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Kastruchand Vs. Qazi Syed Saifuddin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond appeal No. 406 of 1979
Judge
Reported inAIR1983Bom360
ActsCode of Civil Procedure (CPC), 1908 - Sections 13 (3) and 100
AppellantKastruchand
RespondentQazi Syed Saifuddin
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateK. High. Deshpande, Adv.
Excerpt:
.....debated on the question as to proper construction of rent receipt - the court ruled the concurrent finding of the lower court on question of fact was binding on the high court.;b) the court ruled that the finding in order of remand though was entitled to some weight was not conclusive between parties.;c) in the instant case where the tenant was in arrears of rent, the landlord sought permission to determine the lease and there was a compromise in between the parties - the court ruled that even in the event of the dishonors of one of the cheques, the landlord would be deemed to have been granted permission under clause 13 (3) (i) of the c. p. and berar letting of houses and rent control order, 1949. - - 400/- to the plaintiff in the first week of october 1973. 10. after remand,..........on occupation of these premises on monthly rent of rs. 200/-. the plaintiff approached the rent controller for permission to determine the tenancy of the defendants. before the rent controller, the parties came to terms on the point of default in payment of rent for the period nov. 1972 to may 1973, and in terms of the compromise arrived at, the rent controller passed the following order.'i, therefore, order that whereas the non-applicant issued two cheques for arrears of rent from 1-11-1972 to 31-5-1973 and if they are dishonored, applicant-landlord shall be deemed to have been granted a permission under clause 13 (3) ibid'.3. admittedly, in pursuance of the terms of the compromise order. the defendants issued one cheque for rupees 1,000/- dated 23-9-1973 and the other for rs......
Judgment:

1. This is plaintiff's second appeal, both the Courts below having dismissed his claim for ejectment and possession.

2. Admitted facts are that the defendants was the monthly tenant of the plaintiff on occupation of these premises on monthly rent of Rs. 200/-. The plaintiff approached the Rent Controller for permission to determine the tenancy of the defendants. Before the Rent Controller, the parties came to terms on the point of default in payment of rent for the period Nov. 1972 to May 1973, and in terms of the compromise arrived at, the Rent Controller passed the following order.

'I, therefore, order that whereas the non-applicant issued two cheques for arrears of rent from 1-11-1972 to 31-5-1973 and if they are dishonored, applicant-landlord shall be deemed to have been granted a permission under Clause 13 (3) ibid'.

3. Admittedly, in pursuance of the terms of the compromise order. the defendants issued one cheque for Rupees 1,000/- dated 23-9-1973 and the other for Rs. 400/- dated 15-10-1973. The first cheque dated 23-9-1973 for Rs. 1,000/- was honoured. while the other cheque dated 15-10-1973 for rupees 400/- was dishonored. This second cheque for Rs. 400/-, which was dishonured, was for the arrears of rent of two months, viz., April and May 1973.

4. The plaintiff determined the tenancy of the defendants by a quite-notice dated 9-11-1974 on the assumption that consequent upon one of the cheques being dishonored, permission was deemed to have been granted to him by the Rent Controller. He therefore, claimed ejectment, possession and arrears of rent of Rs. 400/- for the months of April and May. 1973. and Rs. 400/- for the months of February and March 1974, total Rupees 800/-.

5. The defence was that it was in the event of both the cheques being dishonored that permission could he deemed to have been granted. Since the first cheque was duly honoured, the plaintiff had no right to determine the tenancy. In reply to the claim for arrears of rent, the plea was that Rupees 150/- were allowed for essential repairs every year. On 13-10-1973. Rupees 200/- were paid to Shrimal. the authorised agent of the plaintiff, and in the month of November 1973, Shrimal passed a receipt in token of having received rent for the months of November and December 1973 and January 1974. It was further contended that Rupees 750/-. which were lying in deposit with the plaintiff, could have been adjusted.

