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2011 DIGILAW 833 (RAJ)

Mohsin Khan v. J. M. Gandhi

2011-04-27

S.S.KOTHARI

body2011
Hon'ble KOTHARI, J.—The appellant (the plaintiff) filed suit for declaration and injunction alleging that he took Shop No.426, Indira Bazar, Jaipur on rent 16 years ago from the respondent (the defendant) on a monthly rent of Rs.250/- which was increased from time to time and the current rent is Rs.500/- per month. The defendant wants to increase the rent to Rs. 1000/- per month. On 13.5.2001 he threatened the appellant that he should vacate the shop peacefully or else his articles will be thrown out of the shop. No rent deed was executed and the defendant did not give any receipt of rent. The plaintiff is an illiterate person and has a tailoring business in the shop. The defendant has also obtained his signatures on some blank papers and he is afraid that he may prepare some forged documents. The plaintiff prayed for a decree of declaration that he is the tenant of the defendant in Shop No. 46 and the defendant may be restrained by permanent injunction from getting him to vacate the shop without following due process of law. 2. The defendant denied the tenancy in his written statement and submitted that he gave the aforesaid shop for use to his daughter, Anjula Gandhi, in 1987 who got furniture, counter, showcase and fittings fixed and got six sewing machines installed in it. She was carrying on business in the name of Stylax Tailors. Later on, due to shortage of time, she was unable to look after the business and she entered into an agreement with the plaintiff on 1.9.1989 for giving him the use of the shop upto 31.8.1991, and in consideration of the said permission, the plaintiff was to pay her Rs. 1000/- per month. After the expiry of the aforesaid licence period, the plaintiff was not entitled to use the shop and other material and the keys of the shop were to be returned to her. The aforesaid period of licence could have been extended by mutual consent of the plaintiff and Anjula Gandhi. On the request of the plaintiff, the said period was extended and the defendant paid Rs. 1000/- per month upto 31.5.2000. The aforesaid period of licence could have been extended by mutual consent of the plaintiff and Anjula Gandhi. On the request of the plaintiff, the said period was extended and the defendant paid Rs. 1000/- per month upto 31.5.2000. As Anjula Gandhi was to go to United States, she transferred her rights of the aforesaid business to the defendant and an agreement was executed between the plaintiff and the defendant on 13.6.2000 under which the shop along with other material was to be used by the plaintiff from 1.6.2000 to 31.5.2001 and he was to pay Rs. 1500/- per month to the defendant. The said period could have been extended by mutual consent of the parties, otherwise the goods and possession of the shop was to be delivered by plaintiff to the defendant. The plaintiff was also to give the keys of the shop to the defendant. It was also agreed between the parties that if disputes and differences arose between them, they ere to be adjudicated by an arbitrator in accordance with the provisions of Arbitration and Conciliation Act, 1996. The said period of license expired on 31.5.2001 and the plaintiff did not hand over the shop along with other material to the defendant. The plaintiff paid Rs. 1500/- per month only upto 31.10.2000 and has not paid the sum for the remaining period. The allegations of the plaintiff in the plaint that the shop was given on rent of Rs. 250/- to him which was subsequently increased to Rs. 500/- and the defendant further wants to increase the rent to Rs. 1000/- are wrong and were denied. The defendant did not go to the shop on 13.5.2001, did not threaten the plaintiff, and has not obtained his signatures on blank papers. The defendant also raised counter claim for the balance amount of licence fee amounting to Rs. 10,500/- and claimed possession of the shop along with material by paying court fee on it. The defendant also prayed that the plaintiff may be restrained from disturbing him in his possession and use of the shop. 3. The plaintiff submitted a reply of the counter claim denying that any agreement was executed between him and Anjula Gandhi on 1.9.1989. 10,500/- and claimed possession of the shop along with material by paying court fee on it. The defendant also prayed that the plaintiff may be restrained from disturbing him in his possession and use of the shop. 3. The plaintiff submitted a reply of the counter claim denying that any agreement was executed between him and Anjula Gandhi on 1.9.1989. The plaintiff did not obtain the shop on licence either from Anjula Gandhi or the defendant but has a tailoring business in the shop which he has taken from the defendant on rent. The defendant is not entitled to get Rs. 10,500/- and the counter claim is liable to be dismissed. 