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2010 DIGILAW 206 (CAL)

P. K. Chakraborty v. Janardan Roy

2010-02-25

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS Second Appeal is directed against the judgment and decree dated 15.6.2007 passed the learned Additional District Judge, Barrackpore, 24-Parganas (North) in Title Appeal No.5 of 2007, affirming the judgment and decree dated 22nd November, 2006 passed by the learned Civil Judge (Junior Division), 3rd Court at Sealdah in T.S. No.40 of 2001. 2. THE learned Trial Judge held that the defendant is admittedly a defaulter in payment of rent since August, 2000 and since he has neither complied with the provision of Section 17(1) nor he has complied with the provision of Section 17(2) of the West Bengal Premises Tenancy Act, 1956, he is not entitled to get any protection under Section 17(4) of the said Act. Accordingly, an eviction decree was passed against the defendant on the ground of default in payment of rent. The defendant was aggrieved by the said order. Hence, he preferred an appeal before the learned Appeal Court. The learned Appeal Court also approved the said finding of the learned Trial Judge by discussing elaborately the consequences of non-compliance of Section 17(1), 17(2) and 17(2A) of the said Act and ultimately held that the defendant is not entitled to get any protection under Section 17(4) for non-compliance of Section 17(1), 17(2) and 17(2A) of the said Act. Thus, the decree passed by the learned Trial Judge was affirmed in appeal. The instant Second Appeal is directed against the said appellate decree at the instance of the defendant/ appellant. After admission of the said appeal, the following substantial question of law was formulated by the Division Bench of this Honble Court:- Since it was the case of the defendant/appellant that advance was paid on account of rent to the plaintiff/respondent far in excess of the actual amount of rent which was required to be paid to the plaintiff, whether the learned Lower Appellate Court was right in rejecting the defendants contention in this regard only because the defendant did not raise a proper dispute under Section 17(2) of the said Act without keeping in mind that the issue of default should have been finally decided as one of the main issues in the suit itself the decree was passed on the ground of default itself. Let me now consider the said substantial question of law in the facts of the instant case. Heard Mr. Let me now consider the said substantial question of law in the facts of the instant case. Heard Mr. Basu, learned Senior Counsel appearing for the defendant/appellant and Mr. Ghosh, learned Counsel appearing for the plaintiff/respondent. Considered the materials on record including the judgment and decree under challenge. 3. THE plaintiff filed the instant suit for eviction on the ground of default in payment of rent since August, 2000. The plaintiff claimed that the rate of rent of the said premises was Rs. 400/- per month payable according to English calendar month. 4. THOUGH other grounds for eviction were pleaded in the plaint but since decree was not passed on those grounds and no cross-objection was filed by the plaintiff, this Court does not think it necessary to consider those grounds herein. Accordingly, this Court concentrates only on the ground of default. The defendant contested the said suit by filing written statement wherefrom this Court finds that paragraph 1 of the plaint wherein the plaintiff asserted that the rate of rent payable by the defendant was Rs.400/- per month has not been dealt with by the defendant at all therein. The defendant claimed in his written statement that the rate of rent which was initially fixed at Rs.100/- per month was subsequently enhanced to Rs. 200/- per month from 1979 onwards and the said rate of rent prevailed till March, 1999. 5. THUS, the defendant was silent about the rate of rent which was payable by him from April, 1999. However, the defendant claimed that in April, 1999 the plaintiff took a sum of Rs.7,000/- from this defendant as advance against rent as per the memorandum of understanding. Though the defendant has not specifically stated in his pleadings that the aforesaid advance amount of Rs.7,000/- was not adjusted fully upto the date of institution of the suit but in course of his evidence he tried to develop that the advance amount of Rs.7,000/- was not completely adjusted upto the date of institution of the suit. Though the defendant has not specifically stated in his pleadings that the aforesaid advance amount of Rs.7,000/- was not adjusted fully upto the date of institution of the suit but in course of his evidence he tried to develop that the advance amount of Rs.7,000/- was not completely adjusted upto the date of institution of the suit. The defendant claimed that if the plaintiff fails to prove that the rate of rent was Rs.400/- per month then the Court should proceed on the basis that the last paid rent which was amicably accepted by the plaintiff was Rs.200/- per month and if the rate of rent is held to be Rs.200/- per month then certainly by way of arithmetical calculation it can be concluded that the advance of Rs.7,000/- was not adjusted fully upto the date of institution of the suit. If that be so, then certainly no decree can be passed on the ground of default as there was no pre-suit default in payment of rent notwithstanding the fact that the provision of Section 17(1), 17(2), 17(2A) of the said Act was not complied with by the defendant. But if on the contrary it is found that the rate of rent was Rs.400/- per month then certainly this Court by arithmetical calculation can come to the conclusion that the advance amount of Rs.7,000/- was adjusted long before the institution of the suit and as such, decree for eviction on the ground of default can be maintained. 