Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2678 (ALL)

Mahesh Kumar Soni v. Hariom Sahu

2017-11-20

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Rejoinder affidavit filed today is taken on record. Heard Sri W.H. Khan, learned Senior Counsel assisted by Sri Ramanuj Pandey, learned counsel for the petitioner and Sri Udayan Nandan, learned counsel appearing on behalf of respondent and perused the record. 2. Present petition has been filed for setting aside the order dated 23.08.2017 passed by the Additional District Judge/Special Judge Dacoity affected area, Banda and the judgment and decree dated 4.10.2013 passed by the JSCC/Civil Judge (S.D.) Banda. 3. Facts of this case, in brief, are that initially the plaintiff (respondent herein) filed a suit in the year 2006 against the tenant (petitioner herein) for arrears of rent and for ejectment from the shop in dispute claiming that the U.P. Act 13 of 1972, (hereinafter referred to as the Act) was not applicable. A notice for termination of tenancy was given to the tenant. A written statement was filed wherein no opposition was made to the non-applicability of the Act and it was accepted that the U.P. Act 13 of 1972 is not applicable in the present case. Ultimately, the suit was dismissed vide judgment and order dated 19.1.2012 against which plaintiff/respondent filed revision, which was allowed and the matter was remanded back to be decided afresh. The trial court was also directed to frame an issue as to whether in the present case the Act would be applicable or not and the parties were permitted to lead their evidence on this issue. When the case was decided again, on the issue regarding applicability of the Act, it was held that the Act is not applicable. Against the same revision was filed by the tenant wherein it was admitted that the Act is not applicable in the present case. 4. Now while challenging the impugned judgments, the ground of applicability of the Act is being taken for the first time by the tenant. It may be noticed that in the written statement also, the applicability of Act was admitted and in the revision also, filed in the year 2013, the applicability of the Act was admitted and the revision was filed on other grounds. 5. On the previous date after hearing the parties at length, learned counsel for the parties were granted time to exchange pleadings. 5. On the previous date after hearing the parties at length, learned counsel for the parties were granted time to exchange pleadings. Since it was argued that only photocopy of the sale-deed dated 14.12.1993 was filed before the Court below therefore, the same was not admissible in evidence for holding that the Act is not applicable therefore, it was insisted by learned counsel for the petitioner that the original record may be summoned by special messenger. The permission was granted vide order dated 1.11.2017 and the original record is before this Court. 6. On perusal of record, I find that certified copy of the registered sale deed dated 14.12.1993 was filed before the Court below, which was numbered as Paper No. 25 (Ga) 1 to 12. Certified copy of the map submitted before the Development Authority was also placed before the Court below, which was numbered as paper no. 26 (Ga) (1). Incidentally, I have also perused the (second) revision filed by the petitioner being SCC Re-revision No. 52 of 2013, wherein in categorical terms it has been again admitted that the Act is not applicable in the present case. This revision was filed challenging the judgment and order dated 4.10.2013 passed by the trial Court after the matter was remanded back to the trial for framing an additional issue regarding applicability of the Act. It was held by the trial Court that the Act is not applicable in the present case. Clearly, after the issue was framed and decided by the Trial Court, this finding was accepted by the tenant and revision was filed admitting that the Act is not applicable in the present case and the issue on other ground regarding default in payment of rent, if any, committed were taken. 7. Now before this Court Sri W.H. Khan, learned Senior Counsel has argued that even if certified copy of the sale-deed is placed before the Court below, the same could not have been considered in view of section 65 of the Indian Evidence Act and submitted that since the original record was in possession of the landlord, therefore, the certified copy could not have been considered for deciding the issue as the same was not admissible in evidence and the landlord had no option but to produce the original record of the sale deed, which was not done, hence finding on this issue is incorrect. He further submitted that the issue as to whether the Act is applicable or not, the burden was wrongly shifted to tenant whereas it is primary burden of the landlord to prove this issue. Regarding admissibility of the evidence, in support of his submissions, he has placed reliance on the judgments of Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another, (2003) 8 SCC 752 ; J. Yashoda v. Shobha Rani, (2007) 5 SCC 730 ; DR. Jeevan Bahadur Samaddar v. Goving Charan Samaddar and others, (2013 All. C.J. 1370). 8. In support of his argument that the burden was wrongly shifted to the tenant to prove that the Act is applicable or not, learned Senior counsel has placed reliance on the judgments of Hon'ble Apex Court in the case of Rangammal v. Kuppuswami and another, (2011) 12 SCC 220 and Shafiq Ahmad v. Additional District & Sessions Judge, Bijnor, 2003 (50) ALR 629. 9. Per contra, Sri Udayan Nandan, learned counsel for the respondents has submitted that no interference is warranted in the present case as it is an admitted case of the tenant that the Act is not applicable in the present case. He submits that the tenant has admitted this in his written statement and when the revisional Court remanded back the matter to the trial Court for framing such issue, the matter was decided in favour of landlord by the trial court. In Re-revision No. 52 of 2013, which was filed challenging the judgment and order dated 4.10.2013 passed by the trial court it was again admitted that the Act is not applicable, submission is that in such view of the matter, no such issue can now be raised by the learned Counsel for the petitioner. 10. I have considered the rival submissions and perused the record. Once it was admitted in written statement and thereafter in the Re-revision No. 52 of 2013, which was filed challenging judgment of the trial Court dated 4.10.2013 herein issue regarding applicability of the Act 13 of 1972 was decided in holding that the Act is not applicable, this Court is of the opinion that now this issue cannot be agitated before this Court. However to avoid any further litigation the arguments of learned counsel for the petitioner are being considered. 11. However to avoid any further litigation the arguments of learned counsel for the petitioner are being considered. 11. Much reliance has been placed on section 65 (a) of the Indian Evidence Act by learned counsel for the petitioner. It is not in dispute that certified copy of the sale deed dated 14.12.1993 was filed before the trial court. 12. To appreciate the submission of learned counsel for the petitioner, relevant section being Sections 61, 62, 63, 64, 65, 74, 75, 76 and 77 of the Indian Evidence Act 1872 are quoted as under:- "61. Proof of contents of documents. - The contents of documents may be proved either by primary or by secondary evidence. 62. Primary evidence.- Primary evidence means the document itself produced for the inspection of the Court. 