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2011 DIGILAW 817 (GAU)

Sohanlal Sewak v. Mohanlalagarwala

2011-09-29

I.A.ANSARI

body2011
JUDGMENT I.A.Ansari, J. 1. This revision is directed against the judgment and decree, dated 29.09.2007, passed by the learned Civil Judge, Sonitpur, Tezpur, in Title Appeal No.01/2006, setting aside and reversing the judgment and decree, dated 07.10.2005, passed, in Title Suit No.92/99, by the learned Civil Judge, Junior Division No.2, Sonitpur, Tezpur, whereby the suit for eviction of the defendant stood dismissed. Before I come to the merit of this revision, let me take note of the respective cases of the parties concerned. (i) The case of the plaintiff-opposite party is, in brief, thus: The plaintiff is the absolute owner and, proprietor of M/s. Mahadeolal Mohanlal of Dhekiajuli Town and the defendant was his tenant in respect of the suit premises with an undertaking to pay monthly rental of Rs.575/-, the rent becoming due on the last day of the current month according to English calendar. The plaintiff's son has been collecting rent for and on behalf of the plaintiff issuing receipts therefor. The defendant paid rent till the month of June, 1999, on 30.06.99 and, thereafter, he failed to pay rent. As the defendant failed to pay rent for the months of July, August, September, October and November, 1999, and became a defaulter, the suit was instituted by the plaintiff for the defendant's eviction from the suit premises and for recovery of Kha's possession recovery of arrear and future rents and also for mesne profit, etc. (ii) During the pendency of the trial, the plaintiff amended the plaint to include, as a ground of eviction of the defendant for bona fide requirement of the suit premises by the plaintiff's son for his own use for business purposes. 2. The defendant resisted the suit by filing his written statement, his case being, briefly stated, thus: The defendant had deposited a sum of Rs.6,101/- only as advance rent to the plaintiff and the period of tenancy was to be over with the end of the month of December, 1999. Hence, upon payment of rent for the month of June, 1999, the plaintiff asked the defendant not to pay monthly rental from July, 1999. In the month of November, 1999, the plaintiff informed the defendant that if he liked to continue his tenancy after the month of December, 1999, he would be required to pay Rs.30,000/- as salami to the plaintiff. In the month of November, 1999, the plaintiff informed the defendant that if he liked to continue his tenancy after the month of December, 1999, he would be required to pay Rs.30,000/- as salami to the plaintiff. The defendant, immediately, told the plaintiff that he would not be able to pay Rs.30,000/- as salami and requested the plaintiff not to make such an illegal demand. Be that as it may, the plaintiff has adjusted the total amount of Rs.5,750/- against the said deposited amount as monthly house rent from with effect from July, 1999, to April, 2000. Thereafter, the defendant approached the plaintiff and tendered the rent for the month of May, 2000, but the plaintiff refused to accept the rent so offered. The defendant, then, deposited the monthly rents, in accordance with the provisions of Assam Urban Areas Rent Control Act, 1972, in the Court. There is, thus, no arrear rent to be paid to the plaintiff by the defendant. The defendant is, therefore, not a defaulter and the plaintiff is not entitled to any arrear rent. 3. Upon amendment of the plaint, the defendant filed an additional written statement contending, inter alia, that the demand of bona fide requirement of the suit premises, as made by the plaintiff, was factually incorrect and legally not tenable. 4. The learned trial Court framed the following issues for determination in the suit: 1. Whether there is cause of action for the suit? 2. Whether the Defendant is a defaulter in respect of suit premises? 3. Whether the suit premises is bona fide required by the Plaintiff? 4. Whether the defendant is protected from eviction under Assam Urban Areas Rent Control Act? 5. Whether the Plaintiff is entitled to the relief as prayed for? 6. To what other relief/reliefs the parties are entitled to. 5. In support of his case, the plaintiff, Mohanlal Agarwalla, examined himself as PW1, and his son, Dinesh Agarwalla, as PW2. The defendant too adduced evidence by examining as many as four witnesses, namely, the defendant himself as DW1, his wife, Saraswati Devi, as DW 2, one Tapan Nath as DW3 and one Powal Patangia as DW4. 6. On conclusion of trial, the learned trial Court dismissed the suit as indicated above. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal, which has been allowed. 6. On conclusion of trial, the learned trial Court dismissed the suit as indicated above. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal, which has been allowed. However, while the suit has been decreed by the learned Appellate Court on the ground that the defendant was a defaulter, the learned trial Court has held that the plaintiff's case that he required the suit premises for bona fide requirement could not be proved by the plaintiff. Aggrieved by the decree, so granted by the learned appellate Court holding that the defendant was a defaulter, the defendant has filed this revision. 