Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 495 (AP)

Amarjit Kaur v. S. L. Hussain

2009-07-24

R.KANTHA RAO

body2009
Judgment :- Common Judgment: Second Appeal No. 1365 of 2007 arises out of the judgment in A.S. No. 207 of 2006 on the file of I Additional Chief Judge, City Civil Court, Secunderabad whereas the Second Appeal No. 1379 of 2007 arises out of the judgment in A.S. No. 208 of 2006 on the file of I Additional Chief Judge, City Civil Court, Secunderabad. 2. For the sake of convenience the parties hereinafter will be referred to as plaintiff and defendant/defendants i.e., as they were originally arrayed in the respective suits. 3. O.S. No. 496 of 2003 and O.S. No. 497 of 2003 were filed by Smt. Amarjit Kaur, the land lady against the different tenants in respect of two different portions of the building. In O.S. No. 496 of 2003, Syed Lathaful Hussain is the tenant/defendant, whereas in O.S. No. 497 of 2003, Sri S.M. Hussain since the deceased (per L.Rs) is the tenant/defendant. In the said suit in O.S. No. 497 of 2003, the defendants 2 to 5 were brought on record as L.Rs of S.M. Hussain, the first defendant after his death. 4. The facts in both the cases are similar and the suits are filed by the same plaintiff-the land lady against the different defendants/tenants. 5. The facts gave rise to filing of the appeal are also almost similar. The suits were filed by the plaintiff against the defendants seeking eviction of the schedule mentioned premises and also for recovery of rents. Initially, the rent was said to be Rs.1,200/- per month and as on the date of filing of the suit it was said to be Rs.4,000/- according to the plaintiff. It was alleged by the plaintiff that the defendants were highly irregular in payment of rents in spite of repeated demands and thereafter she issued quit notice dated 01.09.2003 calling upon the defendants therein to vacate the premises and handover vacant possession of the same and also mentioning about the termination of tenancy by the end of August, 2003 and it was served on defendants on 04.08.2003 and they gave a reply dated 08.08.2003 admitting the tenancy and also the quantum of rent but denying any arrears of rent to the plaintiff. 6. 6. The defendants in both the suits contended inter alia during the course of their written statements that the plaintiff was issuing receipts for the rents paid by them till 2000 and the last payment was in the month of May, 2002 towards rent for the month of April, 2002 in O.S. Nos. 496 of 2003 and 497 of 2003. The rents were regularly paid up to the month of July, 2003. The plaintiff who is an old lady is in the habit of forgetting the fact of receiving rents and again claiming the rents as if they were due. Therefore, in both the suits, the arrears of rents is disputed, but the factum of tenancy is admitted. In the trial Court P.W-1 was examined on behalf of the plaintiff and Exs.A-1 to A3 were marked whereas D.W-1 was examined and Exs.B-1 to B-41 were marked on behalf of the defendant in O.S. No. 496 of 2003. Similarly in O.S. No. 497 of 2003, P.W-1 was examined on behalf of the plaintiff and Exs.A-1 to A3 were marked whereas D.W-1 was examined and Exs.B-1 to B-41 were marked on behalf of the defendant. 7. After going through the entire evidence on record, the learned trial Court partly decreed the suits recording the following findings: 1. Even though the plaintiff did not enter the witness box and the son was examined on his behalf as P.W-1, the quit notice issued under Section 106 of Transfer of Property Act, which is admitted being valid, the defendants are liable for eviction. 8. However, the learned trial Court having held that by examining Syed Lathaful Hussain as D.W-1 in each case and marking as Exs.B1 to B-41, the defendants proved that they were paying rents regularly and that the plaintiff could not be able to establish that the rent receipts produced by the defendants are not genuine but held that the plaintiff is entitled to recover mesne profits from the defendant at the rate of Rs.4,000/-per month after the alleged date of termination of tenancy. 9. As against the said findings, the defendants filed A.S. No. 207 of 2006 and A.S. No. 208 of 2006 respectively which were heard and disposed of by the I Additional Chief Judge, City Civil Court, Secunderabad. 9. As against the said findings, the defendants filed A.S. No. 207 of 2006 and A.S. No. 208 of 2006 respectively which were heard and disposed of by the I Additional Chief Judge, City Civil Court, Secunderabad. The First Appellate Court reversed the findings of the trial Court by holding that since the plaintiff did not enter the witness box an adverse inference has to be drawn against her and the quit notice was not proved and also that the trial Court having disbelieved the version of the plaintiff under Ex.A-1 with regard to arrears of rent, erred in holding that the quit notice is valid. Consequently, the lower appellate Court held that the defendants are not liable for eviction. The First Appellate Court further held that the trial Court having arrived at the decision that the plaintiff is not entitled for arrears of rents, since there was no default on the part of the defendants erred in holding that the plaintiff is entitled to recover mesne profits at the rate of Rs.4,000/- per month from the defendants. Consequently, the First Appellate Court set aside the decree and judgment passed by the trial Court in both the suits. 