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Kiran Bahadur Singh Vs. Harikrishan Mathur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2080 of 1970
Judge
Reported inAIR1972All369
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1)
AppellantKiran Bahadur Singh
RespondentHarikrishan Mathur and ors.
Appellant AdvocateGopal Behari and ;S.N. Agarwal, Advs.
Respondent AdvocateK.C. Agarwal, Adv.
DispositionAppeal allowed
Excerpt:
.....a large number of questions of law in support of the appeal, but i think for the purpose of deciding this appeal i need not notice all the grounds urged in support of the appeal except the one on the question of the defendant tenant having failed to pay the arrears of rent demanded by the plaintiffs-landlords by a notice under section 3 (1) (a) of the u. ' 6. as if not being satisfied with the above condemnation of the lawyers and their character the learned judge added yet another condemnation: sri gopal behari was on strong ground when he submitted that the whole estimate of the learned judge of the lower appellate court had been coloured by the lopsided and exaggerated personal opinion which the learned judge has in regard to the lawyers and members of the legal profession. i..........tendered the arrears of rent to the karinda of the landlords who refused to accept the same. the learned judge of the lower appellate court preferred to rely on the evidence of deodutt, the karinda, and rejected the testimony of the defendant and his witness sri g. n. shiromani. the finding was reversed and it was held that no tender of any arrears of rent was made by the defendant tenant on 6-12-1966 to the karinda of the landlords at agra. this is a finding of fact binding in second appeal unless it were shown that it was vitiated by any error of law or procedure.5. sri gopal behari for the appellant contended that the above rindingwas vitiated and not binding in secondappeal inasmuch as it was arrived at noton the basis of a judicial scrutiny andassessment of the material on record.....
Judgment:

K.B. Asthana, J.

1. This is a defendant tenant's appeal from a decree of the appellate Court evicting him from a house in suit and awarding arrears of rent and damages in favour of the plaintiffs landlords. The trial Court dismissed the plaintiffs' suit but the lower appellate Court by reversing the trial Court decreed the suit.

2. Sri Gopal Behari, learned counsel appearing for the defendant appellant agitated a large number of questions of law in support of the appeal, but I think for the purpose of deciding this appeal I need not notice all the grounds urged in support of the appeal except the one on the question of the defendant tenant having failed to pay the arrears of rent demanded by the plaintiffs-landlords by a notice under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, as my answer to that question would be conclusive of the appeal.

3. Admittedly the plaintiff landlords who are real brothers inherited the house in dispute from their ancestors, and so did the defendant tenant inherited the tenancy from his predecessors, father and uncle. It is further admitted that beside the defendant tenant his brother is also living in the house in suit. On 15-11-1966 a composite notice signed by a lawyer on behalf of the plaintiffs landlords addressed to the defendant tenant was sent demanding the payment of arrears of rent within one month of the receipt thereof, terminating the tenancy and calling upon the tenant to vacate the house on the expiry of one month from the receipt thereof. This notice was served on the tenant on 17-11-1966. On 9-12-1966 a letter was sent by the tenant to the landlords informing them that the arrears of rent had been remitted by a money order on 7-12-1966 to one of the landlords on his Delhi address. In this letter the tenant admitted that he was the tenant of the landlords since the tine of the grandfather of the landlords This letter was received by the landlords on 15-12-1960 but they filed the suit giving rise to this appeal on the allegation that the tenant having defaulted in payment of the arrears of rent within one month of the service of notice and his tenancy having been terminated, he was liable to be evicted and pay arrears of rent and damages. It was alleged in the plaint that no money order was ever received by the landlords in payment of the arrears demanded. The suit was contested by the tenant on the pleas, inter alia, that the suit not having been brought by all the landlords was not maintainable, that the suit having been brought for eviction of only one of the en-tenants was defective and liable to he dismissed; that a money order dated 7-12-1966 was sent to one the landlords at his Delhi address after the tender of the amount to the Karinda of the landlords at Agra on 6-12-1966 had been refused; that in any case on 16-12-1966 the whole amount of arrears was paid to Smt. Manorani, one of the co-owners of the house in suit and thus the notice of demand of arrears was complied with and the suit was barred by Section 3 of the U. P (Temporary) Control of Rent and Eviction Act.