4. On the pleadings of the parties, the trial Court framed 15 issues on 9.1.2004. Mohsin Khan PW-1, Mohd. Rais PW-2, Mohd. Umer PW-3, Girdhari Lal Sharma, PW-4 and Bharat Kumar PW-5 were examined on behalf of the plaintiff and documents Exts. 1 to 8 were produced. G.M. Gandhi DW-1, Abdul Rahim DW-2, Beni Prasad DW-3, Girraj Krishan Khandelwal DW-4 were examined on behalf of the defendant and documents A1 to A23 were produced. After hearing the parties, issue Nos. 1 to 5, 6, 12 were decided against the plaintiff and issue Nos. 7 to 10, 11, 13 and 14 were decided in favour of the defendant. Consequently, the suit filed by the plaintiff was dismissed on 23.5.2006 while the counter claim of the defendant was decreed and the plaintiff was directed to hand over possession of the shop along with other material within a period of two months. The claim for Rs. 10,500/- was also decreed. Aggrieved with the said judgment and decree, the plaintiff preferred an appeal and after hearing the parties, the First Appellate Court concurred with the findings of the trial Court and dismissed the appeal on 22.11.2007 against which this appeal has been filed under Section 100 CPC. 5. I have heard learned counsel for the parties carefully and at length. 6. The learned counsel for the appellant has submitted that the learned courts below have not decided he core issue between the parties, i.e., whether there was relationship of tenant and landlord between the parties or the plaintiff was merely a licensee of the defendant. 5. I have heard learned counsel for the parties carefully and at length. 6. The learned counsel for the appellant has submitted that the learned courts below have not decided he core issue between the parties, i.e., whether there was relationship of tenant and landlord between the parties or the plaintiff was merely a licensee of the defendant. He has further contended that the address of the appellant is mentioned in the license of the shop, telephone bill and passport as 426, Indira Bazar, Jaipur which proves tenancy. According to him, the appellant is an illiterate person and his signatures were obtained on many blank papers by the respondent by saying that documents for lease are to be prepared. His further contention is that the learned First Appellate Court has not applied is mind to the facts of the case and merely quoted the observations of the learned trial Court. In support of his contention, he has drawn my attention to AIR 1977 Allahabad 36; AIR 1990 Kerala 190; AIR 1990 Supreme Court 1173; (2004) 3 SCC 595 and (2004) 12 SCC 368 = RLW 2004(1) SC 140. 7. On the other hand, the learned counsel for the respondent has submitted that both the learned Courts below have carefully analyzed the evidence of the parties and found that the relationship of tenant and landlord did not exist between the parties. The concurrent findings of facts cannot be disturbed by this Hon'ble Court in second appeal. He has also submitted that the appellant has failed to prove that the agreements are forged. According to him, when the learned First Appellate court agreed with the findings of the learned trial Court it was not at all necessary for it to discuss the entire evidence of the parties afresh and record separate findings. Under law it was sufficient for it to express agreement with the findings of the learned trial Court. He has placed reliance on 11 (1990) B.C. 276. 8. I have given thoughtful consideration to the above submissions. Undoubtedly, the main dispute between the parties is whether the plaintiff was tenant of the defendant or the shop was given to him by the defendant on license. The appellant has not produced a rent deed, or any receipt showing payment of rent. On the other hand, two agreements Exts. 8. I have given thoughtful consideration to the above submissions. Undoubtedly, the main dispute between the parties is whether the plaintiff was tenant of the defendant or the shop was given to him by the defendant on license. The appellant has not produced a rent deed, or any receipt showing payment of rent. On the other hand, two agreements Exts. A1 to A2 have been produced by the respondent to show that the shop was given to the plaintiff on license. The learned trial Court has considered the above documents and evidence produced regarding them in detail. Mohsin Khan PW-1 has admitted in his cross-examination that agreements Exts. A1 to A2 bear his signatures. G.M. Gandhi DW-1 has proved Exts. A1 to A2 by saying that signatures A to B on each page of Ext. A1 are of the plaintiff while signatures C to D on each page are of his daughter, Anjula Gandhi. He has also stated that signatures A to B on agreement Ext.A2 on each page are of the plaintiff while signatures C to D on each page are his signatures. He has also stated that signatures E to F and G to H on agreement Ext.A2 are of the witnesses. Thus, the agreements have been duly proved. The contention of the learned counsel for the appellant that the appellant is an illiterate person falls to the ground as the appellant has signed agreements Exts. A1 to A2, last page of plaint and every page of his affidavit and cross-examination. The contention of the appellant that the respondent had obtained his signatures on some blank papers by saying that lease is to be prepared cannot be accepted with regard to the previous conduct of the appellant. Notice dated 23.5.2001 Ext.A5 was sent to the appellant intimating him that as the term of his lease has expired he should hand over vacant possession of the shop and its keys to the respondent. The said notice was received by the appellant as is clear from acknowledgement receipts Exts. A22 and A25. However, the appellant did not respond and protested. No attempt was made by he appellant during the trial of the suit to produce expert evidence to prove the age of his signatures on Exts. A1 to A2 