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2017 DIGILAW 364 (JHR)

Dhirendra Prasad v. Ravi Kumar

2017-02-20

AMITAV K.GUPTA

body2017
ORDER : This second appeal has been preferred against the judgment and decree passed in Title Appeal No.64/2008 dated 27th May, 2015 by District Judge-X, Dhanbad, affirming the judgment and decree of Munsif-II, Dhanbad, for eviction of the appellants from the suit premises on the grounds of default and personal necessity in Title (E) Suit No. 6/2004. 2. For sake of convenience, parties herein plaintiffs/respondents and defendants/ appellants shall be referred as plaintiffs and defendants. Defendant are the appellants and plaintiff is the respondent. Plaintiffs' case is that the defendants had defaulted in payment of rent from October, 2003. It is stated that his son is unemployed and he requires the suit premises for stating a business, namely, grocery shop for his son. That in terms of the agreement dated 31.5.1994, the defendant was inducted as a tenant on a monthly rent of Rs. 400/- which was subsequently enhanced to Rs. 500/- per month. That the defendants defaulted in payment of rent since October, 2003. That plaintiff, by notice dated 17.3.2003, asked the defendants to vacate the suit premises but the defendants did not vacate the premises and replied by making concocted allegation. It is averred that plaintiff is residing in the rear portion of the suit premises detailed in Scheduled A of the plaint and the portion of suit premises in occupation of the defendant is required for starting a grocery business for his unemployed son. 3. The defendants contested the suit and filed their written statement denying any relationship of landlord and tenant between the plaintiff and defendants. The defendants asserted that the plaintiffs father was not the absolute owner of the property and the defendants were not the tenant of the plaintiff and denied execution of the agreement dated 31.5.1994. The defendant pleaded that the suit property belonged to Rameshwar Prasad Singh, who died leaving behind three sons and four daughters and in the absence of other legal heirs and representatives of the original owner, the suit is bad for non-joinder of necessary parties. The defendants admitted about receipt of the notice dated 17.3.2003 and the reply dated 31.3.2003 sent by them. It is stated that the plaintiff had tried to evict the defendants from the suit property with the help of local police and goons whereupon the defendants had sent notice dated 23/25.3.2004 to the plaintiff. The defendants admitted about receipt of the notice dated 17.3.2003 and the reply dated 31.3.2003 sent by them. It is stated that the plaintiff had tried to evict the defendants from the suit property with the help of local police and goons whereupon the defendants had sent notice dated 23/25.3.2004 to the plaintiff. It is averred that the plaintiff does not require the suit premises in good faith, because the plaintiff has constructed a double-storeyed building and three shop-rooms have been constructed in the said building which have been rented out. That in fact, the plaintiff wants to let out those premises on exorbitant rent after realizing hefty advance amount (pagri). That the plaintiff is running a canteen at Daria railway station since the time of his father. The defendants have admitted that the suit premises was let out in the year 1951-52 on a monthly rental of Rs. 13/- or 15/- and they have been running their business since then. That after demise of Rameshwar Prasad Singh, the father of the plaintiff used to collect rent on behalf of all the co-sharers. That in 1954, when the condition of the building deteriorated, the defendant requested the father of the plaintiff and other co-sharers to repair the same and they agreed to get it repaired and asked the defendant to bear the expenses of the repair and by agreement dated 31.5.1994, it was agreed that amount of Rs. 20,000/- invested by the defendant would be returned by them, but the father of the plaintiff cunningly converted the agreement into all agreement of fixed tenancy. That the defendant came to know about this fact on receipt of the pleader's notice whereupon he sent the reply vide notice dated 31.3.2003. It is stated that the plaintiff had taken an advance of Rs. 10,000/- from the defendant at the time of marriage of the sister of the plaintiff and a receipt was granted for the same and it was agreed that the aforesaid amount would be adjusted by deduction of Rs. 300/- per month against the monthly rent of Rs. 500/-. It is stated that the plaintiff has suppressed all these material facts and the defendants have not defaulted in payment of rent. On the above grounds, it is averred that the suit as framed is not maintainable and is fit to be dismissed. 4. 300/- per month against the monthly rent of Rs. 500/-. It is stated that the plaintiff has suppressed all these material facts and the defendants have not defaulted in payment of rent. On the above grounds, it is averred that the suit as framed is not maintainable and is fit to be dismissed. 4. On the pleadings of the parties, as many as 10 issues were framed. Oral and documentary evidence were adduced by both the parties. On the basis of the evidence on record, the relevant issues regarding existence of relationship of landlord and tenant, the requirement of the suit premises in good faith for personal occupation of the plaintiff and whether the defendant had defaulted and violated the terms of the agreement were decided against the defendant and the suit was decreed in favour of the plaintiff. The defendant preferred Title Appeal No. 64/2008 and District Judge-X, Dhanbad, after hearing the parties framed points for determination and on examination and discussion of the oral and documentary evidence, affirmed the decree and judgment of the trial Court. Being aggrieved with the first appellate Court's judgment, the defendant/appellant has preferred this second appeal. 