4. As already said above, I am not inclined to consider the arguments advanced on behalf of the appellant on the question of maintainability of the suit though there may be some tenability in those arguments since I have, on a consideration of the material on record and after hearing the able arguments of the learned counsel for the bar, come to the conclusion that the findings of the lower appellate Court on the question of compliance by the tenant with the notice of demand of arrears of rent are untenable and liable to be reversed. The first point which I considered was as to the correctness of the finding of fact recorded by the court below on the factum of the arrears of rent having been tendered to Dcodutt Gupta, the admitted Karinda of the landlords at Agra on 6-12-1966. Deodutt Gnpta was produced as a witness by the plaintiffs landlords. He stated that neither the tenant nor anybody on his behalf came and tendered to him the arrears of rent on 6-12-1966. The defendant tenant himself appeared as a witness and stated that on 6-12-1966 he had gone to the house of Karinda at Agra and tendered the arrears of rent to Deodutt but he declined to accept the same for the reason that notices had already been served upon the tenant by the landlords and advised that the tenant should deal with the landlords direct in the matter. Mr. G. N. Shiromani, an Advocate and colleague of the defendant tenant at the bar in Agra, also appeared as a witness and corroborated the statement of the defendant The learned Mun-sif believed this evidence adduced on behalf of the defendant tenant and discarded the testimony of Deodutt. A finding was recorded by the learned Munsif that on 6-12-1966 the defendant tenant tendered the arrears of rent to the Karinda of the landlords who refused to accept the same. The learned Judge of the lower appellate Court preferred to rely on the evidence of Deodutt, the Karinda, and rejected the testimony of the defendant and his witness Sri G. N. Shiromani. The finding was reversed and it was held that no tender of any arrears of rent was made by the defendant tenant on 6-12-1966 to the Karinda of the landlords at Agra. This is a finding of fact binding in second appeal unless it were shown that it was vitiated by any error of law or procedure.

5. Sri Gopal Behari for the appellant contended that the above rindingwas vitiated and not binding in secondappeal inasmuch as it was arrived at noton the basis of a judicial scrutiny andassessment of the material on record buton the basis of arbitrary, capricious andprejudicial approach adopted by the learned Judge, Sri H. C. Saxena, who allowedhis mind to be influenced by an unfortunate and wrong impression prevailing withhim as regards the lawyers and legal practitioners as a class. It so happened thatthe defendant tenant and the witness SriG. N. Shiromani are practising lawyers inthe courts at Agra. The submission wasthat the testimony of the defendant andof his witness has not been rejected onmerits hut on consideration entirely extraneous because they belonged to a class ofpersons against whom in the mind of thelearned Judge there appears to be greatprejudice. I have given my careful consideration to this submission of the learnedcounsel. I am constrained to observe thatSri H. C. Saxena, the learned Second Additional Civil Judge, Agra, who heard theappeal has betrayed a trend of mind, fortunately rarely found in our subordinatejudicial officers, which cannot be countenanced by any Judge of fact and law.Some of the observations made by thelearned Judge quoted below not onlyshowed that the learned Judge has a jaundiced view of lawyers' life and characterbut also showed that the learned Judgelost his balance of mind as he was dealingwith the case of a lawyer tenant. At oneplace in his judgment the learned Judgeobserved:

'When an Advocate is a party in a suit he can sometimes take more false pleas than an ordinary litigant can think of.'

Next the learned Judge observed:

'Similarly a friend who is in the same profession can also oblige his colleague by stating facts to suit his case.'

At yet another place the learned Judge observed:

'The ejectment from a house which is with a defendant for about fifty years on a comparatively nominal rent is certainly a thing for which even an Advocate defendant or his colleague in his profession can state a wrong fact to somehow avoid an ejectment.'

6. As if not being satisfied with the above condemnation of the lawyers and their character the learned Judge added yet another condemnation:

'After a suit for ejectment is filed, it is quite natural that the defendant should find ways and means to avoid ejectment decree and as such he can make pleas of oral tender of rent and try to get it proved also.'

