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Madhya Pradesh High Court · body

2013 DIGILAW 28 (MP)

S. L. Jain v. Ayodhya Prasad

2013-01-03

A.K.Shrivastava

body2013
ORDER 1. This revision under section 115 of the Code of Civil Procedure, 1908 has been filed by the defendant assailing the judgment and decree dated 14.9.2001 passed by Additional District Judge, Khurai, District Sagar in Civil Appeal No.9-B/1999 whereby the judgment and decree dated 27.9.1999 passed by learned Civil Judge, Class I, Beena in Civil Suit No.1-B/1995 has been partly reversed and set aside. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this revision application. Suffice it to say that a suit for realisation of rent as well as for electricity charges and the Municipal taxes has been filed by the plaintiff-respondent with a prayer that although the rented house has been vacated by the defendant, but, the payment towards the rent, electricity charges and the house tax have not been paid to the plaintiff. Thus, a suit to decree a sum of Rs.15,500/- along with interest @ 24% per annum has been filed by the plaintiff. 3. The defendant-applicant refuted the plaint averments by filing written statement and it has been pleaded that certain amount of rent was deposited in the Bank through cheques and Rs.8,000/- in cash was given to the plaintiff against which no receipt was given by the plaintiff and, therefore, the defendant is not required to pay any amount to the plaintiff. 4. The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit holding that the defendant is liable to pay a sum of Rs.15,500/-to the plaintiff and he shall also bear the cost of plaintiff incurred in the suit. 5. Against the judgment and decree passed by learned trial Court the defendant went in appeal and the learned First Appellate Court by the impugned judgment and decree partly allowed his appeal and modified the decree by directing the defendant to pay rent for one year @ Rs.8,000/ per month, in total Rs.9,600/- and also the electricity charges Rs.655/- and thus, decreed the suit of plaintiff to the tune of Rs.10,255/- only. The learned First Appellate Court further directed that upon the decreetal amount the defendant shall bear the cost of the plaintiff. 6. In this manner this revision has been filed by the defendant. The learned First Appellate Court further directed that upon the decreetal amount the defendant shall bear the cost of the plaintiff. 6. In this manner this revision has been filed by the defendant. The contention of learned counsel for the applicant is that there is overwhelming material in order to hold that no amount is due upon the defendant because there is specific pleading of the defendant that entire rent has been paid to the plaintiff and the electricity charges have also been paid. Learned counsel has invited my attention to the oral testimony of the defendant who has stated that in the presence of the witnesses a sum of Rs.8,000/- which was towards the arrears of rent was paid to the plaintiff and has also stated that the electricity charges and other expenses were also paid to him. He further submits that the evidence of the defendant has been corroborated by the witnesses examined by him and who have also stated in their testimony that defendant paid the entire rent due upon him to the plaintiff in their presence. Hence, it has been prayed that by allowing this revision application the impugned judgment and decree passed by learned two Courts below be set aside and the suit of the plaintiff be dismissed in toto. 7. Despite the plaintiff-respondent has been served, nobody has put appearance on his behalf. Having heard learned counsel for the applicant and perusal of the record of the learned two Courts below, I am of the view that this revision application deserves to be dismissed. 8. Admittedly, the defendant-applicant was the tenant of respondent-plaintiff. It is further not in dispute that the tenanted premises has been vacated by the defendant. The question now hinges as to whether before vacating the tenanted premises the defendant cleared all the dues which were payable i.e. the rent of the tenanted portion, electricity charges as well as the house tax. On bare perusal of the judgment of learned First Appellate Court from para 8 onwards it is gathered that on 25.11.1992, 25.12.1992 and 25.2.1993 a sum of Rs.800/-, Rs.877/- and Rs.1,600/- respectively was paid to the plaintiff through cheques. The plaintiff in his testimony has not denied such payment. On bare perusal of the judgment of learned First Appellate Court from para 8 onwards it is gathered that on 25.11.1992, 25.12.1992 and 25.2.1993 a sum of Rs.800/-, Rs.877/- and Rs.1,600/- respectively was paid to the plaintiff through cheques. The plaintiff in his testimony has not denied such payment. Not only this, on behalf of plaintiff, Rajesh Kumar (PW1) who is an employee of the State Bank of India, Beena Branch has been examined who along with the record of the Bank (Ex.P-1 to P-8) appeared in the Court and the learned First Appellate Court in para 9 on the basis of such documentary evidence categorically held that the payment of the aforesaid amount to the plaintiff through cheques has been proved. The learned First Appellate Court further came to hold that the aforesaid amount has also been debited from the account of the defendant and has been credited in the account of the plaintiff on the basis of Bank record. The learned First Appellate Court further arrived at a conclusion on the basis of evidence placed on record that except the aforesaid cheques no other amount has been debited from the account of the defendant and has been credited in the account of plaintiff. Thus, the learned First Appellate Court rightly held that a sum of Rs.800/-, Rs.877/ and Rs.1,600/- has been paid to the plaintiff towards rent which was paid to him through cheques. 