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2018 DIGILAW 63 (ALL)

Chaman Lal and Sons v. Awadh Kumar Agarwal

2018-01-08

ANJANI KUMAR MISHRA

body2018
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Tarun Agrawal, counsel for the revisionist and Shri Manish Tandon, counsel for the opposite party. 2. This is a SCC revision, filed by the tenant challenging the order dated 16.08.2016, decreeing the plaintiffs opposite parties suit for eviction, arrears of rent and damages. 3. The dispute pertains to a shop in the tenancy of the revisionist. The respondent filed the suit alleging that the tenant was in arrears of rent from 01.04.1995 to 31.10.2000 as also of the sewer and water tax, calculated @ 18%. A notice dated 14.11.2009 was sent by registered post through Advocate calling upon the tenant to pay the arrears within 30 days. The notice was served on 18.11.2009. The same was not complied with and therefore, the tenant was liable to be evicted. Damages @ Rs. 5,000/- per month was also claimed w.e.f. 19.12.2009, when the status of the tenant became that of an unauthorized occupant. It was also stated that only the preceding three years rent could be claimed as any claim for the remainder was barred by time. 4. The revisionist filed his written statement denying the receipt of notice and also the allegation of arrears. It was stated that the rent up to 28.10.2008, had been paid. 5. It was also stated that the original landlord was Ayodhya Prasad and upon his death, his widow Kishori Devi was paid the rent. When she died in 1996, the rent was paid to the co-owners, the sons of Ayodhya Prasad and Kishori Devi. The plaintiff opposite party is their fourth son. The rent was paid yearly and that the entire arrears had been deposited prior to the first date of hearing and therefore, the benefit of sub-section 4 of Section 20 was liable to be extended to him. 6. It appears that the tenant revisionist failed to deposit the monthly rent due to which, his defence was struck off. The order striking of the defence has admittedly been affirmed up the Apex Court. 7. Counsel for the revisionist submitted that the landlord opposite party never appeared in the witness box to prove his case. On his behalf, his son as deposed before the trial Court. The son alleges himself to be the power of attorney holder of the landlord. The order striking of the defence has admittedly been affirmed up the Apex Court. 7. Counsel for the revisionist submitted that the landlord opposite party never appeared in the witness box to prove his case. On his behalf, his son as deposed before the trial Court. The son alleges himself to be the power of attorney holder of the landlord. A power of attorney holder could depose, only as regards, facts which were in his personal knowledge. He was competent to depose regarding the facts, which were in the exclusive knowledge of the landlord, his father and principal. 8. Referring to the affidavit of PW-1, Manish Kumar Agarwal, especially his cross- examination, it is submitted that, in any case, it emerges therefrom that the son and father were residing separately. 9. Moreover, the notice dated 14.11.2009, had been sent by the Advocate on behalf of the plaintiff-opposite party. Neither the plaintiff himself nor the counsel, who sent the notice appeared in the witness box to prove its contents. The suit therefore, could have been decreed. 10. Reliance has been placed by the revisionist upon the following decisions:- 1. Man Kaur (Dead) by LRs. v. Hartar Singh Sangha, (2010) 10 SCC 512 , especially paragraphs 14 and 18 thereof. 2. A.C. Narayanan v. State of Maharashtra and Another, (2015) 12 SCC 203 , especially paragraph 15. 3. Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. and Others, (2005) 2 SCC 217 , especially paragraphs 13, 15, 17, 18 and 21. 4. Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619 , especially paragraphs 18 and 19. 11. The second contention of counsel for the revisionist is that admittedly the rent was Rs. 5,000/- per annum. The Court below has committed patently illegality in awarding the damages @ Rs. 5000/- per month. It is additionally submitted that in any case, there was no evidence that the prevalent rate of rent in the locality was Rs. 5,000/- per month. 12. Counsel for the opposite party has submitted that the son of the plaintiff had deposed that his father was suffering from various ailment and was in a position to attend Court. Besides, he has specifically stated that he was residing with his father. He was therefore, the member of the family and it is necessary in such circumstances to state that the power of attorney holder was privy to the transactions. Besides, he has specifically stated that he was residing with his father. He was therefore, the member of the family and it is necessary in such circumstances to state that the power of attorney holder was privy to the transactions. He was also referred Section 3(g) (2) of the U.P. Act No. 13 of 1972 in this regard. 13. It is next contended that the question being raised by counsel for the revisionist is a question of mode of proof and an objection as to mode of proof is to be taken at the very first instance and at a later stage. In this regard, reliance has been placed upon 2008 (1) ARC 673 , Smt. Shanti Devi v. VIth Additional District Judge Agra and Another, especially paragraphs 10 and 11 thereof. 