7. I have heard Mr. T.C. Khatri, learned Senior counsel, appearing for the defendant-petitioner, and Mr. K. Agarwal, learned counsel, for the plaintiff-opposite party. 8. Considering the fact that the suit stands, eventually, decreed on the ground that the defendant was a defaulter, let me determine as to how far the decision, on this issue, rendered by the learned appellate Court, is tenable in the light of the facts, which have been proved on record and the law relevant thereto. 9. While considering the issue as to whether the plaintiff could prove the defendant as a defaulter, it needs to be recalled, as already pointed out above, that it was the case of the defendant that he had paid an advance of Rs.6,101/- and the plaintiff informed the defendant that he had decided to adjust the said amount of Rs.6,101/- with effect from July, 1999. The receipt, which the defendant asserts to have been granted by the plaintiff acknowledging payment of the said advance, is Exhibit 'Kha', dated 28.09.1990. The learned trial Court took the view that execution of Exhibit 'Kha' has been duly proved by the defendant, though the plaintiff denied to have received any advance as well as defendant's claim as regards execution of Exhibit 'Kha' in as much as the plaintiff claimed that Exhibit 'Kha' does not bear his handwriting or signature. The learned trial Court did not, thus, believe the plaintiff and one of the reasons for not believing the plaintiff was that it drew adverse presumption against the plaintiff for his (plaintiff's) not producing the books of accounts, wherein day-to-day accounts were maintained by the plaintiff. In support of this finding, the learned trial Court places reliance on the decision in Modern Hotel Vs. In support of this finding, the learned trial Court places reliance on the decision in Modern Hotel Vs. K. Radha Krishna, reported in AIR 1989 SC 1510 , and Irudayam Ammal & Ors. Vs. Salayath Mary AIR 1973 Mad 421 . On the basis of these findings, the learned trial Court dismissed the suit. 10. The learned appellate Court has reversed the decision by reaching four specific conclusions, namely, (i) the pleading of the defendant is completely silent regarding execution of Exhibit 'Kha' by the plaintiff acknowledging receipt of the said amount as advance. The learned appellate Court held, in this regard, that no amount of evidence could be accepted without specific pleadings; (ii) the learned appellate Court also took the view that in the face of denial of execution of Exhibit 'Kha' by the plaintiff, the burden was on the defendant to prove execution of the document, namely, Exhibit 'Kha' and the learned appellant Court concluded, in this regard, that the evidence of DW1 and DW2, (i.e., of the defendant and his wife) were not sufficient in the context of the facts of the case and the law relevant thereto, and could not have been taken to have proved execution of Ext. 'Kha' by the plaintiff. The learned appellate Court was of the view that the execution, in question, by the plaintiff could have been proved by an independent witness if any independent witness was present at the time of execution of Ext. 'Kha' or execution of Ext. 'Kha' could have been proved by calling a witness, who is familiar with the handwriting and signature of the plaintiff as provided under Section 47 of the Evidence Act. Ext. 'Kha', learned appellate Court points out, in this regard, could have been sent to Forensic Science Laboratory along with admitted writings and signatures of the plaintiff as provided under Section 45 of the Evidence Act; (iii) the defendant, instead of discharging his own burden to prove execution of Ext. 'Kha', raised the plea that adverse presumption ought to be drawn against the plaintiff for not producing the books of accounts to show that the plaintiff had not received any advance rent. The learned appellate Court concluded that in view of the provisions of Sections 101 and 103 of the Evidence Act, the burden lied on the defendant to prove the factum of payment of advance rent. The learned appellate Court concluded that in view of the provisions of Sections 101 and 103 of the Evidence Act, the burden lied on the defendant to prove the factum of payment of advance rent. Hence, in the present case, according to the learned appellate Court, since the defendant asserted that he was not a defaulter as he had paid the rents, in advance, and the rents, for the months of July, 1999, to April, 2000, had been adjusted against the said advance amount, it was the defendant's burden to prove these facts, namely, that advance rent was paid and it was adjusted as claimed by the defendant. It was, therefore, held by the learned appellate Court, that no presumption, under Section 114 of the Evidence Act, could have been, or ought to have been, drawn against the plaintiff for not producing his books of accounts, and (iv) the learned appellate Court came to the conclusion that even if, for the sake of argument, payment of advance of rent was accepted, the defendant was still required to prove that he had (deposited, in the Court, rents from the month of May, 2000, in accordance with the provisions of Section 5(4) of Assam Urban Areas Rent Control Act, 1972. The learned appellate Court concluded, in this regard, that tender of rent to the landlord, if