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2018 DIGILAW 2846 (MAD)

Parasmal Saremal Jain v. Manilal H. Jain

2018-09-11

T.RAVINDRAN

body2018
JUDGMENT : Challenge, in this second appeal, is made to the Judgment and Decree dated 19.11.2004 passed in A.S.No.424 of 2003 on the file of VI Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 19.09.2002 passed in O.S.No.7269 of 1993 on the file of XIV Assistant Judge, City Civil Court, Chennai. 2. The second appeal has been admitted on the following substantial questions of law: “(i). Is not filing a petition for sending the disputed document for Forensic Department for examination and raising it in the Grounds of Appeal challenging the order in the I.A. Sufficient in law as sufficient steps in challenging the signature in the document? (ii). Is there a valid contract in law for payment of the rent at Rs.1,750/- p.m. Between the Plaintiff and the Defendant? (iii). Whether not questioning the ex-parte decree, which was never executed and which is barred by limitation, act as estopped against the defendant as to the rate of payment rent?” 3. Considering the scope of the issues involved between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the plaintiff has laid the suit against the defendant for recovery of arrears of rent on a monthly rate of Rs.1,750/- commencing from April 1986 to 28.07.1992 amounting to Rs.86,350/- with interest at 6% per annum. According to the plaintiff, the defendant has failed to pay the arrears of rent in respect of the suit property occupied by him as a tenant under the plaintiff for several months as above stated and accordingly, it is stated that the plaintiff has initiated rent control proceedings against the defendant, which ended in favour of the plaintiff and the plaintiff had also taken eviction proceeding and obtained the possession of the suit property and as the defendant had left the arrears unpaid for the above said period, according to the plaintiff, he has been necessitated to lay the suit for the recovery of the same. 5. 5. The defendant has resisted the plaintiff's case contending that there is no arrears of rent and also disputed the quantum of rent put forth by the plaintiff and it is stated by the defendant that the rent payable per month is only at Rs.550/-and not at Rs.1,750/- and therefore, it is further stated that he is not in arrears of rent to the sum of Rs.85,360/- as projected in the plaint and the suit is therefore liable to be dismissed. 6. On the basis of the materials placed on record, it is found that the Courts below, on an appreciation of the materials placed on record, particularly, the agreement marked as Ex.A7 and the letter sent by the defendant to the plaintiff dated 02.09.1985 marked as Ex.A8 and also on comparison of the signature of the defendant available in Ex.A7 agreement, Ex.A8 letter and his signature available in Ex.B1 accordingly, and rightly held that the monthly rent for the property involved is only at Rs.1,750/- per month and accordingly, held that the case of the defendant that the monthly rent is at Rs.550/- is untenable and also found that the defendant has not paid the rent for the period claimed by the plaintiff. However, holding that the rent claimed by the plaintiff up to 15.09.1990 is barred by limitation and the plaintiff, at the most, would be entitled to claim rent only for the period from September 1990 to 28.07.1992 working out the same at Rs.21,000/- after deducting the advance amount of Rs.6,000/- and further, deducting the rent paid by the defendant from 01.09.1990 to 15.09.1990/- amounting to Rs.875/- held finally that the plaintiff is entitled to the arrears of rent at Rs.20,125/- and accordingly, granted the relief in favour of the plaintiff. The above said determination of the trial Court had been confirmed by the first appellate Court. 7. It is seen from the materials placed on record that already a suit had been laid by the plaintiff in O.S.No.2737 of 1986 against the defendant for recovery of the arrears of rent for the period from July 1985 to March 1986 and even in the said lis, the plaintiff had claimed the monthly rent is only at Rs.1750/- and the said suit had ended in favour of the plaintiff ex parte. Further, as rightly determined by the Courts below, when it is further seen from the documents projected in the matter i.e. rental lease agreement dated 11.07.1984 entered into between the parties marked as Ex.A7 and the letter sent by the defendant agreeing the monthly rent at Rs.1750/- marked as Ex.A8 and considering the receipt issued by the defendant marked as Ex.B1, it is found that the Courts below, on an appreciation of the above said materials and also on a comparison of the signature of the defendant available in the above said documents, rightly found that the monthly rent of the suit property is only at Rs.1,750/- per month and the above said determination of the Courts below based on an appreciation of the factual matrix, in this second appeal, the same do not warrant any interference and the defendant's counsel has also not placed any material as such meriting acceptance to interfere with the above said findings of the Courts below. 8. Though the plaintiff had claimed the rental arrears from April 1986 to 28.07.1992, as rightly determined by the Courts below, the claim of rental arrears up to 15.09.1990 is found to be hit by the law of limitation and accordingly, it is found that the plaintiff would be entitled to claim arrears of rent only from September 1990 to 28.07.1992 and deducting the advance amount of Rs.6,600/- and the rent of a sum of Rs.875/- paid by the defendant from 01.09.1990 to 15.09.1990, it is found that the plaintiff would be entitled to claim the rent arrears only a sum of Rs.20,125/-. As rightly determined by the Courts below, the pendency of the rent control proceeding between the parties would not be a bar for the plaintiff to institute the suit for claiming the arrears of rent in time and therefore, it is seen that the Courts below are justified in rejecting the arrears of rent claimed by the plaintiff prior to 15.09.1990. 9. The Counsel for the defendant contended that though the defendant had taken steps to compare the signature of the defendant available in the projected documents, it is his argument that inasmuch as the same had been rejected by the trial Court, the first appellate Court had erred in rejecting the defence version on the footing that the defendant has failed to send the disputed signature available in Ex.A8 for comparison. However, as above noted, when it is found that the Courts had endeavoured to compare the signatures of the defendant as admitted by him with the disputed signature and had given reasons for coming to the conclusion that the disputed signatures tally with the admitted signatures and accordingly, noting that the defendant himself had admitted the monthly rent at Rs.1,750/- and even in the earlier suit, the plaintiff had averred about the monthly rent at Rs.1,750/-, it is seen that the Courts below are justified in upholding the claim of the plaintiff that the monthly rent for the suit property is only at Rs.1,750/- as agreed to between the parties and therefore, the defendant cannot be allowed to contend that there is no valid agreement between the parties for the monthly rent at Rs.1,750/- as such. 10. The plea of estoppel projected by the defendant cannot be accepted in disentitling the plaintiff's claim of rental arrears, to which, he is lawfully entitled to claim and accordingly, it is found that in my considered opinion, no substantial question of law is found to be involved in this second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are accordingly answered against the defendant and in favour of the plaintiff. For the reasons afore stated, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.