14. It is, therefore, sought to be contended that the issue of admissibility should have been raised before the trial Court itself and this issue cannot be raised for the first in revision. 15. As regards, the judgment cited by counsel for the revisionist, it has been submitted that the judgment in the case of Man Kaur is clearly distinguishable and in any case, the said judgment is applicable in the landlord tenant matters. 16. The judgment in the Janki Vashdeo Bhojwani (supra) is on different facts and therefore, applicable in the case at hand, while the judgment in A.C. Narayanan relates to financial transactions and therein, there was no power of attorney holder. 17. I have considered the submissions made by counsel for the parties and perused the record. 18. In so far as the question about the rate at which damages have been imposed, Counsel for the opposite party submits that he is prepared to concede on this point but the order of eviction in any case, is liable to be upheld. 19. In view of the statement made, this Court is confining itself only to the first issue raised by the counsel for the opposite party, namely, that a power of attorney holder cannot depose in place of the plaintiff and therefore, the impugned order is vitiated as the plaintiff never appeared in the witness box. 20. 19. In view of the statement made, this Court is confining itself only to the first issue raised by the counsel for the opposite party, namely, that a power of attorney holder cannot depose in place of the plaintiff and therefore, the impugned order is vitiated as the plaintiff never appeared in the witness box. 20. It is no doubt true that it has been held that the power of attorney holder cannot depose regarding facts, which are in the personal knowledge of his principal but, it needs to be examined whether the revision is liable to be allowed on this ground or whether the facts stated by the son of the tenant in his examination-in-chief and his cross-examination had in any way whittled down the case of the plaintiff in a suit for arrears of rent, eviction and damages or that his deposition relied upon, consisted of facts within his personal knowledge and only in the personal knowledge of his principal. 21. In the context of the case, it would be relevant to note that the landlord tenant relationship is in dispute. The tenant admits that the opposite party is a co-landlord along with his three brothers. The only issues, therefore, which required consideration before a suit for arrears of rent and eviction could be decreed were regarding service of notice and the factum of arrears of rent. 22. It would be relevant to reiterate that the defence of the revisionist tenant had been struck off. Therefore, in view of the law laid down by the Apex Court in Modula India, the cross examination of the plaintiff witnesses at the instance of the party, whose defence has been struck off, is limited to demonstrating that the plaintiff witnesses are speaking the truth as has been observed:- ...........though the defence of the tenant has been struck off. There is nothing in law to preclude him from demonstrating to the Court that the plaintiff witnesses are speaking the truth or that the evidence put forward by the plaintiff is sufficient to fulfil the terms of the statute. 23. Further, in paragraph 21 of the same judgment, it has also been observed:- "21. There is nothing in law to preclude him from demonstrating to the Court that the plaintiff witnesses are speaking the truth or that the evidence put forward by the plaintiff is sufficient to fulfil the terms of the statute. 23. Further, in paragraph 21 of the same judgment, it has also been observed:- "21. Secondly, there is force in the apprehension that if one permits cross examination of the plaintiffs witnesses by the defendant whose defence is struck off, procedural chaos may result unless great care is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiff's case, the defendant may attempt to put forward please of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross examination to its limits will be an easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Remendra Mohan Dutta, J. this is a matter to be sorted out is practical application rather than by laying down a hard and fast rule of exclusion." 24. Besides, counsel for the opposite party, has relied upon the case of Shanti Devi (supra), wherein the Court in paragraph 10 of the said judgment has observed as follows - "10. Admissibility and mode of proof are two different things. Objection regarding mode of proof shall be taken at the earliest otherwise it cannot be taken. The tenant did take any objection at the trial stage, hence he was entitled to take any such objection afterwards." 