10. Challenging the finding of the First Appellate Court on question of law in so far as it relates to the reversal of the finding of decreeing the suit for eviction, the plaintiff filed the two second appeals. However, the question regarding reversal of the finding by the First Appellate Court as to the granting of mesne profits has not been assailed in the second appeals. 11. The following are the substantial questions of law, which were formulated at the time of admitting the appeals. 1. Whether the quit notice under Ex.A-1 issued in terms of Section 106 of Transfer of Property Act, require any other grounds to be stated and established, except termination of tenancy is in accordance with law? 2. Whether a quit notice becomes invalid on account of the claim for arrears of rent not being established, by the landlord, resulting in the suit for ejectment being dismissed? 3. Whether Rule of Evidence requires a negative fact to be proved by the plaintiff in a suit for ejectment, contrary to Section 101 to 103 of Indian Evidence Act? 4. Whether a quit notice becomes invalid on account of the claim for arrears of rent not being established, by the landlord, resulting in the suit for ejectment being dismissed? 3. Whether Rule of Evidence requires a negative fact to be proved by the plaintiff in a suit for ejectment, contrary to Section 101 to 103 of Indian Evidence Act? 4. Whether a person acquainted with facts is not competent to give evidence in a Court of law, and whether a suit for ejectment, in terms of Section 106 of T.P. Act, require plaintiff's evidence as a rule of law? 12. From the above substantial questions of law, it can be culled out that whether the First Appellate Court erred on the substantial legal issue viz., that in view of the fact that the plaintiff has not entered the witness box and examining her son as P.W-1 on her behalf, whether a decree for eviction can be ordered basing on mere proof of a valid notice to quit under Section 106 of Transfer of Property Act. 13. The learned Counsel appearing for the plaintiff (the appellant) would submit that the First Appellate Court committed a grave error in holding that the son of the plaintiff is not competent to give evidence on behalf of the plaintiff without there being any proper authorization and that the notice being issued by the plaintiff, P.W-1 is not competent to speak about the contents of the quit notice and in view of the fact that the same is admitted by the defendant, the evidence of the trial Court evicting the defendants from the schedule mentioned property is perfectly legal and the First Appellate Court committed grave error of law in reversing the said finding. 14. On the other hand, the learned Counsel appearing for the defendant submits that the finding of the lower appellate Court is perfectly legal and, therefore, it cannot be interfered in the second appeal. 15. There is no dispute about issuing of notices to quit under Section 106 of Transfer of Property Act by the plaintiff. 14. On the other hand, the learned Counsel appearing for the defendant submits that the finding of the lower appellate Court is perfectly legal and, therefore, it cannot be interfered in the second appeal. 15. There is no dispute about issuing of notices to quit under Section 106 of Transfer of Property Act by the plaintiff. In fact the defendants only disputed the arrears of rents but not either the tenancy or issuing of quit notice by the plaintiff, the First Appellate Court took the view that since the plaintiff was not examined, mere exhibiting the quit notice does not amount to proof of the said notice and therefore basing on the mere quit notice in the absence of any evidence of the plaintiff the eviction of the defendants cannot be ordered. 16. The said finding of the learned First Appellate Court raises a substantial question of law as to the legal effect of the said notice, which was admittedly issued by the plaintiff and received by the defendants. 17. The learned Counsel appearing for the defendants (respondents) relied upon a decision reported in G. Gayathri Vs. M. Bhagyalakshmi, 2009 (1) ALD 421 , wherein the single judge of this Court held that the law does not contemplate examining a witness treating him as a party to the proceedings. The husband of the first petitioner (the plaintiff) cannot be treated as plaintiff and his evidence cannot be recorded as that of the plaintiff in the absence of any power of attorney executed by the plaintiff and without obtaining the leave of the Court contemplated under Rule 3A of Order XVIII C.P.C, and contends that P.W-1 in the present case cannot substitute the plaintiff who is his mother and his evidence cannot be recorded as that of the plaintiff. 