6. The trial Court construed the order of the Rent Controller to mean that it was only in the event of both the cheques being dishonored that permission was deemed to have been granted and since the first cheque was honoured, the tenancy of the defendants could not be determined. The claim for arrears of rent of Rs. 800/- was. however, fully decreed.

7. Aggrieved by this decision, both the plaintiff and the defendants preferred separate appeals. Plaintiff's appeal No. 136 of 1978 was dismissed and so also defendant's appeal No. 206 of 1978.

8. Though the defendants did not prefer any further appeal so far as the decree for money passed against him was concerned, the plaintiff however, preferred this second appeal against the dismissal of the claim for ejectment by both the Court below.

9. This appeal was partly heard by Tulpule, J., and by his order dated 2-4-1981 which he passed under Court. 41, r. 25, C. P. C., he directed the trial Court to record a finding as to whether the defendants proved the payment of Rs. 400/- on 15-10-1973 to plaintiff Golcha, giving liberty to the parties to lead any additional evidence on the question as they chose to adduce. The trial Court was directed to remit its finding to the lower Appellant Court which was also directs to record its own finding and then transmit the same together with the record of this Court for further hearing of this appeal. Shri Tulpule in para-13 of his remand order, however, observed that the order of the Rent Controller. in fact, meant that non-realisation of payment of any of the cheques amounts to grant of permission by the Rent Controller to the plaintiff. Now, having held so, with the concurrent finding of fact of both the Court below that the defendants did not pay Rs. 400/- on or before 15-10-1973 and the claim for the same as rent for the months of April and May 1973 having been decree by both the Courts below in favour of the plaintiff, there should have been no difficult for Tulpule. J, to allow the second appeal and decree the claim for ejectment. It was, however, observed by hi that the matter could not be disposed of on the finding that bouncing of any one of the two cheques was enough to enable the plaintiff to determine the tenancy as it was the contention of the defendants that he had paid a sum of Rs. 400/- to the plaintiff in the first week of October 1973.

10. After remand, both the Courts below reiterated the same finding that defendants failed to prove that he paid Rs. 400/- to the plaintiff in the first week of October 1973 as contended.

11. This finding is sought to be challenged before me when the appeal came up for further hearing, by Shri K. High. Deshpande. the learned counsel appearing on behalf of the respondent-defendant. It is submitted that the receipt (EX. 33) executed by Shrimal, the manager of the plaintiff. in the month of November 1973 for Rs. 1,000/- for rent for the months of September 1973 of January 1974, has not been properly construed and understood by the Courts below. As this receipt shows no arrears in the printed column of arrears,. it must follow that the arrears for the months of April and May 1973 were paid and were not outstanding. Now. even assuming such an inference of interpretation is permissible, it cannot necessarily follow that the arrears for the months of April and May 1973 were paid prior to 15-10-1973, which was the stipulated date of the cheque. Be that as it may the question whether the defendants proved that he did not pay Rupees 400/- on or before 15-10-1973 is purely a question of fact and no amount of skill or ingenuity can even turn this into a question of law. Merely because in the process of deciding this issue of fact, one of pieces of evidence is this document and the construction and the contents thereof, the main issue does not become an issue of law. The omission to mention arrears in the printed column of the receipt would not necessarily amount to an admission of fact that rent for the months of April and May 1973 were paid, and that the said payment was made before 15-10-1973. In the nature of things,. it is highly importable that the defendant would not take any receipt. particularly for the payment of rent of these two months, when the non-payment of the same was to expose him to such a serious consequence of eviction. Apart from this document, the prevarication in the stand of the defendants is apparent. The defendants in his evidence before remand deposed that the plaintiff told him on 4-7-1978 that this cheque was misplaced and, hence, he paid him Rupees 400/- in the first week of October 1973. After remand, he deposed that he paid Rs. 250/- and that Rs. 250/- were deduced on account of repairs. I need not drag myself to evaluate the entire evidence on record on the point. In instant case, because of the remand, we have fortunately a pronouncement of a concurrent finding of fact on four occasion by the two Courts below. It is also pertinent to note in this context that there exists a final finding between the parties that the rent for the said two months is not paid by the defendants and the defendants is suffering a decree for money no that count. Having regard to the Legislative changes and the wording of S. 100, C. P. C. suffice it to say that the issue raised and argued is not a question of law, much less a substantial question of law. The concurrent finding repeated twice over by the two Courts below, I take, is binding and hold that the defendants did not pay the rent of the two months for which the cheque dated 15-10-1973 was issued, which admittedly bounced and was dishonored.

