

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This appeal is directed against the judgment and decree dated 17.12.03 passed by the learned Deputy Commissioner, Lower Subansiri District, Ziro in Money Suit No. 03/05 directing to pay the Plaintiff/respondent the decretal amount of Rs. 9.60,000/- together with interest @ 14 per cent per annum with effect from 12.04.95 being the arrear rent within a period of one month from the date of passing the decree and in default, further to pay interest @ 12 per cent per annum. 2. The Respondent herein as the Plaintiff, instituted the Money Suit for realization of the arrear as well as the current land rent in respect of the land belonging to him on which the Defendant/Appellant constructed L.P.G. cylinder storage godown for running his business under the name and style M/s. Laali Gyochi Gas Service, Ziro (Hapoli). 3. As per the pleadings in the plaint, the Defendant/Appellant had approached the Plaintiff/Respondent to allow him his land for the purpose of construction of LPG godown at a monthly rent to be fixed after 5 years. Exhibit 1 agreement was executed by and between the Plaintiff and the Defendant, Clause-3 of which reads as follows: Since the godown has been constructed on the plot at Laru owned by the second party, rents will be charged at the rate which might be prevailing in that locality after 5 years. The land where the godown is constructed will never be claimed by the first party whatsoever. 4. The period of 5 years fixed in the agreement dated 12.04.90 expired on 11.04.95 and the Plaintiff/Respondent claimed rent from the Defendant/Appellant as per the terms and condition No. 3 quoted above. The rent was fixed at Rs. 6,000/- per month and a demand was made to the Defendant/Respondent by a registered notice dated 12.07.95 for payment of Rs. 18,000/- being the arrear rent of three months along with further rent @ Rs. 6,000/- per month. Although the notice was received by the Defendant, he refused to pay rent demanded by the Plaintiff. The averments made in this regards in paragraphs 14 and 15 of the plaint are quoted below: 14. That considering the nature of the business of explosive substance for which a large area around the godown is to be kept vacant without use of the same for commercial purpose the present rent has been claimed @ Rs. The averments made in this regards in paragraphs 14 and 15 of the plaint are quoted below: 14. That considering the nature of the business of explosive substance for which a large area around the godown is to be kept vacant without use of the same for commercial purpose the present rent has been claimed @ Rs. 6,000/- (Rupees six thousand) per month counting the month from 12.04.90 to 11.05.95 and on all subsequent month starting from 12th day of the month to 11th day of the next month. 15. That the Plaintiff vide his registered notice dated 12.07.95 demanded payment of Rs. 18,000.00 (Rupees Eighteen thousand) being 3 (three) month rent of the spot of land on which the godown i.e. the LPG filled Cylinder Storage shed was constructed upto 11.07.95, along with further rent @ Rs. 6,000.00 (Rupees six thousand) per month. 5. On denial of the payment of rent as demanded by the Plaintiff/Respondent, the suit was filed claiming arrear as well as future rent. 6. The Defendant/Appellant entered appearance in the suit by filing written statement. There was no specific denial of the Defendant/Appellant in respect of the claim made by the Plaintiff, more particularly in respect of the claim made in paragraph 14 and 15 of the plaint quoted above. In fact, the Defendant did not furnish any reply to paragraph 14 of the plaint and in respect of paragraph 15, he admitted receipt of the pleader's notice. 7. On the basis of the pleadings of the parties, following issues were framed by the trial Court: i) Whether there is cause of action for the suit? ii) Whether the suit is maintainable in law? iii) Whether the suit is bad for estoppel, waiver and acquiescence as claimed by the Defendant? iv) Whether loan was taken by Plaintiff or Defendant? v) Whether Plaintiff is entitled for claim of rents or rent? vi) Whether Defendant approached the Plaintiff for his involvement for obtaining LPG license? vii) Whether Plaintiff served any notice or notices under the aforesaid provisions of law in order to realize the rent before institution of the suit? viii) Whether the storage was constructed by the Plaintiff or the Defendant? ix) Whether rent claimed by Plaintiff is proper rent or arbitrary rent and what amount should be proper rent? x) Whether Defendant refused to pay rent? viii) Whether the storage was constructed by the Plaintiff or the Defendant? ix) Whether rent claimed by Plaintiff is proper rent or arbitrary rent and what amount should be proper rent? x) Whether Defendant refused to pay rent? xi) Whether Plaintiff properly served notice for rent on 12.07.95 and the Defendant threatened the Plaintiff and family members? xii) What relief the Plaintiff is entitled to? 8. The Plaintiff/Respondent adduced evidence and seven witnesses were examined on his behalf. P.W. 1 was the Plaintiff himself. Although opportunity was given to cross examine P.Ws. 5 and 6, the Defendant/Appellant declined to cross examine them. He however, examined himself as the lone defence witness. 9. On the basis of the evidences adduced by the parties, the trial Court decreed the suit in favour of the Plaintiff/Respondent in the above manner. Hence this appeal. 10. Mr. T. Son, learned Counsel for the Appellant basically argued on two points to challenge the judgment and decree. He submitted that the Respondent was not allowed to cross examine PWs. 5 and 6 and that the rent of the land was not correctly assessed as per the requirement of Clause-3 of the agreement. According to him both these aspects have vitiated the proceeding before the trial Court requiring interference of this Court. 11. Mr. T. Pertin, learned Counsel for the Plaintiff/Respondent on the other hand, submitted that this Court would be reluctant to interfere with the findings recorded by the trial Court on the basis of the evidence adduced by the parties. He submitted that in absence of specific denial on the part of the Defendant/Appellant towards payment of rent, there is no question of interfering with the judgment and decree in question. As regards' to alleged denial of the opportunity to cross examine the PWs. 5 and 6, referring to the records of the case, Mr. Pertin submitted that such a plea raised by the Defendant/Appellant is not at all tenable inasmuch as he himself declined to cross examine those two witnesses. 