18. The provision referred to by the learned single judge deals with the situation where a party intends to appear as a witness he shall so appear before any other witness on his behalf has been examined unless the Court permits him otherwise. In the present case P.W-1 who is no other than the son of the plaintiff was examined as a witness and the plaintiff was not at all examined. In the present case P.W-1 who is no other than the son of the plaintiff was examined as a witness and the plaintiff was not at all examined. It is not the case where the plaintiff was examined subsequent to P.W-1, therefore, the decision has no application to the facts of the present case and the only question to be determined is what is the weight to be attached to the evidence of P.W-1. 18. On the other hand reliance is placed by the learned Counsel appearing for the appellant on the following decisions: 1). Balbir Singh Vs. Smt. Kalawati, AIR 1976 Allahabad 434, wherein it was held that the plea of invalidity of notice under Section 106 of T.P. Act has to be taken at the early stage of litigation, when it was raised for the first time in revision, the plea would be deemed to have been waived. 2). R.P. Ghosh Vs. Smt. Pramilabai Ravindra Puri, AIR 1977 Bombay 181, wherein it was held that in a notice issued under Section 106 of Transfer of Property Act reasons for determination of tenancy need not be mentioned. 3). Vanteddu Venkateswara Rao Vs. Godavarthi Subhadramma, 2006(6) ALD 209 , wherein it was held that party to suit need not necessarily depose as witness law does not prohibit non-party witness to be examined on behalf of parties, the plaintiff land lady aged 90 years who has no power of remembrance, her non-examination cannot be said to be fatal to the suit claim. 4). Pasumarthi Appalanarasamma Vs. Chinthati Bhaskara Rao, 1979 ALT 199 , wherein it was held that in a suit for eviction of tenant and for vacant possession, it is not necessary for the landlord to establish the reasons for claiming vacant possession of the house. All that is necessary is to give a valid notice as prescribed under Section 106 of Transfer of Property Act. 20. If we examine the facts of the present case in the light of the decisions above referred, the basis for eviction in a suit under Section 106 of Transfer of Property Act is the issuance of valid notice to quit. In the instant case, issuance of notice under Section 106 of Transfer of Property Act by the plaintiff is not denied by the defendants. More over, they issued reply notice admitting the tenancy but only disputing arrears of rent. In the instant case, issuance of notice under Section 106 of Transfer of Property Act by the plaintiff is not denied by the defendants. More over, they issued reply notice admitting the tenancy but only disputing arrears of rent. The eviction was ordered by the trial Court not on the ground of default in payment of rent but only basing on a valid notice to quit issued by the plaintiff under section 106 of Transfer of Property Act. According to Section 58 of the Evidence Act, admitted facts need not be proved. In the instant case, the validity of quit notice was not at all disputed by the defendants. They only stated that their families were totally depending on the business being run in the suit schedule mulgies and if they were evicted, it would cause heavy loss to them. If the eviction is based on any other ground which the plaintiff has to specifically establish her non-examination would have been certainly fatal to the suit claim. The law contemplates that an eviction can be ordered by mere issuing a valid quit notice under Section 106 of T.P. Act. The defendants who admitted the respective notices and who did not challenge the validity of the notices are estopped from contending that they cannot form the basis of eviction without examining the plaintiff. The examination of the plaintiff in this case is, therefore, of inconsequential, she being a very old lady can authorize P.W-1 who is no other than the son to give evidence for the limited purpose of bringing on record, notices to quit which are in fact admitted by the defendants. Further, as laid down by the learned single judge in Vanteddu Venkateswara Rao 2006(6) ALD 209 , law does not prohibits a non-party witness to be examined on behalf of the parties and non-examination of plaintiff is not fatal to the suit in a given case where it is justified. 21. In view of the foregoing discussion, the learned trial Court rightly passed the decree of eviction against the defendants and it was erroneously reversed by the learned First Appellate Court on account of misconception of law relating to the subject and therefore the said finding is liable to be set aside in these appeals. 22. 21. In view of the foregoing discussion, the learned trial Court rightly passed the decree of eviction against the defendants and it was erroneously reversed by the learned First Appellate Court on account of misconception of law relating to the subject and therefore the said finding is liable to be set aside in these appeals. 22. Accordingly, the decree and judgment passed by the First Appellate Court in Appeal Suit No. 207 of 2006 and 208 of 2006 in so far they relate to the eviction of the defendant is concerned are set aside. The appeals are allowed with costs.