12. I would, therefore, proceed to consider the other submission with the proved and accepted position that the defendants failed to prove that he paid Rs. 400/- to the plaintiff on or before 15-10-1973.

13. Shri. J. N. Chandurkar, the learned counsel for the appellant, submitted that with the finding already pronounced by Tulpule. J. in the remand order that the order of the Rent Controller, in fact. meant granting of permission on default of any of two payments under the two cheques, nothing now survives for consideration and the appeal must be allowed and the claim for ejectment be decreed.

14. Shri. K. High. Deshpande, the learned counsel for respondent, relying upon Gopinath Shukul v. Sat Narain Shukul AIR 1923 All 384. Upendra Lal v. Jogesh Chandra ( : AIR1928Cal186 ) and Gogula Gurnumurthy v. Kurimeti Ayyappa : [1974]3SCR595 , submitted that an order of remand under Court. 41, R. 25, C. P. C., in fact, decides nothing and the finding to Tulpule. J., while remanding the case is not conclusive between the parties and it can be reopened at the time of final determination of this appeal.

15. The position of law, to my mind, is abundantly clear. The finding of Tulpule, J. recorded in the remand order, under Court. 41, R. 25, C. P. C., though entitled to some weight, is certainly neither final between the parties nor binding on me.

16. This, therefore, brings me to the true interpretation and meaning of the order of the Rent Controller passed in terms of the compromise. The compromise petition filed before the Rent Controller is not before us. What is before us is the order of the Rent Controller which there is reason to believe, was passed on the basic of the terms of the compromise between the parties.

17. It is pointed out by Shri. J. N. Chandurkar, the learned Counsel for the appellant, that in the plaint para 2. this is what was a alleged:

'It was a condition of the compromise that if any of the cheques was dishonored by the bank on the due date permission to determine the tenancy of the defendants would be deemed to have been granted'.

18. In the written-statement, the defendants, it is pointed out, replied there allegations in this way:

'It is admitted that in case any of the cheque was dishonored on due date. this tenancy of the defendants would be deemed to have been determined and the permission of the Rent Controller accordingly granted'.

19. I wonder, why the trial Court framed issue No. 3 in the teeth of such a state of pleading. It is submitted on behalf of the respondent that the admitted position is about what was agreed between the parties before the Rent Controller and not about the interpretation and construction of the final order that was passed by the Rent Controller. Now. if it was agreed that any default was to enable the landlord to determine the tenancy and if the final order passed by the Rent Controller is also capable Court such an interpretation, there is no reason why such an interpretation should not be put, calling in aid the intention of the parties and the fact that the Court purported to pass that order in pursuance of the agreement between the parties. In this context and also under the circumstance of the case. As such the expression '..................if they are dishonored' must be construed not as meaning '........if both are dishonored' but 'if any is dishonored'. With respect, I agree with the observations of Tulpule J. and set aside the finding of High two Court below.

20. The defendants, therefore, having not paid the amount of the second cheque. permission must be deemed to have been granted to the plaintiff and the claim for ejectment should have been decreed.

21. In the result, the second appeal is allowed with costs though out. The order of dismissal of the claim of the plaintiff for ejectment is hereby set aside and his claim for possession is hereby decreed.

22. Appeal allowed.


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