rent has fallen due, and refusal by the landlord to accept the rent, so offered to be paid, is a condition precedent for enabling the defendant to deposit rent in the Court as per the provisions of Section 5(4) of the said Act. Referring to the evidence on record, it was held by the learned appellate Court that the defendant had failed to prove tender of rent to the landlord on the same becoming due before the rent was deposited with the Court. The learned appellate Court pointed out, in this regard, that since the suit had already been instituted in December, 1999, the question of tendering rent to the plaintiff, for the year 2000, did not arise at all. 11. The moot question, which thus, arises, in the present revision, for determination, as rightly pointed out on behalf of the plaintiff-opposite party, is this: whether the payment of alleged advance rents has been proved by the defendant? There can be no doubt that the burden to prove payment of advance rent and execution of Ext. 11. The moot question, which thus, arises, in the present revision, for determination, as rightly pointed out on behalf of the plaintiff-opposite party, is this: whether the payment of alleged advance rents has been proved by the defendant? There can be no doubt that the burden to prove payment of advance rent and execution of Ext. 'Kha' by the plaintiff rested on the defendant. Since the questions, which arose in the appeal were (a) whether the burden to prove payment of advance rent and execution of Ext. 'Kha' by the plaintiff rested on the defendant and (b) whether there was sufficient evidence on record to sustain the learned trial Court's finding in this regard, it was not only appropriate, but also essential, on the part of the learned appellate Court, to re-appreciate the evidence on record and this is precisely what the learned appellate Court has done. Though it is a fact that while appreciating evidence, an appellate Court is required to give due weight to the appreciation of evidence by the trial Court, which has the benefit of noticing the demeanor of the witnesses concerned, the appellate Court cannot avoid its responsibility to examine the correctness of the appreciation of evidence by the trial Court and determination or ascertainment of the question as to whether the trial Court has correctly appreciated the evidence in the light of the law relevant thereto. In fact, the appellate Court owes a duty to re-appreciate the evidence if the situation so demands. 12. It may, now, be noted that during cross-examination of the plaintiff's witnesses, the defendant brought on record the fact that the plaintiff maintains books of accounts in respect of his business and receipt of rents. The defendant, thus, having come to know of the fact that books of accounts, used to be maintained by the plaintiff, owed the duty to call for the books of accounts if the defendant wanted to prove receipt of advance rent from the plaintiff's books of accounts. As the defendants did not take any steps to call for the books of accounts, the learned trial Court, it is clear, was wholly incorrect in drawing, in this regard, adverse inference against the plaintiff, under Section 114(g) of the Evidence Act. Mr. As the defendants did not take any steps to call for the books of accounts, the learned trial Court, it is clear, was wholly incorrect in drawing, in this regard, adverse inference against the plaintiff, under Section 114(g) of the Evidence Act. Mr. K. Agarwal, learned counsel, for the plaintiff-opposite party, is correct, when he points out that had the defendant called for the plaintiff's books of accounts to support his plea of payment of advance rent to the plaintiff and had the plaintiff failed to produce his books of accounts, adverse presumption could have been drawn against the plaintiff, but when the defendant did not take any step to call for the books of accounts of the plaintiff, the plaintiff cannot be blamed for not producing the books of accounts, when the burden had rested on the defendant to prove, by producing necessary evidence, that he was not a defaulter on the ground, as asserted by the defendant, that he (i.e., the defendant) had paid a sum of Rs.6,101/- as advance rent to the plaintiff. This apart, Mr. Agarwal is also correct, when he points out that though the defendant and his wife have claimed that Ext. 'Kha' was executed by the plaintiff, the fact of the matter remains that both of them are interested witnesses and, in such circumstances, when there was no independent witness, the defendant was liable to adduce evidence from those witnesses, who were conversant with the hand writing and signature of the plaintiff so that the Court could confidently hold that Ext 'Kha' was executed by none other than the plaintiff. In this regard, we must bear in mind that neither the defendant brought any independent witness to prove that Ext. 'Kha' bore signatures of the plaintiff nor did he get Ext. 'Kha' examined by a handwriting expert so that there was some corroborative evidence of the assertions of the plaintiff and his wife available from any independent source that Ext. 