7. One need not carefully scrutinise and consider the above observations to find out how the mind of the learned Judge was working. The thing speaks for itself. There is absolutely no justification for a Judge to bring into a judgment which is a solemn judicial document, his jaundiced impressions about a class of men of matters and then after generalising the same make use of them in assessing evidence on record. The defendant or his lawyer friend, if he can be called so were not on trial as to their character. The learned Judge of the court below who was the final court of fact, ought to have strictly applied himself to scrutiny and assessment of their evidence and after finding some thing intrinsic in their evidence pointing to falsehood or untruth then should have discarded them, more so when the trial Court before whom they appeared and who had studied their testimony had to act upon it. Sri Gopal Behari was on strong ground when he submitted that the whole estimate of the learned Judge of the lower appellate Court had been coloured by the lopsided and exaggerated personal opinion which the learned Judge has in regard to the lawyers and members of the legal profession. If at all I can give any credit to Sri Saxena for making these observations it is that at least he has been frank in his abuse to the lawyers. I have been also a member of this honourable profession and I do not share the experience which the learned Judge of the court below seems to have that a lawyer when-. ever he is involved in litigation will utter falsehood and his lawyer friends will coma to support him and will perjure themselves, Irrespective of the station in life of a witness and his profession, unless that is relevant for the enquiry, a court of law is under a duty to scrutinise his testimony given on oath on merits and not on prejudice. I have no hesitation in observing that Sri Saxena failed in his duty in applying his judicial mind to the evidence of the defendant and his witness.

8. The learned counsel for the plantiffs respondents did not justify the general observations made by tne learned Judge. He pointed out that the learned Judge did consider the evidence of the said two witnesses on merits and he .did not think it worthy of reliance on the probabilities. It was pointed out that Sri G. N. Shiromani was a relation of the defendant and in his cross-examination he had not been able to answer material questions asked. It was further submitted that the defendant himself being an interested person his evidence has been rightly rejected by the court below, he having not referred to the incident of 6-12-1966 in his letter to the landlord dated 9-12-1966. Had the learned Judge not preferred the discussion in his judgment on this question of fact by the observations mentioned above, I would have been inclined to agree with the submission of the learned counsel for the respondent that if a court of fact disbelieves a witness on a ground which can be said to be judicial merely because an appellate Court who is bound by finding of fact thinks that the grounds were insufficient will not interfere with the estimate, but here is a case where it is difficult to disentangle the prejudice from the reality or the subjectivity from the objectivity. Two cases of Calcutta High Court Jaggurnath Deb v. Mahomed Mokeen, (1872) 17 Suth WR 161 and J. P. Wise v. Musst. Rubba Khatoon, (1873) 19 Suth WR 299, furnish instances where a higher court bound by findings of fact held that a finding of fact by a lower appellate Court may be interfered with if the reasonings and the views upon which that finding is based are erroneous in law and it is an error of law to reject the evidence of certain class of persons merely because they belonged to that class and accept the evidence of another set of witnesses merely because they belonged to another particular class. Sri Saxena, the learned Judge of the lower appellate Court, in the instant case has rejected the evidence of the defendant and his witness substantially for the reason because they belonged to the legal profession.