12. I have meticulously gone through the records of the case and have considered the submissions made by the learned Counsel for the parties. 13. Clause 3 of the agreement has been quoted above. It is the definite case of the Plaintiff/Respondent as reflected in the plaint that he made a demand for payment of monthly rent at the rate of Rs. 13. Clause 3 of the agreement has been quoted above. It is the definite case of the Plaintiff/Respondent as reflected in the plaint that he made a demand for payment of monthly rent at the rate of Rs. 6000/- and also issued pleader's notice to that effect. However, the Defendant/Appellant refused payment of the same. To such a pleading in the plaint, there was no specific denial on the part of the Defendant/Appellant in his written statement about which a mention has been made above. 14. Apart form the above, the PWs examined on behalf of the Plaintiff/Respondent clearly established the case of the Plaintiff/Respondent. The evidences on record have been meticulously discussed by the trial Court as regards the plea of the Defendant/Appellant that he was not given opportunity to cross examine Respondents No. 5 and 6, it is on record that he declined to do so, although he was given opportunity. 15. The trial Court has rightly noticed that the Defendant/Appellant in his written statement did not deny his liability to pay rent for the land in question. The agreement executed between the Plaintiff and the Defendant was proved by the P.Ws. If that be so, Clause 3 of the agreement which has been quoted above, is also binding between the parties. 16. As regards the plea of the Defendant/Appellant that the rent was arbitrarily fixed by the Plaintiff/Respondent the trial Court framed issued No. (ix) and answered the same in favour of the Plaintiff/Respondent. The trial Court has noticed that the area of the land on which the godown is situated is about 1000 sq. meter which fact the Defendant/Appellant himself admitted in his cross examination. The trial Court also noticed that rent was claimed @ Rs. 6/- per sq. meter. No Rent Control Act has been enacted by the State of Arunachal Pradesh. In any case the agreement being binding on the parties in terms of which the Defendant/Appellant was to pay rent as might be fixed, the Defendant/Appellant cannot deny payment of the same. 17. During the course of hearing Mr. Son, learned Counsel for the Appellant clearly admitted the liability of the Defendant/Appellant to pay rent. However, he submitted that the rent has been fixed arbitrarily at an exorbitant rate. 17. During the course of hearing Mr. Son, learned Counsel for the Appellant clearly admitted the liability of the Defendant/Appellant to pay rent. However, he submitted that the rent has been fixed arbitrarily at an exorbitant rate. By producing the certificate and documents relating to compensation of land acquisition, he submitted that the documents would go to show that the monthly rent of the land cannot be Rs. 6,000/- and would be around Rs. 2,000/-. I am afraid, in absence of any such pleadings on the part of the Defendant/Appellant and no evidence having been adduced during the trial, the Defendant/Appellant is now precluded from raising such a plea at the appellate stage. 18. As regards the denial of opportunity to cross examine PWs. 5 and 6, on being pointed out from the records that such opportunity was given as has also been reflected in the impugned judgment and decree, Mr. Son in his usual fairness submitted that such a plea on behalf of the Appellant does not find support from the records. 19. The Apex Court in the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 , held that while writing a judgment of reversal the appellate Court must remain conscious (hat the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. 20. In the instant case from the materials on record there cannot be any disagreement with the findings of the trial Court and thus there is no question of reversal of the impugned judgment and decree of the trial Court. The trial Court has elaborately dealt with all the evidences on record and answered the issues based on such evidences. 21. In view of the plea of the Appellant that the rent was fixed arbitrarily and considering the fact that contesting parties are brothers-in-law, an endeavour was made for an amicable settlement which, however, could not be arrived at. However, learned Counsel for the Defendant/Respondent during the course of hearing agreed to accept monthly rent @ Rs. 5,000/-. 22. For the forgoing reasons and discussions, I do not find any merit in the appeal so as to interfere with the findings recorded by the trial Court. However, learned Counsel for the Defendant/Respondent during the course of hearing agreed to accept monthly rent @ Rs. 5,000/-. 22. For the forgoing reasons and discussions, I do not find any merit in the appeal so as to interfere with the findings recorded by the trial Court. However, as agreed to by the Defendant/Respondent, the monthly rent stands refixed at Rs. 5,000/- per month. 23. As regards to the rate of interest awarded by the trial Court, I am of the opinion that such interest could not have been awarded. The suit was filed after three months of the due date of payment of rent and the same came to an end with the passing of the impugned judgment and decree on 17.12.03. I am of the considered opinion that the Defendant/Appellant cannot be saddled with the burden of paying interest on the decretal amount. The finality to the proceeding was arrived at only with the passing of the impugned judgment and decree and thus, for the intervening period the Defendant/Respondent shall not be entitled to any interest. However, he will be entitled to interest after expiry of one month from the date of the judgment and decree, but the rate of interest which was fixed by the trial Court @ 12 per cent per annum stands modified to 6 per cent per annum. 24. While the impugned judgment and decree is not interfered with but the same is modified to the above extent. 25. The appeal is dismissed subject to the modification indicated above. 26. The Registry shall send back the case records to the trial Court after observing necessary formalities.