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2007 DIGILAW 315 (CHH)

PISHTA BAI JAIN v. VINOD SOLANKI

2007-05-07

D.R.DESHMUKH

body2007
JUDGMENT 1. Being aggrieved by the judgment and decree dated 8-3-1997 passed by Shri I.S. Uboweja, IInd Additional District Judge, Rajnandgaon in Civil Appeal No. 20-A/95, reversing the judgment and decree dated 27-7-1995 passed by Shri A.K. Verma, 1st Civil Judge Class-II, Rajnandgaon in Civil Suit No.3-A/93, whereby the suit for eviction was decreed, the appellant/plaintiff has preferred this second appeal. 2. Brief facts are that the appellant/plaintiff instituted Civil Suit No. 3-N 93 for eviction of the tenant respondent/defendant herein on the ground that she had purchased the suit house from Devkibai by a registered sale-deed dated 104-1992. Vide notice. Ex.P-7 dated 20-4-1992, the appellant/plaintiff had informed the respondent/defendant herein about purchasing the suit house from Devkibai and asked the respondent/defendant to pay the rent of the suit house henceforth to the appellant/plaintiff. Eviction was sought on the ground of non-payment of rent despite service of notice dated 20-4-1992 and on the ground of need for reconstruction under Section 12(1)(h) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth the Act'). 3. The respondent/defendant did not either generally or specifically deny the allegations made in para 2 of the plaint relating to purchase of the suit house by the appellant/plaintiff from Devkibai on 10-4-1992 through a registered sale-deed. On the other hand, it was specifically pleaded in the written statement that Devkibai had agreed to sell the suit house to another tenant Ishwari Prasad and had received part consideration in instalments. In order to frustrate the agreement to sell the suit house to Ishwari Prasad, Devkibai had secretly executed the sale-deed of the suit house in favour of the appellant/plaintiff. 4. The learned Lower Court decreed the suit for eviction and arrears of rent in favour of the appellant/plaintiff on the ground of Section 12(1)(a) of the Act as also on the ground that the defendant/tenant had denied the title of the landlord, while denying relief under Section 12(1)(f) of the Act on the ground that the suit was premature under Section 12(4) of the Act. A finding was recorded that since the defendant did not challenge the sale-deed dated 10-4-1992 in the written statement, the fact of execution of sale-deed by Devkibai in favour of the appellant/ plaintiff was an admitted fact and, therefore, non-production of the original sale deed dated 10-4-1992 by the appellant/plaintiff had no adverse consequence on the merits of the suit. A finding was recorded that since the defendant did not challenge the sale-deed dated 10-4-1992 in the written statement, the fact of execution of sale-deed by Devkibai in favour of the appellant/ plaintiff was an admitted fact and, therefore, non-production of the original sale deed dated 10-4-1992 by the appellant/plaintiff had no adverse consequence on the merits of the suit. It also held that since the defendant did 'not dispute the receipt of notice, Ex.P-7 sent by the plaintiff after purchase of the suit house , regarding attornment of tenancy and did not reply thereof, it was proved that the defendant was the tenant of the plaintiff in the suit house. While decreeing the suit on the ground of Section 12(1)(a) of the Act, the Court, while placing reliance on Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) By L.Rs. also decreed the suit for eviction on the ground of denial of title of the landlord by the tenant. 5. Aggrieved by the judgment and decree dated 27-7-1995 passed in, Civil Suit No.3-N93, the respondent/defendant herein preferred First Appeal No.20-N95. The learned Additional District Judge, while recording a clear finding that the defendant had failed to establish that Ishwari Prasad had any title to the suit house in pursuance of an agreement to sell by Devkibai, reversed the judgment and decree passed by the trial Court only on the ground that due to non-production and proof of the original sale-deed dated 10-4-1992 executed by Devkibai in favour of the appellant/plaintiff, she had failed to prove that she was the owner of and the respondent/defendant was her tenant in the suit house. The learned Lower Appellate Court also held that since the appellant/plaintiff herein did not enter the witness-box, she had failed to prove that she was the owner of the suit house. 6. During arguments, Shri Ashish Shrivastava, learned counsel for the appellant/plaintiff submitted at the very outset that he would confine his arguments only to the ground of eviction under Section 12(1)(a) and (c) of the Act and would not assail in any manner the ground of eviction under Section 12(1)( f) of the Act, which, being premature under Section 12(4) of the Act, was negatived by the lower Court. It was contended that since the respondent/defendant had neither generally nor specifically denied the fact-um of sale-deed dated 10-4-1992 executed by Devkibai in favour of the appellant/plaintiff, in his written statement under Order 8 Rule 5 of the Code of Civil Procedure, it was an admitted fact and need not be proved. Therefore, non-production and proof of the sale-deed dated 10-4-1992 had no adverse effect on the suit. It was also urged that the appellant/plaintiff had examined her husband Manakchand and son Sanjay Jain in support of her pleadings and, therefore, the non-examination of the plaintiff in the lower Court was not fatal to the suit for eviction. 