9. On the probabilities, I think there is nothing inherently improbable in the version of the defendant and his witness. It is the admitted case of the parties that Deodutt was the Karinda of the landlords at Agra and used to realise the rent from the defendants. It was natural conduct on the part of the defendant to go to him and to tender the arrears of rent as soon as possible after the service of the notice of demand. There is nothing inherently wrong in the stand that the defendant who is a practicing lawyer went to meet the Karinda who as the evidence shows used to come and collect rent from the defendant. There is further nothing unnatural in the reply which the Karinda gave that the landlords having served the notice on the defendant the matter should be settled between the defendant and the landlords directly. No Karinda would have been prepared to take the responsibility upon himself hi such circumstances. Sri Shiromani, the witness for the defendant testified to the fact that the episode took place before him and he stated the facts which he remembered. Nothing is shown from the cross-examination of Sri Shiromani that he had no business to be present at the spot. Shiromani would be a natural witness. Simply because Shiromani was not able to give satisfactory answer to some questions of detail as to what was the exact time when the tender was made, what was the exact spot where the tender was made, will not make him an untruthful witness. The fact that the two witnesses were related to each other, though not directly, should not detract from the credibility of Shiromani. Much was tried to be made out on behalf of the respondent that had the story of tender of the arrears to Deodutt been true, it must have found mention in the letter of the defendant dated 9-12-1966 addressed to tha landlords. This circumstance seems to have influenced the learned Judge of the court below. By itself this circumstance is not so strong as to overshadow the testimony itself, but at the same time it cannot be said to be irrelevant. How the mind of the learned Judge of the Court below would have worked had he not suffered from prejudice against the lawyer witnesses, it is difficult to predicate. Whether a circumstance not so weighty by itself would have influenced his mind to reverse the estimate of the trial Court when considered with a normal bent of mind, is again a matter on which it is difficult to form an opinion. Sri Gopal Behari tried to explain away this circumstance by suggesting that the non-acceptance by the Karinda in the circumstances would have appeared so natural and normal that it would not have been regarded by defendant as of such importance so as to be intimated to the landlords. However, since the learned Judge of the lower appellate Court completely went off the tangent in assessing and estimating the evidence, I am unable to affirm his finding. But at the same time I think it necessary that I should record a finding of my own and I would prefer to act on the findings recorded by the trial Court on this question of fact.

10. The next point which was urged in connection with the question of compliance with the notice of demand of arrears of rent was that the defendant having paid the arrears of rent to Smt. Mano-rani, one of the co-owners, on 16-12-1966, complied with the notice under Section 3 (1) (a) of the Rent Act and the suit of the plaintiff was liable to be dismissed. The trial Court recorded a finding in favour of the defendant on this question But tha lower appellate Court on a very specious reasoning held that payment to Smt. Manorani by the defendant was not a payment to the landlord. The learned Judge-of the court below reasoned that since the defendant in reply to the notice of the landlords stated that the persons on whose behalf the notice was sent were the landlords and he was their tenant he could not, in law, claim that Smt. Manorani was also the landlady as she was not one of those persons on whose behalf the notice of demand was sent. This reason does not appeal to me. Firstly, the learned Judge of the court below took a very pedantic view of the words used in the reply of the defendant dated 9-12-1966, paper 58-C oa record. I do not find any thing in that reply which would estop the defendant from claiming that besides the four brothers there are other co-owners of the house in suit. It is the admitted case of the plaintiffs themselves that Smt. Manorani is one of the persons who had inherited the house as an heir. She is a co-owner -- She is the daughter of the sister of the four plaintiffs. The house has been inherited by them from their ancestors. All o them would be tenants-in-common being co-owners. In law Smt. Manoraui would be a co-owner. Therefore, any rent paid to her by the tenant of the house in suit of which she is the co-owner would be a legal discharge of the liability of the tenant. See Hiralal Neksi v. Agarchand Gorelal, AIR 1957 Madh Pra 5. It is proved that more than the amount of the arrears due was paid to Smt. Manorani on 16-12-1966 by the defendant tenant. To that effect there is a concurrent finding. There is no doubt in my mind that the notice of demand for arrears of rent under Section 3 of the Act was complied with by the defendant tenant and he was entitled to the protection of Section 3 of the said Act.

11. The third point raised wasthat a presumption should be drawn underSection 114 of the Indian Evidence Actthat the money order sent by the defendanttenant on 7-12-1966 would have beentendered by the postman to the landlordwithin three or four days and thereby thedefendant would be deemed tohave performed his part of the liability of tendering the rentwithin one month of the receipt of thenotice. Reliance was placed on two decisions, of this Court in the case of Smt.Parmeshwari Devi v. Abrar Husain, AIR1971 All 22 and Abdul Baqi v. AklaqAhmad, 1962 All LJ 1146. Since I haveheld above that payment of arrears of rentto Smt. Manorani, one of the co-owners,within one month of the receipt of thenotice of demand, was in compliance withthe notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, I need not consider this point, it not being necessary.

12. The result is that this appeal is allowed, the judgment and decree of the court below is set aside and that of the court of first instance is restored with costs throughout.


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