9. The learned First Appellate Court after marshalling the oral and documentary evidence in para 10 has rightly held that an amount of Rs.8,000/- has been said to be paid to the plaintiff by the defendant but no receipt thereof has been filed, although the defendant has examined Devraj Singh (DW2) and Babulal (DW4) who have stated in their testimony that in their presence the defendant paid a sum of Rs.8,000/- to the plaintiff. However, the learned trial Court after marshalling their evidence came to hold that there is inconsistency in the statement of the witnesses and the dates are not certain and, therefore, no reliance can be made upon their testimony. According to me, once the defendant by accepting his liability to make payment has stated that he has paid Rs.8,000/- towards rent, the burden of proof under section 102 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) shifts on his shoulder. According to me, once the defendant by accepting his liability to make payment has stated that he has paid Rs.8,000/- towards rent, the burden of proof under section 102 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) shifts on his shoulder. The facts of the present case are akin to that of illustration (b) to section 102 of the Evidence Act. For better understanding it would be relevant to quote section 102 of the Evidence Act and illustration (b) to the said section, which reads, thus : “102. On whom burden of proof lies. -- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations : (a) xxx xxx (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.” 10. True, the defendant has examined the witnesses in whose presence the payment was made, but, according to me, rightly their evidence has not been accepted by the learned First Appellate Court that there are material inconsistencies in regard to the date on which the payment was made and further very cogent reason has been assigned by learned First Appellate Court that much before making such payment as alleged by defendant that it was made in the year 1993, the dispute between the parties arose in regard to the ejectment of the defendant from the tenanted premises and certainly in that situation if any payment towards rent was made by the defendant, he would have certainly obtained receipt from the plaintiff. 11. The learned First Appellate Court has rightly assigned another reason in not accepting the defendant’s plea that before making such a payment, notice of eviction (Ex.D-1) was also served upon the defendant and, therefore, it cannot be inferred that any such payment was made by the defendant towards rent without obtaining any receipt. 12. The learned First Appellate Court in para 15 has rightly held that defendant was required to pay the electricity charges. 12. The learned First Appellate Court in para 15 has rightly held that defendant was required to pay the electricity charges. By relying upon the testimony of the defendant himself it has been held by the learned First Appellate Court that there is admission of defendant in his testimony that apart from the rent Rs.800/- per month it was settled between the parties that the electricity charges shall be paid separately by the defendant. By further marshalling the documentary evidence it has been found that although the rent was @ Rs.800/- per month but the cheque which were paid towards rent by the defendant were of little higher amount, therefore, it can be gathered and inferred that the excess payment above Rs.800/- was towards payment of electricity charges. It is well settled in law that civil cases are to be decided on the basis of preponderance of probabilities. Thus, by marshalling the documentary and oral evidence vis-a-vis to each other, if a finding has been arrived at by learned First Appellate Court that the electricity charges were not paid by defendant, I do not find any illegality in it. 13. The learned First Appellate Court has rightly held in para 16 onwards that the house tax is not required to be paid by the defendant, because it was to be paid by the plaintiff only being the owner of the house. Even otherwise that finding against the plaintiff, by not decreeing the suit for the payment of house tax, has not been assailed by the plaintiff by filing any revision application. 14. I have gone through the findings rendered by the learned First Appellate Court decreeing the suit of plaintiff to the extent of Rs.10,255/ and further directing the defendant to bear the cost of plaintiff upon the decreetal amount and I do not find any illegality in it. It is well settled in law that the finding of fact how far gross erroneous it may be, cannot be interfered while exercising the jurisdiction under section 115 CPC even if the order impugned is wrong. In this regard I may profitably place reliance upon the decision of the Supreme Court The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad [ AIR 1973 SC 76 ]. In this regard I may profitably place reliance upon the decision of the Supreme Court The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad [ AIR 1973 SC 76 ]. In the present case, I do not find even any gross error in arriving such a finding. 15. Resultantly, this revision fails and is hereby dismissed by affirming the judgment and decree passed by learned First Appellate Court. Since nobody is appearing on behalf of the plaintiff to oppose the revision, parties are hereby directed to bear their own costs so far as this revision application is concerned.