'Kha' was executed by the plaintiff acknowledging receipt of Rs.6,101/- as advance rent. Thus, the learned appellant Court was wholly justified in reversing the finding of the learned trial Court and in taking the view that the defendant had failed to establish his plea that he had paid the said sum of money as advance rent. 13. On behalf of the defendant, heavy reliance was placed on the decision in Hiralal Vs. Thus, the learned appellant Court was wholly justified in reversing the finding of the learned trial Court and in taking the view that the defendant had failed to establish his plea that he had paid the said sum of money as advance rent. 13. On behalf of the defendant, heavy reliance was placed on the decision in Hiralal Vs. Badkulal : AIR 1953 SC 225 , to support the defendant's contention that it was the plaintiff, who ought to have produced the books of accounts as he (plaintiff) had admitted that books of accounts used to be maintained by him (plaintiff) in respect of receipt of rents from the defendant. 14. A close reading of the decision, in Hiralal (supra), clearly shows that in Hiralal (supra), the suit was filed for recovery of money on the basis of acknowledgement signed by the plaintiff and the plea taken, in the written statement, was that while taking the signatures of the defendants on the ledger book, the plaintiff had not explained the accounts and that Rs. 15,000/- or Rs. 16,000/-being the principal sums were due to the plaintiff' The defendant, however, deposed, in Hiralal (supra), that they maintained regular books of accounts in respect of business dealings and he had looked into his books of accounts and found Rs.10,000/- to Rs. 15,000/- as principal and interest were due, but he could not say what was the correct amount. In this background, it was held, in Hiralal (supra), that only because books of accounts were not explained to the defendants at the time of signing of the ledger, the suit of the plaintiff cannot be thrown out and if the dues, which were payable to the plaintiff, were reflected in the books of accounts, then, the defendants could have produced their books of accounts to justify their plea. It was in the context of these facts that adverse presumptions were drawn against the defendant in Hiralal (supra). On the contrary, in the present case, an advance of Rs.6,101/- is alleged to have been paid by the defendant to the plaintiff, but the plaintiff has denied receipt of such advance. The burden of proving payment of advance rents was squarely on the defendant. The plaintiff firmly denied, in his cross-examination, execution of Ext. 'Kha' by contending that Ext. 'Kha' was not a document of his firm. The burden of proving payment of advance rents was squarely on the defendant. The plaintiff firmly denied, in his cross-examination, execution of Ext. 'Kha' by contending that Ext. 'Kha' was not a document of his firm. The plaintiff also denied that the handwriting and signatures on Ext. 'Kha' were his, own. The plaintiff, in his cross-examination, admitted that the books of accounts, in respect of Mahadeolal Mohanlal, were maintained. The plaintiff also admitted that whatever rents he received from the rented house were entered into his books of accounts and if some advance was taken, then, such advance were also noted in the hooks of account. On being asked, during cross-examination, as to whether he had filed the books of accounts of his firm, the plaintiff stated that he had not filed his books of accounts in the suit. It was suggested to the plaintiff that since Rs.6,101/- was taken in advance, the books of accounts had not been produced. This suggestion was denied by the plaintiff. As the plaintiff, nowhere, admitted receipt of a sum of Rs.6,101/- as advance rent and he also denied to have entered any such payment in his books of accounts, it was the defendant, who ought to have called for the plaintiff's books of accounts so that notwithstanding the denial of receipt of advance rent by the plaintiff, the said denial could be proved to be incorrect and receipt of advance rents, as claimed by the defendant, could be taken as proved. The defendant, however, failed to get the books of accounts called for. The defendant, however, failed to get the books of accounts called for. Had the books of accounts been called for by the defendant and had, in such an event, the plaintiff failed to produce the books of accounts, there was a scope for drawing adverse inference against the plaintiff, but when the burden to prove receipt of payment of said sum of Rs.6,101/- by the plaintiff from the defendant lied on the defendant and the defendant had not called for the books of accounts, the fact that the plaintiff did not produce the books of accounts was a lapse on the part of the defendant and the plaintiff could not have been punished for not producing the books of accounts, when it was, if I may reiterate, open to the defendant to call for the books of accounts and the learned trial Court could have been justified, in such an event, in holding that the plaintiff failed to produce the books of accounts. The decision, in Hiralal (supra), has been distinguished and explained in a latter decision of the Supreme Court, in Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd., reported in (2006) 6 SCC 94 . 