5. Learned counsel for the appellant-defendants has argued and tried to set-up substantial question of law contending that the trial Court and the appellate Court have failed to appreciate that Ext. 2, which is the agreement dated 31.5.1994, is forged and fabricated as the Courts below have not appreciated and taken note of the fact as evident from the first page of the agreement that the stamp paper was purchased in the year 1998 whereas the agreement is alleged to have been executed on 31.5.1994 and the Courts below have committed error in not considering the fact that by such tampering of the document/agreement, the plaintiff has committed fraud on the Court, hence the suit should have been dismissed on this score itself. Learned counsel has relied upon the decision rendered in the case of A.V. Papayya Sastry & Ors. v. Government of A.P. & Ors. reported in 2007 (2) JLJR 183, and submitted that it is settled proposition that if any judgment or order is obtained by fraud, it cannot be said to be a judgment, decree or order in law and judgment and decree is a nullity in the eye of law. 6. v. Government of A.P. & Ors. reported in 2007 (2) JLJR 183, and submitted that it is settled proposition that if any judgment or order is obtained by fraud, it cannot be said to be a judgment, decree or order in law and judgment and decree is a nullity in the eye of law. 6. The second limb of argument of learned counsel is that as per the written statement, there is specific averment that default in payment of rent was from October, 2003 but the trial Court, without appreciating that there is no pleading that the defendant had defaulted in payment from February, 2003 to September, 2003, has committed error by relying on Ext. B/8. That in fact, Ext. B/8 was a documentary evidence supporting the plea of the defendant that the said amount was paid by him towards adjustment of the advance of Rs. 10,000/- taken by the plaintiff. That the trial Court and the appellate Court have not taken note of the evidence of the witnesses who have supported the fact that the plaintiff has been running a canteen at Daria railway station, hence the premises was not required in good faith by the plaintiff and the finding that plaintiff requires the premises in good faith is perverse and against the weight of evidence on record. 7. Heard. It is abundantly clear that the questions raised by the learned counsel for the appellants are questions of fact. The argument that the Courts below have committed error in not appreciating the fact that Ext. 2 was obtained by fraud is not tenable because the defendant has admitted the existence of Ext. 2, as would be evident in the discussion made in para 20-21 of the judgment of the Court below. It is admitted by the defendant that he has been paying rent and the evidence thereof, has been discussed in detail by the appellate and trial Courts. The appellate Court has meticulously examined and discussed the evidence and answered the arguments advanced on behalf of the counsel for the defendant/appellants and recorded its satisfaction in paragraph 15 of the judgment as follows :- ".......If there would have been any amount due, the defendant would not pay a lump sum amount of Rs. The appellate Court has meticulously examined and discussed the evidence and answered the arguments advanced on behalf of the counsel for the defendant/appellants and recorded its satisfaction in paragraph 15 of the judgment as follows :- ".......If there would have been any amount due, the defendant would not pay a lump sum amount of Rs. 3,500/- on 23.9.2003, but in the month of October when he paid the rent for the month of September and the plaintiff has granted the rent receipt the defendant very cleverly added and manipulate so (sic) (manipulated). On perusal of written statement, it does not speak any where regarding any tender or remittance of rent to the plaintiff either by money order or by cash if paid rent, after September, 2003. There must be specific pleading in the written statement. From the above discussion, it is crystal clear that the defendant lastly paid rent @ Rs. 500/- per month up to September, 2003 and thereafter he did not pay any agreed rent to the plaintiff since October 2003 onwards and the defendant is clearly a defaulter." Thus, argument of the learned counsel that the Courts below have erred in holding the defendant to be a defaulter from February, 2003 to September, 2003, is against the pleading, is not sustainable as the appellate Court has categorically held that the defendants have not produced any document to support the pleading that they had paid the rent from October, 2003, onwards and rightly arrived at the finding that the defendants were defaulters from October, 2003 since no rent receipt was produced after October, 2003. 8. At this stage, it would be relevant to point out that under Section 100 of the Code of Civil Procedure, the scope of interference by the High Court is curtailed with respect to concurrent finding of facts recorded by the Courts below. The first appellate Court is the final Court of fact and law. The interference of the High Court is permissible in exceptional circumstances when perversity in the findings on fact is writ large on the face of the record. The first appellate Court is the final Court of fact and law. The interference of the High Court is permissible in exceptional circumstances when perversity in the findings on fact is writ large on the face of the record. In the case of Kulwant Kaur v. Gurdial Singh Mann reported in (2001) 4 SCC 262 , it has been held that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures, giving rise to an element of perversity, then interference can be entertained. On perusal of the impugned judgment of the lower appellate Court, it is abundantly clear that there is no perversity in the findings of the appellate Court. The appellate Court has considered and discussed the evidence of the parties in threadbare details while upholding and affirming the judgment and decree of the trial Court. 9. In the case of Damodar Lal v. Sohan Devi & Ors., reported in 2016 (1) JCR 304 (SC) : (2016) 3 SCC 296 in para 29, the Supreme Court has observed that the suit for eviction of the tenant under the rent laws is concerned, the same is maintainable even in case the co-owners are not joined as parties. It is established principle that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and no defence is open to the tenant to question the maintainability of the suit on the ground of non-joinder of other co-owners as parties to the suit. 10. On perusal of the judgment of the Courts below, this Court is of the considered opinion that in the absence of any perversity in the findings on facts and in law, no substantial question of law is involved and impugned judgment does not suffer from any illegality or infirmity meriting any interference by this Court. In the result, this second appeal stands dismissed.