6. THUS, this Court finds that the dispute regarding the rate of rent is a guiding factor for resolving the dispute regarding default. The plaintiff at least proved one rent receipt being Exhibit 3 showing that the defendant paid rent of Rs.400/- for the month of July, 2000. Though the plaintiff could not specify the month since when rent was increased to Rs. 400/- and further he said in his cross-examination that he cannot produce any counterfoil to show that the defendant paid rent at the rate of Rs.400/- to the plaintiff but fact remains that at least one rent receipt showing payment of rent at the rate of Rs.400/- for the month of July, 2000, was ultimately filed and was marked as Exhibit on proof. The defendant, however, claimed that since the counterfoil of the rent receipt does not contain his signature, the said rent receipt cannot be relied upon. The defendant, however, claimed that since the counterfoil of the rent receipt does not contain his signature, the said rent receipt cannot be relied upon. Even assuming that such contention of the defendant is accepted, still then, the effect of non-traverse of the plaintiffs statement in paragraph 1 of the plaint wherein the plaintiff categorically stated that the rate of rent was Rs.400/- per month, cannot be lost sight of by this Court. That apart, if the statement made by the defendant in paragraph 12G in the written statement is considered carefully then it appears that the defendant admitted therein that the rental rate of Rs.200/- per month was prevalent upto March, 1999. The defendant did not say anything about the rent which was payable by him from April, 1999. Thus, if the totality of the pleadings made out by the defendant in the written statement is considered carefully then this Court holds without any hesitation that the rate of rent payable by the defendant at least from April, 1999 was Rs.400/- per month remained undisputed. Thus, this Court can certainly hold that the defendant is a defaulter in payment of rent as the advance amount was adjusted fully long before the institution of the suit and as such, the decree for eviction on the ground of default can be maintained. This is one angle from which the issue regarding default can be decided. But there is another angle from which the issue regarding default can be resolved. Let me now discuss the said issue from the other angle as indicated above. In the instant case a dispute has been raised by the plaintiff with regard to payment of the advance money of Rs.7,000/- by the defendant. The plaintiff not only denied the acceptance of such rent but also stated in his evidence that the receipt which the defendant was seeking to rely upon is a forged document as the last two lines of the said document wherein payment of Rs.7,000/- towards advance rent was referred to, have no nexus with the text of the entire document. The plaintiff not only denied the acceptance of such rent but also stated in his evidence that the receipt which the defendant was seeking to rely upon is a forged document as the last two lines of the said document wherein payment of Rs.7,000/- towards advance rent was referred to, have no nexus with the text of the entire document. Be that as it may, this Court finds that only the signature of the plaintiff on the said disputed document was admitted by the plaintiff and thus, his signature was marked as Exhibit A. But the defendant thereafter did not take any step to prove the contents of the said document for admitting the said document into evidence. Unless the contents of the said document is proved and is admitted into evidence, Court cannot consider the evidential value of the contents of the said document. That apart, if the defendant does not take any step either to prove the contents of the said document or to dispel the doubt from the minds of the Court about the genuineness of the said document when the said document was described as a forged document by the plaintiff in his cross-examination, this Court can safely conclude that the said document cannot be relied upon. The defendant, however, filed an application under Order 41 Rule 27 of the Civil Procedure Code before the learned Appeal Court below for giving further evidence to prove the contents of the said document. But the defendants said application was rejected by the learned Appeal Court below and the said order has not been specially challenged herein. This Court further holds that there is hardly any scope for allowing the defendant to give further evidence on the said document as none of the conditions of Order 41 Rule 27(a) and/or (aa) of the Civil Procedure Code is attracted herein and the Court also does not require the said document for delivery of judgment as per Order 41 rule 27(b) of the Civil Procedure Code as this Court finds that the document on the face of it is suspicious as the normal gap in between the lines wherein