25. Further in paragraph 11 of the same judgment, the Court has quoted from a decision of the Supreme Court reported in 2006 (2) ARC 444 Taqdirunnisa and Another v. 1st Additional District Judge, Allahabad and Others and AIR 2003 SC 4548 : 2002 SCFBRC 280, R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple. "20. Further in paragraph 11 of the same judgment, the Court has quoted from a decision of the Supreme Court reported in 2006 (2) ARC 444 Taqdirunnisa and Another v. 1st Additional District Judge, Allahabad and Others and AIR 2003 SC 4548 : 2002 SCFBRC 280, R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple. "20. The learned counsel for the defendant respondent has relied on the Roman Catholic Mission v. State of Madras and Another, AIR 1966 SC 1457 in support of his contention that a document admissible in evidence, though brought on record, has to be excluded from consideration. We do have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and subsequently. The objection as to admissibility of documents in evidence may be classified in to two classes - (i) an objection that the document which is sought to be proved is itself in admissible in evidence and (ii) where the objection does dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or in sufficient. In the first case, merely because a document has been marked as 'an exhibit,' an objection as to its admissibility is excluded and is available to be raised even at a later stage or even in appear or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, it taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The later proposition is a rule of fair play. The crucial test is whether an objection, it taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is serious about the mode of proof. On the other hand a prompt objection does prejudice the party tendering the evidence, for two reason firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof there by removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessary for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court." 26. In view of what has been laid down in the portions quoted above, I find substance in the contention of counsel for the opposite party that an objection regarding the admissibility of the evidence tendered by PW-1, the son of the landlord, should have been raised before the trial Court, itself. This was done. Therefore, in my considered opinion, the revisionist cannot raise their objection at the revisional stage, despite the case law in his favour, lays down that a power of attorney holder cannot depose regarding facts within the personal knowledge of his principal. 27. Besides, the argument raised by counsel for the revisionist, has two facts. One, that the notice dated 14.11.2009 had been sent by a counsel on behalf of the plaintiff. 27. Besides, the argument raised by counsel for the revisionist, has two facts. One, that the notice dated 14.11.2009 had been sent by a counsel on behalf of the plaintiff. Since neither the plaintiff nor the counsel, who had sent a notice, deposed before the Court, the contents of the notice were not, proved. 28. The second contention is that in the written statement, it had been stated that the rent had been paid to the co-landlords. Therefore, this fact could have been established, if, the plaintiff himself had appeared for cross-examination. 29. Of the two submissions above, this Court is of the considered opinion that the second submission cannot be accepted because admittedly, the defence of the revisionist tenant stands struck off. By cross-examination a defendant, whose defence has been struck off can only cross-examine to establish the weakness or falsehood or incorrectness in the plaintiff's case. Such cross-examination can be permitted to establish a defence as has been laid down in the Modula India (supra), relevant portion whereof, has already been quoted herein- above. 30. In so far as the first submission is concerned, in my considered opinion, the notice and the contents thereof could be proved, also by the testimony of the plaintiff's son, because in his examination-in-chief on affidavit and in paragraph 10 thereof, it has been categorically stated that the notice was prepared and signed by the counsel in his presence. 31. Under the circumstances, therefore, this Court does not find that it was necessary for the plaintiff to have himself appeared and face cross-examination before the instant case could be decided in his favour. Nor can it be held that the plaint case was not established by the testimony of his son or that the sons' deposition consisted of facts not within his personal knowledge and within the personal knowledge of his father and principal. Moreover, this Court has serious reservations as to whether DW, was in fact, a power of attorney holder, as no written power of attorney was either pleaded or produced. His status, therefore, was nothing beyond that of a witness deposing in favour of the plaintiff. 32. The impugned order therefore, is not liable to be interfered with on the ground urged by counsel for the revisionist. 33. Accordingly, in view of the foregoing discussion, this revision is allowed in part. The order of eviction is affirmed. His status, therefore, was nothing beyond that of a witness deposing in favour of the plaintiff. 32. The impugned order therefore, is not liable to be interfered with on the ground urged by counsel for the revisionist. 33. Accordingly, in view of the foregoing discussion, this revision is allowed in part. The order of eviction is affirmed. However, the order impugned, as regards, the damages payable is modified and it is provided that the damages payable shall be calculated @ Rs. 5,000/- per annum, as conceded by counsel for the plaintiff-opposite party.