7. On the other hand, Shri Syed Imtiaz Ali, learned counsel for the respondent/defendant urged that since the defendant, in his pleadings, had set-up an independent title in Ishwar Prasad over the suit house in pursuance of an agreement to sell by Devkibai, the burden of proving that Pishta Bai was the owner of the suit house was squarely on her. Since Pishta Bai neither entered the witness-box nor tendered and proved the registered sale-deed in the lower Court, the initial burden of proving that she was the landlord of the respondent/defendant in the suit house had not been discharged. 8. Having heard the rival contentions, I have perused the record. 9. The following substantial question of law arises for determination in this appeal:- "Whether the lower appellate Court committed an illegality in reversing the finding of the trial Court, while holding that the plaintiff is not the owner of the property only on the ground that the sale deed was not produced by her, particularly in view of the assertion of the plaintiff in paragraph 2 of the plaint and 6fthe defendant in paragraph 1 of the additional pleading in the written statement." 10. Order 8 of the Code of Civil Procedure deals with written statement, set-off and counterclaim. Order 8 of the Code of Civil Procedure deals with written statement, set-off and counterclaim. Order 8 Rules 3 and 5 of the Code of Civil Procedure provide as under :- "O. 8 R. 3 : Denial to be specific - It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages." "O. 8 R. 5: Specific denial-(1) Every allegation off act in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2) the court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced." 11. A plain reading of the above provisions show that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Under Order 8 Rule 5 sub-rule (1) of the Code of Civil Procedure, the law of pleadings is very clear and well settled that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability. Viewed in this perspective, the plaintiff had specifically pleaded in para 2 of the plaint as under:- 12. In reply to this, the defendant neither generally nor specifically denied the above fact in para 2 of the written statement. In special pleading, the execution of sale-deed by Devkibai in favour of the appellant/plaintiff was admitted. It was alleged that Devkibai had entered into an agreement to sell the suit house to another tenant Ishwari Prasad and to frustrate the same, had executed the sale-deed secretly in favour of the plaintiff. In this view of the matter, the execution of the sale-deed on 10-4-1992 by Devkibai in favour of the appellant/plaintiff was an admitted fact in the suit and non-production and proof of the original document, i.e., sale-deed dated 10-4-1992 in the suit had no adverse consequence against the appellant/ plaintiff. The question of ownership of the plaintiff on the suit house was not in issue before the lower Court and thus no issue was framed on such question. Since the defendant had not specifically denied in the written statement that a registered sale-deed was executed by Devkibai in favour of Pishta Bai, it was an admitted fact and therefore the initial burden of proving that Ishwari Prasad had title to the suit house through an agreement to sell by Devkibai was on the defendant. Had the defendant been successful in proving the acquisition of title by Ishwari Prasad to the suit house anterior to the execution of sale-deed by Devkibai on 104-1992 in favour of Pishta Bai then, may be in that case, non-production and proof of sale-deed dated 10-4-1992 might have been detrimental to the suit. In the present case, there was a concurrent finding recorded by both the Courts below that Ishwari Prasad had no title whatsoever to the suit house and had failed to prove that Devkibai had agreed to sell the suit house to him. The learned First Appellate Court, ignoring the elementary principles relating to the law of pleading, burden of proof and the provisions contained in Order 8 Rules 3 and 5 of the Code of Civil Procedure and despite affirming the finding that Ishwari Prasad had no title whatsoever to the suit house, held that due to non-production and proof of sale-deed dated 10-4-1992, the appellant/plaintiff had failed to prove that she was the owner of the suit accommodation. 13. 13. The learned First Appellate Court also overlooked the fact that the plaintiff had not only pleaded the fact of sending a registered notice with acknowledgement due to the respondent/defendant on 20-4-1992, but had also proved the notice, Ex.P-7 and the acknowledgement, Ex.P-8. The plaintiff had also proved the notice, Ex.P-11. The learned First Appellate Court also overlooked the fact that the defendant, in his testimony at para 4, had admitted the fact of receipt of notice. Ex.P-11 dated 17-11-1992 sent by the plaintiff by registered post acknowledgement due, in which the fact-um of purchase of the suit house by the appellant/plaintiff from Devkibai was clearly mentioned. It also overlooked the fact that on being confronted with the notice, Ex.P-7, the defendant did not specifically deny in para 4 of his testimony that he had received the notice, Ex.P-7 It also ignored the fact that though the plaintiff had not examined herself as a witness, she had examined her husband Manakchand as P.W.