and the age of writing on Exts. A22 and A25. However, the appellant did not respond and protested. No attempt was made by he appellant during the trial of the suit to produce expert evidence to prove the age of his signatures on Exts. A1 to A2 and the age of writing on Exts. A1 to A2 to support his case that they have been prepared on the blank papers signed by him. In these circumstances, the appellant cannot get any advantage of the principles of law laid down in Manohar Lal vs. Rajeshwari Devi and another, AIR 1977 Allahabad 36 and Smt. Dularia Devi vs. Janardan Singh and Others, AIR 1990 Supreme Court 1173 relied by him. On the other hand, the case relied on behalf of the respondent namely, B.M. Ahmed and others vs. K. Ganga Dharan II 1990 B.C. 276 helps him as it has been held in it that the burden of proof is shifted on defendant when he has said that he had left blank stamp papers with his signatures with the plaintiff. The appellant also raised such contention in this case but miserably failed to prove it. 9. The contention of the learned counsel for the appellant is that the learned courts below should have determined the real nature of the document executed between the parties for deciding whether the shop was on rent or on license with the appellant. In support of his arguments, he drew my attention to M/s. Permanand Gulab Chand & Co. vs. Mooligi Visang, AIR 1990 and C.M. Beena and Another vs. P.M. Ram Chandra Rao (2004) 3 SCC 595 . The Hon'ble Apex Court has held that for determining the nature of the document, real intention of the parties is to be deciphered from complete reading of document, if any, and surrounding circumstances including conduct of parties before and after creation of relationship. On applying the above test, it is found that agreements Exts. A1 and A2 created the relationship of licensee and licensor between the parties. This is also fortified by the facts and conduct of the parties especially as the appellant did not protest on getting notice Ext.A5. 10. On applying the above test, it is found that agreements Exts. A1 and A2 created the relationship of licensee and licensor between the parties. This is also fortified by the facts and conduct of the parties especially as the appellant did not protest on getting notice Ext.A5. 10. So far as the contention of the learned counsel for the appellant that the learned courts below have not examined the core issue between the parties raising substantial question of law in view of the law laid down by the Hon'ble Apex Court in Achintya Kumar Saha vs. Nanee Printers and Others (2004) 12 SCC 368 is concerned, it deserves to be mentioned that the trial Court framed issue Nos. 1 to 11 regarding it and after discussing the evidence of parties at great length held that the stand of the plaintiff regarding creation of tenancy is not proved and the defendant has succeeded in proving that the shop was given on license. The First Appellate Court has also given its thoughtful consideration to the above controversy and upheld the findings of the trial Court. Thus, there has been no failure on the part of the courts below in deciding the core issue between the parties. Hence, no substantial question of law arises in this appeal on this count also. 11. The contention of the learned counsel for the appellant that the number of the shop is mentioned as the address of the appellant in various documents is of no importance because that can be true in both cases: whether the shop was with him on rent or license. I have carefully considered the whole case in the light of the submission made by the learned counsel for the parties, evidence adduced by the parties and findings recorded by the Lower Courts and feel that no substantial question of law is involved in this appeal. The Courts below have considered the evidence of the parties carefully and recorded concurrent findings of fact. The Hon'ble Apex Court has held in Gurudev Kaur & Ors. vs. Kaki & Ors. ( AIR 2006 SC 1975 ): "69. Now, after 1976 Amendment the scope of Section 100 has been drastically curtailed and narrowed down. The Courts below have considered the evidence of the parties carefully and recorded concurrent findings of fact. The Hon'ble Apex Court has held in Gurudev Kaur & Ors. vs. Kaki & Ors. ( AIR 2006 SC 1975 ): "69. Now, after 1976 Amendment the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was : (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 70. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis-appreciated either by the lower appellate Court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis-appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. 71. We would like to reiterate that the justice has to be administered in accordance with law. 71. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial question of law." 12. It has also been held in Ramaswamy Kalingaryar vs. Mathayan Padayachi, AIR 1992 SC 115 : "Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of Sec.100, C.P.C., which defines the contours of the power of the High Court in second appeal......" 13. Having carefully considered the facts, evidence and submissions of the parties in the light of aforesaid legal principles laid down by the Hon'ble Apex Court, I feel that no substantial question of law arises in this appeal for decision of this Court. 14. Accordingly, the appeal is dismissed. Costs easy.