63. Secondary evidence. - Secondary evidence means and includes -- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. 64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. 64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:- (a) when the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 74. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 74. Public documents.- The following documents are public documents:- (1) documents forming the acts or records of the acts - (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; (2) Public records kept in any State of private documents. 75. Private documents.- All other documents are private. 76. Certified copies of public documents.-Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. 77. Proof of documents by production of certified copies.-Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. (Emphasis supplied) 13. A reference may also be made to section 51(1) of the Registration Act, 1908 which provides that following book shall be kept in several offices hereinafter named and it includes in Clause A-In all Registration Offices/Book (1) register of non-testamentary documents regarding the immovable property, relevant extract whereof is quoted as under: "51. Register-books to be kept in the several offices.-(1) The following books shall be kept in the several offices hereinafter named, namely:- A- In all registration offices- Book 1, "Register of non-testamentary documents relating to immovable property". Book 2, "Record of reasons for refusal to register". Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register". Register-books to be kept in the several offices.-(1) The following books shall be kept in the several offices hereinafter named, namely:- A- In all registration offices- Book 1, "Register of non-testamentary documents relating to immovable property". Book 2, "Record of reasons for refusal to register". Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register". B-In the offices of Registrars- Book 5, "Register of deposits of wills". section 57(1) of the Registration Act, 1908 is also quoted as under:- "Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries:- (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies." (Emphasis supplied) 14. Section 61 of the Indian Evidence Act provides that the documents may be proved either by primary or secondary evidence. According to Section 62 primary evidence means documents itself produced for inspection of the Court. As per Section 63 secondary evidence means a certified copy given under the provisions hereinafter contained which has direct reference to section 76 of the Indian Evidence Act. Section 64 provides that for documents must be proved by primary evidence except in the cases hereafter mentioned. 15. In Section 65 cases in which secondary evidence of a document may be given is provided. 16. Learned Counsel for the petitioner has placed reliance on section 65(a) of the Indian Evidence Act which is to the effect that when the original documents shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of or not subject to, the process of the Court or of any person legally bound to produce it and when after the notice mentioned in Section 66, such person does not produce it. Although it was not required in the present case to produce original, but still record nowhere reflects that any such notice was given to the plaintiff. 17. Although it was not required in the present case to produce original, but still record nowhere reflects that any such notice was given to the plaintiff. 17. It is pertinent to note in Clause (e) which provides that when original document is a public document within a meaning of Section 74 the secondary evidence may be given. It has been further explained in Clause (f) itself that when the original is a document of which a certified copy is permitted by this Act, or any other law in force in India to be given in evidence. 18. It has further been clarified in the section itself that in case of (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible. Section 74 provides for public document. Section 74 (2) clearly provides for public record kept (in any State) of private documents. Section 75 specifies that all other documents are private. Section 76 is regarding the issuance of certified copies of the public documents. Section 77 clearly provides that such certified copies may be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies. 19. A reference of the above noted provisions, including provisions of the Registration Act as noticed above, clearly proves that although sale-deed is a private document executed between two private parties, however after registration of the sale-deed it falls within a category of public record as per Section 74 (2) of the Evidence Act and as per section 77 of the Evidence Act such documents can be proved by producing certified copies thereof. 20. It is, therefore, clear that all such private documents can be proved by producing certified copies thereof and the same are admissible under the Indian Evidence Act. In such view of the matter the submission of the learned counsel for the petitioner is liable to be rejected and is hereby rejected. 21. 20. It is, therefore, clear that all such private documents can be proved by producing certified copies thereof and the same are admissible under the Indian Evidence Act. In such view of the matter the submission of the learned counsel for the petitioner is liable to be rejected and is hereby rejected. 21. Insofar as submission of learned counsel for tenant that the burden to prove as to whether the Act is not applicable was on the landlord, whereas the burden was wrongly shifted on the tenant to prove that the Act is applicable, as already noticed, not only in the written statement but even while filing the revision in the year 2013 in the revision itself, it was admitted by the tenant that the Act is not applicable in the present case. 22. Admission is the best of piece of evidence and therefore, I do not find that any illegality was committed by the trial Court. Even otherwise, the dispute regarding applicability of Act was raised by the tenant only in the shape of oral evidence, whereas the landlord has produced the certified copy of sale deed executed in his favour as well as certified copy of map submitted before the Development Authority. These documents were not demolished by the tenant by producing any documentary evidence. In such view of the matter, I do not find any legal infirmity or the jurisdictional errors in the orders impugned herein. 23. It was also submitted that the finding of rent of Rs. 600/- was decided in favour of the tenant which has not been disputed by the landlord and therefore, the same has to be treated to be final. 24. Sri Udayan Nandan, learned counsel appearing for the landlord submits that he has no grievance against same. 25. All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity in the orders impugned herein. 26. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 27. 26. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 27. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed. 28. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.6.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 1,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.6.2018 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 29. Sri Udayan Nandan has states that the landlord shall bear the cost of sending the matter back by the special messenger. 30. Office is directed to return back the original record of the concerned court within ten days by Special Messanger.