payment of such advance amount of Rs.7,000/- was recorded in the said document was not maintained. The said two lines were very close to each other and the gap in between the lines which were maintained in the other part of the said document was not maintained in the last two lines of the said document wherein payment of Rs.7,000/- as advance was mentioned. That apart, the last two lines of the document recording payment of advance of Rs.7,000/- have no nexus with the contents of the entire document wherein certain facts regarding change of electric meter was referred to. 7. THUS, this Court can hold safely that the defendant has failed to prove payment of a sum of Rs.7,000/- to the plaintiff which was adjustable against future rent. If that be so, then this Court cannot come to any other conclusion other than that the defendant is a defaulter in payment of rent at the rate of Rs.400/- per month since August, 2000. As such, the decree for eviction which was passed by the learned Court below cannot be disturbed as admittedly the defendant did not comply with the provision of Section 17(1) of the West Bengal Premises Tenancy Act, 1956 nor he has compiled with the provision under Section 17(2) of the said Act and he deliberately allowed the said application to be dismissed as not pressed. Thus, such a defendant cannot claim any protection against eviction under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. 8. THIS Court, thus, holds that the decisions which was cited by Mr. Basu, learned Senior Counsel in the case of Modern Hotel Gudur, Delhi Vs- K. Radhakrishnaiah reported in AIR 1989 SC page 1510 and the decision of the Honble Supreme Court in the case of K. Narasimha Rao Vs- T.M. Nasimuddin Ahmed reported in AIR 1996 SC page 1214 do not apply in the facts of the instant case as this Court disbelieved the payment of advance rent by the defendant to the plaintiff for the reasons as stated above. Of course, this Court fully agrees with the submission of Mr. Of course, this Court fully agrees with the submission of Mr. Basu that the Court cannot pass any decree for eviction on the ground of default unless Court makes a specific finding in the suit that notwithstanding the fact that the defence of the defendant was struck out under Section 17(3) of the said Act for non-compliance of the provision under Section 17(1) and/or Section 17(2) of the said Act, the plaintiff has to prove independently that the defendant is a defaulter in payment of rent in course of trial of the suit. As such, the decisions which were cited by Mr. Basu to support his said contention need not be discussed in details. The following are the decisions which were cited by Mr. Basu to support his aforesaid submission:- 1. In the case of Muharam Ali Vs- Dinanath Prasad Sha reported in 77 CWN page 202. 2. In the case of Gita Das Vs- Rajabala Kundu reported in (1990)1 CHN page 520. 3. In the case of Smt. Kali Talukdar Vs- Prodosh Kr. Bajpaie reported in (1991)1 CHN page 279. 4. In the case of Gopal Chandra Ghosh Vs- Smt. Renu Bala Majumdar reported in CLT (1994)2 SC page 31. The effect of non-traverse of paragraph 1 of the plaint has already been discussed above. Though the defendant claimed in his evidence that he is not a defaulter in payment of rent but fact remains that he could not produce any rent receipt showing payment of rent from August, 2000. If these facts are considered coupled with the fact that the payment of advance of a sum of Rs.7,000/- by the defendant to the plaintiff is found to be not proved then this Court holds that the plaintiffs claim regarding the defendants default in payment of rent from August, 2000 is proved. As such, I find no reason to disturb such concurrent finding of fact regarding default in payment of rent since August, 2000 for the reason as stated above. 9. As such, I find no reason to disturb such concurrent finding of fact regarding default in payment of rent since August, 2000 for the reason as stated above. 9. BEFORE concluding, this Court wants to keep it on record that though the plaintiff did not get complete opportunity to cross-examine the defendants witness fully, due to his non-cooperation but, still then, the entire evidence of the defendant cannot be expunged in view of the decision of this Honble Court in the case of Dever park Builders Pvt. Ltd. Vs- Madhuri Jalan reported in AIR 2002 Cal page 281, cited by Mr. Basu particularly because of the fact that the plaintiff did not take any further step to compel the defendant to offer himself in the dock for further cross-examination after he failed to produce himself in the box after rejection of his prayer for adjournment. Under such circumstances, this Court does not find any justification to interfere with the judgment and decree under appeal. The instant Second Appeal, thus, stands dismissed on contest and the judgments and decrees of the Courts below are hereby affirmed. 10. THE defendant/appellant is given two months time to vacate the suit premises and if in the meantime the defendant does not vacate the suit premises and fails to give vacant and peaceful possession thereof to the plaintiff/respondent, the plaintiff/respondent will be at liberty to recover khas possession of the suit premises from the defendant/appellant in execution of the said decree in accordance with law. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.