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2015 DIGILAW 215 (CAL)

Maheswar Pramanick v. Chabi Rani Sadhukhan

2015-03-09

DEBANGSU BASAK

body2015
Judgment :- Debangsu Basak, J. In a suit for eviction and for mesne profit I had passed a decree for eviction on May 26, 2014 and had appointed a Special Referee for the purpose of computation of mesne profits. The Special Officer has submitted his report dated December 30, 2014 computing the mesne profits receivable by the plaintiffs from the defendants. The present application is at the behest of the defendant nos. 1b and 7 taking exception to the report dated December 30, 2014 of the Special Referee. Learned Senior Advocate for the defendant nos. 1b and 7 submits that, the Special Referee has proceeded to compute mesne profits on the basis of rent receivable by the Kolkata Port Trust authorities from Lalita Sadhukhan. The documents produced in support of such claim for rent was not adequately proved before the Special Referee. No person from the Kolkata Port Trust authorities came to depose as to the veracity of the contents of the documents produced before the Special Referee. Entries in a statement of account would not foist any liability on his client. He relies upon Section 34 of the Evidence Act, 1872 and All India Reporter 2000 Supreme Court page 426 (Ishwar Dass Jain v. Sohan Lal) in support of his contention. He also contends that, the entries in the statement of account are required to be proved and that in the instant case the same were not adequately proved for the Special Referee to compute the mesne profits. In support of his contention that entries in the statement of account are required to be proved, he relies upon 1912 Volume XV Calcutta Law Journal page 621 (Bibi Imambandi & Ors. v. Haji Motasuddi & Ors.) and All India Reporter 1994 Madras page 140 (Y. Venkanna Chowdry & Anr. v. G. Lakshmidevamma & Ors.). Learned Advocate for the plaintiffs contends that, adequate evidence was placed before the Special Referee to compute the mesne profits. He refers to the definition of mesne profits given in Section 2(12) of the Code of Civil Procedure, 1908. He contends that, the Kolkata Port Trust authorities had given details of the rent receivable in respect of the plots of land in question. Such details are in writing. The same was adequately proved before the Special Referee. He supports the report filed by the Special Referee. He contends that, the Kolkata Port Trust authorities had given details of the rent receivable in respect of the plots of land in question. Such details are in writing. The same was adequately proved before the Special Referee. He supports the report filed by the Special Referee. The report of the Special Referee discloses that the parties had led evidence with regard to the computation of mesne profits before him. The plaintiffs have relied upon letters dated April 29, 2014 marked as Exhibits ‘A’, ‘B’ and ‘C’ and a letter dated April 29, 2014 marked as Exhibit ‘D’ and the details of outstanding rent and interest marked as Exhibits ‘E’, ‘E1’ and ‘E2’. The Special Referee considered the contents of the letters written by the Kolkata Port Trust authorities to Lalita Sadhukhan as well the details of the rent outstanding given by the Kolkata Port Trust authorities being Exhibits ‘E’, ‘E1’ and ‘E2’. The Special Officer noted the respective contentions of the parties and proceeded to give the reasons for the computation of mesne profits. The Special Officer found that the Kolkata Port Trust authorities had by their letter dated April 24, 2014 demanded arrears rent for the period 1975 to April 24, 2014. Such demand included claim for interest. The Special Officer notes that the details of rent outstanding from December 31, 1973 to April 28, 2014 are there on record in respect of Plate No. SB 150/A and SB 151/A and that details of rent and interest from December 31, 1973 to April 28, 2014 is on record in respect of Plate No. SB 150/A. Exhibits ‘E’, ‘E1’ and ‘E3’ give the details of the outstanding rent and interest as on April 28, 2014. In such circumstances Special Officer proceeded to compute mesne profits as detailed in the report. In Ishwar Dass Jain (supra) the Supreme Court has held that, “23. Now under Section 34 of the Evidence Act, entries in “account books” regularly kept in the course of business are admissible though they by themselves cannot create any liability. Section 34 reads as follows: “Section 34: Entries in books of account when relevant– Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability”. Section 34 reads as follows: “Section 34: Entries in books of account when relevant– Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability”. It will be noticed that sanctity is attached in the law of evidence to books of account is the books are indeed “account books i.e. in original and if they show, on their fact, that they are kept in the “regular course of business”. Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court. This is because, from the extracts, it cannot be discovered whether accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a different ink or whether the accounts are in the form of a book with continuous page numbering. Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business. In Bibi Imambandi & Ors. (supra) it has been held that the entries in a books of account have to be proved unless the necessity of such proof is removed by the admission of the opposite party. The view that in every case where the scribe of the entries though alive is not examined, the books of account must be held inadmissible, even though there is other reliable evidence to show that the entries were made in due course of business by the scribes whose writing could be duly identified does not find favour in Y. Venkanna Chowdry & Anr. (supra). It goes on to hold that, the quality of the evidence depends entirely upon the competence and the credibility of the other evidence which fulfils the requirement of proof and that of Section 34 of the Evidence Act, 1872 and the value to be attached to the account books themselves. (supra). It goes on to hold that, the quality of the evidence depends entirely upon the competence and the credibility of the other evidence which fulfils the requirement of proof and that of Section 34 of the Evidence Act, 1872 and the value to be attached to the account books themselves. It also says that, no hard and fast rule on the point should be laid down as it would deprive the Court of a most valuable piece of evidence which may otherwise enable the Court to make up its mind in determining the questions involved in a case. The three authorities cited on behalf of the defendant nos. 1b and 7 do not rule out the consideration of a statement of account and the entries made therein altogether in absence of the scribe thereof being examined. The plaintiffs have established receipt of the letters of demand and the statement of claim. The documents are marked as exhibits before the Special Referee. The contents of the exhibits could be looked into to evaluate the quantum of mesne profits payable by the defendants. The plaintiffs had sought to prove the quantum of demand made by the Kolkata Port Trust authorities in respect of the plots concened. The plaintiffs have duly proved such quantum by establishing the receipt of the documents by the person concerned. The scribe of the documents need not be examined to establish their contents in the facts of this case. In the instant case, Lalita Sadhukhan claims to be a tenant of Kolkata Port Trust. The defendants claim that such tenancy has been terminated. However, the documents marked as exhibits before the Special Referee show that the Kolkata Port Trust authorities have demanded various amounts on account of rent in respect of the plots of land concerned in the suit from Lalita Sadhukhan. The Special Referee relied upon such piece of evidence to return a finding on the computation of mesne profits. The defendants are liable to pay mesne profits for the period as directed in my judgment and decree dated May 26, 2014. The entries in the statement of account marked as exhibits before the Special Referee are not entries for transactions inter se the plaintiffs and the defendants. The entries in such statement are being relied upon to show the quantum of rent prevailing at the material point of time in respect of the plot concerned. The entries in the statement of account marked as exhibits before the Special Referee are not entries for transactions inter se the plaintiffs and the defendants. The entries in such statement are being relied upon to show the quantum of rent prevailing at the material point of time in respect of the plot concerned. In support of the quantum of rent prevailing at the material point of time for the plots concerned, the plaintiffs have relied upon the demands made by the Kolkata Port Trust authorities on Lalita Sadhukhan. The Kolkata Port Trust authorities claim that Lalita Sadhukhan should pay at the rates demanded for the relevant period for occupation of such plots. This piece of evidence in my view could be taken into account by the Special Referee for the purpose of computing the mesne profits. The Special Referee had proceeded to award mesne profits at the same rate as that claimed by the Kolkata Port Trust authorities from Lalita Sadhukhan. The existence or the non-existence of the relationship between the Kolkata Port Trust authorities and Lalita Sadhukhan is immaterial for the purpose of computation of mesne profits in respect of the suit property. The plaintiffs have established before the Special Referee that the Kolkata Port Trust authorities did issue the notices and did submit the statement of claim with Lalita Sadhukhan specifying the rate of rent for the period indicated therein. In my view, the rate of rent prevailing in respect of the plots for the relevant periods stands established by such demands made by Kolkata Port Trust authorities through Exhibits ‘A”, ‘B’, ‘C’, ‘D’, ‘E’, ‘E1’ and ‘E2’. None of the three authorities cited on behalf of the defendant nos. 1b and 7 lay down that the rate of rent appearing from a statement of claim made by the owner on its tenant could not be looked into for the purpose of computing mesne profits in respect of proceedings had between the superior landlord and the tenant of such superior landlord in a suit for eviction between the last two entities. I find no ground to interfere with the report of the Special Referee. The exceptions t the report taken by the defendant nos. 1b and 7 are without any substance. In such circumstances, G.A. No. 319 of 2015 fails. The same is dismissed, however, without any order as to costs. I find no ground to interfere with the report of the Special Referee. The exceptions t the report taken by the defendant nos. 1b and 7 are without any substance. In such circumstances, G.A. No. 319 of 2015 fails. The same is dismissed, however, without any order as to costs. The report of the Special Referee dated December 30, 2014 is accepted. In such circumstances, there will be a decree for mesne profits in favour of the plaintiffs against the defendants in the manner as tabulated in paragraph 21 of the report dated December 30, 2014 of the Special Referee. The plaintiffs have paid the remuneration of Rs.50,000/- to the Special Referee. The plaintiffs will be entitled to costs for the suit assessed at Rs.1,00,000/- from the defendants. The plaintiffs will therefore be entitled to a decree of Rs.1,00,000/- as assessed costs from the defendants. C.S. No. 84 of 1977 is decreed accordingly. The department will draw up and complete the decree as expeditiously as possible.