15. Coupled with the above, it is true that a defendant is not required to state, in his pleadings, the evidence, which he would produce to prove a fact. However, there can be no doubt that it was, and still remains, a question of fact as to whether rent was paid in advance or not. In such a case, the defendant could not have escaped the liability of stating specifically, in his written statement, that he had paid rent in advance and that there was a receipt issued by the plaintiff in this regard. There was, however, no pleading at all in the written statement to the effect that the said sum of Rs.6101/- was paid as advance rent against a receipt granted by the plaintiff acknowledging receipt of the said amount. In the absence of any pleading, it was rightly pointed out by the learned appellate Court that no amount of evidence could have proved the fact, which had not been stated, in the pleadings, by the defendant. 16. In the absence of any pleading, it was rightly pointed out by the learned appellate Court that no amount of evidence could have proved the fact, which had not been stated, in the pleadings, by the defendant. 16. Because of what have been discussed and pointed out above, is clear that the learned trial Court seriously erred in placing, inadvertently, the burden of proof on the plaintiff as regards payment of rents, in advance, by the defendant to the plaintiff by contending that the plaintiff ought to have produced the books of accounts. I have already indicated above that in the facts and attending circumstances of the present case, apart from the fact that there was no pleading in support of the fact that the advance rents had been paid by the defendant to the plaintiff, the burden rested on the defendant to prove that he had made payment of rents in advance and it was, in the context of the facts of this case, the burden of the defendant to call for books of accounts of the plaintiff and had such books of accounts been called for, adverse inference could have been drawn against the plaintiff for not producing the books of accounts; but when the defendant had failed to call for production of the books of accounts, the plaintiff could not have been blamed for not producing the books of accounts. 17. Coupled with the above, deposit of rent by a tenant, in the Court, in terms of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, is not possible if rent has not been offered to the landlord and refused to be accepted by the landlord. In other words, a tenant acquires the right to deposit rent in Court only and only when the landlord refuses to accept rent on being offered to be paid to him by the tenant. There must, therefore, be evidence on record that rent was offered by the defendant, as a tenant, to the plaintiff, as a landlord, and the plaintiff, as a landlord, had refused to accept rent and the defendant, as a tenant, then, deposited the rent, in the Court, in terms of the provisions of Section 5(4), 18. There must, therefore, be evidence on record that rent was offered by the defendant, as a tenant, to the plaintiff, as a landlord, and the plaintiff, as a landlord, had refused to accept rent and the defendant, as a tenant, then, deposited the rent, in the Court, in terms of the provisions of Section 5(4), 18. The defendant (DW l), in his evidence, claimed that he went to the plaintiff in May, 2000, and requested him to accept the rent, but the plaintiff refused to accept rent and, left with no alternative, he had to deposit rent, in the Court, in May, 2000. The defendant, nowhere, discloses, in his examination-in-chief, on what date he went to offer rent. The defendant was, therefore, cross-examined by the plaintiff on this aspect of his evidence. In his cross-examination, the defendant could not say the date on which he had gone to tender rent to the landlord and the landlord refused to accept the offer so made. Failure on the part of the defendant, to disclose the date on which he had offered the rent to be paid was, in the context of the facts of the present case, a fatal defect in the case inasmuch as in the absence of the date on which offer to pay rent had allegedly been made, the defendant could not have deposited rent in the Court. As the defendant had totally failed to prove the offer of rent to the plaintiff, the deposit of rent, as rightly concluded by the learned appellate Court, was illegal and the same being contrary to the provisions of Section5(4), the plaintiff had, thus, proved that the defendant was a defaulter in respect of payment of rents since My, 1999, and was, therefore, liable to be evicted from the suit premises. The learned appellate Court, on the basis of the finding, as noted above, is wholly justified in reversing the judgment and in decreeing the suit. 19. Because of what have been discussed and pointed out above, I do not find that the findings of the learned appellate Court suffer from any infirmity, legal or factual. The appeal has, therefore, been justifiably allowed on the ground that the plaintiff had proved that the defendant was a defaulter. The decree, so granted, on the ground of the defendant being a defaulter, cannot be interfered with. The appeal has, therefore, been justifiably allowed on the ground that the plaintiff had proved that the defendant was a defaulter. The decree, so granted, on the ground of the defendant being a defaulter, cannot be interfered with. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed with cost Rs. 500/-.