-4, who had proved the notices, Ex.P-7 and P-11 and also her son Sanjay as P.W.-3. Although it took into consideration that it was not disputed by the defendant that at no point of time did he send any rent to the plaintiff yet on the ground of non-production and proof of the sale-deed dated 10-4-1992 by the plaintiff, it allowed the appeal. 14. So far as the question of non-examination of the plaintiff as a witness is concerned, it is only in a case where the bona fide requirement of the suit accommodation by the plaintiff is in question that non-examination of the plaintiff may prove fatal to the suit for eviction on the ground of bona fide requirement of the landlord. In the present case, the suit, being premature under Section 12(4) of the Act, was not decreed on the ground of bona fide requirement of the suit accommodation by the plaintiff. The decree for eviction was passed under Section 12(1)(a) of the Act for non-payment of rent and on the ground of denial of landlord's title by the defendant. In this view of the matter, there is no room for any doubt that the impugned judgment and decree passed by the First Appellate Court is wholly contrary to law and is liable to be set aside. 15. In this view of the matter, there is no room for any doubt that the impugned judgment and decree passed by the First Appellate Court is wholly contrary to law and is liable to be set aside. 15. In the result, substantial question of law is answered in favour of the appellant/plaintiff that the Lower Appellate Court committed an illegality in reversing the well reasoned judgment and decree passed by the trial Court. In view of the fact that the defendant had failed to prove even a semblance of title of Ishwari Prasad in the suit house, the Lower Appellate Court ignoring that in the absence of any specific denial by the defendant, the fact of execution of sale-deed by Devkibai in favour of the appellant/plaintiff was an admitted fact, committed an illegality in holding that the plaintiff had failed to prove that she is the owner of the suit house since the original sale-deed dated 10-4-1992 was not produced by her. 16. I am of the considered opinion that once the First Appellate Court affirmed the finding of the trial Court that the tenant had failed to prove that Devkibai had agreed to sell the suit house to Ishwari Prasad, who had title to the suit house, the denial of title of the landlord by the tenant in reply to the notice as also in the written statement would furnish a ground for eviction of the tenant to the landlord and could be relied upon by the Court in the very proceedings in which a written statement containing the denial had been filed, as was rightly done by the learned trial Judge. 17. In Majati Subbarao vs. P V.K. Krishna Rao (Deceased) By L.Rs. (supra), the respondent had filed an eviction petition against the appellant on the ground of bona fide requirement of the premises. The appellant in his counter inter alia alleged that the property in which the premises in question was situated was a trust property of which the respondent was only it trustee having no personal or proprietary interest in the property and, therefore, the appellant had no right to evict him on the ground of personal requirement. The appellant in his counter inter alia alleged that the property in which the premises in question was situated was a trust property of which the respondent was only it trustee having no personal or proprietary interest in the property and, therefore, the appellant had no right to evict him on the ground of personal requirement. The respondent filed a rejoinder denying the appellant's allegations and stating that the denial of his title by the appellant not being bona fide, the appellant was liable to be evicted also under Section 10(2)(vi) of the A.P. Rent Act. The Rent Controller passed an eviction decree on both the grounds. The Appellate Authority affirmed the same. The High Court upheld the eviction only on the ground of denial of the title, which was not bona fide. Before the Supreme Court no dispute was raised in respect of the finding of fact that denial of title was not bona fide. It was, however, submitted that in order to constitute a ground for eviction, the denial of title must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not constitute a ground for eviction. Dismissing the appeal with costs the Supreme Court held as under :- "The denial of title of landlord by the tenant need not be anterior to the eviction petition. Even a denial of the landlord's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed. The Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately. To insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of his character as a tenant in the written statement." 18. The learned trial Court thus legitimately took into consideration the fact of denial of landlord title by the tenant and relying upon Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) By L.Rs. (supra) rightly granted a decree for eviction. 19. The appeal is allowed. The impugned judgment and decree passed by the Lower Appellate Court, being contrary to law, is set aside. The judgment and decree passed by the 1st Civil Judge Class-II, Rajnandgaon in Civil Suit No.3-N 93, granting the decree for eviction under Section 12(1)(a) and (c) of the Act, is affirmed. The respondent/defendant shall bear the cost of this appeal. Counsel's fee is quantified at Rs.1,000/-, if certified. Appeal Allowed.